JUDGMENT

Abdul Wahab Patail JCA:

(1) This is an appeal by the appellant WTK Holdings Bhd (hereinafter referred to as "the defendant") who is dissatisfied with the decision of the High Court made on 10 September 2009 wherein the claim by Foo Sae Heng @ Foo Sea Hing and Yeo Tat Chew, the respondents herein (hereinafter referred to as "the plaintiffs") was allowed in respect of:

(a) specific performance of an agreement dated 30 August 1994;

(b) balance of RM420,000 with interest thereon; and

(c) costs to be taxed.

(2) We had allowed the appeal with costs and set aside the judgment of the High Court. We set out our reasons below.

(3) We appreciate the decision of the appellant to proceed only with the 5th ground in their 6-ground memorandum of appeal. The written submission for the defendant in this appeal is very similar to the submission submitted in the High Court. The written submission for the plaintiff is a shortened version. Notwithstanding their well written submissions, counsel for the parties proceeded to take over an hour to submit orally on the single issue in the 5th ground that the learned judge erred in holding that the plaintiffs claim was not time barred under s. 6(1) of the Limitation Act 1953 (Revised 1981) Act 254. Being further repetition, we do not think it was necessary to take up substantial time we can ill-afford for oral submissions.

(4) As a matter of general principle, when the defence of limitation is raised, the burden is upon the party relying upon the cause of action so impugned to prove it is brought within the period of limitation. See Ong Ah Bee v. Hii Chung Siong, Robin (1993) 1 CLJ 504, applied in BPI International Finance Ltd v. Tengku Abdullah Ibni Sultan Abu Bakar (2009) 4 CLJ 599 CA.

(5) The question whether the plaintiffs claim is time-barred turns upon the following question which was set out in the list of questions to be tried before the learned judge:

Sama ada bayaran sebanyak RM100,000.00 yang dibayar oleh Westmont Land (Asia) Berhad kepada Plaintif-plaintif pada 5.2.1997 merupakan suatu bayaran yang dibuat bagi pihak Defendan ataupun WHSB?

which may be translated as follows:

Whether the sum of RM100,000.00 paid by Westmont Land (Asia) Berhad to the Plaintiffs on 5.2.1997 was a payment made on behalf of the Defendant or WHSB?

(6) WHSB refers to Westmont Holdings Sdn Bhd (hereafter "Westmont Holdings") and Westmont Land (Asia) Berhad is hereafter referred to as "Westmont Land".

(7) The significance of the question above is that the payment of RM100,000 on 5 February 1997 is a part-payment and not made by the defendant itself but by a third party, Westmont Land. By operation of ss. 26(2) and 27(2) of the Limitation Act, if the payment by Westmont Land is found to have been made on behalf of the defendant, then for the purposes of limitation of the plaintiffs cause of action, time begins to run from 5 February 1997. That means that the plaintiffs action filed on 31 December 2002 is not time-barred. On the other hand, if the RM100,000 part-payment is not found to be paid on behalf of the defendant, then time for the purpose of limitation would begin to run from 13 September 1995 when the defendant made its last part-payment. In that event, the plaintiffs action would be time-barred.

(8) At the trial, the plaintiffs relied upon the testimony of the 2nd plaintiff, Yeo Tat Chew (PW1), and the two cheques by Westmont Land as evidence that the payment made on 5 February 1997 was made on behalf of the appellant. The defendant called one Bong Wee Khong (DW1), manager at WTK Holdings Sdn Bhd. DW1 said in his witness statement that the appellant had divested its equity share in Westmont Land in September 1996 to WHSB. Under cross-examination he agreed that the divestment was subject to the approvals of the relevant authorities and that there was no evidence that those approvals had been obtained.

The Grounds Of Judgment

(9) The appeal before this court is that the learned judge h