JUDGMENT

Lim Beng Choon J:

In this suit the plaintiff is claiming for specific performance of a sale and purchase agreement dated 23 March 1971 ("S & P agreement") pursuant to which the plaintiff purchased and the defendants sold the third floor of a proposed 5-storey building ("the said building") to be built on Lot 395 Section 57 in the Town and District of Kuala Lumpur. The said building was duly completed in or around 1973 and the plaintiff paid the full purchase price of RM20,900 but todate no strata title for the third floor has been delivered to the plaintiff by the defendants. The plaintiff alleged that the defendants, in contravention of the then s. 151A of the National Land Code 1965 ("NLC") and/or s. 8 of the Strata Titles Act 1985, had and still have wrongfully failed and refused to deliver the strata title of the third floor to the plaintiff; neither did they take any positive steps towards the delivery of the said strata title despite numerous requests from the plaintiff. The plaintiff therefore prays for specific performance of the immediate delivery of the strata title of the third floor. Alternatively the plaintiff prays for damages for non-delivery of the said strata title in addition to or in alterations (?) for specific performance under s. 18 of the Specific Relief Act 1950 (Act 137). The words "in alterations" have been wrongly used and the correct words should be "in substitution".

This suit was filed on 3 October 1989 and after the defendants had entered appearance, the plaintiff took out a summons-in-chambers on 15 December 1989 for an Order of the Court pursuant to O. 81 of the Rules of High Court 1980 for specific performance of the immediate delivery of the strata title of the third floor of the building known as No. 52-C Jalan Sultan Ismail, Kuala Lumpur which is held under Grant 9495, Lot 1138 pursuant to the S & P agreement. It is to be noted that the title of the land in dispute as mentioned in the Summons differs from the title stated in para. 1 of the statement of claim of the plaintiff. I mention this difference at the outset since the defendants raised this difference as an issue in their defence.

The defence of the defendants as set out in their statement of defence filed on 17 January 1990 may be summarised as follows:

(a) the S & P agreement was governed by the NLC and not the Strata Titles Act 1985 and the legal interest and title of the land in question was vested in the defendants under the NLC;

(b) the conveyance referred to in Clause 15 of the S & P agreement was not a strata title but merely an interest in the undivided shares of the said land;

(c) the defendants are incapable of specifically performing by delivering a strata title to the plaintiff which the latter is in any event not entitled to the said relief;

(d) the defendants have done its utmost to procure the issuance of separate titles but the approval has not been granted by the appropriate authorities;

(e) in the alternative the plaintiff has no title to sue as he has assigned all its interests to a third party.

The defendants then concluded their defence by saying that they are willing to rescind the S & P agreement and to refund the purchase price of RM19,900 with nominal interest.

From my scrutiny of the pleadings of the respective parties, the summons-in-chambers of the plaintiff, the affidavits of the plaintiff in support of his case and the affidavits of the defendants in opposing the plaintiff's application, the main issue posed to this Court for consideration is whether the defendants are enjoined by law to procure the said strata title for the plaintiff and upon issuance of the said strata title, to transfer the same to the plaintiff.

In considering the aforementioned issue it is necessary in the first place to examine the S & P agreement (see exhibit SASM1). It is stated in the last recital that:

And whereas the vendors intend applying for approval for sub-division of the said land leading to the issue of a sepa