Haji Mohd Noor Bin Haji Abdullah J:

This is an application for a summary order under O. 89 Rules of the High Court 1980 (RHC 1980) for possession of land with a house on it. The order provides:

1. Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of the tenancy) who entered into

or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this order.

The plaintiff is a vendor in a sale and purchase agreement dated 14 March 1991, and the defendant is a purchaser of a piece of land described as lot. No. 9 Sri Taman, Kuah, Langkawi, together with a double storey semi-detached house to be erected thereon for a purchase price of RM147,250.

The agreement provides inter alia the following salient relevant terms:

(1) The purchase price shall be paid progressively according to the specified schedule of payment;

(2) The vendor shall use its best endeavour to obtain a loan for the purchaser to finance the purchase provided the vendor is so informed in writing within 14 days;

(3) If the purchaser fails to pay any instalment as specified the vendor may terminate the agreement and dispose of the property;

(4) The vendor shall let the purchaser into possession if the purchaser has paid all monies due and payable under the agreement; and

(5) Service of document is deemed sufficient if it is sent by registered post at the given address.

In support of the application one Rosalind Singha Ang a director of the plaintiff stated that defendant paid RM14,725 being 10% of the purchase price and thereafter the defendant failed to pay any sum whatsoever in spite of repeated notices of demand by the plaintiff to the defendant. On 30 January 1992 the plaintiff sent a final notice demanding payment of RM80,987.50 together with accrued interest of RM2,786.65. The defendant failed to pay or respond in any other way to the demand and on 21 April 1992 the defendant annulled the sale and terminated the agreement with liberty to dispose of the property to any other party.

The deponent further stated that on or about 21 August 1992 the defendant unlawfully and without licence or consent of the plaintiff broke into the house and occupied it. She lodged a police report followed by a notice to the defendant to vacate the house but the latter ignored it.

The defendant filed various affidavits in reply (enclosures 5, 10, 20 and 21) stating that:

(1) Bank Bumiputra Malaysia Bhd. had on 18 May 1991 approved a loan of RM132,500 to the defendant to purchase the house and BBMB's solicitor had so notified the plaintiff's solicitors;

(2) BBMB's solicitors corresponded with the plaintiff's solicitors regarding documentation, disbursement of fund, and variation of the mode of payment;

(3) The plaintiff through its agents had agreed to the terms set out in BBMB's loan, particularly the condition that "the facility is to be released to the developer against certificate of fitness of occupation" and not progressively and that the defendant had no knowledge and did not agree to vary this condition;

(4) The defendant's occupation of the premises was in the circumstances in exercise of his right as purchaser and to prevent a fraud perpetrated against him;

(5) The plaintiff offered the defendant another premises in the same scheme (the premises in question was then already sold to another purchaser) for RM210,000 which is RM73,000 in excess of the previous purchase price but the defendant requested for the original price less the legal fees which he had already paid. There was no response from the plaintiff; and (6) The defendant denied receiving all the notices of demand issued by the plaintiff, most of which were sent to his former address and if by such notice the defendant had committed a breach of the agreemen