Gill J:

This action arises out of an agreement dated 1 June 1964 for the sale by the defendant to the plaintiffs of five pieces of land held under Entries in the Mukim Register Nos 3092, 3063, 2465, 3064 and 3091 for Lots Nos 2291, 2258, 1481, 2259 and 2290 respectively in the Mukim and District of Kuala Lumpur. The plaintiffs' claim is for damages for an alleged breach of the agreement on the part of the defendant and for the recovery of the deposit made against the agreed purchase price on the signing of the agreement.

There is no real dispute about the facts of the case. The defendant had issued an option for the sale of the lands at $1.00 per square foot, but he agreed to reduce the sale price by $34,000 provided this amount was added to the usual deposit of 100f the purchase price on a sale of land. A deposit of $60,000 was therefore made towards the agreed purchase price of $226,903 leaving a balance of $166,903 to be paid on the date of completion.

Under the agreement the defendant was to deposit his documents of title with the plaintiffs' solicitors upon the execution of the agreement, but, as three of his titles had been lost and an application for new titles had been made, only two documents of title were so deposited. The defendant gave an assurance that he would try his best to get the new titles by the date of completion.

The balance of the purchase price was to be deposited with the defendant's solicitors on or before 21 July 1965. Upon such deposit being made the defendant was to execute a valid and registrable transfer and deliver vacant possession of the lands to the plaintiffs. The Balance of the purchase price to be deposited with the defendant's solicitors was to be released to the defendant upon registration of the transfer. There was a stipulation in the contract that time wherever mentioned shall be the essence of the contract. The agreement contained the usual clause as regards; the forfeiture of the initial deposit in the event of the plaintiffs failing to deposit the balance of the purchase price with the defendant's solicitors.

Between 5 May and 4 September 1965, a number of letters passed between the plaintiffs' solicitors and the defendant's solicitors. It is clear from these letters that the defendant was not in a position to give vacant possession of the lands on 31 July 1965 as agreed, nor had he all the documents of title so as to be able to give a valid and registrable transfer to the plaintiffs. His solicitors wrote a letter dated 9 August 1965 asking for extension of time up to the end of August 1965 for delivery of vacant possession. The plaintiffs did not agree to the request for extension of time. On 30 August 1965 the defendant's solicitors again wrote for extension of the time to complete the sale to 4 September 1965. This second request for extension of time was also refused.

The plaintiffs paid the sum of $166,903 to their solicitors on 29 July 1965. The defendant alleges in para. 6 of his amended statement of defence that the noncompletion of the sale was solely and entirely due to the plaintiffs' failure to send this sum of money to the defendant's solicitors as provided in cl 3 of the same agreement. Para. 6A of the amended statement of defence reads as follows:

The plaintiff wilfully withheld the balance of the purchase money of $166,903 and was not ready and willing to part with same by depositing it with the defendant's solicitors. The plaintiff had no intention to complete the sale and had wilfully frustrated defendant's efforts in providing vacant possession. It was agreed vacant possession to be given on registration of the transfer.

The defendant in denying the plaintiffs' claim relies on s. 53 of the Contracts (Malay States) Ordinance, 1950 which reads as follows:

Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order, and, where the order is not expressly fixed by the contr