JUDGMENT

Lord Mackay:

This is an appeal from a JUDGMENT of the Federal Court of Malaysia (Salleh Abas CJ Malaya, Abdul Hamid FJ and Syed Agil Barakbah FJ) dated 20 January 1984 allowing in part, an appeal from an order of the High Court of Malaya at Ipoh (E.E. Sim JC) dated 22 March 1983 which is brought pursuant to special leave recommended by the Judicial Committee on 24 May 1984 and granted by His Majesty the Yang di-Pertuan Agong on 4 December 1984.

The respondents are the executors and trustees of the estate of Mahalingam Ratnavale deceased ("Mr. Ratnavale").

There are concurrent findings by the Judicial Commissioner and the Federal Court that on 20 December 1966, the plaintiff company ("Manilal") paid the sum of RM29,500 to Mr. Ratnavale; that on 21 March 1967, Manilal paid a further sum of RM250,000 to Mr. Ratnavale; and that on 20 June 1968, Mr. Ratnavale repaid a sum of RM50,000 to Manilal. The claim now being pursued by Manilal is for payment of the difference between the total of the sums paid by Manilal to Mr. Ratnavale and the amount repaid by him.

The action was begun by a writ issued on 30 July 1974. When the writ was issued the plaintiff was J.N. Patel who was at that time Managing Director of Manilal but who has since parted company from Manilal as a result of personal disagreements. On 7 December 1974 an application was made to substitute Manilal for J.N. Patel as plaintiff in the action. At this time no question of limitation had been raised in defence and the application to allow the action to proceed with Manilal as plaintiff was granted. The statement of claim was delivered on 20 June 1975 and the action came on for trial before the Judicial Commissioner on 18 September 1981 when evidence was led from R.D. Patel, the present Managing Director of Manilal. On 9 December 1981, for the first time, the question of limitation arose on an application by Mr. Ratnavale's executors to strike out the plaintiff's pleadings. That application was refused but leave was given to amend the writ and statement of claim and also to amend the defence. Manilal's amendments appear to have been made on 16 December 1981 and those of Mr. Ratnavale's executors on 1st June 1982. The case came on for hearing again on 23 June 1982. On 24 June 1982 the evidence of Mr. R.D. Patel was resumed. After further adjournment the trial was eventually concluded on 5 August 1982 and judgment given by the Judicial Commissioner on 22 March 1983.

After holding that the sum of RM29,500 and the sum of RM250,000 were both received by Mr. Ratnavale, the learned Judicial Commissioner went on to hold that Manilal had established that the difference between the total of these sums and the amount repaid by Mr. Ratnavale of RM229,500 was paid to Mr. Ratnavale on the security of a lien and equitable charge in respect of lots 290 and 461, Mukim of Kulim, Kedah, the equitable charge being based on the common intention of Manilal and Mr. Ratnavale to have the said two lots charged to Manilal as temporary security pending sale of certain property including these lots, referred to as the Meera Estate property and division of the sale proceeds. He went on to hold that when the sale of Meera Estate, and the realisation of the proceeds of sale, was not wholly effected, Manilal pressed for the return of the sums of money put into the joint venture, which had been established between Manilal and Mr. Ratnavale, for the purchase and sale of the Meera Estate and further that on or about 20 June 1968 when repaying the sum of RM50,000 Mr. Ratnavale agreed in return for an extension of time to repay the balance of RM229,500 with interest. This extension of time was for a period of six months to 20 December 1968. The Judicial Commissioner held that the lien and charge to which he referred were based on the deposit of title deeds with the solicitors who were acting both for Manilal and Mr. Ratnavale for the purpose of preparing a formal charge.

It follows from these findings that the