Jobling J:

This is a claim for specific performance of a contract for the delivery of rubber sold by defendant to plaintiff.

It is admitted that the parties entered into an agreement for the sale and purchase of fifty piculs of rubber and that the defendant received the full purchase price thereof and executed the following contract note:

"This is to confirm that I have this 14 August 2605 sold fifty (50) piculs of rubber (smoked sheet Second and Third grade) to Ng Kean Tek of No. 360 Beach Street, Penang.

I have received the full market price for the same. I shall deliver the rubber within four (4) months after the declaration of peace in Malaya.The rubber is to be tapped from my rubber estate at Belik Pulau, Lots 15, 161, 162 Mukim 7 and Lot 537 Mukim 9, SWD, Penang.

If I fail to tap the rubber, I have to either purchase same from the open market or pay him the full market price as on the expiration of four (4) months from the declaration of peace in Malaya.

It was also not disputed that the rubber was not delivered as agreed and that on demand being made by plaintiff for delivery defendant refused on the ground that the agreement was invalid.

The plaintiff does not possess and has never possessed a licence to purchase rubber as required by the Rubber Dealers Ordinance, Cap. 212.

The only question in this matter is whether the contract is enforceable.Mr. Ong Huck Lim for the defendant submitted that the contract was illegal and unenforceable because the plaintiff was not licensed to purchase rubber.Mr. Hogan for the plaintiff contended that the defendant refused to deliver the rubber without ascertaining whether the plaintiff would obtain a licence before delivery and that therefore the second part of the contract note - the payment of the full market price of the rubber - was enforceable.

Both Counsel referred to the judgment in Syn Thong & Co. v. Tong Joo (Hoo) & Co [1929] SSLR 39 supporting their respective arguments.That case laid down that a licence under the Rubber Dealers Ordinance, Cap. 212 for the purchase of rubber is necessary when the purchaser takes delivery but not before.It is clear then that the contract was not illegal when entered into and the only question is whether in the existing circumstances particularly as the plaintiff is not licensed to enable him to take delivery, this Court should order the contract to be carried into effect.

The contract is quite plainly a contract for the delivery of rubber with the alternative that in default of delivery damages are to be paid to the amount of the market price of the rubber.In my view the contract is indivisible and if enforced the order must be for the delivery of the rubber and in default of delivery payment of the damages agreed upon.

It is abundantly clear that the Court could not order the enforcement of a contract where the enforcement would contravene the criminal law.It is equally clear that the Court could not, as suggested by Mr. Hogan, merely make an order for payment of damages as this would be damnifying the defendant for not lending himself to the commission of a criminal offence.

The plaintiff is not licensed to take delivery of the rubber; for him to do so would infringe the criminal law.The plaintiff's claim must be rejected.

Action dismissed with costs.

Judgment for the defendant.