Syed Agil SCJ:

Earlier we dismissed this appeal with costs and made an order that the deposit of RM500 be paid to the respondent on account of costs. We considered the appeal on two main grounds, viz. (1) the legal issue and (2) the factual issue.

As regards (1), the question was whether the Court has a discretionary power to issue a mandatory injunction on an ex parte application under O. 29 r. 1(2) of RHC 1980. We applied the principles cited in several relevant authorities and decided on the facts and circumstances of this case, the Court has such jurisdiction. With regard to (2), on the facts available before the learned Judge, we were satisfied that he had not wrongly exercised his discretion as to merit our interference.

Before elaborating our grounds, we would like to deal with the facts so far disclosed in the affidavits and documents exhibited thereto.

On 9 December 1983 Bank Islam Malaysia Bhd., a limited company incorporated under the Companies Act 1965 (the respondent), by a letter of offer to the appellant, a private company limited by shares under the Companies Act, approved the appellant's application and agreed to provide facilities by issuing letters of credit for the purchase of printing equipment amounting the RM3,832,000, which would be leased to the appellant, subject to certain conditions as stated in the said letter (WAR 1 p. 92 Vol. 2).

In accordance with the letter of offer, the lease was for a period of seven years commencing from 30 December 1983 and the rentals were payable in advance in the sum of RM72,762.40 per month by eighty-four monthly instalments. The appellant had also to pay two rental deposits valued at three months' rental of the machinery for each deposit according to the dates specified at para. 11 of the letter of offer. The first deposit was to cover the rental for the first three months. The rentals for the fourth month onwards had to be paid in advance at the beginning of each month. The appellant paid the sum of RM105,000 by cheque towards the rental deposit on 9 December 1983, and on 6 January 1984 paid a further sum of RM113,287.20 towards the same making a total of RM218,287.20. However, the appellant had failed to pay further monthly rentals of RM72,762.40 per month as agreed, but made only two part-payments of RM10,000 each on 13 April 1984 and 24 July 1984 respectively. The appellant by letter dated 23 March 1984 requested the respondent to allow them to defer four months towards the payment of the rentals. The respondent however informed the appellant that they could defer the payment of the deposit instead but not the rentals. On 5 May 1984 the appellant was in arrears of rents to the tune of RM175,899.75 as stated in their letter of reminder. On 28 June 1984 the respondent wrote again reminding the appellant that he was in arrears of RM245,806.75 in rentals.

On 2 August 1984 they executed a lease of printing equipment agreement (the lease agreement) incorporating some of the terms of the earlier agreement whereby the respondent at the request of the appellant agreed to purchase the said equipment for the purpose of leasing the same to the appellant. The lease was to commence on 30 December 1983 as agreed upon and expressly provided by item (4) to the schedule of the lease agreement. The respondent became the lessor and the appellant the lessee. The facility granted was based on Islamic banking business which included the appellant's profit margin and was subject to the terms and conditions stated in the lease agreement. By this lease agreement, some of the terms contained in the letter of offer of 9 December 1983 were varied. The rental was now fixed at RM69,907 per month payable in advance in respect of the lease term of eightyfour months commencing from 30 December 1983. There is no provision for rental deposits in the lease agreement. Instead it provides for security deposit of RM209,721 which was to be paid by the appellant on execution of the lease agreement