JUDGMENT

Syed Othman FJ:

This appeal is against the decision of the High Court at Kuala Lumpur dismissing the appeal by the appellant against the decision of the Sessions Court dismissing her claim of RM5,400 under an agreement with the respondent (owner) a building developer and owner of a piece of land in Sentul, Kuala Lumpur, on which the appellant had built a house which was occupied by a tenant. On 16 February 1974 the parties entered into an agreement. In the recital, the main body of the agreement and in the appellant's own pleading the house was described as a squatter house.

The substance of the agreement was that the owner paid her RM600 and she agreed to quit and deliver vacant possession of the house which she had the option either to demolish or of which to deliver vacant possession by 10 April 1974; in either event the owner was to pay her a further sum of RM5,400 by way of compensation and travelling allowance; if the appellant failed to demolish or deliver vacant possession of the house on or before 10 April 1974 she agreed to pay the owner liquidated damages of RM200 per day for the breach.

The appellant did not fulfill her part of the bargain. In May 1974 the owner brought an action (Sessions Court Civil Action 369/74) seeking the appellant to demolish the house and liquidated damages of RM200 per day from 10 April 1974. The appellant entered her defence stating that the liquidated damages of RM200 per day was a penalty; she had been unable to fulfill her part of the bargain because the tenant staying in the squatter house refused to quit. The appellant took out a third party notice against the tenant seeking that he indemnify her against the owner's claim. The tenant in his defence of the third party notice stated that he had verbally agreed with the appellant to quit and deliver vacant possession of the house on condition that RM3,000 was paid to him as compensation on or before 10 April 1974; the condition was not fulfilled; he vacated the house on 31 August 1974 on the owner having paid him RM3,000. At the trial it was conceded the sum paid was RM3,500 (see p. 38 of appeal record). The appellant then brought an action (Sessions Court Civil Action No. 307/75) against the owner and tenant seeking payment of the RM5,400. The owner's defence to this claim, among other things, was that the appellant was precluded from the claim as she did not vacate the house by 10 April 1974 as required under the agreement.

The trial of these two actions was consolidated in the Sessions Court. The learned President allowed the respondent's claim ordering the appellant to pay the respondent liquidated damages in the nominal sum of RM1 and to refund RM600; he dismissed the appellant's claim against the tenant and also her claim against the owner for the balance sum of RM5,400.

The High Court at Kuala Lumpur in its appellate jurisdiction affirmed the dismissal of the appellant's claim against the owner, allowed the appeal against the tenant and ordered the tenant to indemnify the appellant the RM600 which she had to refund to the owner and to indemnify the owner and the appellant against all costs in both the Sessions Court and High Court.

In his judgment the learned President Sessions Court said that the appellant was to blame for not vacating the land by 10 April 1974. The learned appellate Judge said in effect that under the terms of the agreement, essentially, the owner agreed to pay the appellant RM5,400 on delivery of vacant possession on or before 10 April 1974; time was referred to in the agreement as to be of the essence; the appellant could not claim that she had performed her part of the bargain by the substituted performance of the tenant when she herself failed to perform her part of the bargain.

By the grounds of appeal it is contended in effect that the RM6,000 agreed to be paid under the agreement must be treated as compensation to demolish the appellant's house which the owner was obliged to pay notwithstanding late del