Abdul Malik Ishak J:

Introduction

Luggage Distributors (M) Sdn Bhd (hereinafter referred to as 'Luggage') is the registered proprietor of a three storey shophouse at No: 12, Jalan Telawi Dua, Bangsar Baru (hereinafter referred to as the 'shophouse') held under Geran No: 890, Lot No: 22592 in the District of Kuala Lumpur (hereinafter referred to as the 'land'). That is the most sought after address in Kuala Lumpur. The defendants were desirous of renting the ground floor of the shophouse and so, on 8 July 1993, the defendants entered into a tenancy agreement with Luggage for a period of two (2) years and with an option for a further period of two (2) years as reflected in exh. 'T4' of encl. 11 at p. 81 thereto.

On 24 November 1993, Luggage entered into a sale and purchase agreement with Quill Construction Sdn Bhd the present plaintiff, wherein Luggage sold the whole shophouse and the land thereto to the plaintiff. The sale and purchase agreement can be seen in exh. 'T4' of encl. 11 at p. 59 to p. 66 thereof. It was an express term that the sale was subject to, inter alia, the defendants' tenancy and as such without vacant possession. Recital 'E' of that sale and purchase agreement states as follows:

The said property is tenanted to various tenants under their respective tenancy agreement(s) and particulars whereof have been rendered to the purchaser.

Concisely put, the sale and purchase agreement gives rise to, inter alia, the following obligations:

(1) the vendor referring to Luggage, is under an obligation to deliver legal title;

(2) the sale was subject to the tenancy entered into between Luggage and the defendants;

(3) that upon payment of the full purchase price, the purchaser referring to the present plaintiff, would receive legal possession of the land wherein the shophouse is located; and

(4) that the purchaser referring to the present plaintiff, was entitled to specific performance only if it abided by the terms and conditions of the sale and purchase agreement.

For the sake of convenience and expediency, I shall henceforth refer to the 'shophouse' and the 'land' as the 'property'. I must also mention that when the present plaintiff entered into that sale and purchase agreement to buy that property from Luggage, the present plaintiff was represented by Messrs. Darshan Chong & Co while Luggage was represented by Messrs. Lee Ong & Kandiah. On the other hand, the defendants were and are still being represented by Messrs. KY Thong & Co. Now, the present plaintiff is currently being represented by Messrs. Lee Ong & Kandiah.

No notice of the sale of the property was given by either Luggage or the present plaintiff to the defendants. The defendants were left entirely in the dark.

On 22 November 1993, Madam Low Moi Ing (hereinafter referred to as 'Low'), the director of the present plaintiff, filed a private caveat on the said property. Fortunately, the defendants conducted a search at the land office and discovered the existence of that private caveat that was lodged by Low. The defendants wrote to Low the caveator, 'seeking comfort that their interest was not impaired or affected by the caveat.' The present plaintiff through its solicitors Messrs. Darshan, Chong & Co by letter dated 22 December 1993 relayed the message to the defendants to the effect that the present plaintiff had entered into a sale and purchase agreement with Luggage and that the present plaintiff intended to take possession of the said property once the sale was completed.

The defendants exploited and used the letter dated 22 December 1993 as alluded to above to its own advantage. The defendants say that by that letter the present plaintiff was in breach of its contract with Luggage which contract stipulated that the sale of the property was subject to the tenancies and that the present plaintiff would only acquire legal possession and not vacant possession. The defendants also say that by this letter the present plaintiff had committed two torti