JUDGMENT

NH Chan JCA:

These are three appeals by the same appellant (Dial Kaur) with the same respondent (Mann Foong Realty Sdn Bhd). The appellant was the defendant and the respondent was the plaintiff in the proceedings instituted by the plaintiff for specific performance of an agreement in writing contained in a letter from the solicitors for the plaintiff (M/s Mohd Noor & SY Lee) to the solicitors for the defendant (M/s Asbir, Hira Singh & Co). We have allowed all three appeals and we give our reasons below. We will deal with the three appeals separately.

Civil Appeal No A-02-28 Of 1997

The plaintiff's action is for specific performance of an agreement made between the plaintiff and the defendant in exchange of correspondence between their solicitors which culminated in an agreement the terms of which were contained in the following letter.

This is the plaintiff's solicitors' letter to the defendant's solicitors:

MOHD NOOR & S.Y. LEE

Your Ref : HS/2645/slc

Our Ref : LSY/M4849/89BC 27th July 1995

Messrs Asbir, Hira Singh & Co. Advocates & Solicitors No. 6, Jalan Maharaja Lela, (Station Road) 30000 Ipoh. BY HAND

Dear Sirs,

Re: Ipoh High Court Suits Nos. 22-210-89 and 22-208-89 Dial Kaur a/p Tara Singh v. Mann Foong Realty Sdn Bhd

With reference to the telephone conversation between your Mr Hira Singh and our Mr S.Y. Lee, we confirm that the terms of settlement are as follows:

a) Our clients are to pay your client the sum of RM23,000.00;

b) Our client will settle all outstanding quit rent and assessment payable in respect of the 54 lots involved up to date hereof;

c) Your client is to execute the eight (8) transfers of the land known as Lot Nos. 655, 656, 658, 659, 660, 661, 662 and 663 together with the PDS 15 and the CKHT 1 to our clients or their nominees.

d) Our client will settle the RM1,186,640.00 due to Malayan Banking Berhad to redeem (sic) the 8 titles of our client and your client's 23 titles;

e) The Guarantors in the agreement dated 19th March 1984 are released;

f) The above two cases are to be withdrawn with no order as to costs;

g) There be no further claim by either party against the other.

Yours faithfully,

Sgd

c.c. client

The plaintiff's claim in the action is for the defendant to perform her promise in para (c) of the above agreement, which is for the defendant to execute the transfer of the eight titles named in the paragraph to the plaintiff. In the court of first instance the plaintiff had applied for and obtained an interlocutory injunction restraining the defendant from disposing of or dealing with the land described in the eight titles. The defendant appeals to the Court of Appeal against this order granting the injunction.

We are of the view that the real issue before us is quite straightforward. It is simply a matter of construing the effect of these two paragraphs, namely, (c) and (d) in the agreement. For convenience we have reproduced the two paragraphs below:

c) Your client is to execute the eight (8) transfers of the land known as Lot Nos. 655, 656, 658, 659, 660, 661, 662 and 663 together with the PDS 15 and the CKHT 1 to our clients or their nominees.

d) Our client will settle the RM1,186,640.00 due to Malayan Banking Berhad to redeem the 8 titles of our client and your client's 23 titles;

In this respect s. 55 of the Contracts Act 1950 applies. It reads:

55 When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and if the promisor of the promise last mentioned fails to perform it, the promisor cannot claim the performance of the reciprocal

promise, and must make compensation to the other party to the contract for any loss which the other party may sustain by the non-performance of the contract.

This is a case where there were reciprocal promises to be performed by the two parties such that the performance of the promise by one party could not be claimed b