JUDGMENTBY: SUFFIAN LP, ALI FJ

SUFFIAN LP The applicant (appellant before us) had some lands in the mukim of Sungai Pasir, in Sungai Patani, Kedah, totalling just over 40 relongs in area. By agreement dated August 2, 1973 (exhibit C6), he agreed to sell and Andavan agreed to buy it for $ 369,768. By clause 3 it was provided that the property sold was "to be free from all incumbrances whatsoever". Andavan paid a deposit of $ 36,976.

On August 21, 1973, one Vesudevan entered a private caveat against the lands and on December 19, 1973, he issued a writ in the Alor Star High Court against the applicant (Civil Suit No. 256 of 1973) claiming that the applicant held half the lands as trustee for him and that the applicant had agreed to sell the lands to Andavan without his consent. The applicant successfully applied to have the caveat removed. Vesudevan again caveated the lands. This time the applicant not only successfully applied to have the caveat set aside but also obtained an injunction restraining Vesudevan from again caveating the lands.

On December 20, 1973, Vesudevan obtained an order from the Alor Star High Court that the right in the disputed land was in question and that that order remain in force as a lis pendens for 12 months or until the determination of the suit, whichever was the earlier, and on December 22, 1973, the lis pendens order was registered by the Land Office. That order was obtained ex parte and on February 9, 1974, the applicant applied to have it set aside. On April 27, the judge dismissed this application, thus confirming the lis pendens order. The applicant appealed to the Federal Court.

All the while the sale agreement between the applicant and Andavan had not been completed and the lands still remained registered in the name of the applicant.

On March 6, 1974 ( i.e. while there was a lis pendens order against the lands) Andavan assigned the sale agreement to the Syarikat Alor Merah Sdn. Bhd. by assignment (exhibit C7). This document was signed by the applicant, by Andavan and the company. Mr. Choe Kuan Him, solicitor (respondent in the lower court and also here), acted for both the applicant and the company. At the same time the applicant received from Mr. Choe a written undertaking dated the same day (March 6, 1973) as follows:

"This is to confirm that the sum of ringgit three hundred and thirty

two thousand seven hundred and ninety two ($ 332,792) being the

balance of the purchase price of (the lands in question) has been

deposited with us and that the said sum will be released to you

(applicant) upon the transfer of (the lands) being duly registered in

the name of the purchasers Messrs. Syarikat Alor Merah Sdn. Bhd. or

their nominee, nominees or assigns."

The transfers of the lands into the names of the nominees of Alor Merah Sdn. Bhd. were duly registered on April 16, 1974.

Out of the money held by him, Mr. Choe paid $ 150,000 to the chargor of the lands. He also gave a cheque dated April 23, 1974, for the balance to the applicant, but subsequently Mr. Choe stopped payment of this cheque, because (as already stated) on April 27, 1974, the judge had confirmed the lis pendens order against these lands and there would have been difficulty about the applicant transferring the lands free from incumbrances.

The applicant who had been represented by Mr. Choe at the time of the assignment switched lawyers and now retained Messrs. Skrine & Co. who by letter dated April 30, 1974, wrote to Mr. Choe demanding payment of the money, as follows:

"We act for (the applicant) and are instructed to refer to your written

undertaking to him of March 6, 1974.

This undertaking states that the balance of the purchase price of the

lands totalling $ 332,792 has been deposited with you.

The undertaking undertakes to release this sum to our client on the

transfer being registered.

Our instructions are that the transfer has been regis

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