This is an application under Order 18 rule 19 of the Rules of the High Court 1980 on the part of the defendant for an order that the statement of claim of the plaintiff be struck out and his action dismissed with costs on the ground that the statement of claim discloses no reasonable cause of action or that it is frivolous and vexatious or is otherwise an abuse of the process of the Court. The action is for specific performance of an agreement for the sale and purchase of land and alternatively for the return of a sum of money which was paid as consideration for the agreement and deemed as part payment of the purchase price.

The relevant facts of the case are as follows. The defendant is the registered owner of a piece of land held under H.S.(D) 26199 P.T. No.41145 in the Mukim of Kuala Lumpur together with a double-storeyed link house erected thereon known as No.9, Jalan Pudina, Bukit Bandaraya, Kuala Lumpur ("the property"). By an agreement dated August 4, 1982 made between the plaintiff and the defendant it was agreed that the plaintiff purchase the property from the defendant for the sum of $250,000/- subject to the terms and conditions set out in the agreement (See Exh. VP-1, Encl. 7). The plaintiff paid a sum of $25,000/- as deposit and part payment towards the purchase price (See Clauses 1 and 5) and the manner in which the balance was to be paid was provided for by Clause 3 which reads as follows:-

"3. The balance of the purchase price in the sum of Ringgit Two Hundred and Twenty Five Thousand $225,000.00 shall be paid in the following manner:-

(a) The Purchaser shall on or before October 30, 1982 pay Messrs Ng Ek Teong & Partners of Bangunan Hokkien Association, Jalan Klyne, Kuala Lumpur (hereinafter called the Vendor's solicitors) a sum equivalent to the outstanding due for the redemption of the said land from United Asian Bank Berhad. only secondary to the main purpose of the contract" in the absence of any arguments or evidence in support of it. In the case of S Ayadurai v Lim Lye [1959] MLJ 143, from which the quoted words of Counsel for the plaintiff apparently originate, there were no specific provisions similar to those in Clause 5 and Clause 8 expressly providing payment modo praescripto within a definite time-frame nor was there provision for time whenever mentioned to be of the essence of the contract. This case, in my view, is in fact authority for the converse argument that time limits must be adhered to and that equity cannot be called in aid when it is clear that the intention of the parties is that time is of the essence of the contract. This is obvious from what Ismail Khan J. in referring (at page 144) to a Privy Council case (1916) 43 IA 26; AIR 1915 PC 83 had to say:

"The local law as to time being of the essence of the contract is the same as in England. Jamshed Khodaram Irani v Burjorji Dunjibhai (1915) 43 IA 26 Section 56(1) of our Contracts Ordinance which is the same as section 55 of the Indian Contract Act 1872 provides that

'when a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before the specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract'.

Lord Haldane in the above case after referring to the Indian section said:

'Their Lordships do not think that this section lays down any principle which differs from those which obtain under the law of England as regards contracts to sell land. Under that law equity, which governs the rights of the parties in cases of specific performance of contracts to sell real estate, looks not at the letter but at the substance of the agreement in order to ascertain whether the parties notwithstanding that they named a specific time within which completion was to take place, really