JUDGMENT

Clement Skinner JCA:

Introduction

[1] We had earlier heard the appeal of YT Marketing Sdn Bhd ("the appellant") against the decision of the High Court Shah Alam dated the 8 August 2011. By its decision the High Court dismissed the appellant's claim for payment of double rental of premises owned by the appellant and occupied by Tan Whye Kion and Ong Bee Bee trading as Heads Unisex Saloon ("the respondents") as tenants.

[2] We allowed the appeal. These are our reasons for doing so.

The Facts

[3] The appellant is the registered owner of a four storey building at No 36, Lorong Gopeng, Klang. It let out the Ground Floor of the building (the demised premises) to the respondents under a Tenancy Agreement ("tenancy agreement") dated 11 May 1992.

[4] The term of the tenancy of the demised premises was for three years commencing from 1 June 1992 and expiring on 31 March 1995.

[5] The tenancy agreement contained an option clause to renew the tenancy for a further two years from 1 April 1995 to 31 March 1997 at an agreed rental of RM2,250.00 per month. The option to renew was exercised by the respondents, so the tenancy would expire on 31 March 1997.

[6] Some months before the expiry of the tenancy, correspondence was exchanged between the appellant and respondents about the demised premises, with the appellant indicating to the respondents that even though it wished to have the demised premises for its own use, it was prepared to grant the respondents a new tenancy for three years at RM4,500.00 per month with an option to renew for another two years at a rental of RM6,000.00 per month, and sent the respondents a draft tenancy agreement. However the parties could not agree on the new rentals.

[7] As a result no new tenancy agreement was entered into between the appellant and the respondents after 31 March 1997, but the respondent continued to remain in occupation of the demised premises.

[8] On 6 May 1997 the appellant commenced this suit at the Klang Magistrate's Court as Civil Summons 72-509-1997. We will return to the prayers sought in this suit shortly.

[9] The appellant subsequently applied to transfer this suit to the Shah Alam High Court and by order dated 15 November 1997 the application was granted and this suit was registered as Shah Alam High Court Civil Suit No: 22-468- 1998 (as the entitlement of this appeal indicates).

[10] In the meantime, the appellant filed a "Notis Permohonan Bagi Pembayaran Interim" dated 18 September 1998 at the High Court Shah Alam in which the appellant applied that the respondents pay RM4,500.00 per month from April 1997 "sehingga penyelesaian tindakan ini". On 1 December 1998 by consent the High Court made an Order which in its material part reads:

"DAN kedua-dua pihak bersetuju MAKA ADALAH DIPERINTAHKAN bahawa pihak defendan/responden membuat pembayaran-pembayaran interim sebanyak RM2,250.00 sebulan daripada bulan April 1997 sehingga penyelesaian tindakan ini."

[11] The monthly interim payments of RM2,250.00 were apparently paid into the respondent's solicitors account from 1 December 1998.

[12] The appellant subsequently on 10 January 2002 filed in a Summons-in- Chambers application seeking vacant possession of the demised premises on the ground that the tenancy had expired on 31 March 1997 by effluxion of time.

[13] On 1 March 2004 the High Court granted the appellant's application and ordered that the respondents do quit and deliver vacant possession of the demised premises to the appellant.

[14] On 30 June 2004, the respondents took steps to hand over vacant possession to the appellant, but documents seem to suggest that vacant possession was actually only handed over on 8 July 2004.

[15] On 14 September 2005 the appellant filed a Summon-in-Chamber applying for payment out to it of the sum of RM193,500.00, representing the agreed rentals from April 1997 to June 2004 (when vacant possession was handed over) and which had been paid to the respondents' solicitors following the consent order of 5 November 1