A party cannot evade contractual obligations by alleging repudiation when evidence shows otherwise.

Abdul Malek Ahmad JCA:

According to the statement of claim of the respondent, who was the plaintiff in the court below, by a sale and purchase agreement dated 21 January 1986 between him as purchaser and the six defendants, who are the appellants before us, as vendor, the respondent had agreed to purchase a portion of Lot 391, Section A, Town of Jelutong, Penang with the premises No. 260 Jalan Jelutong at a price of RM210,000 subject to the terms and conditions contained in the agreement.

Clause 4 of the agreement states that the respondent is entitled to submit layout and building plans for the construction of three units of four storeyed shophouses on the land, and the appellants shall sign all plans and applications pertaining to the development of the said land.

Clause 9 of the agreement provides that if the respondent's application in clause 4 is not approved within thirty months from the date of the agreement, then the appellants are entitled to rescind the agreement whereupon they are to refund the RM15,000 deposited by the respondent.

Accordingly, the respondent had submitted a layout plan and the building plans to the Majlis Perbandaran Pulau Pinang (hereinafter "the MPPP") signed by all the appellants. The layout plan was approved on 25 May 1987. However, the building plans were rejected on the grounds that they had used the imperial system instead of the metric system.

Another set of building plans were subsequently prepared and a temporary staff member of the firm of chartered architects responsible (PW2) signed them for and on behalf of the appellants on the instructions of the third appellant. The said plans were submitted to the MPPP on 2 July 1987.

Through their solicitors, the appellants wrote a letter on 11 August 1987 to the MPPP alleging that the respondent had submitted the building plans despite not being signed by them and accordingly, they requested the MPPP not to consider them for approval as they intended to institute proceedings against the parties responsible for the alleged fraudulent deception.

It was the respondent's averment that the appellants have not suffered or will not suffer any loss whatsoever as a result of this as the building plans not signed by them was the same in all material aspects with the earlier ones signed by them except for the metric system replacing the imperial system. In any case, the respondent's solicitors wrote to the appellants' solicitors on 20 August 1987 requesting them to re-sign the amended building plans.

By letter dated 25 August 1987, the appellants refused to do so. The respondent repeated his request on 7 January 1988 and again the appellants refused. Since the appellants had evinced an intention to be no longer bound by the agreement, the respondent took it as a repudiation on the appellants' part. Thus the respondent accepted the repudiation without prejudice to his legal rights to claim damages for breach of contract.

The particulars of the respondent's loss and damage was that he was not able to develop the said land in accordance with the approval layout plan and the proposed building plans within the times stipulated in the said agreement. The estimated loss of profits was in the region of RM617,000.

His claim, therefore, was for a declaration that the agreement had been wrongfully repudiated by the appellants, a refund of RM15,000 paid together with interest, damages for breach of contract amounting to RM617,000 interest, costs and other relief.

Before us, learned counsel for the appellants argued that when the appellants refused to re-sign the building plans for approval, the respondent treated it as a repudiation which they accept. However, it was the appellants' contention that it was the respondent who had repudiated first by the fact of the forgery. Further, the learned judge at first instance did not make any finding that it was the appellants who had terminated the contract and in fact, they had not sent any specific letter