SYED AHMAD IDID, J

1. The Plaintiffs apply for summary judgment under Order 14, Rules of the High Court 1980, in respect of their claim against the Defendants for MR146,657.31 (as at 26 June 1990), statutory interest and costs. The Plaintiffs claim that they had, from time to time, rendered their services as Estate Agency to the Defendants but the Defence states that the Plaintiffs have been in breach of their several obligations under an Agreement. The Defendants have also counterclaimed for damages against the Plaintiffs for breach and negligence. Plaintiffs' counsel, Mr. Bernard Lo, stated that Plaintiffs carried out their duties properly and efficiently.

2. An Agreement entered into between the Plaintiffs and the Defendants on 8 January 1987 came into force on 1 November 1986 but it was mutually terminated on 1 November 1988. The [2] Plaintiffs say this was as a "result of financial constraints on the part of the Defendants". (See KM-5). By 18 February 1991, the Defendants wrote another letter to the Plaintiffs in which it was stated that Defendants "endeavour to commence payments in instalments by mid-1991". This letter did not mention nor allege any negligence of the Plaintiffs though the Agreement had been mutually terminated in 1988 or about 2-1/2 years earlier. Additionally, Dr. Mohan Swami, Director of the Defendants, wrote to the Plaintiffs on 1 November 1988 and placed "on record the excellent work done so far by you and your staff...." (KM-3 to the Plaintiffs' summons-in-chambers application dated 14 September 1992). By KM-5 in respect of outstanding payments, the Defendants informed the Plaintiffs that "in the event the public listing takes place earlier, we may pay the balance by one lump sum." All that points to the admission of the Defendants regarding the "payments" but nowhere was any sum particularised. I am therefore unable to equate "balance in one lump sum" to that "total sum of MR146,657.31" especially also on the fact that at the conclusion of the hearing, learned counsel for the Plaintiffs asked for "the lesser sum of MR141,575.50" which, he asserts, "has been specifically admitted by the Defendants." I am unable to discover the "specific" admission. If a sum had been agreed upon, I would have followed Lord Denning in ASSOCIATED BULK CARRIERS LTD. v. KACH SHIPPING INC. (The FUOHSAN MARU) (1978) 2 All ER 254, (at pages 261 and 262) [3] and allowed the Plaintiffs the sum but this is not so here.

3. While I commend the counsel for the Plaintiffs on his meticulous and detailed submission backed by citations from the respective judgments, I have, however, to consider the merits of the action based solely on the claims and the pleadings. See COMPTROLLER-GENERAL OF INLAND REVENUE MALAYSIA v. WENG LOK MINING CO. (1969) MLJ 98 where it was held that the Defendant had not shown that it had a bona fide defence. Sadly, the statement of claim is rather brief when it ought to have particularised the rates and amounts and described the fees separate from the commissions. Claims are the basis of the action and on it the defence may fail or doubts may be raised. I have come to this conclusion mindful of the judgment in EUROPEAN ASIAN BANK AG v. PUNJAB AND SIND BANK (1983) 2 All ER 508.

4. The learned counsel for the Defendants says the counterclaim is bona fide and that it arises out of the same transaction. It appears that way especially when the complaints against the Plaintiffs are based on their services.

5. The Plaintiffs, in the Order 14 application, must comply with the requirements, i.e. by Order 14, rule 2(1), there must be an affidavit verifying the facts and stating that in the [4] deponent's belief there is no defence. See Form 18. The affidavit, however, must be sworn (or affirmed) as in Form 78. This has not been done in this case though Khalid bin Mohamad's affidavit of 10 July 1992 at Para.9 did say that he "verily believed....there is no defence."

6. Both counsel have adequately ventilated their autho