Mokhtar Sidin JCA (majority):

[1] On 15 September 1996, the appellant and the respondents executed a Sale and Purchase Agreement (S&P) whereby the respondents agreed to purchase and the appellant agreed to sell a piece of property known as PlotNo: 2-188, Bukit Mahkota, Phase 2, Mukim Beranang, Selangor Darul Ehsan in the sum of RM281,445. The respondents have paid RM217,011.50 equivalent to 80% of the purchase price based on the certificates issued by the architect. To finance the balance of the purchase price the respondents obtained a loan from Malaysia Building Society Berhad (MBSB) in the sum of RM64,400. Out of this sum MBSB paid RM8,111 to the appellant.

[2] Under the terms of the S&P the appellant should deliver vacant possession of the said property to the respondents within 30 months from the date of signing the agreement. Vacant possession of the said property should be delivered by the appellant to the respondents on or before 15 March 1999. Though the respondents stated that vacant possession should be delivered on or before 15 June 1999, it was not disputed that the date of delivery of vacant possession should be 15 March 1999. It was also not disputed that there was a delay in delivering vacant possession of the property. As a result of the delay the respondents terminated the S&P on 30 June 2001. It was also not disputed that the total number of days of the delay was 837 days. With the termination of the S&P the respondents solicitors demanded the return of the total amount paid by them. When the appellant failed to return the amount paid, the respondents filed an originating summons dated 16 October 2001 seeking, inter alia, the following:-

(a) a declaration that the appellant have breached the terms of the S&P and the respondents were entitled to terminate the contract on 30 June 2001 or whichever date the court deems fit.

(b) the respondents are entitled to recover the sum of RM217,011 paid to the appellant being part payment of the purchase price already paid by the respondents;

(c) the appellant is to refund the sum of RM8,111 paid by MBSB to the appellant on behalf of the respondents and interest imposed by MBSB in respect of the loan given to the respondents;

(d) damages for late delivery of vacant possession from 15 March 1999 to the date of termination to be assessed as stipulated in the S&P;

(e) further damages and/or aggravated damages; and

(f) costs and interest thereon;

[3] It is not disputed that the date of delivery of vacant possession was 15 March 1999 and not as stated in the OS. and the affidavit in support of the application. In its affidavit in reply the appellant stated that though there was a delay in delivering vacant possession the respondents have no right to terminate the S&P and/or bring a claim against the appellant. The appellant also stated it was at all times ready, able and willing to fulfill its obligations under the S&P and any delay in delivering vacant possession was caused by circumstances beyond the appellants control. For that reason, the appellant was not liable to the respondents in any manner whatsoever

[4] The appellants affidavit further stated that the delay was beyond the appellants control in that:-

1. The appellant had appointed Maxis Broadband Sdn Bhd (formerly known as Bina Sat-Com Network Sdn Bhd, hereinafter referred to as "the telephone contractor") Vide an agreement dated 27 August 1997 to carry out works to install the telephone services on the said property.

2. However, the telephone contractor failed to perform the works to install the telephone services on the said property within the agreed time frame.

3. The appellant, through its solicitors, Tetuan Azam Malek & Soh had written a letter to the telephone contractor on 7 May 1998 regarding this matter (The correspondences in respect of this were exhibited in the affidavit).

[5] In the court below the appellant claimed that the telephone contractor had breached the contract when the contractor failed to perform