Abdul Malek Ahmad FCJ:

The respondent is the registered proprietor of land held under Lot No. 8761, CT 25148, Mukim Kajang in Selangor. The appellant entered into a sale and purchase agreement dated 11 October 1989 with the respondent to purchase it at the agreed price of RM550,000. At the time of execution of the agreement, the appellant had paid the respondent RM50,000 and by cl. 3(a) thereof, the appellant was to pay the balance of RM500,000 on or before 9 January 1990.

It is appropriate to reproduce cl. 3(a) of the agreement at this juncture:

3(a) Completion of the sale and purchase hereunder of the said property shall take place within a period of Ninety (90) days from the date of this Agreement (hereinafter referred to as "the Completion Date"). Provided always and it is hereby agreed by and between the parties hereto that the Vendor shall grant to the Purchasers an extension of a further thirty (30) days in respect of the Completion Date but upon payment of interest on the outstanding balance of the purchase price at the rate of eight point five per centum (8.5%) per annum calculated on a daily basis during the period of extension.

By letter dated 2 January 1990, the solicitors for the appellant's financier informed the solicitors for the respondent that they were agreeable to release the balance of the purchase price to the solicitors for the respondent upon receipt of the issue document of title and certain undertakings from them. These terms were repeated in a subsequent letter from the solicitors for the appellant's financier dated 10 January 1990.

The solicitors for the appellant, also by letter dated 10 January 1990, informed the solicitors for the respondent that the appellant had complied with cl. 3(a) of the agreement and were not liable to payment of interest under cl. 3(a) thereof. On that same date, the solicitors for the respondent had informed the appellant that the respondent was terminating the agreement with immediate effect and promised to refund the deposit paid by the appellant.

The solicitors for the appellant informed the solicitors for the respondent by letters dated 12 January 1990 and 2 February 1990 that the appellant did not accept the respondent's unfair termination made unilaterally and reiterated that the appellant was ready, able and willing to complete the transaction. Accordingly, the appellant filed an action against the respondent asking for specific relief, and alternatively, for damages.

The appellant's application for summary judgment under O. 81 of the Rules of the High Court 1980 (hereinafter "the RHC") was dismissed by the High Court which held that there were issues of law and fact to be tried.

The appellant then filed a summons in chambers for an order that the following issues be heard pursuant to O. 33 r. 2 of the RHC namely:

(a) whether cl. 3(a) of the agreement dated 11th October 1989 entered into between the plaintiff as purchaser and defendant as vendor relating to that piece of land held under C.T. 25148 Lot No. 8761 Mukim Kajang, Daerah Ulu Selangor Darul Ehsan, entitles the plaintiff to an automatic extension of 30 days for completion upon payment of interest of 8.5% per annum calculated on a day to day basis during the extension period;

(b) other related issues including whether the said agreement of sale and purchase was validly terminated.

The learned High Court Judge held that the extension of time under cl. 3(a) of the agreement was not automatic but subject to the payment of interest and the appellant had failed to pay the balance of the purchase price on 9 January 1990. It was also clear, she said, that under cl. 14 of the agreement, time was of an essence and it was crucial for the balance of the purchase price to be paid on or before 9 January 1990 should the extension of time is not obtained.

She added that there was no evidence that the appellant had applied for the extension of time when they could not pay the balance of the purchase price. She als