JUDGMENT

Gopal Sri Ram JCA:

[1] This is the judgment of the court.

[2] On 16 January 2001, the parties before us entered into an agreement for the sale and purchase of certain shares in a company known as Serve Vest (M) Sdn. Bhd. It is common ground that several payments were made under the agreement but outside the time limited by it. At all times material to the appeal, the appellant had paid the respondent RM5,400,000. The plaintiff, after demanding for the balance, then commenced an action to recover the sum of RM11,896,000. The defendant (the appellant before us) filed his defence and then took out an application to strike out the plaintiff's statement of claim as disclosing no reasonable cause of action. The plaintiff also filed a similar application to have the defence struck out. The learned judge before whom these applications came dismissed them both. However, when dismissing the plaintiff's application, she made a further order that the dispute between the parties be tried on a summons to be taken out by the plaintiff under O. 14A Rules of the High 1980 . The plaintiff complied with that direction. The summons was heard and the learned judge entered judgment for the plaintiff in the sum claimed. The defendant has now appealed to us and advanced a number of grounds which he says constitute good reason warranting a trial of the action by viva voce evidence.

[3] One of the grounds relied upon by the defendant is that the O. 14A procedure is wholly inappropriate to the circumstances of this case. This, he says, is because there are several issues calling for the full trial of the action. With respect, we are of the view that it is not open to the defendant to raise that argument at this stage. The order of 18 April 2007 which directed the taking out of O. 14A summons was clearly to the prejudice of the defendant. Because it was an order that was meant to summarily determine the issues which the defendant wanted to have tried through viva voce evidence. It was therefore an appealable order because it finally determined the rights of the defendant to have his case tried as a witness action instead of it being summarily tried. No appeal was however lodged. The defendant must therefore be taken to have accepted the correctness of the learned judge's decision to have his right to be tried in a summary fashion.

[4] That brings us to the issue of construction which has been advanced before us this morning as constituting a complete answer to the plaintiff's claim. It has to do with the interpretation of two clauses in the agreement in question. The clauses are 3.2.10 and 8.3. They read as follows:

Clause 3.2.10

In the event that the FIC Approval has not been obtained for any reason whatsoever by the Cut-off Date and has not been mutually waived by the Parties in writing this Agreement shall be deemed to be terminated and rendered null and void and of no effect, and the Vendor shall refund to the Purchaser the Initial Payment without interest and the Purchaser shall release all documents provided by the Vendor prior to the termination pursuant to this Article 3.2.10 within three (3) months from the Cut-off Date or the Extended Cut-off Date, as the case maybe, failing which the Vendor shall be liable to pay interest at the Default Rate as at the date of expiry of three (3) months from the Cut-Off Date or the Extended Cut-off Date, as the case maybe, as applicable, calculated from the date of the expiry of the three (3) months to the date of actual payment including actual and full refund and neither Party shall have any claim against the other, save in respect of any antecedent breach.

Clause 8.3

In the event that the Purchaser fails to make payment of the balance of the Purchase Price by the Expiry Date, this Agreement shall terminate, be rendered null and void and of no effect and the Vendor shall refund to the Purchaser Initial and Second payment or such part thereof that shall have been paid by the Purchaser in accordance with Art