JUDGMENT

Ibrahim Manan FJ

Plaintiff's claim in this action is for:

(a) A declaration that the contract (i.e. the written agreement made between plaintiff and defendant on May 20, 1968 in respect of premises Nos: 29, 29A and 29B Jalan Kilang, Melaka) is no longer binding on plaintiff, alternatively;

(b) Rescission of the said contract;

(c) An order that the defendant do deliver up possession of the said permises to the plaintiff forthwith;

(d) Damages for unlawful occupation thereof;

(e) Further or other relief;

(f) Costs.

Defendant denies plaintiff's claim to which he puts up several defences and asks that it be dismissed with costs.

The admitted paragraphs 1, 2 and 3 of the statement of claim and the evidence adduce show that on April 2, 1966 plaintiff (PW1) verbally agreed to purchase from W.K. Tham Construction Co. a three-storeyed shophouse Nos. 29, 29A and 29B which the company were building for sale on a piece of land at Jalan Kilang which the company bought from but is still registered in the name of Pioneer Enterprises Sendirian Berhad. The price was $48,000 of which a total deposit of $18,000 had been paid. In 1967 the premises were almost completed and sometime in 1968 plaintiff agreed to sell the premises to defendant (DW1). On May 13, 1968 they both went to the Company's office where plaintiff handed to Mr. W.K. Tham (DW2), the proprietor of the Company a letter of the same date (D19) stating that he had transferred the premises to defendant and asked DW2 if he agreed to the transfer. DW2 said that he did not agree. Plaintiff also took with him another letter of the same date (P1) which he asked DW2 to sign but DW2 refused to do so. In spite of DW2's disagreement and refusal plaintiff and defendant on May 20, 1968 went to Messrs. Koh Kim Leng's office where they signed an agreement (P2) by which plaintiff agreed to transfer all his rights, titles and interest in the land (on which the premises stand) to defendant. Defendant was to pay plaintiff a sum of $18,000 of which $10,000 had been paid and the balance of $8,000 was to be paid in accordance with clause (iii) of P2, at the time when the agreement of sale to be entered into between the Company and plaintiff had been prepared and ready for execution. So far no such written agreement has been made.

The proviso in P2 reads as follows:

"(a) The Transferor hereby undertakes to obtain in writing from the Builders the approval and consent of the Builders to the sale to the Transferee of the said land under the like terms and conditions as have already been agreed upon between the Builders and the Transferor for the originally agreed sale of the said land to the Transferor and that failure from any cause whatsoever to obtain such aforesaid approval and consent shall render this Agreement null and void and any moneys paid by the Transferee to the Transferor under the terms of this Agreement shall be forthwith returned to the Transferee by the Transferor.

(b) Should the Builders be prepared to give such consent to and approval of the sale of the said land to the Transferee and should the Transferor then be not willing to transfer all his rights, title and interest in the said land to the Transferee, the Transferor shall then become liable to return to the Transferee forthwith such moneys as would at that time have already been paid by the Transferee to the Transferor together with an equivalent sum by way of liquidated damages.

(c) Similarly should the Transferee under the conditions stated in part (b) above be then not willing to accept the transfer of all the Transferor's rights, title and interest in the said land, and to purchase the said land under the terms. and conditions as stated above the Transferee shall have no claim whatsoever on such moneys as would at that time have already been paid by the Transferee to the Transferor which moneys shall be rightfully retained by the Transferor by way of liquidated damages."

The keys to the premises were handed by the Company to pl