ALASAN PENGHAKIMAN

1. This is an application by the Appellant under Order 26A Subordinate Rules for summary judgement against the Respondent for the sum of RM18,757.42 together with the interest at 8% on RM18,757.42 from 16.2.2000 until full settlement by the Respondent. The Respondent is a developer with its registered office and place of business at LG-30, Lower Ground Floor, Dynasty Shoppers Alley, Dynasty Hotel, 218 Jalan Ipoh, 51200 Kuala Lumpur. The Respondent decided to develop a piece of land held under Hakmilik No. 10027, Lot 41557, Mukim Batu, District of Kuala Lumpur and Wilayah Persekutuan (the "said land") into a housing development known as 'Hartamas Height" which consists of bungalow lots. The registered owner for the said and is Pesona Permai Sdn. Bhd. (the "registered owner"). On 6.10.1999, the Appellant has signed a booking pro forma (hereinafter referred to as "Booking Pro Forma") to make an offer to the Respondent for one bungalow lot known as Plot No. 35 with an area measuring approximately 7.751 square feet (hereinafter referred to as "the said Unit") for the purchase price of RM937,871.00 ("the purchase price"). The Appellant has paid to the Respondent a booking fee amounting to RM18,757.42 (see page 21 of the Appeal Record (AR)). The terms stated in the Booking Pro Forma, inter alia , as follows:-

(a) that the Appellant is required to pay to the Respondent a sum of RM75,029.68 being the balance 10% of the purchase price within 14 days from the 16.10.1999 and execute the sale and purchase agreement with the Respondent or the Registered Owner;

(b) the balance purchase price shall be paid progressively as stipulated in the sale and purchase agreement to be executed by the Appellant and Respondent.

(see page 23 of AR).

It is observed that the Respondent or the Respondent's agents thereafter forwarded a copy of the draft sale and purchase agreement which was prepared by the Respondent's solicitors for the Appellant's perusal and execution. The terms and conditions in the draft sale and purchase agreement, inter alia , as follows:-

(a) that the Appellant and the Respondent are the only parties in the sale and purchase agreement;

(b) that Pesona Permai Sdn. Bhd. is the registered owner for the said Land;

(c) that the registered owner has given their consent to the Respondent to enter the sale and purchase agreement with the Appellant;

(d) that the Respondent, on its own cost and expense applied to the appropriate authorities for the sub- division of the said Land into land plots for bungalows and to obtain the layout approval of the appropriate authorities;

(e) that the Respondent, shall at its own cost and expense obtain the issue of a separate document of title to the said Unit;

(f) that upon the issuance of the issue separate document of title to the said Unit, the Respondent shall as soon as practicable thereafter upon receipt of the separate issue document of title to the said unit execute a valid memorandum of transfer of the said Unit in favour of the Appellant.

(See page 28 of AR).

It is seen that the registered owner of the land was not made a party to the sale and purchase agreement. The Appellant is not agreeable to the draft sale and purchase agreement, as the registered owner of the Land is not a party to the sale and purchase agreement. The Appellant through his solicitors has informed the Respondent that the Appellant is not agreeable to the draft sale and purchase agreement and have requested the Respondent for explanation of the Respondent's legal capacity to sell the said unit without putting in the registered owner as a party to the sale and purchase agreement. (See page 72 of AR). The Appellant has requested the Respondent to amend the draft sale and purchase agreement by making the registered owner of the said Land as a party to the sale and purchase agreement. The Appellant has informed the Respondent that at all material time, the Appellant is ready and willing to sign the sale and purchase agreeme