A party may be entitled to specific performance of a contract despite late payment when equitable considerations justify such relief.

(Datuk Mohd. Saari Yusoff H)

1. In the statement of claim, the plaintiff prays for the following:

(a) specific performance of the said Agreement;

(b) all necessary and consequential accounts, directions and inquiries;

(c) damages for breach of contract;

(d) further and other relief; and

(e) costs.

Issue

2. Issues for determination are whether:

i) the plaintiff was in breach of contract;

ii) relief against forfeiture of an interest in land should be granted to the plaintiff.

[2]

Plaintiff's case

3. Under Sale & Purchase Agreement dated 10 Nov. 1976 (hereinafter referred to as 'the agreement'), the plaintiff agreed to purchase and the defendant agreed to sell land held under H.S. (M) 262 P.T. .No. 7803 Mukim Sungai Buloh District of Kuala Lumpur in the State of Selangor (hereinafter referred to as 'the said land') together with a double storey link house to be erected thereon.

4. The purchase of the said land and house was financed partly from the plaintiffs saving and partly from the Government housing loan. In instant case, the plaintiff had started making progressive payments to the defendant even before the housing loan was approved and released by the Government. It is noted that progressive payments must be made in accordance with the schedule of payments as stipulated in the agreement.

5. On 10 January 1977 in a written statement (p. 28 of bundle ?B?) the defendant gave undertaking to the Government whereby the defendant agreed inter alia to do the following:

(i) once the cost of the land of $12,000/- is paid, the defendant would transfer the title to the plaintiff to enable her to charge it to the Government;

(ii) that M/s.Chung & Huang (the Defendant's then Solicitors) undertake to transfer the title to the plaintiff and charge the same to the said Government.

[3]

6. Up to 9 May 1977, the plaintiff had paid RM 23,500/- in the form of progressive payments. Later, after housing loan was approved by the Government, RM 21,600/- was released to the plaintiff on 21 May 1977. But the said sum was not paid to the defendant. Pausing here, the complaint of the defendant was that the money should have been paid to the defendant.

7. In summary, the following payments were made to the defendant:

cost of the said land and building RM 59,500/-

payment by plaintiff RM 30,900/-

payment by Government (as evidenced by documents p. 98 and p. 124 of bundle ?B?) RM 13,350/-

balance of purchase price RM 16,537.87

(inclusive of other charges).

The facts stated herein are not in dispute.

On the first issue

8. In instant case, the defendant gave written undertaking to the Government whereby the defendant agreed to transfer the said land to the plaintiff upon payment of RM 12,000/-, being value of the said land, which requirement was satisfied by the plaintiff. I said so because more than RM 12,000/- was paid to the defendant out of the housing loan as evidenced by the documents (p. 98, 124 of bundle ?B?). Total payment made by the Government to the defendant was RM 13,350/-.

[4]

9. In his submission, the learned defendant's counsel argued that the defendant was not bound to transfer the said land to the plaintiff by reason of clause 17 of the agreement. The said clause states:

?17. Save and except in the case where the Purchaser has already obtained a transfer of the said Lot and has charged the same as security for repayment of the said Loan as hereinbefore provided if the Purchaser shall have paid to the Developer the full Purchase Price in accordance with the provisions herein contained and the quit rent, assessment and any other moneys payable under this Agreement and has perfo