Salleh Abas FJ:

The Facts

In this appeal the facts are as follows:

By an agreement entered on 15 May 1969 the respondent sold 89 housing lots to the appellant for a total consideration of RM301,000 of which RM133,000 was paid in cash and the balance of RM168,000 was to be set off against the price of four houses which the appellant was required to build for the respondent on lots 1762, 1772, 1763 and 1771. The houses which were to be erected on lots 1762 and 1772 were two units of double-storey detached houses, whilst the houses to be built on lots 1763 and 1771 were two units of terrace houses.

Under Clause 8 of the agreement the appellant undertook to deliver these houses in a state of completion, within six months in the case of the two double-storey detached houses and twelve months in the case of the two units of terrace houses from the date of the approval of their plans, drawing and specification by the Kuching Rural District Council (KRDC). State of completion was defined by Clause 9 to mean the issuance by KRDC of certificates of fitness for occupation in respect of these houses.

Clause 24 stipulated that time wherever specified shall be of the essence of the agr