JUDGMENT

Akhtar Tahir J:

Introduction

[1] The Plaintiff in this case sought a Declaration from the Court to annul two agreements ie a Sale and Purchase Agreement (SPA) and a Deferred Payment Plan Agreement (DPP) entered with the Defendant a licensed Developer for the purchase of property developed by the Defendant.

[2] The Defendant in turn counter claimed against the Plaintiffs for the breach of these two agreements.

[3] The case went to a full trial wherein the Plaintiff and Defendant adduced oral, as well as documentary evidence contained in the Bundle of Documents filed in Court . The parties also filed agreed statement of facts and issues to be tried in order to define the precise dispute in this case.

Brief Facts

[4] The facts put in a nutshell is that the Plaintiffs had entered into the SPA for the purchase of the residential apartments being developed by the Defendant in Seri Kembangan, Selangor known as "Tropical Villa" ("the properties").

[5] The Plaintiffs faced difficulties in making full payments as agreed under the SPA for the purchase of the properties, when their loan applications for the payment of the balance sum was rejected by the local Banks. As a result, the Plaintiffs faced a risk of the sums of monies already paid in cash being forfeited.

[6] It was then the parties entered into the DPP extending the period of payment as specified in the SPA by way of monthly instalments in the extended period of time.

[7] The Plaintiffs failed to pay the instalments under the DPP after making a number of payments. The Plaintiff are now seeking to annul both the SPA and the DPP whereas the Defendant are seeking to enforce either the SPA or the DPP.

The Issue

[8] The crux of the issue in this case is determining the validity of the DPP which would in turn would determine the validity of the SPA.

The Validity Of The DPP

[9] The legal burden of proving the DPP rests upon the Plaintiffs as stipulated under the Evidence Act 1950. The relevant provisions are reproduced here:

Section 101

(1) Whoever desires any Court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

ILLUSTRATIONS

(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed.

A must prove that B has committed the crime.

Section 102

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

ILLUSTRATIONS

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father.

If no evidence were given on either side, B would be entitled to his possession.

Therefore, the burden of proof is on A.

(b) A sues B for money due on a bond.

The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.

If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved.

Therefore, the burden of proof is on B.

Section 103

The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

ILLUSTRATIONS

(a) A prosecutes B for theft and wishes the Court to believe that B admitted the theft to C. A must prove the admission.

(b) B wishes the Court to believe that at the time in question he was elsewhere. He must prove it.

[10] The Plaintiffs' challenge of the DPP is two prongs. The first is that the DPP is invalid because it was entered by way of misrepresentation and coercion/force and secondly that it is a cloaked money lending agreement.

i) Misrepresentation

[11] Misrepresentation is defined in s 18 of the Contracts Act 1950 as follows:

"Misrepresentation" includes-

(a) the positive assertion, in a manner not warra