Shankar J

This is an application by the Petitioner for a Winding up Order of the Respondent Company.

The Petitioner is a building contractor. On or about October 24, 1983 the Petitioner entered into a formal building contract with the Respondents. The Petitioner is referred to in this contract as the contractor and will be referred to in this Judgment as such. The Respondent is referred to in the contract as the employer but will be referred to herein as the Company. The contract is in the form issued under sanction of Pertubuhan Arkitek Malaysia and the Institute of Surveyors. It is of the series described as "private edition without quantities." The Articles of Agreement and the conditions are somewhat complex running into some 20 pages of closely printed material.

But so far as it is relevant to the present application I need only state that under this contract the contractor was to build 147 units of mixed housing development at Lot No. 101 Mukim of Senai, Kulai, Daerah Johor Bahru at a cost of $5,724,881.40. The architect under the contract was Kumpulan Sivik Arkitek, 3rd Floor, TWU Building, Petaling Jaya, Selangor.

The works under the contract were to commence on or about November 2, 1983 and completed on May 2, 1985.

To put it in a general way, the arrangement appears to have been for the architect to issue certificates for the work which had been completed at various stages so as to permit the payment of what is loosely referred to as progress payments. The contract provided for 10% to be the percentage of the certifying value retained.

On October 22, 1983 the contractor appears to have made out a voucher for the payment to the Company of a sum of $50,000/- said to be "payment for advance." The voucher further states that this payment was by way of a Bank Bumiputra (Malaysia) Berhad cash cheque No. 038-366. The voucher has a signature above the printed words "Received by." This signature is said to be that of Mr. S.I. Rajah.

On October 25, 1983 the contractor made out another voucher. This voucher states that $150,000/- was advanced to the Company and this voucher further states that the payment was by way of BBMB cheque Nos. 038-369 and 038-370.

Again the voucher purports to have the signature of Mr. S.I. Rajah as having received the money.

Thereafter it would appear that the works proceeded and the architect issued certificates for payment. I have not seen Certificates Nos. 1 and 2. On March 9, 1984 the architects issued a certificate estimating the total value of the works executed at $626,000/-. Less the retention amount of $62,600/- the total amount payable to them is said to be $563,400/- which less the amount previously certified of $461,655.09, made the amount authorised for the payment by this certificate as $101,744.91.

By that date it is apparent that there were severe problems between the parties.

The Company was represented by M/S Wong and Dass. The contractor was represented by M/S Wong and Liew. The architect Kumpulan Sivik Arkitek appears to be the style under which Mr. Pulendran Ponniah practises.

On March 19, 1984 there was a conference at the work-site by the parties at which they appear to have come to a tentative agreement on the terms on which they were to disengage and go their separate ways. These tentative terms are the subject of a letter dated March 19, 1984 which was sent by the Company's Solicitor to the contractor's solicitor. It was received by the contractor's solicitor the following day as appears from the rubber stamp on the photocopy of this document which has been submitted in evidence.

Briefly this document provided that the building contract was to be terminated subject to the following terms:

1. The taking into account of a sum of M$304,538.84 already paid by the Company to the contractor by way of progress payments.

2. The building contract to be determined as from the date that the contractor receives $130,000/- from the Company as to which a cheque had been issued.

3. Without