Lim Beng Choon J:

[1] On 18 February 1987, the plaintiff instituted this action against the defendant claiming a sum of RM48,618.40. The plaintiff alleged in the statement of claim endorsed in its writ that the defendant was the main contractor for the construction of an office building for Kian Min Realty Sdn Bhd (the project). Pursuant to an agreement dated 6 November 1984, the plaintiff agreed to execute the sub-contract works (sub-contract) viz the supply and installation of air-conditioning and ventilation system for a consideration of RM1,288,000 or such other sums as would be due under the sub-contract. The plaintiff asserted that it had since completed the said works satisfactorily but the defendant had failed to pay the plaintiff the outstanding amount of RM48,618.40 being the amount due to the plaintiff under the sub-contract. The plaintiff gave the following particulars to show the amount due to it:

Amount certified for payment	-	RM1,273,000
Less:
Retention sum	-	RM32,200
Payments of	-	RM1,187,937.30
Agreed debit notes	-	RM4,244.30
Sub-total	-	RM1,192,181.60
Amount due		RM48,618.60

[2] The plaintiff went on to allege that despite repeated demands the defendant had failed refused and/or neglected to pay the sum claimed. The plaintiff therefore prayed for judgment:

(a) in the sum of RM48,618.40

(b) interest on the sum claimed at 12% per annum from 31 March 1986

(c) costs.

[3] The defendant entered an appearance on 11 March 1987, but before the defendant had filed in its statement of defence the plaintiff amended its statement of claim on 15 July 1987, pursuant to O 20 r 3(1) of the Rules of the High (RHC). The amendment related to the particulars showing the amount due to the plaintiff which after the amendment now reads:

Amount certified for payment	-	RM1,414,459.25
Less:
Payments of	-	RM1,187,937.30
Agreed debit notes	-	RM4,244.30
Sub-total	-	RM1,192,181.60
Amount due		RM222,277.65

[4] Thereafter the plaintiff filed a summon-in-chambers dated 14 July 1987, which was received and registered by the Court on 16 July 1987, by which it applied for an order pursuant to O 14 of the RHC to enter final judgment against the defendant for the sum of RM222,277.65 with interest and costs. The application was supported by an affidavit affirmed by Ng Mong Eng (Ng) the general manager of the plaintiff on 14 July 1987, in which the defendant asserted that the plaintiff was duly and justly indebted to the plaintiff in the sum of RM222,277.65 and interest and cost. Ng produced a copy of the sub-contract which he marked it as Exh 'NME1' in his affidavit. He further asserted that the defendant had satisfactorily completed its sub-contract works and all items on the defect list had been satisfactorily cleared as could be evidenced by the letter dated 20 March 1987, from Juaraconsult Sdn Bhd who were the consulting engineers to the project. A copy of the said letter was produced by Ng and marked as Exh 'NME2' in his affidavit. The statement of the final account had also been finalised as evidenced by the document dated 10 November 1986, a copy of which was annexed as Exh "NME3" in his affidavit. It is appropriate at this juncture to reproduce so much of the contents of the said Exhibits "NME1", "NME2" and "NME3" as are relevant in my consideration of the issue that was raised before me at the hearing of the appeal lodged by the defendant (encl 15).

[5] The clauses in the sub-contract Exh "NME2" that are relevant to the issue raised at the hearing of the defendant's appeal are as follows:

Cl 11(b)

Within fourteen days of the receipt by the contractor of any certificate or duplicate copy thereof from the architect the contractor shall notify and pay to the sub-contractor the total value certified therein in respect of the sub-contract works and in respect of any authorised variations thereof or in respect of any amounts ascertained under cl 8(c) thereof less:

(i) Retention money, that is to say the proportion attributable to the sub-contract works of the amount retained by the