(Oral)

Gopal Sri Ram JCA:

[1] This is the judgment of the court. For convenience, we will refer to the parties according to the titles assigned to them in the court below. There are two appeals before us. One is by the plaintiff. The other is by the second defendant in the counterclaim being the second and third defendants to the main action. The facts relevant to the appeal are as follows.

[2] Ladang Perbadanan Fima Berhad, or LPF for short, is a public limited company. It is listed on the stock exchange. This case concerns a transaction that has to do with the shares of LPF. This is how the story began.

[3] On 6 August 2004, the plaintiff entered into two agreements. One was with Kumpulan Fima Berhad, or Fima. The other was with Amalan Kontrak (M) Sdn. Bhd., or Amalan. The Fima agreement related to the purchase by the plaintiff of 26,496,000 shares. Under the agreement with Amalan, the plaintiff agreed to purchase 10,028,000 shares. The purchase price was the same under both agreements. It was RM3.80 per share. We find it unnecessary to reproduce the whole of those two agreements in this judgment. Suffice for the present purposes that we refer to one or two important clauses in them. These clauses are common to both agreements, so we will produce them only once. First, there is cl. 3A.4 which reads as follows:

3A.4 The parties hereto acknowledge, confirm and agree that the property, right, title and interest to the Sale Shares shall pass and only vest in the Purchaser upon the completion of the procedures contemplated in Clause 3.1 of this Agreement and subject further to payment of the Purchase Price to the Vendor on or before the Payment Date and/or payment to the Vendor of all other money (if any) due to the Vendor under this Agreement being fully and completely paid to and settled with the Vendor in accordance with this Agreement.

[4] Next there are cls. 4.1 and 4.2 which deal with what happens in the event of the plaintiff's default. This is what they say:

4.1 In the event that the Purchaser fails to pay the Balance Purchase Price in accordance with Clause 3.1 above, the Vendor shall be entitled to forfeit the Deposit for the Vendor's account as agreed liquidated damages for the non-performance of the Purchaser's obligations under this Agreement. Pursuant to the foregoing purpose, the Purchaser hereby authorises the Stakeholders that upon the Stakeholders' receipt of a written notice from the Vendor, to release to the Vendor the Deposit, together with all interest earned thereon, if any, for the account of the Vendor as agreed liquidated damages payable to the Vendor in respect of the Purchaser's breach of its obligations under this Agreement and simultaneously thereto the Stakeholders shall return the Resignation Letters to the Vendor.

4.2 The Purchaser further agrees that upon the Purchaser's failure to pay and settle the Balance Purchase Price in accordance with Clause 3.1 above, the Vendor shall be at liberty to sell or dispose of the Sale Shares or any part thereof either together or in parcels, to any other party or parties, either by dealings with any broker or by public or private sale or private treaty or in such other manner for such consideration and upon such terms and conditions as may be determined by the Vendor at their sole and absolute discretion provided however that nothing herein contained shall be construed as rendering it obligatory on the Vendor to ensure that the Sale Shares are sold as aforesaid.

[5] On a plain reading of the aforesaid clauses, it is amply clear; indeed, there has been no argument advanced to the contrary; that the property in the subject shares were to pass to the plaintiff only upon completion. On execution of the agreement, the plaintiff paid 10% of the purchase price amounting to RM13.8 million to both Fima and Amalan. The balance was to be paid on or before 6 December 2004 in accordance with cl. 3.1 of the sale and purchase agreement. The plaintiff did not have all