JUDGMENT

Gunn Chit Tuan SCJ:

By a contract made in writing on 14 July 1981, one Yew Wan Leong (the plaintiff) agreed to sell and one Lai Kok Chye (the defendant) agreed to buy 100,000 ordinary shares in Ganda Holdings Berhad at the price of RM3.50 per share amounting to RM350,000. On the execution of the said contract the defendant paid the plaintiff RM35,000 by way of deposit and it was agreed that the balance would be paid and the sale completed on or before 30 September 1981. It was a term of the contract that in the event that the defendant fails to complete the purchase the plaintiff shall be entitled to retain the said sum of RM35,000 received as a deposit from the defendant and the defendant would have to indemnify the plaintiff in a sum equal to the difference between the sum received by him from the sale of the said shares to any listed share brokers and the purchase price mentioned in the said contract. It was also provided in the said contract that time whenever mentioned should be the essence of the contract.

The plaintiff in his statement of claim averred that he was ready and willing to perform and complete the said sale on or before 30 September 1981, but at the oral request of the defendant on 26 September 1981, he granted an extension of time of four days for completion of the purchase and payment of the agreed balance price of RM315,000. It was also contended by the plaintiff that by requesting and granting the extension of time to complete the purchase, time was no longer made the essence of the contract and the parties by their conduct had waived the time being the essence of the contract.

The defendant in his statement of defence averred that he had no communication whatsoever with the plaintiff as alleged and that there was no waiver of any of the terms of the contract. The plaintiff, however, gave evidence in the High Court that he and the defendant met at the Fairmont Hotel, Ipoh, on or about 1 or 2 October 1981.

He had the shares ready for delivery but stated that the defendant claimed that he had lost quite a large sum of money playing shares and that he could not raise the required sum of money. He also said that the defendant then asked him to reduce the amount and was prepared to pay him RM70,000 in lieu of taking up the shares. That sum of money was not paid by the defendant and on 5 October 1981, the plaintiff delivered 100,000 Central Securities shares through their respective bankers (Exhibit P6) but the shares were returned to the plaintiff on 11 November 1981, through the same bankers as the defendant refused to accept them. The plaintiff sold the shares between 9 October 1981 and 30 November 1981 for RM210,912.30 and therefore claimed RM139,088 being agreed liquidated damages, that is, the difference between the agreed and forced sale prices.

In support of his case, the plaintiff called his bank manager to prove that the shares had been dispatched to the defendant's bankers and were returned unpaid on 11 November 1981. The plaintiff also called an accountant attached to a firm of stock brokers called Kin Khoon & Co., to show that he had purchased and possessed 100,000 Ganda Holdings Berhad's shares as at 24 September 1981 and was in a position to deliver them for sale on that date. That witness also produced a letter from his firm to confirm that the plaintiff had in fact purchased 100,000 Ganda shares as at 24 September 1981. Another witness called by the plaintiff was one Su Sein Thong (PW5) who had introduced the defendant to the plaintiff and who was a witness to the agreement signed by them on 14 July 1981. PW5 also confirmed that the parties met at the Fairmont Hotel where it was agreed that RM70,000 would be paid by the defendant to the plaintiff to settle the matter.

The defendant who had averred in his statement of defence that he rejected the alleged delivery of the shares in question because they were not delivered in accordance with the express terms of the said contract, chose