Abdul Hamid Omar FJ:

The appeal is against the decision of Wan Yahaya J given at Malacca on 5 June 1982 ordering that the agreement of sale of a piece of land known as Holding No. 689 Mukim Balai Panjang held under SLG. No. 969/61 together with factory erected thereon known as No. 5369-C, Jalan Malim, Malacca (the said land) be specifically performed and carried into execution.

There is an alternative order for rescission of contract should the above order be incapable of performance. We do not see any necessity to deal with it at this point and would only do so if and when the need arises.

The facts are not substantially in dispute. The appellants intended to sell the said land as indicated in their letter of 14 December 1974 addressed to Melaka Branch of CH. Williams, Talhar & Wong Sdn. We mention this not to show any special significance that we attach to it but merely to highlight the fact that this intention to sell was revived as is revealed from the appellants' letter of 1 March 1976, para. 2 of which reads -

I confirm, subject to contract, that the lowest price I am willing to sell the said property is $5.40 per square foot in Singapore currency, the sale and purchase to be completed latest by 24 March 1976. Ten per cent deposit to be paid within the course of the next few days if your buyer Mr. Yeo Ah Tee agrees to the price and terms.

At this point there was conceivably no question of any concluded contract. The respondent Yeo Ah Tee also had not so alleged. What is alleged is that the appellants had negotiated the sale through Messrs. C.H. Williams, Talhar & Wong Sdn. and the negotiation was concluded on 3 March 1976. Messrs. CH. Williams, Talhar & Wong Sdn. by letter of 3 March 1976 confirmed the sale. Since the contents of this letter seem pertinent to the determination of this appeal, we deem it appropriate to reproduce it in full as follows:

CH. Williams, Talhar & Wong Sdn.

3 March 1976.

Messrs. Gim Cheong & Co.,

17, Beach Road,

Singapore 7.

Kind Attention: Mr. Lim Keng Siong

Dear Sir,

Re: Purchase of Property Lot 689,

Mukim of Balai Panjang,

Melaka.

We refer to our telephone conversation this afternoon in which you have kindly accepted our client's (Mr. Yeo Ah Tee) further offer regarding the above, with vacant possession at a price of RM5.20 per square foot for RM454,391.60 cents. Ringgit: Four hundred and fifty four thousand three hundred and ninety one dollars and cents sixty only. The sale is to include all buildings, plant and machinery and all ancillary facilities etc.

We have received further instructions to inform you that our client has appointed Messrs. Ting Poi Tek & Co. of 30, Jalan Laksamana as his solicitors to deal with all legal matters pertaining to the above sale.

Messrs. Ting Poi Tek & Co. will communicate direct with you regarding the sale.

Yours faithfully,

sgd.?

cc. KL. Office

cc. Messrs. Ting Poi Tek & Co.

The averment which alleges that there was a concluded contract is to be found in para. 3(a) of the respondent's statement of claim. This is specifically admitted by the appellants in para. 1 of their statement of defence. The appellants also admit the following averments in the statement of claim -

3 (b). The 10% deposit amounting to RM45,400 approximately was sent by the plaintiff's solicitors Messrs. Ting Poi Tek & Co. by Express Mail on 5 March 1976 enclosing therein the draft agreement for the defendants' solicitors' approval the receipt of which was acknowledge on 9 March 1976.

3 (c). The defendants through their said solicitors by letter dated 22 March 1976 to the plaintiff's solicitors had stated and enclosed the following:

(1) Two title deeds relating to the property on the usual undertaking. Kindly sign and return to us one copy of the enclosed Schedule of Deeds.

(2) One copy of your draft Contract showing the amendments made by us.

(3) Engrossments in triplicate of the said Contract for signature by your client if our amendments to the original draft are in order.

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