This is an appeal by a developer of a housing project against the decision of the Sessions Court Ipoh giving judgment to the respondent for late delivery of a shop house. The parties entered into a sale and purchase agreement dated 20.11.92 whereby the appellant (hereinafter referred to as developer) agreed to sell and the respondent (hereinafter referred to as purchaser) agreed to buy a shop house for a consideration of RM198,000.00. According to clause 23 of the said sale and purchase agreement, the developer shall deliver vacant possession of the property within 30 months from the date of the agreement which means either on or before 19.05.95 failing which the purchaser shall be entitled to liquidated damages at the rate of 12% per annum of the total amount of the purchase price paid by the purchaser until actual delivery of vacant possession of the said property. Clause 3.2 of the agreement provides for the manner of payment of the purchase price which in turn refers to the

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sixth schedule of the said sale and purchase agreement. According to the schedule of payments as stated in the said sixth schedule, the last 5% of the payment amounting to RM9,900.00 shall be paid by the purchaser upon the issuance of Certificate of Fitness for occupation.

On 16.05.95 the purchaser received a letter from the developer stating that the shop house was ready for delivery of vacant possession. It is also established from the agreed facts that at that point of time, the certificate of fitness for occupation has yet to be issued. A temporary certificate of fitness for occupation was issued on 24.06.96, 03.12.96 and

17.06.97.A final certificate of fitness for occupation was only issued on

05.05.98.On 08.07.96 the purchaser was handed over the keys to the

shop house after settling the various charges and overdue interest owed to

the developer.

The purchaser claims that pursuant to clause 23 of the said sale and purchase agreement the developer has failed to deliver vacant possession on or before 19.05.95 but only did so on 08.07.96 when the keys to the said shophouse were handed over to them. The purchaser therefore claims for liquidated damages in the sum of RM26,819.50 for late delivery calculated on the basis of a delay of 412 days from 19.05.95.

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The hearing of the purchaser's claim before the Session Court was held without calling any witnesses. Both parties agreed the matter be decided by the learned Sessions Judge by way of the agreed facts as stated above. The issue before the court as correctly pointed out by the learned Sessions Judge revolves solely on the question of interpretation of clauses 23, 3.2 and the sixth schedule of the sale and purchase agreement dated 20.11.92 in order to determine when vacant possession was actually granted to the purchaser.

It is the contention of the developer that vacant possession was given to the purchaser on 16.05.95 and the purchaser has failed to take vacant possession within 7 days as requested in the letter dated the same. Clause 23 has been complied with and there is no basis to read into that clause the issue of certificate of fitness for occupation. It is further contended that the developer has done everything possible to obtain the certificate of fitness for occupation and they are therefore not responsible for any delay on the part of the authority in issuing the same. It is in the developer's contention that such failure or delay on the part of the authority is beyond their control and this seeks the aid of clause 24 of the sale and purchase agreement on Force Majuere. Clause 23 of the sale and purchase agreement reads as follows:

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Delivery of Vacant Possession Within 30 Months

"Provided the Purchaser shall have paid the Purchase Price in full and provided the Purchaser shall have faithfully performed all the terms and conditions set out in this Agreement the Developer shall deliver vacant possession of the Property free from all encumbrances to the Purchaser within thirty