Chong Siew Fai J:

This is an application by the applicant for removal of a caveat dated 26 February 1986 and registered at the Kuching Land Registry Office on 10 March 1986 as Instrument No. L2855/86 so far as affecting one of the four parcels of land against which the caveat was lodged.

The caveat was lodged by the respondent who was at all material times the registered proprietor of the four parcels of land (the said lands).

Altogether the applicant has six affidavits and the respondent, three. They are:

By the applicant:

(i) affidavit affirmed on 16 January 1990 (applicant's 1st affidavit);

(ii) affidavit affirmed on 29 September 1990 (applicant's 2nd affidavit);

(iii) affidavit in reply affirmed on 16 May 1991 (applicant's 3rd affidavit);

(iv) further affidavit in reply affirmed also on 16 May 1991 (applicant's 4th affidavit);

(v) Mr. Wan Junaidi's affidavit affirmed on 16 May 1991 (Mr. Wan Junaidi's affidavit); and

(vi) Mr. Anthony Tai's affidavit affirmed on 16 May 1991 (Mr. Tai's affidavit).

By the respondent:

(i) affidavit affirmed on 27 September 1990 (respondent's 1st affidavit);

(ii) affidavit affirmed on 3 November 1990 (respondent's 2nd affidavit); and

(iii) affidavit affirmed on 7 November 1990 (respondent's 3rd affidavit).

There is also an "Admission of Facts" dated 21 September 1990 made under O. 27 r. 2 by the applicant.

Facts

The applicant and the respondent entered into an agreement dated 9 November 1983 (the agreement) whereby the applicant agreed to purchase from the respondent the said lands at RM260,000 payable as follows:

(i) RM10,000 upon signing of the agreement, which was paid;

(ii) the balance RM250,000, within six months from 9 November 1983 (date of signing of the agreement) when the respondent shall simultaneously effect a transfer of the said lands free from all incumbrances and with vacant possession to the applicant or his nominees (Clause 3(b)).

(For the agreement, see Annexure `A' in Exh. "B" annexed to the respondent's 1st affidavit).

Clause 4 of the agreement provides:

In the event that the purchaser shall fail, neglect refuse or is unable to effect the payment of the balance of the cash consideration within the time stipulated in Clause 3(b) hereof, the deposit of RM10,000 shall be forfeited to the vendor as agreed pre-estimated liquidated damages whereupon this agreement shall without more be null and void and both parties shall be discharged of their respective rights and liabilities under this agreement.

Under the agreement the applicant also had to construct 250 units of double-storey concrete terraced houses for the respondent (Clause 2).

By Clause 14, time whenever mentioned was of the essence of the agreement.

Pursuant to Clause 8, the respondent also granted the applicant a power of attorney empowering the latter "full powers to ... develop and to deal with the said lands". The term "deal" under the agreement means transfer, charge, lease or other instrument affecting the interest in the said lands.

It is not disputed that the respondent did not pay the balance RM250,000 which up to the hearing of this motion still remained unpaid.

There is evidence that in January 1984 the respondent claimed the terms of the agreement were not explained to him before he signed and he demanded to review the deal and to "redraw a full and proper development agreement" (see Exh. "WJ2" annexed to the applicant's 2nd affidavit).

There is also evidence from the applicant that "as late as 1985" the parties were still negotiating the terms of a new agreement (see Mr. Tai's affidavit filed on behalf of the applicant). That, however, is the evidence so far as the negotiation in point of time goes.

In para. 12 of the respondent's 2nd affidavit, he deposed that the applicant had asked for extension of time to pay the balance RM250,000 but failed to pay up despite the extension. In support, the respondent produced Exhs. `A' and `B' annexed thereto. Exh. `B' is a photocopy of the letter dated 9 Dece