VC George J

It is common ground that the plaintiff and the defendant entered into a written agreement dated 1 February 1986 by which the plaintiff agreed to sell and the defendant agreed to purchase 1,108,000 fully paid-up shares of $1 each in a private limited company called Seasian Hotel Sdn Bhd for $845,970.91. It was an express term of the contract that the defendant was to pay the purchase price to the plaintiff on 28 February 1986 whereupon the plaintiff was obliged to deliver to the defendant the relevant share certificates together with the relevant memorandum of transfer duly executed by the plaintiff as vendor.

Just two days after the parties had entered into the said agreement for the sale of the shares the defendant wrote its letter of 3 February 1986 to the plaintiff asking the plaintiff to agree to allowing the defendant to defer paying the purchase price for six months pleading the severe strain on its financial resources by the downturn in the economy that was being experienced by the country. The plaintiff replied immediately in writing saying that they could not agree to the proposed deferment of the payment. The plaintiff followed that letter by a solicitor's letter of demand one day after the payment should have been made giving the defendant a week until noon on 8 March 1986 to pay up failing which legal proceedings were threatened. The payment was not effected and on 22 July 1986 the plaintiff caused the writ herein to issue seeking, inter alia, specific performance of the agreement.

The defendant having entered a conditional appearance to the writ applied to invoke the arbitration clause in the agreement. Nothing came of this. The application was eventually struck off. In the meantime the plaintiff had taken out its application for summary judgment under O 81 of the Rules of the High Court 1980. The application was partly heard in chambers and then adjourned into open Court to enable counsel to submit a full argument. At the request of counsel for both sides I allowed written submissions. After due consideration of the submissions and perusal of the cause papers, the application for summary judgment was allowed. The grounds for so deciding follows.

Encik Murthi of counsel for the defendant took up a number of points.

His first contention was that the plaintiff had sought to supplement its statement of claim by affidavits. He pointed out correctly that defects or omissions in a statement of claim may not be corrected by affidavits. However, in the first place, I failed to see any defects or omissions in the statement of claim. The plaintiff pleaded the written contract and in particular the express term in it in respect of completion and contended that there was failure to complete on the part of the defendant in spite of demands. The statement of claim ends with the assertion that the plaintiff was at all material times ready, willing and able to perform its part of the bargain and seeks the remedies prayed for. In the second place and in any event I failed to see corrections of defects or omissions. No doubt various affidavits were filed by the plaintiff. But they either supported the application for summary judgment or dealt with the points raised by the defendant in support of the contention that the defendant has a defence and that in any event the plaintiff should not be given summary judgment. They do not seek to supplement or amend or correct the statement of claim.

A large portion of the affidavits filed on behalf of the defendant and of Encik Murthi's written submissions was devoted to the claim by the defendant that it was entitled to avoid the agreement on the ground that the defendant had entered into it under 'duress and pressure'. It was contended that a hotel belonging to the defendant was 'held under ransom' by the plaintiff who was managing it and that 'fraudulent acts and defaults of the plaintiff's management were concealed' by the plaintiff.

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