Syed Agil Barakbah J:

This is an application by way of originating motion for an order that a date be fixed by the Court within which an undertaking dated 9 January 1968 given by the respondent, Saraswathy Devi, to the applicant, Seah Choon Chye, can be completed. A copy of the said undertaking was filed together with the applicant's affidavit. The respondent gave the undertaking in her capacity as an advocate and solicitor, to release the transfer signed and delivered to her by her client, K Murugasu, to one Michael Chong Ngian Fong together with twentysix certificates of titles charged to the Great Eastern Assurance Co. Ltd, Singapore. The release was to take effect on receipt by the respondent of documents relating to various assignments and the fulfillment of certain conditions as enumerated in paras. (a) to (g) of the undertaking. Further, Saraswathy Devi & Co. were also authorized to release the sum of $310,000 bank draft made payable to Skrine & Co., a firm of advocates and solicitors in Kuala Lumpur, and $40,000 paid to Nadchatirams, a firm of advocates and solicitors in Seremban, in the latter part of 1967, to Skrine & Co., to the credit of Murugasu's account with the Great Eastern Assurance Co. No date was fixed for the undertaking to be fulfilled. Consent to this undertaking was given by Michael Chong Ngian Fong, the applicant and K Murugasu.

Mr. Wong Seng Chow appeared for the applicant and Mr. N Ramachandran for the respondent.

Four grounds of objection were raised by Mr. Ramanchandran, namely:

(1)That the application involves questions of facts in dispute and is not a matter which can be determined by affidavits but by parol evidence due to the allegations of fraud appearing in paras. 3, 4, 5 and 16 of the applicant's affidavit. The proper procedure should be by way of writ.

(2)That the application is tantamount to one of specific performance and should commence by way of writ.

(3)That there is no such thing as originating motion as in this application, except in a pending matter.

(4)That the application is premature.

The main issue appears to be whether this application by way of originating motion is proper or whether it should be made by way of writ. In this regard, therefore, I propose to consider items (1) to (3) of the objections together.

The general principles as regards an undertaking of this nature is that it must be given by a solicitor personally and not merely as an agent on behalf of his client. It must be given in his professional capacity as a solicitor and not as an individual. As was said by Hamilton J in United Mining and Finance Corp. Ltd. v. Becher [1910] 2 KB 296, 307, which I accept with respect:-

It seems to me that the part which solicitors are nowadays well known to play in elaborate negotiations, which constantly have to be embodied at various stages in legal forms of a highly technical character, constantly involves for the purpose of facilitating the business the giving of subsidiary undertakings for the payment of money and of a similar character, and that those undertakings are given in their capacity as solicitors, and money is entrusted to them under those undertakings largely because they are solicitors and are deemed therefore, and found to be, especially worthy of trust.

It was urged that this application was tantamount to one of specific performance and therefore should commence by way of writ. It is true to a certain extent that in an undertaking as in specific performance the ultimate object is to require a defendant to do what he has agreed to do. Specific performance on the one hand is an equitable relief given by the Court to enforce against a defendant the duty of doing what he agreed by contract to do and a plaintiff may therefore obtain judgment although there has not in the strict sense been any default by the defendant before the issue of the writ. On the other hand, an undertaking given by a solicitor, who is an officer of the Court, is on a diffe