Mokhtar Sidin JCA:

In the present appeal the defendant/appellant appointed the plaintiff/respondent to act for him as his solicitors on a sale and purchase transaction of a piece of land belonging to the appellant. The land was sold to Julung Perdana Sdn. Bhd. and a sale and purchase agreement dated 16 September 1994 was entered between the appellant and the above-mentioned company. The consideration was RM20 million of which RM1 million was payable upon execution of the agreement. Of the balance, RM3 million was to be paid within two months of the purchaser obtaining the necessary FIC approval and the balance RM16 million to be deposited with the purchaser's solicitors as stakeholders at the expiry of 36 months from the date of FIC approval to be released in accordance with the terms of the agreement.

Pursuant to that agreement, RM1 million was released to the appellant on 18 September 1994. The purchaser also agreed to release on 22 September 1994 a sum of RM90,000 as an advance and part payment of the balance purchase price. According to the affidavit of the respondent on/or about 22 September 1994 a meeting between the appellant and Mr. C. Vijaya Kumar from the respondent's firm took place where the appellant gave instruction to Mr. Kumar to deduct the sum of RM700,000 from the balance deposit sum to be paid to the former partner of the firm. On 8 August 1995 the balance of the deposit payable which was in the sum of RM2,918,769.86 was paid to the respondent to be held by the respondent as stakeholder for the appellant. Acting on the instructions given to Mr. Kumar, the respondent forwarded to the appellant a Bank of Tokyo cheque No. 388044 in the sum of RM2,152,304.86, being the balance due to the appellant after setting-off the firm's professional fees in the sum of RM66,465 and the aforesaid sum of RM700,000. By a letter dated 25 August 1995 the appellant refused to accept the cheque and requested the respondent to forward a cheque for the balance less only the firm's professional fees in the sum of RM66,465.

As a result of that the respondent wrote to the appellant stating that the RM700,000 was to be placed in a fixed deposit pending the decision of the court in respect of that sum. Apparently, the appellant agreed to this arrangement and on 30 August 1995 the RM700,000 was placed in a fixed deposit. The appellant then accepted the cheque for the balance which was given earlier.

The respondent then took up an originating summons seeking the following relief:

(a) a declaration that the respondents are entitled to act upon the instructions given to them by the appellant on/or about 22 September 1994 to deduct the sum of RM2,918,769.86 received by respondents as solicitors for the appellant on 8 August 1995; and

(b) a declaration that the respondents are at liberty to disburse the said sum of RM700,000 in accordance with the said instructions given by the appellant on or about 22 September 1994.

The appellant in his affidavit in reply admitted that the solicitors dealing with the sale of the property was the former partner of the respondent before he was elevated to the Court of Appeal. The appellant admitted that he had dealings with the former partner for a long long time. However, in the affidavit, the appellant denied having met Mr. Kumar and that he had given any instruction to the said Mr. Kumar. The appellant admitted that a meeting did take place between him and the former partner of the respondent but that Mr. Kumar was not in attendance at the meeting. The appellant further stated in the affidavit that he did not agree to pay the sum of RM700,000. The appellant further stated that, that was the reason why he refused to accept the cheque since the amount in the cheque did not include the sum of RM700,000.

The learned judge allowed the reliefs sought by the respondent as stated above. We agree with the learned judge that in the present appeal there is only one issue to be determined, that is wheth