THE RESPONDENT'S WRITTEN SUBMISSION AMENDED

DALAM MAHKAMAH RAYUAN DI MALAYSIA
[BIDANGKUASA RAYUAN]
RAYUAN SIVIL NO: K-02-1490-2011
ANTARA
MADASAMA GOODWAY SDN BHD
[NO. SYARIKAT: 260991-V] ..PERAYU
DAN
LIM ENG HUAT ..RESPONDEN
[Dalam Mahkamah Tinggi Malaya di Alor Setar
Dalam Negeri Kedah DarulAman, Malaysia
Guaman Sivil No: 22-238-2002
Antara
Lim Eng Huat .. Plaintif
Dan
Madasama Goodway Sdn Bhd
[No. Syarikat: 260991-V] .. Defendan]
THE RESPONDENT’S WRITTEN SUBMISSION
A. INTRODUCTION
1. This is an Appeal by the appellant/Defendant against the
Judgment pronounced by the High Court of Alor Setar on
15.5.2011 in favour of the Respondent/Plaintiff in the
Civil Suit No. 22-238-2002 wherein the Learned High Court
Judge, Mohd. Sofian Bin Abd Razak.
2. The Appellant herein was the Defendant in the Civil Suit
No. 22-238-2002 whereas the Respondent named herein was the
Plaintiff in the said Civil Suit.
B. THE BACKGOUND OF THE CASE

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THE RESPONDENT/PLAINTIFF’S CASE
1. The Respondent/Plaintiff’s case against the
Appellant/Defendant, a company which is familiar with Real
Estate properties, is basically for the Specific
Performance of the Sale and Purchase Agreement date
19.7.2002 for the purchase of the land known as PT No.
1233, Mukim Sungai Seluang, Daerah Kulim, Kedah held under
HS(D) 4370/89 (now known as Grant Registration No. 25972)
together with a two-storey shophouse built on the said land
bearing the address of No. 13, Taman Cekur Manis, 09600
Lunas, Kedah (hereinafter referred to as “the aid
property”).
2. The High Court at Alor Setar has on 15.5.2011 pronounced
the following orders in favour of the Respondent/Plaintiff:-
(a) Specific Performance of the said agreement;
(b) An order that at the refusal of the
Appellant/Defendant to complete the said sale, the
Registrar of the Alor Setar High Court be authorized
to execute the documents for transfer to the
Appellant/Defendant and cost to be taxed; and
(c) The Defendant’s Counter-claim be dismissed with cost
to be taxed.
3. Prior to the signing of the said Sale and Purchase
Agreement on the 19th
July 2002, the Respondent/Plaintiff
had at the material times been renting a double storey
shophouse bearing the postal address of No. 13, Taman Cekur
Manis, Lunas,Kedah situated on land known as PT No: 1233,
Mukim Sungai Seluang, Mukim Sungai Seluang, Daerah Kulim,
Kedah (hereinafter called the ‘property’) from the
Appellant/Defendant since 19th
April 1999 pursuant to a
tenancy agreement dated 1.4.1999.
4. On 12.5.2002 a fire broke out at the said property wherein
the ground floor of the said property was destroyed by the
fire.
5. As a result of the fire, the Respondent/Plaintiff could not
continue its business at the said property. Since the
tyres, batteries, tyre rims, lubricants and spare parts
which were kept on the upper floor of the said property
were destroyed in the fire, the said stocks were kept at

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the said location temporarily until the
Respondent/Plaintiff could continue with his business. The
Respondent/Plaintiff was allowed to continue his occupation
of the said property because the upper floor was still in
good condition.
6. The said tenancy was terminated by consent on 19.7.2002,
i.e. the date the said Sale and Purchase Agreement was
signed between the Respondent/Plaintiff and the
Appellant/Defendant since the Appellant/Defendant had
agreed to sell the said property to the
Respondent/Plaintiff after the Appellant/Defendant’s second
visit to the said property. This incident took place one
week after the fire outbreak wherein the
Respondent/Plaintiff had asked the Appellant/Defendant
whether he would like to sell the said property to the
Respondent/Plaintiff since the Respondent/Plaintiff’s
business was the only bread and butter of the
Respondent/Plaintiff’s family and as such, the
Respondent/Plaintiff needed to commence his business as
soon as possible,
7. On 19.7.2002 a Sale and Purchase Agreement (hereinafter
called ‘the said Agreement’) was signed between the
Respondent/Plaintiff and the Appellant/Defendant whereby
the Respondent/Plaintiff agreed to purchase and the
Appellant/Defendant agreed to sell the said property at a
purchase price of RM270,000.00 and the tenancy agreement
was terminated by consent and the deposit for the tenancy
was refunded on the same date as the signing date for the
said Agreement.
8. It was a term of the said Agreement that the
Respondent/Plaintiff should pay a sum of RM27,000.00 at the
time of signing the said Agreement by way of a deposit to
the Appellant/Defendant and the balance of the purchase
price was required to be paid within 4 months from the
date of the said Agreement and if the balance could not be
paid witih the 4 months then an extension of time of 1
month would be provided for with interest accruing at the
rate of 6% per annum calculated on daily basis would be
imposed on the sum due and payable.
9. At the time of the signing of the said Agreement on
19.7.2002, the Respondent/Plaintiff has paid to the

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Appellant/Defendant a sum of RM27,000.00 as receipt of
deposit which was also admitted by the Appellant/Defendant.
10. The Respondent/Plaintiff had obtained a loan for a sum of
RM230,000.00 from OCBC Bank (Malaysia) to fund the purchase
of the said property and the differential sum between the
balance purchase price and the loan sum i.e. about
RM13,000.00 was differential sum to the
Appellant/Defendant’s solicitors upon receipt of the said
Transfer Form (in form 14A National Land Code) duly
executed by the Appellant/Defendant or upon receipt of the
undertaking from the Appellant/Defendant’s Solicitors that
the Transfer Form (in form 14A National Land Code) which
had been duly executed by the Appellant/Defendant would be
given to the Respondent/Plaintiff’s Solicitors for purposes
of adjudication.
11. Despite numerous request forwarded by the
Respondent/Plaintiff’s Solicitors the Appellant/Defendant
had refused and until to date refused to take any steps to
complete the said sale.
12. The Respondent/Plaintiff was and is at all material times
ready and willing to complete its obligations pursuant to
the said Sale and Purchase Agreement.
13. According to Mr. Venugopalan, solicitor who acted for the
Respondent/Plaintiff in drawing up the Agreement confirmed
that part of the deposit of RM3,000.00 was paid to the
Appellant/Defendant on the 7.6.2002 at the
Appellant/Defendant’s clinic and the balance of RM24,000.00
was to be paid on 14.7.2002. Also, Mr. Venugopalan has
confirmed that the said Sale and Purchase Agreement dated
19.7.2002 is not conditional upon the Appellant’s total
insurance claim.
14. The Respondent/Plaintiff and the Appellant/Defendant had
agreed orally prior to the signing of the said agreement on
7.6.2002 that the Respondent/Plaintiff will do all the
repair works on the said property. This was due to the fact
that the Respondent/Plaintiff would be unable to occupy the
said property without any repair works being done on the
said property. Further, the Respondent/Plaintiff had
purchased the said property for purposes of expanding his
business. The Respondent/Plaintiff was to bear the expenses
of the repair and landlord has no objection to the repairs.
The letter of 22.7.2002 objecting to the repair was only

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received on 29.9.2002 wherein by then the substantial
repair has been completed as it was completed by 1st
or 2nd
August 2002.
15. At the time of signing of the said agreement on 19.7.2002,
the Appellant/Defendant had informed the
Respondent/Plaintiff to stop all the repair works on the
said property for three (3) days as the representatives of
the insurance company would be visiting the said property
to inspect the extent of the damage due to the fire
outbreak. The Respondent/Plaintiff had waited for the
visitation by the representatives of the insurance company
would be visiting the said property to inspect the extent
of the damage due to the fire outbreak. The
Respondent/Plaintiff had waited for the visitation by the
representatives of the insurance company until 24.6.2002.
On 25.6.2002, the Respondent/Plaintiff had continued the
repair works on the said property. The Respondent/Plaintiff
had also spent a sum of RM84,342.00 for the repair works
and this is well within the knowledge of the
Appellant/Defendant. The repair works is important to
secure the stocks of the goods in the said building.
16. The Respondent/Plaintiff’s case is that the terms of the
Agreement is clear and unconditional and it was the
Respondent/Plaintiff’s case that three (3) important
clauses in the said agreements showed that in (a) clause
(iv) that the Respondent/Plaintiff was fully aware that the
property had been badly damaged in a fire on 12.5.2002 and
was purchasing it with full knowledge thereof; (b) clause
(v) all expenses and costs for renovations and repairing
the building erected on the said property shall be borne
solely by the Purchaser (Respondent/Plaintiff) and (c)
clause (vi) that the Purchaser shall not have any claim to
the monies paid by any insurance company to the Vendor
(Appellant/Defendant) in respect of the damage caused to
the building erected upon the said property by the fire of
12.5.2002. There is no clause which exists to state that
the Agreement is conditional.
17. The Appellant/Defendant has unlawfully terminated the
Agreement which has caused the Respondent/Plaintiff had
filed a Suit in the High Court of Alor Setar for:-
(a) Specific Performance of the said agreement;
(b) An order that at the refusal of the
Appellant/Defendant to complete the said sale, the

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Registrar of the Alor Setar High Court be authorized
to execute the documents for transfer to the
Appellant/Defendant and cost to be taxed; and
(c) The Defendant’s Counter-claim be dismissed with cost
to be taxed.
THE APPELLANT/DEFENDANT’S CASE
1. Based on the totality of the evidence shows that the said
Agreement signed on 19.7.2002 was only conditional
agreement.
2. There was a collateral oral agreement between the Parties
that the agreement will only take effect after the
Appellant/Defendant’s insurance claim for total loss was
settled.
3. The said Agreement was terminated on 7.8.2002 as the
Respondent/Plaintiff was not ready and willing to complete
the agreement.
4. The loan was only granted in October 2002, even if the
agreement had not been terminated.
5. The evidence shows that the Appellant/Defendant never gave
permission to the Respondent/Plaintiff to renovate or
repair the said property after the fire.
C. THE EVIDENCE
The Respondent/Plaintiff had called 7 witnesses to give
evidence for and on its behalf, namely:
a. Mr. Lim Eng Huat (PW1)(The Respondent/Plaintiff)[Refer
to pages 301 – 323 Rekod Rayuan [Bahagian B];
b. Mr. Venugopalan a/l K. Vasudevan Nair (PW2)(The former
solicitor for the Respondent/Plaintiff)[Refer to pages
324 – 344 Rekod Rayuan [Bahagian B];
c. Tan Gaik Eng (PW3)(The Valuer from Messrs. G.E. Tan &
Associates)[Refer to pages 345 – 347 Rekod Rayuan
[Bahagian B];
d. Yeoh Pee Tuan (PW4)(Diretor of Wah Wah Electrical Sdn
Bhd)[Refer to pages 160 – 161 Rekod Rayuan [Bahagian
B];

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e. Wong Bee Choo (PW5)(The Respondent/Plaintiff’s wife)
[Refer to pages 348 – 362 Rekod Rayuan [Bahagian B];
f. Tai Soi Siang (PW6)(The owner of Thye Ho Tukang Tin)
[Refer to pages 363 – 364 Rekod Rayuan [Bahagian B];
and
g. Cheah Chin Huat (PW7)(The Engineer from Messrs. Sri &
Sri Associates)[Refer to pages 365 – 377 Rekod Rayuan
[Bahagian B].
The Appellant/Defendant called 3 witnesses, namely:
a. Mr. Srinivasan a/l Muthu Palaniappan (DW1)(The
Engineer from Messrs. Sri & Sri Associates)[Refer to
pages 205 – 243 Rekod Rayuan [Bahagian B];
b. Dr. Balakrishnan a/l Shanmugam (DW2)(the owner of
Appellant/Defendant company)[Refer to pages 378 – 390
Rekod Rayuan [Bahagian B]; and
c. Mr. Jayabalan a/l Nadarajah (DW3)(the former solicitor
for the Appellant/Defendant)[Refer to pages 290 – 294
Rekod Rayuan [Bahagian B].
D. THE FINDINGS OF THE COURT [Refer to Pages 19 – 27 of Rekod
Rayuan [Bahagian A]
The Judgment was pronounced on 15.5.2011 upon a full course
of a trial which was held for 11 days in favour of the
Respondent/Plaintiff wherein the Learned High Court Judge
has made the following finding:-
“ a) Whether the saud S & P agreement is conditional upon
insurance claim by the Defendant:
Upon reading the S & P in particular in clause 17(iv),
(v) and (vi) respectively, the said Agreement was
unconditional upon insurance claim by Defendant. The
Court was of the view that if the said agreement was
to be conditional upon insurance claim then the said
agreement must signify the intention of the Parties to
the Agreement. Clause 17(iv), (v) and (vi) provides
inter alia that the Purchaser (Plaintiff) shall be
responsible for the repair works abd have no claim to
the insurance monies.

8
The Court was of the view that there is evidence
before the Court that the damage to the said property
was only 50% as per Bomba Report in para 2.7
‘peratusan kemusnahan 50%’. Regardless of the claim by
the Defendant for total loss of the said property, the
Court was of the view based on P51 the damage to the
said building was only 50% and not a total loss.
The Court observed that it was only in the 2nd
Receipt
for the sum of RM24,000 dated 14th
July 2002 that the
Defendant had written on it ‘down payment for only
proposed sale of 13A, Taman Cekur Manis, Lunas subject
to confirmation of sale following insurance claim.’
According to the Plaintiff there was not a single
letter sent by the Plaintiff to the Defendant
objecting t the contents in the said receipt (exhibit
P15A).
But this written note was not reflective of Clause
17(iv),(v) and (vi) of the Agreement respectively. For
all intent and purpose the Agreement should be the
determining document which governs the contractual
relationship between the Plaintiff and the Defendant.
The repairs done to the said property was premised on
an earlier permission by the Defendant and in reliance
to Clause 17(iv),(v)(vi) of the Agreement.
The Plaintiff had also called as their witness SP7 a
consultant engineer who had inspected the property and
had prepared a report which was tendered and marked as
exhibit P58. The witness said that exhibit P58 was
prepared some 8 years later after the fire broke out
and further said that despite him not witnessing the
repair works personally, the repairs were done
properly and agreed that the property was structurally
safe. The witness saw the actual weight of the
property through visual live inspection. The Court
accepted the structural report exhibit P58 prepared
some 8 years after the fire broke out as signifying
that the property in question was structurally safe
for occupation by the Plaintiff to carry out its tyre
business.
The Court finds the report by SD1 tendered as exhibit
D61 as not reflective of the actual structural damage
to the said property despite the detail description of

9
the damage cause by fire. Contrary to its report it
was difficult to reconcile with the fact that the said
property still remain intact until the date of the
trial and the Plaintiff was still carrying on its tyre
business and the Defendant continued to receive
rentals albeit on a month to month basis. Ironically,
SD1 still standby his report D61 that the said
property should be demolished as it was not safe for
human habitation.”
b) Was the termination by the Defendant lawful?
Defendant submits that it was lawful:
Not safe for human habitation and the sale was
conditional and subjected to insurance total loss
claim. Repairs done had jeopardized the insurance
claim that the said property was considered a total
loss and had to be demolished. Further, the Plaintiff
was not ‘willing and ready’ to perform its part of the
contract.
The Court agrees with the Plaintiff that the
termination was unlawful as the Defendant had
succeeded in his insurance claim. The said property
had withstand the fire and remained intact and the
Defendant over the period had been collecting rental
in the sum of RM150,000.00. The Defendant cannot ‘blow
hot and cold’ to say that the said property was total
loss and at the same time receiving rentals from the
Plaintiff albeit on a monthly basis. The Court was of
the view that SD2, the Defendant was not truthful
witness when he said in cross-examination that the
Agreement was signed but it was to be kept in
abeyance. This is an important clause why did the
Defendant not include it in the Agreement but rather
stress that it was an understanding between the
parties. There was also no clause in the Agreement
that upon signing, the Plaintiff was not to renovate
the said property but the Defendant kept stressing
that it was a mutual understanding between him and Mr.
Lim (Plaintiff). The Court once more questioned the
motice of the Defendant when it could have easily be
included as a clause in the Agreement that Mr. Lim was
prohibited or not allowed to carry out any renovations
prior to the approval of the Defendant’s total loss

10
insurance claim but had included a clause that any
costs of renovation or repair done would be borne by
the Plaintiff. It could have easily be drafted in such
a way in that ‘The Purchaser shall not be allowed to
carry out any renovations or repair works until the
Vendor’s total loss insurance claim is settled and any
costs thereof shall be wholly borne by the Purchaser’.
This in the Court’s view would have easily saved a day
in Court.”
D. THE CASES PERTAINING TO THE APPELLATE COURT’S INTEFERENCE
WITH THE DECISION OF THE HIGH COURT ON APPEAL
1. It is trite law that to warrant the appellate interference,
it is incumbent upon the Appellant/Defendant to demonstrate
that the Learned Trial Judge at the Alor Setar High Court
was plainly wrong based on the findings of fact and upon
close scrutiny of the demeanour of the witnesses presented
before His Lordship, that there is a serious misdirection
on the part of the Learned High Court Judge as to the order
granted by His Lordship which leads to a miscarriage or
failure of justice.
2. As such, the Appellate Court should be slow in interfering
with the decision of the trial judge on the findings of
facts who had the advantage of watching the demeanour of
the witnesses during the trial unless it is satisfied that
any advantage enjoyed by the trial judge by reason of
having seen and heard the witnesses could not be sufficient
to explain and justify the Learned Trial Judge’s decision
made on 15.5.2011.
Refer to:-
1. OSK Securities Bhd v. Probo Pacific Leasing Pte Ltd &
Anor [2009] 3 MLJ 712 [marked as “TAB-A’ of the
Respondent’s Bundle of Authorities]:-
“[42] To warrant appellate interference it was
incumbent upon the appellant have to
demonstrate that the High Court was 'plainly
wrong'. This appeal turns upon question of
facts based on the credibility of the
witnesses. After careful consideration of
the reasoning of the trial judge in arriving
at his findings and conclusion, it is clear

11
that he had taken into consideration all
relevant matters and did not take into
account irrelevant ones. The reasoning of
the trial judge in arriving at the findings
and the conclusions were cogent and in
accordance with the evidence before him.
Having had the audio-visual advantage of
having seen and heard the witnesses,
considered the evidence and the
probabilities of the case taken as a whole,
as well as the documents presented, clearly
entitled him to arrive at the conclusions he
did. I am in agreement with reasoning and
conclusion that the probabilities of the
case points in favour of a three year option
period, and not a three day option period.”
2. Lam Soon Oil & Soap Manufacturing Ltd v. Impex
Syndicate Ltd [1964] 30 MLJ 176 at page 177 [marked
“TAB-B” of the Respondent’s Bundle of Authorities]:-
“ The appellants now seek to reverse the judgment of
Ambrose J. I can do no better than to refer to a
passage in the judgment of the Privy Council
delivered on the 14th January 1964 in the
Singapore case of Tay Kheng Hong v Heap Eng Moh
Steamship Co Ltd [1964] MLJ 87 9192 for a
statement of the principles upon which an
appellate Court should act in reviewing the
decision of a judge of first instance:
"There is a heavy onus on a party who seeks to
displace the conclusion formed by the trial judge
on questions of fact. The principles upon which an
appellate court should act in reviewing the
decision of a judge of first instance were stated
by Lord Thankerton in Watt or Thomas v. Thomas:
'I. Where a question of fact has been tried by a
judge without a jury, and there is no question of
misdirection of himself by the judge, an appellate
court which is disposed to come to a different
conclusion on the printed evidence, should not do
so unless it is satisfied that any advantage
enjoyed by the trial judge by reason of having
seen and heard the witnesses, could not be

12
sufficient to explain or justify the trial judge's
conclusion; II. The appellate court may take the
view that, without having seen or heard the
witnesses, it is not in a position to come to any
satisfactory conclusion on the printed evidence;
III. The appellate court, either because the
reasons given by the trial judge are not
satisfactory, or because it unmistakably so
appears from the evidence, may be satisfied that
he has not taken proper advantage of his having
seen and heard the witnesses, and the matter will
then become at large for the appellate court.'
Later his Lordship quoted with approval a passage
from the speech of Lord Shaw in Clarke v.
Edinburgh & District Tramways Co. Ltd.: 'In my
opinion, the duty of an appellate court in those
circumstances is for each judge of it to put to
himself, as I now do in this case, the question,
Am I – who sit here without those advantages,
sometimes broad and sometimes subtle, which are
the privilege of the judge who heard and tried the
case – in a position, not having those privileges,
to come to a clear conclusion that the judge who
had them was plainly wrong? If I cannot be
satisfied in my own mind that the judge with those
privileges was plainly wrong, then it appears to
me to be my duty to defer to his judgment.' Before
the Court of Appeal in Singapore was entitled to
reject the trial judge's estimate of the
credibility of the appellant and Goh Leh they
would have to be satisfied that the trial judge's
view was plainly wrong and that any advantage
which he enjoyed by having seen and heard the
witnesses was not sufficient to explain his
conclusion."
3. Datuk Syed Kechik Bin Syed Mohamed & Anor v. The Board
of Trustees of the Sabah Foundation & Ors and another
appeal [1998] 2 MLJ 137 [marked as “TAB-C” of the
Respondent’s Bundle of Authorities]:-
“ Are we in those circumstances entitled to
intervene and reverse his decision? I think not.
It has been repeatedly said that this court has
no original discretion in an appeal of this

13
nature. Its initial function on appeal is one of
review only. It is only after an appellant
demonstrates either a serious misdirection by
the judge or that the judge has taken into
account something that he should not, or that he
has failed to take into account something he
should have had regard to, or that his order
amounts to a miscarriage or failure of justice,
that this court would be entitled to intervene
and exercise a discretion of its own.
Despite the very careful and lucid arguments of
Mr Cherryman, I remain unconvinced that there
has been a wrongful exercise of discretion by
the judge in each of these cases. It is very sad
that the defendants, indeed the plaintiffs, have
to fight a battle so stale and so late in the
day. But that unfortunately is not the fault of
the plaintiffs as found by the learned judge. I
realize that the findings of fact by the judge
have been made on affidavit evidence but I can
do no better than remind myself of the judgment
of Raja Azlan Shah FJ (as he then was) in Samar
bte Mansor v Mustafa Kamarul Ariffin [1974] 2
MLJ 71 where his Lordship said (at p 72):
… However much an appellate court may be in an
equal position with the trial judge as to the
drawing of inferences, it ought not to reverse
the finding of fact unless it is convinced that
it is wrong. It is not whether the inferences
are right but whether an appellate court is
convinced that they are wrong. If that finding
is a view reasonably open on the evidence, it is
not enough to warrant its reversal just because
an appellate court would have come to a
different view. Merely differing views do not
establish that either view is wrong, but in
balancing these two views an appellate court
should give due weight to the nature of the fact
as found by the trial judge. Thus Benmax v
Austin Motor Co Ltd [1955] AC 370, is authority
for the proposition that an appellate court is
not bound by inferences of fact drawn by the
trial judge which did not turn on the
credibility of witnesses, seen and heard by him,
that it may not examine the matter afresh.”

14
3. In light of the abovementioned authorities, it is humbly
submitted by the Respondent/Plaintiff that the Judgment
dated 15.5.2011 was pronounced upon close scrutiny and
analysis of all the evidence produced by both the
Appellant/Defendant and the Respondent/Plaintiff during a
course of a full trial by the Learned High Court Judge of
Alor Setar and for the This Honourable Court to reverse a
decision of such a nature would not be an easy task
provided a real cogent reason is shown to tamper with the
decision and findings of the Learned High Court Judge
wherein it can be shown that the said Judgment dated
15.5.2011 was erroneous in the eyes of the law which
requires the intervention by This Honourable Court in the
interest of justice.
E. THE REBUTTAL BY THE RESPONDENT/PLAINTIFF TOWARDS THE
GROUNDS RAISED IN THE APPELLANT’S MEMORANDUM OF APPEAL.
1. That the Learned High Court Judge has erred in the eyes of
law and fact when His Lordship has failed to consider the
concept of “collateral contract” and failed to make a
finding that there is a collateral contract between the
parties that the agreement signed on 19.7.2002 will only
take effect after the total loss insurance claim is
approved [Ground 3 of the Memorandum of Appeal]
i. The terms of the Sale and Purchase Agreement dated
19.7.2002 inter alia are as follows:-
(a) Pursuant to the Second Schedule, Section 2(iii) of the
Sale and Purchase Agreement, the Respondent/Plaintiff
was required to pay the balance purchase price of a
sum of RM243,000.00 before 19.11.2002. In the event
the Respondent/Plaintiff failed to do so, the
Appellant/Defendant would provide an extension of time
of a month with the interest at the rate of 6% on the
balance purchase price.
(b) Pursuant to Clause 17(i) of the said Sale and Purchase
Agreement, time is of essence.
(c) Pursuant to Clause 17(iii) of the said Sale and
Purchase Agreement, the Respondent/Plaintiff is
entitled to claim for strict performance of the terms

15
of the said Sale and Purchase Agreement by the
Appellant/Defendant.
(d) Clauses 17(iv), 17(v) and 17(vi) were added by the
Appellant/Defendant wherein pursuant to the said
Clauses the said property was not fit for habitation
or used for business purposes at that material time
wherein any cost and expenses in repairing the said
property should be borne by the Respondent/Plaintiff
and that the Respondent/Plaintiff should not make any
claim in respect of any monies paid by the insurance
company in respect of the damage to the said property
due to the fire outbreak on 12.5.2002.
(e) It is submitted that it is clear based on the terms of
the said Sale and Purchase Agreement that the said
Agreement cannot be conditional upon the insurance
claim. Time is of essence in the said Sale and
Purchase Agreement and also the Agreement will take
effect from the date of signing not the date of
stamping.
ii. It is to be noted that Mr. Venugopalan from Messrs. Dass,
Jainab & associates was appointed by the
Respondent/Plaintiff. Further, at the time of signing of
the said Sale and Purchase Agreement dated 19.7.2002 which
took place before solicitor Mr. Venugopalan, neither the
Respondent/Plaintiff nor Mr. Venugopalan was informed by
the Appellant/Defendant that the Sale and Purchase of the
said property was subject to confirmation of sale
following insurance claim. That is because the
Respondent/Plaintiff had never agreed that it was subject
to insurance claim.
iii. On 7.6.2002, a sum of RM3,000.00 was initially paid to the
Appellant/Defendant wherein upon the payment of a sum of
RM3,000.00, the Appellant/Defendant had issued a receipt
dated 7.6.2002 to the Respondent/Plaintiff. Subsequent to
that, on 14.7.2002, a sum of RM24,000.00 was paid to the
Appellant/Defendant wherein in relation to that the
Appellant/Defendant had issued a receipt dated 14.7.2002
to the Respondent/Plaintiff. The Appellant/Defendant at
the time of issuance of the first receipt did not have any
discussion with the Respondent/Plaintiff in respect of the
insurance claim. The Respondent/Plaintiff has witnessed
the receipt for a sum of RM3,000.00 but it did not contain
any notes on insurance claim. When the second receipt

16
dated 14.7.2002 was issued to the Respondent/Plaintiff,
Appellant/Defendant had handwritten on insurance claim on
the said second receipt unilaterally without the
Respondent/Plaintiff’s consent.
iv. Despite the Respondent/Plaintiff’s non-agreement, the
Appellant/Defendant had stated the sentence “subject to
confirmation of sale following insurance claim”. At that
material time the Respondent/Plaintiff only wanted the
acknowledgement of receipt of the payment made by the
Respondent/Plaintiff. However, it is to be noted the said
condition was not agreed upon and was not included in the
said Sale and Purchase Agreement.
v. In this respect, it is humbly submitted herein that the
sentence “subject to confirmation of sale following
insurance claim” was unilaterally included by Dr. S.
Balakrishnan.
vi. He confirmed that Dr. S. Balakrishnan did not any time
prior to the execution of the said Sale and Purchase
Agreement inform Mr. Venugopalan that the purchase price
of the said property was subjected to the
Appellant/Defendant’s insurance claim against the
shophouse which had suffered damage due to a fire
outbreak.
vii. Mr. Venugopalan had also confirmed that the
Respondent/Plaintiff and Mr. Venugopalan were there on
19.7.2002 to have the Respondent/Plaintiff and Dr. S.
Balakrishnan execute the said Sale and Purchase Agreement
upon the acceptance of the terms of the said Sale and
Purchase Agreement by both parties.
viii. Mr. Venu also confirmed that he did not at any time assure
Dr. S. Balakrishnan that the said Sale and Purchase
Agreement would not be dated and stamped until the
Appellant/Defendant’s insurance claim is resolved because
the issue as to the Appellant/Defendant’s insurance claim
did not arise during the previous discussions held between
Dr. S. Balakrishnan and him nor at Klinik Bala prior to
the execution of the said Sale and Purchase Agreement.
ix. Mr. Venu had stated that in the event the
Appellant/Defendant had wanted to incorporate the
insurance claim as part of the terms of the said Sale and
Purchase Agreement prior to the execution of the said Sale

17
and Purchase Agreement, he would have informed and
deiscussed with the Plaintiff and the term would only be
incorporated upon the agreement advanced by the
Respondent/Plaintiff to Mr. Venu.
x. Mr. Venugopalan had confirmed once again that the
Appellant/Defendant’s insurance claim was neither a pre-
condition nor an implied term in the said Sale and
Purchase Agreement between the Respondent/Plaintiff and
the Appellant/Defendant.
xi. It is submitted that this is consistent with the terms and
condition of the said Sale and Purchase Agreement where it
is not conditional upon the insurance claim.
xii. Furthermore, the Learned High Court Judge has made a
finding that that upon reading the S & P in particular in
Clause 17(iv),(v) and (iv) respectively, the said
Agreement was unconditional upon insurance claim by the
Defendant. The Court was of the view that if the said
agreement was to be conditional upon insurance claim then
the said agreement must signify the intention of the
Parties to the Agreement.
xiii. The Court in its finding has also observed that it was
only in the 2nd
receipt for the sum of RM24,000 dated the
14th
July 2002 that the Appellant/Defendant had written on
it ‘down payment for only proposed sale of 13A, Taman
Chekur Manis, Lunas subject to confirmation of sale
following insurance claim’. According to the
Respondent/Plaintiff there was not a single letter sent by
the Respondent/Plaintiff to the Appellant/Defendant
objecting to the contents in the said receipt (exhibit
P15A).
xiv. But this written note was not reflective of Clause 17(iv),
(v)(vi) of the Agreement respectively. For all intent and
purpose the Agreement should be the determining document
which governs the contractual relationship between the
Respondent/Plaintiff and the Appellant/Defendant.
xv. In light of this, there is no issue of collateral contract
as alleged by the Appellant/Defendant which exist in
respect of the Agreement made between the
Appellant/Defendant and the Respondent/Plaintiff.

18
2. The Learned High Court Judge has erred in the eyes of law
and fact when His Lordship failed to make a finding that
the Agreement dated 19.7.2002 was only a proposed
agreement subject to the Appellant/Defendant’s claim for
total loss insurance claim being allowed [Ground 4 of the
Memorandum of Appeal]
a. “Contents of exhibit D15A” [Ground 4(i) of the Memorandum
of Appeal]
i. On 7.6.2002, a sum of RM3,000.00 was initially paid to the
Appellant/Defendant wherein upon the payment of a sum of
RM3,000.00, the Appellant/Defendant had issued a receipt
dated 7.6.2002 to the Respondent/Plaintiff. Subsequent to
that, on 14.7.2002, a sum of RM24,000.00 was paid to the
Appellant/Defendant wherein in relation to that the
Appellant/Defendant had issued a receipt dated 14.7.2002
to the Respondent/Plaintiff. The Appellant/Defendant at
the time of issuance of the first receipt did not have any
discussion with the Respondent/Plaintiff in respect of the
insurance claim. The Respondent/Plaintiff has witnessed
the receipt for a sum of RM3,000.00 but it did not contain
any notes on insurance claim. When the second receipt
dated 14.7.2002 was issued to the Respondent/Plaintiff,
Appellant/Defendant had handwritten on insurance claim on
the said second receipt unilaterally without the
Respondent/Plaintiff’s consent.
ii. Despite the Respondent/Plaintiff’s non-agreement, the
Appellant/Defendant had stated the sentence “subject to
confirmation of sale following insurance claim”. At that
material time the Respondent/Plaintiff only wanted the
acknowledgement of receipt of the payment made by the
Respondent/Plaintiff. However, it is to be noted the said
condition was not agreed upon and was not included in the
said Sale and Purchase Agreement.
iii. Further, it is also humbly submitted that the Learned High
Court Judge has made a specific finding on this issue
wherein it was stated as follows:-
“ The Court observed that it was obly in the 2nd
receipt
for the sum of RM24,000.00 dated 14th
July 2002 that
the defendant had written on it ‘down payment for only
proposed sale of 13A, Taman Chekur Manis, Lunas
subject to confirmation of sale following insurance
claim’. According to the Plaintiff there was not a

19
single letter sent by the Plaintiff to the Defendant
objecting to the contents in the said receipt (exhibit
P15A).
But this written note was not reflective of Clause
17(iv)(v)(vi) of the Agreement respectively. For all
intent and purpose the Agreement should be determining
document which governs the contractual relationship
between the Plaintiff and the Defendant.”
iv. In light of this, it is humbly submitted herein that the
Appellant/Defendant’s ground in its Memorandum of Appeal
should fail on the basis that there is no misdirection as
to the facts and law.
b. The fact that the parties agree to defer the
dating/stamping of the agreement [Ground 4(ii) of the
i. According to the testimony provided by the Plaintiff, Lim
Eng Huat [SP1], it was agreed between parties on 19.7.2002
that the said Sale and Purchase Agreement dated 19.7.2002
was to be stamped after 24.7.2002 as the
Respondent/Plaintiff was informed by the
Appellant/Defendant that the adjuster from the insurance
company would be conducting a final inspection on the said
property on 24.7.2002 and as such the said Sale and
Purchase Agreement could be stamped after 24.7.2002.
ii. This was further confirmed by Mr. Venugopalan in his
testimony that on 19.7.2002, Dr. S. Balakrishman had
requested him to stamp the said Sale and Purchase Agreement
after 24.7.2002 because according to Dr. S. Balakrishnan,
the Adjuster from the insurance company will be inspecting
the shophouse which was damages due to a fire on 12.5.2002
and the Respondent/Plaintiff had also agreed to have the
said Sale and Purchase Agreement stamped subsequent to that
date.
iii. Mr. Venu also confirmed that he did not at any time assure
Dr. S. Balakrishnan that the said Sale and Purchase
Agreement would not be dated and stamped until the
Appellant/Defendant’s insurance claim is resolved because
the issue as to the Appellant/Defendant’s insurance claim
did not arise during the previous discussions held between
Dr. S. Balakrishnan and him nor at Klinik Bala prior to the
execution of the said Sale and Purchase Agreement.

20
iv. In light of the above, it is humbly submitted that the
Learned High Court Judge has made a finding that if indeed
the Sale and Purchase Agreement would be subject to the
insurance loss claim by the Appellant/Defendant, then the
said agreement must signify the intention of the Parties to
the Agreement. The Learned High Court Judge has also made a
finding that for all intent and purposes the Agreement
should be the determining document which governs the
contractual relationship between the Plaintiff and the
Defendant.
v. Therefore, the Appellant/Defendant’s ground as stated in
the Memorandum should fail based on the finding made by the
Learned High Court Judge and the evidence provided by the
Plaintiff and Mr. Venugopalan, the Solicitor for both the
Appellant/Defendant and the Respondent/Defendant.
c. The current conduct of the Respondent [The Allegation that
the Respondent/Plaintiff is not ready and willing to
perform][Ground 4(iii) of the Memorandum of Appeal].
i. It is stated by the Appellant/Defendant in its Memorandum
of Appeal that the Learned High Court Judge has failed to
take into account into account the current position of the
Respondent/Plaintiff as at the date of the hearing.
ii. However, according to the Plaintiff in its testimony has
stated that he had given effect to the terms of the said
Sale and Purchase Agreement as follows:-
(a) The Respondent/Plaintiff had made an application for a
bank loan wherein the letters dated 9.10.2002, OCBC
Bank (Malaysia) Berhad had approved the loan for a sum
of RM230,000.00 to fund the purchase of the said
property.
(b) It is submitted that if the repair are fully objected
to by the Appellant/Defendant, then he should have
expressed his objection in the said Sale and Purchase
Agreement. Further, he would nor have allowed the
Respondent/Plaintiff to be there and would have
stopped collecting the rental and immediately issue
eviction against the Respondent/Plaintiff. He would
also have informed the Majlis Perbandaran Kulim to
stop the Appellant/Defendant from continuing to stay
there and also to stop allowing the

21
Appellant/Defendant to renew the licence as without
the landlord’s approval, the licence cannot renewed.
He cannot be blowing hot and cold by saying on one
hand that repair is illegal and on the other hand
collect rental and did not allow the repair and allow
the Respondent/Plaintiff to be there.
(c) In fact, on 24.10.2002, the Respondent/Plaintiff had
paid a sum of RM13,000.00 which is the difference
between the balance purchase price (RM243,000.00) and
the loan sum (RM230,000.00) which was approved by OCBC
Bank (Malaysia) Berhad to the Respondent/Plaintiff.
The Respondent/Plaintiff’s solicitor had issued the
receipt dated 24.10.2002 as a proof of payment. the
Respondent. Plaintiff had also paid a sum of
RM27,000.00 being the deposit sum out of the full
purchase price i.e. RM27,000.00.
(d) The said tenancy was terminated on 19.7.2002, i.e. the
date the parties had signed the said Sale and Purchase
Agreement. If the said Sale and Purchase Agreement was
conditional, then the Appellant/Defendant would not
have terminated the said Tenancy Agreement. The
Respondent/Plaintiff had instructed his solicitor to
stamp the said Sale and Purchase Agreement.
(e) A copy of the CKHT2, the title deed in respect of the
said property as well as the said Sale and Purchase
Agreement was produced to the Jabatan Hasil Dalam
Negeri. It is pertinent to note that this clearly
shows that the Respondent/Plaintiff was ready and
willing at all material times to continue with the
said Sale and Purchase Agreement. The
Respondent/Plaintiff had also not accepted the
repudiation of the Appellant/Defendant and had
challenged the unlawful termination and treated the
said Sale and Purchase Agreement as still subsisting
and as at the date of the hearing, both parties are
able to perform the contract.
iii. In light of the above evidence, it is humbly submitted that
the Appellant/Defendant’s ground in the Memorandum of
Appeal should fail herein on the basis that the
Respondent/Plaintiff have taken all the necessary steps to
perform its obligations pursuant to the said Agreement but
it was the Appellant/Defendant who has failed to undertake
its part of the obligation pursuant to the Agreement when

22
it failed to return the duly signed copies of the Transfer
form 14A which was forward to them on 2.9.2002 in order for
the adjudication in respect of the said property to take
place and for the loan to be released in accordance with
the Agreement.
iv. However, the Appellant/Defendant did not return the said
Form 14A. Thus, on 30.9.2002, the Respondent/Plaintiff’s
solicitor had sent a reminder to the Appellant/Defendant’s
solicitor and had requested for the Form 14A be signed by
the Appellant/Defendant by the Appellant/Defendant had
failed to do so.
v. Therefore, it is humbly submitted that the Learned High
Court Judge has not erred in his finding based on facts and
law.
d. Exhibit D63 – The Witness Statement of Dr. S. Balakrishnan
[Ground 4(iv) of the Memorandum of Appeal]
i. It is humbly submitted therein that the Learned High Court
Judge has made a specific finding on Dr. S. Balakrishnan
[SD2] that Dr. S. Balakrishnan was not a truthful witness
when he said in cross-examination that the Agreement was
signed but it was kept in abeyance.
ii. This is on the basis that such clause as proposed by the
Dr. S. Balakrishnan was not included in the Agreement
despite it being an important Clause but instead Dr. S.
Balakrishnan had stressed that it was an understanding
between the parties.
iii. The Court in its finding questioned the motive of the
Appellant/Defendant when it could have easily be included
as a clause in the Agreement that Mr. Lim was prohibited or
not allowed to carry out any renovations prior to the
approval of the Defendant’s total loss insurance claim but
had included a clause that any costs of renovation or
repair done would be borne by the Plaintiff. It could have
easily be drafted in such a way in that ‘The Purchaser
shall not be allowed to carry out any renovations or repair
works until the Vendor’s total loss insurance claim is
settled and any costs thereof shall be wholly borne by the
Purchaser’.

23
iv. In light of the above, the ground in the Memorandum of
Appeal should fail on the basis that the Learned High Court
Judge has not erred in its finding in respect of the
Witness Statement of Dr. S. Balakrishnan concerned.
and fact in failing to make a finding that the whole
evidence is reflective of the fact that the agreement which
was signed on 19.7.2002 was to be kept in abeyance until
the total loss insurance claim was approved [Ground 5 of
i. It was contended by the Appellant/Defendant that the
Learned High Court Judge of Alor Setar has failed to make a
finding that the agreement was to be kept in abeyance until
the total loss insurance claim was approved.
ii. However, it is submitted herein that the Learned High Court
Judge has made a specific finding upon close scrutiny of
the evidence provided by the Plaintiff and the Plaintiff’s
witness that the Agreement was unconditional upon insurance
claim by the Appellant/Defendant and the Court was of the
view that if the said agreement was to be conditional upon
insurance claim then the said agreement must signify the
intention of the Parties to the Agreement. Clause 17(iv),
(v) and provide inter alia that the Purchaser (Plaintiff)
shall be responsible for the repair works and have no claim
to the insurance monies.
iii. Furthermore, it is also submitted that Dr. S. Balakrishnan
further admitted that he got his insurance claim after 8
years. He had relied on a full claim and on the information
by the adjuster that it was a total loss. The reason why it
total 8 years to get the total loss was because the
Respondent/Plaintiff had tampered with the said building.
The Respondent/Plaintiff had been told not to renovate,
according to him but in spite of the warning provided the
Respondent/Plaintiff had set up a tent outside the building
and continued business. It is submitted that PW4 could not
have caused him this for if that was the case, he would not
have got his claim. Furthermore, since he has got his
claim, it is no longer open to him to approbate and
reprobate.
iv. Furthermore, the Learned High Court Judge has made a
finding that Dr. S. Balakrishnan [SD2] was not a truthful
witness when he said in cross-examination that the

24
Agreement was signed but it was to be kept in abeyance. His
Lordship further added that this is an important clause and
it is doubtful as to why the Appellant/Defendant did not
include it in the Agreement but rather stressed that it was
an understanding between the parties.
v. In light of the above, it is humbly submitted that the this
ground is unsustainable since there is a specific finding
that Dr. S. Balakrishnan was not truthful in his witness
statement when he said that the Agreement was signed but
was kept in abeyance.
and fact when His Lordship has failed to make a finding
that on or about 19.7.2002 there was no concluded contract
contact or a binding contract between the
Appellant/Defendant and the Respondent/Plaintiff in respect
of the sale of the property concerned [Ground 6 of the
Memorandum of Appeal].
i. It is the contention by the Appellant/Defendant that the
Learned High Court Judge has erred in failing to make a
finding that there was no concluded contract or a binding
contract on or about 19.7.2002 between the
Appellant/Defendant and the Respondent/Plaintiff.
ii. However, Mr. Venugopalan had also confirmed that the
Respondent/Plaintiff and Mr. Venugopalan were there on
19.7.2002 to have the Respondent/Plaintiff and Dr. S.
Balakrishnan execute the said Sale and Purchase Agreement
upon the acceptance of the terms of the said Sale and
Purchase Agreement by both parties.
iii. The said tenancy was terminated on 19.7.2002, i.e. the date
the parties had signed the said Sale and Purchase
conditional, then the Appellant/Defendant would not have
terminated the said Tenancy Agreement. The
Respondent/Plaintiff had instructed his solicitor to stamp
the said Sale and Purchase Agreement.
iv. Furthermore, the Learned High Court Judge has also made a
finding that for all intent and purpose the Agreement
contractual relationship between the Respondent/Plaintiff
and the Appellant/Defendant.

25
v. In light of the above, it is humbly submitted that the
ground in the Memorandum of Appeal is unsustainable.
5. The Learned High Court Judge has failed in the eyes of law
and fact in failing to make a finding that the
Respondent/Plaintiff has failed to comply with Paragraph
(a) of the Fourth Schedule and/or the conveyancing practice
of executing the transfer form in escrow and giving written
notice of taking a loan [Ground 7 of the Memorandum of
Appeal]
i. It was contended by the Appellant/Defendant that the
Learned High Court Judge has failed to take into account
the Respondent/ Plaintiff’s failure to take into account
the failure of complying with the conveyancing practice of
executing the transfer form in escrow and giving written
notice of taking a loan.
ii. However, it is submitted herein based on the evidence
provided by Mr. Venugopalan that the Transfer Form 14A
could not be signed by the Appellant/Defendant on 19.7.2002
because the Appellant/Defendant being a Company needed a
common seal and another co-director or Company Secretary to
execute the said Sale and Purchase Agreement. Mr.
Venugopalan had also confirmed that he had subsequently
sent the Transfer form 14A for execution to the
Appellant/Defendant’s solicitor, Messrs. J.Balan & Co. vide
his letter dated 4.9.2002.
iii. Messrs. Dass Jainab & Associates had written a letter dated
29.10.2002 to Messrs. J. Balan & Co. stating that the
Respondent/Plaintiff had on 19.7.2002 entered into a Sale
and Purchase Agreement with the Appellant/Defendant to
purchase the said property for a price of RM270,000.00. Mr.
Venugopalan had also stated that the Respondent/Plaintiff
had paid a deposit to the Appellant/Defendant amounting to
RM27,000.00 on 19.7.2002 and that the Respondent/Plaintiff
had obtained a bank loan from OCBC Bank (Malaysia) Berhad
for RM230,000.00 to finance the purchase of the said
property. Further the solicitors for the
Appellant/Defendant were informed that the
Respondent/Plaintiff had deposited the differential sum
between the balance purchase price and the loan sum
amounting to RM13,000.00 with Messrs. Dass Jainab &
Associates.

26
iv. Further, Mr. Venugopalan had also requested for the duly
executed Transfer Form 14A in order to send the forms for
adjudication and that Respondent/Plaintiff had in his
possession the Borang Seksyen 5 PDS 15. The Solicitors were
also informed that the differential sum of RM13,000.00
would be forwards to the Appellant/Defendant upon receipt
of the duly executed Transfer Form 14A as instructed by the
Respondent/Plaintiff and that the Respondent/Plai9ntiff
would proceed for specific performance of the said
Agreement in the event there is a failure on the part of
the Appellant/Defendant to send the duly executed Transfer
Form 14A within 7 days receipt of the letter dated
29.10.2002.
iii. In light of these, it is humbly submitted herein that the
Respondent/Plaintiff has not failed to execute the transfer
form in escrow and giving written notice of taking a loan
and that all the conveyancing practice has been complied
with.
and fact in not making a finding that at all material
times, The Respondent/Plaintiff is not ready and willing to
complete the said agreement and that the Respondent has
clearly proven its inability to complete the sale on or
before 19.11.2002 and that until the Respondent/Plaintiff
files a claim in Court, the Respondent/Plaintiff is deemed
to not have settled and/or tendered the balance purchase
price under the agreement dated 19.7.2002 {Ground 8 and 9
of the Memorandum of Appeal]
i. It is contended by the Appellant/Defendant that the Learned
high Court Judge has failed to appreciate the fact that the
Respondent/Plaintiff has failed to complete the sale on or
before 19.11.2002 thus thereby failing to complete the sale
as a whole.
ii. However, based on the evidence provided by the
Respondent/Plaintiff, Lim Eng Huat, on 2.9.2002, the
Respondent/Plaintiff was informed by his solicitor of the
Appellant/Defendant’s intention to terminate the said Sale
and Purchase Agreement and had attempted to return the
deposit sum of RM27,000.00 to the Respondent/Plaintiff’s
solicitor wherein the Respondent/Plaintiff’s solicitor had
under the Respondent/Plaintiff’s instruction returned the
sum of RM27,000.00 to the Appellant/Defendant’s solicitor
at that material time i.e. Messrs. J. Balan & Co. that the

27
Respondent/Plaintiff had arranged the bank loan to fund the
purchase of the said property. At the same time, the
Respondent/Plaintiff’s solicitor had also sent Form 14A to
the Appellant/Defendant to be signed by the
Appellant/Defendant in order for the adjudication in
respect of the said property to take place.
iii. However, the Appellant/Defendant did not return the said
Form 14A. Thus, on 30.9.2002, the Respondent/Plaintiff’s
solicitor had sent a reminder to the Appellant/Defendant’s
solicitor and had requested for the Form 14A be signed by
the Appellant/Defendant by the Appellant/Defendant had
failed to do so.
iv. Based on the evidence provided by Lim Eng Huat, the
Respondent/Plaintiff, it is humbly submitted that the
Respondent/Plaintiff had given effect to the terms of the
said Sale and Purchase Agreement as follows:-
(a) The Respondent/Plaintiff had made an application for a
bank loan wherein the letters dated 9.10.2002, OCBC
Bank (Malaysia) Berhad had approved the loan for a sum
of RM230,000.00 to fund the purchase of the said
property. The loan could not be released because the
Appellant/Defendant refused to sign the Transfer Form
14A to comply with the requirements for the release of
the loan.
(b) In fact, on 24.10.2002, the Respondent/Plaintiff had
between the balance purchase price (RM243,000.00) and
the loan sum (RM230,000.00) which was approved by OCBC
Bank (Malaysia) Berhad to the Respondent/Plaintiff.
The Respondent/Plaintiff’s solicitor had issued the
receipt dated 24.10.2002 as a proof of payment. The
Respondent. Plaintiff had also paid a sum of
RM27,000.00 being the deposit sum out of the full
purchase price i.e. RM27,000.00.
(c) The said tenancy was terminated on 19.7.2002, i.e. the
date the parties had signed the said Sale and Purchase
conditional, then the Appellant/Defendant would not
have terminated the said Tenancy Agreement. The

28
Respondent/Plaintiff had instructed his solicitor to
stamp the said Sale and Purchase Agreement.
(d) A copy of the CKHT2, the title deed in respect of the
said property as well as the said Sale and Purchase
Agreement was produced to the Jabatan Hasil Dalam
Negeri. It is pertinent to note that this clearly
shows that the Respondent/Plaintiff was ready and
willing at all material times to continue with the
said Sale and Purchase Agreement. The
and as at today, both parties are able to perform the
contract.
v. However, based on the evidence provided by Mr.
Venugopalan, Messrs. Dass Jainab & Associates had written
a letter dated 29.10.2002 to Messrs. J. Balan & Co.
stating that the Respondent/Plaintiff had on 19.7.2002
entered into a Sale and Purchase Agreement with the
Appellant/Defendant to purchase the said property for a
price of RM270,000.00. Mr. Venugopalan had also stated
that the Respondent/Plaintiff had paid a deposit to the
Appellant/Defendant amounting to RM27,000.00 on 19.7.2002
and that the Respondent/Plaintiff had obtained a bank loan
from OCBC Bank (Malaysia) Berhad for RM230,000.00 to
finance the purchase of the said property. Further the
solicitors for the Appellant/Defendant were informed that
the Respondent/Plaintiff had deposited the differential
sum between the balance purchase price and the loan sum
amounting to RM13,000.00 with Messrs. Dass Jainab &
Associates.
vi. Further, Mr. Venugopalan had also requested for the duly
executed Transfer Form 14A in order to send the forms for
adjudication and that Respondent/Plaintiff had in his
possession the Borang Seksyen 5 PDS 15. The Solicitors
were also informed that the differential sum of
RM13,000.00 would be forwards to the Appellant/Defendant
upon receipt of the duly executed Transfer Form 14A as
instructed by the Respondent/Plaintiff and that the
Respondent/Plai9ntiff would proceed for specific
performance of the said Agreement in the event there is a
failure on the part of the Appellant/Defendant to send the

29
duly executed Transfer Form 14A within 7 days receipt of
the letter dated 29.10.2002.
vii. Messrs. Dass Jainab & Associates had also written a letter
dated 18.9.2002 to Jabatan Hasil Dalam Negeri enclosing
the documents as stated in the said letter by way service
upon the Jabatan Hasil Dalam Negeri for their further
action in respect of the Real Estate Property Gains Tax.
viii. In any event, the breach of agreement was contributed by
the Appellant/Defendant themselves due to their failure to
return the Transfer Form 14A to the Respondent/Plaintiff
for the same to be forwarded to the OCBC Bank for the
release of the loan sum to enable the payment for the
balance purchase price to be paid to the
Appellant/Defendant to complete the sale.
ix. Therefore, it is unjustifiable for the Appellant to
contend in its Memorandum of Appeal that the Learned High
Court Judge has failed to appreciate the fact that the
Respondent/Plaintiff has not been ready and willing to
perform the contract when all the while, it was due to the
Appellant/Defendant’s own failure to deliver the Transfer
Form 14A on time for the payment be made by 19.11.2002
since the Loan was approved on 9.10.2002.
and fact in failing to take into account the exhibits D34,
D35, D36 and D37 respectively [Ground 10 of the Memorandum
of Appeal]
i. It is the contention by the Appellant/Defendant in its
Memorandum of Appeal that the Learned High Court Judge has
failed to give full effect of the exhibits D34, D35, D36
and D37 respectively.
ii. However, it is submitted herein as follows:-
(a) The Appellant/Defendant’s contention that it had
issued a letter dated 22.7.2002 [D34] to the
Respondent/Plaintiff requiring him to stop the repair
works was only received by Respondent/Plaintiff on
29.7.2002. The Respondent/Plaintiff had obtained the
permission from the Appellant/Defendant on 7.6.2002 to
commence repair works on the building on the said
property and that the said Sale and Purchase Agreement

30
did mention that all the expenses and cost for the
renovating and repairing the building erected upon the
said property shall be borne solely by the
Respondent/Plaintiff and as such it is evident that
the letter dated 22.7.2002 was an afterthought. As the
repairs are to be done by the Respondent/Plaintiff and
since the Appellant/Defendant as the landlord has no
intention to do the repair, the Appellant/Defendant
would not have objected to the Respondent/Plaintiff
commencing repair works in order to carry on the
business and the Appellant/Defendant to continue to
collect the rental. It was only when the dispute as to
the insurance claim arose that the Appellant/Defendant
put in writing to stop the Respondent/Plaintiff from
repairs but by then the Respondent/Plaintiff had
substantially completed the repairs.
(b) The Appellant/Defendant’s contention and allegation in
its letters dated 27.7.2002 [D35] & [D36] and
28.7.2002 [D37] as well as the solicitor’s letter
dated 7.8.2002 respectively that the
Respondent/Plaintiff had breached his promise to the
Appellant/Defendant and the transaction in respect of
the sale and purchase of the said property is
unfounded on the basis that the Respondent/Plaintiff
had executed its obligations pursuant to the terms as
stipulated in the said Sale and Purchase Agreement
whereas the Appellant/Defendant had breached the Sale
and Purchase Agreement by attempting to terminate the
Sale and Purchase Agreement even though the
Appellant/Defendant was not entitled to do so. Till to
date, the said Sale and Purchase Agreement is still
valid and binding upon the Appellant/Defendant.
(c) The Respondent/Plaintiff is ready and willing to
complete its obligations pursuant to the said Sale and
Purchase Agreement and the Court should exercise its
discretion to grant specific performance as under
Section 119 of the Specific Relief Act damages is
inadequate but on the other hand the claim by the
Appellant/Defendant is no longer sustainable in the
light of what has happened to date.
iii. In light of the above, it is humbly submitted that the
ground in the Memorandum of Appeal is unsustainable herein
since the exhibits are not reflective of the

31
Appellant/Defendant’s intention to make the Sale and
Purchase Agreement dated 19.7.2002 conditional.
and fact when His Lordship has failed to appreciate the
fact that the Appellant/Defendant is entitled to take into
account the Appellant/Defendant’s claim for total insurance
claim when setting the purchase price [Ground 11 of the
Memorandu of Appeal].
a. It is the contention by the Appellant/Defendant that the
Learned High Court Judge of Alor Setar has failed to take
into account the fact that the Appellant/Defendant is
entitled to take into consideration the
Appellant/Defendant’s claim for total insurance claim when
settling the purchase price.
b. Mr. Venugopalan in his testimony during the trial has
stated that Dr. S. Balakrishnan could not sell a building
and the land upon which the building is erected to the
Respondent/Plaintiff upon having full knowledge that the
building needs to be demolished. This is because in the
event the building is sold to the Respondent/Plaintiff with
the full knowledge that the building needs to be
demolished, then this would constitute an act of fraud by
the Vendor. In such a case, the Vendor is only entitled to
sell the land without the building and the Purchaser should
only be subjected to the purchaser of the land and not the
building erected on the said land. It at all, the Purchaser
is only obligated to pay for the value of the land and not
the building as well.
c. It is submitted that in the light that he has agreed to
sell the building and the land therefore his claim against
the insurance company should have no bearing on the said
Sale and Purchase Agreement otherwise he should just be
selling the land and nothing else.
d. It must be noted that the value of the building according
to the said Sale and Purchase Agreement is RM27,000.00 as
at the year 2002. However, based on the said Sale and
Purchase Agreement dated 21.9.1995, the value of the said
property was RM285,000.00 and it must be noted that the
building was a new building then. Thus, it is rather
perplexing that the said property can be sold to Mr. Lim

32
Eng Huat at RM270,000.00 despite the fact that the building
being a total loss and shall be demolished as alleged in
the said letter. Mr. Venugopalan confirmed that he had
submitted the CKHT form to Jabatan Hasil Dalam Negeri vide
the letter from Messrs. Dass Jainab & Associates dated
18.9.2002.
e. Mr. Venugopalan also confirmed that no complaint was ever
made by Dr. S. Balakrishnan to the Council in respect of
any unauthorized works carried out by the
Respondent/Plaintiff as alleged by Dr. S. Balakrishnan.
Further, Dr. S. Balakrishnan continued to collect rental
from the Respondent/Plaintiff for his occupation on the
said property which as a Landlord he has to ensure that
such by-law is not breached if he intended to continue to
collect rental.
f. Dr. S. Balakrishnan had subsequently decided not to proceed
with the said Sale and Purchase Agreement due to the fact
that the insurance company only offered RM60,000.00 for the
said building upon valuation and it is an afterthought to
renege from the said Sale and Purchase Agreement. He had
also confirmed that the building was not a total loss as
otherwise it could not be sold together with the land.
g. The Learned High Court Judge has made a finding that the
Defendant’s witness, Dr. S. Balakrishann is not a truthful
witness which means that his contention that the
Appellant/Defendant is entitled to take into account the
total insurance claim when settling the purchase price
since there was no clause of such a nature included in the
Sale and Purchase Agreement which makes the motive of Dr.
S. Balakrishann questionable.
h. In light of this, the Appellant/Defendant’s ground in the
Memorandum of Appeal should fail in limine.
and fact when His Lordship has failed to take into account
the Respondent has agreed that the purchase price is to be
set at RM270,000.00 on condition that the
Appellant/Defendant’s claim for total loss insurance claim
is allowed [Ground 12 of the Memorandum of Appeal].

33
a. According to the testimony provided by Mr. Venugopalan, he
has confirmed that the agreed purchase price at that moment
was for a sum of RM270,000.00.
b. It is thus submitted that the sum of RM270,000.00 fixed was
a reasonable sum since the ground floor of the said
property was destroyed by the said fire outbreak. Pursuant
to the Valuation Report by Messrs. G.E. Tan & Associates
addressed to OCBC Bank (Malaysia) Berhad dated 14.8.2002
(hereinafter referred to as the said Valuation Report)
which was prepared for purposes of processing the
Respondent/Plaintiff’s bank loan to purchase the said
property, the market value of the said property after it
was repaired was only at RM300,000.00 wherein the land was
valued at RM80,000.00 whereas the building was valued at
RM220,000.00.
c. At this instance, it would be safe to state that Dr. S.
Balakrishnan had lied on oath when he testified that the
purchase price of the said property for a sum of
RM270,000.00 was sold below the market price yet produced
no Valuation Report to substantiate it. He even tried to
allege that he paid RM385,000.00 to purchase to introduce
the under-counter monies to justify what he said. If it is
under-counter monies it would be totally illegal and the
price would be reflected. The PW3 said that when he did a
search there was nothing in the Land Office to reflect that
it was RM385,000.00 as the purchase price. If the house was
fully renovated and it is valued at RM300,000.00 how then
could the sum of RM220,000.00 be below market value?
d. Furthermore, the Learned High Court Judge has ruled that
the Defendant’s witness, Dr. S. Balakrishnan is not a
truthful witness which supports the Respondent/Plaintiff’s
contention that the Respondent/Plaintiff has lied on oath
in respect of the purchase price of the said Property.
and fact wherein His Lordship has failed to make a finding
that the Respondent/Plaintiff is not at all entitled to
repair/renovate the said property [Ground 13 of Memorandum
of Appeal].
a. It is contended by the Appellant/Defendant that the
Respondent/Plaintiff is not entitled to repair or renovate
the said property.

34
b. However, it is humbly submitted by the Respondent/Plaintiff
that the Learned High Court Judge has made a specific
finding on this point wherein His Lordship has found that
the repairs done to the said property was premised on an
earlier permission by the Defendant and in reliance to
Clause 17(iv),(v) and (vi) of the said Agreement.
and fact when His Lordship failed to make a finding that
the totality of the evidence clearly showed the
Appellant/Defendant never gave permission to the
Respondent/Plaintiff to renovate or repair the property
after the fire and that the Respondent/Plaintiff has
clearly breached the Agreement dated 19.7.2002 when the
Respondent/Plaintiff repaired and/or renovated the said
property [Ground 14 and 15 of Memorandum of Appeal].
a. It is contended by the Appellant/Defendant that the Learned
High Court Judge has erred when His Lordship has failed to
make a finding that the totality of the evidence clearly
showed that the Appellant/Defendant never gave permission
to the Respondent/Plaintiff to renovate or repair the
property after the fire.
b. However, the Learned High Court Judge has made a specific
finding in respect of the repair upon analyzing the Clauses
17(iv),(v) and (v) respective wherein His Lordship has
stated that there was also no clause in the Agreement that
upon signing, the Respondent/Plaintiff was not to renovate
the said property but the Appellant/Defendant kept
stressing that it was a mutual understanding between him
and Mr. Lim (Plaintiff). The Court once more questioned the
motive of the Appellant/Defendant when it could have easily
be included as a clause in the Agreement that Mr. Lim was
prior to the approval of the Appellant/Defendant’s total
loss insurance claim but had included a clause that any
costs of renovation or repair done would be borne by the
Respondent/Plaintiff. It could have easily be drafter in
such a way in that ‘The Purchaser shall not be allowed to
carry out any renovations or repair works until the
Vendor’s to9tal loss insurance claim is settled and any
costs thereof shall be wholly borne by the Purchaser.’
c. Based on this, there is no breach as alleged by the
Appellant/Defendant in its Memorandum of Appeal.

35
d. In light of this, it is humbly submitted that the
Appellant/Defendant’s ground in the Memorandum of Appeal
should fail in limine.
that the Respondent/Plaintiff clearly breached the
agreement dated 19.7.2002 and did not perform or comply
with his obligations under the agreement [Ground 16 of
Learned High Court Judge has erred when His Lordship failed
to make a finding that the Respondent/Plaintiff has
breached the agreement dated 19.7.2002 and did not perform
or comply with his obligations under the agreement.
b. However, it is the contention by the Respondent/Plaintiff
that the Respondent/Plaintiff has at all material times
complied with the Sale and Purchase Agreement on the
following grounds:-
(i) The Respondent/Plaintiff had made an application for
a bank loan wherein the letters dated 9.10.2002,
OCBC Bank (Malaysia) Berhad had approved the loan
for a sum of RM230,000.00 to fund the purchase of
the said property.
(ii) In fact, on 24.10.2002, the Respondent/Plaintiff had
between the balance purchase price (RM243,000.00)
and the loan sum (RM230,000.00) which was approved
by OCBC Bank (Malaysia) Berhad to the
Respondent/Plaintiff. The Respondent/Plaintiff’s
solicitor had issued the receipt dated 24.10.2002 as
a proof of payment. the Respondent. Plaintiff had
also paid a sum of RM27,000.00 being the deposit sum
out of the full purchase price i.e. RM27,000.00.
(iii) The said tenancy was terminated on 19.7.2002, i.e.
the date the parties had signed the said Sale and
Purchase Agreement. If the said Sale and Purchase
Agreement was conditional, then the
Appellant/Defendant would not have terminated the
said Tenancy Agreement. The Respondent/Plaintiff had

36
instructed his solicitor to stamp the said Sale and
Purchase Agreement.
(iv) A copy of the CKHT2, the title deed in respect of
the said property as well as the said Sale and
Purchase Agreement was produced to the Jabatan Hasil
Dalam Negeri. It is pertinent to note that this
clearly shows that the Respondent/Plaintiff was
ready and willing at all material times to continue
with the said Sale and Purchase Agreement. The
and as at today, both parties are able to perform
the contract.
c. Thus, based on the abovementioned facts, it is clear that
the Respondent/Plaintiff has at all material times complied
with the terms of the said Agreement and in any event it
was the Appellant/Defendant who has contributed to the
breach in the sense that the Appellant/Defendant has failed
to sign the Transfer Form 14A despite the reminder sent to
him on 30.9.2002 since the Bank Loan from OCBC Bank was
approved on 9.10.2002 and the Respondent/Plaintiff was
ready and willing to complete the sale and has taken all
the effort towards the payment of the balance purchase
price and would have done so if not for the
Appellant/Defendant who refused to co-operate in returning
the duly executed Transfer Form 14A.
d. Hence, it is unconscionable for the Appellant/Defendant to
now claim that the Respondent/Plaintiff has breached the
agreement dated 19.7.2002 and did not perform or comply
with his obligation under the agreement.
that the Respondent/Plaintiff renovated and repaired and
continue to renovate and repair the property knowing very
well that he had no right to do so [[Ground 17 of
a. It is contended by the Appellant/Defendant that the
Respondent/Plaintiff had renovated the said property with
the full knowledge that he was not allowed to do so.

37
b. However, it is submitted by the Respondent/Plaintiff that
the Appellant/Defendant has been collecting rental despite
the property being damaged by the fire outbreak. As such,
it is unconscionable for the Appellant/Defendant to state
that the Respondent/Plaintiff does not have the right to
repair and/or renovate the said property when the said
property has to be repaired in order for the
Respondent/Plaintiff to continue occupying the said
property for business purpose.
c. In fact, it would tantamount to fraud in the event the
Appellant/Defendant collects rental over a damaged property
without giving a right to the Respondent/Plaintiff to
repair or renovate the said property for purpose of
occupation.
d. In any event, the Respondent/Plaintiff has the right to
renovate the said property as a tennat since the
Respondent/Plaintiff has been paying rental even after the
fire outbreak.
e. Furthermore, it is submitted by the Respondent/Defendant
that the Learned Judge of the High Court at Alor Setar has
clearly made a finding on this point in that there was no
clause in the Agreement that upon signing the
Respondent/Plaintiff was not to renovate the said property
but the Appellant/Defendant kept stressing that it was a
mutual understanding between him and Mr. Lim (the
Respondent/Plaintiff). The Court has also questioned the
motive of the Appellant/Defendant when it could have easily
included as a clause in the Agreement that Mr.Lim was
prior to the approval of the Appellant/Defendant’s total
loss insurance claum but had included a clause that any
costs of renovation or repair to be done would be borne by
the Respondent/Plaintiff.
f. Further, the Learned Judge also made a finding that the
Agreement could have been drafted in a way that the
Respondent/Plaintiff is not allowed to carry out any
renovations or repair works until the Vendor’s total loss
insurance claim is settled and any costs thereof to be
borne completely by the Respondent/Plaintiff.

38
14. The Learned High Court Judge has clearly misinterpreted
Clauses 17(iv),(v) and (v) of the Agreement dated 19.7.2002
and that the Learned High Court Judge has erred in the eyes
of law and fact because Clauses 17(iv), (v) and (vi) of the
Agreement did not give any right to the
Respondent/Plaintiff to repair the said property before the
Respondent/Plaintiff settled the balance purchase price
pursuant to the said agreement [Ground 18 and 19 of
a. It was contended by the Appellant/Defendant that the
Learned High Court Judge had misinterpreted the Clauses
17(iv),(v) and (vi).
b. However, it is humbly submitted that the Learned High Court
Judge has clearly made a finding upon reading the Sale and
Purchase Agreement in particular Clauses 17(iv),(v) and
(vi) respectively, the said Agreement was unconditional
upon insurance claim by the Appellant/Defendant. The Court
was also of the view that if the said agreement was to be
conditional upon insurance claim then the said agreement
must signify the intention of the Parties to the Agreement.
Clauses 17(iv), (v) and (vi) provide inter alia that the
Purchaser (Respondent/Plaintiff) shall be responsible for
the repair works and have no claim to the insurance monies.
c. The Court also further made a finding that the Agreement
contractual relationship between the Respondent/Plaintiff
and the Appellant/Defendant. The repairs done to the said
property was premised on an earlier permission by the
Appellant/Defenant and in reliance to Clauses 17(iv),(v)
and (vi) of the Agreement.
15. The Learned High Court Judge had erred in the eyes of law
and fact because the issue of “Total Loss” is not an issue
to be determined by the Learned High Court Judge [Ground 20
of Memorandum of Appeal].
issue of Total Loss is not to be determined by the said
Learned High Court Judge.
b. The Learned High Court Judge has made a finding that there
is a evidence before the Court that the damage to the said
property was only 50% as per Bomba Report in para 2.7
‘peratusan kemusnahan 50%’. Regardless of the claim by the

39
Appelant/Defendant for total loss of the said property, th
Court was of the view that based on exhibit P51, the damage
to the said building was only 50% and not a total loss.
c. The report from the Bomba which was tendered by the
Appellant/Defendant themselves clearly show that the upper
floor was not affected. In light of this, it is clearly
apparent that the damage to the said property was not total
loss.
d. The fact that the Appellant/Defendant has obtained a full
claim in another court in respect of his insurance claim
ought to be taken into consideration. As such, the issue as
to whether the Learned High Court Judge has the right to
deocde upon this issue or not is immaterial since the issue
of total loss claim was raised by the Appellant/Defendant
in the High Court Suit which ought to be decided upon.
e. In light of this, the ground in the Memorandum of Appeal
ought to fail herein.
and fact when His Lordship failed to take into account
Paragraph 17(iv) of the Agreement dated 19.7.2002 which
stated that “the building erected upon the said property
has been badly damaged in a fire on 12th
May 2002 and is
currently unfit for any habitation or for the conducting or
any business and the Purchaser is purchasing the said
property with full knowledge thereof” [Ground 21 of
Learned High Court judge has failed to take into account
Paragraph 17(iv) of the Agreement dated 19.7.2002 which
stated that “the building erected upon the said property
has been badly damaged in a fire on 12th
May 2002 and is
currently unfit for any habitation or for the conducting or
any business and the Purchaser is purchasing the said
property with full knowledge thereof”.
b. However, the Learned High Court Judge has clearly made a
finding on this point wherein the Learned High Court Judge
has stated that the Court agreed with the
Respondent/Plaintiff that the termination was unlawful as
the Appellant/Defendant had succeeded in his insurance
claim. The said property had withstand the fire and
remained intact and the Appellant/Defendant over the period

40
had been collecting rental in the sum of RM150,000.00. The
Appellant/Defendant cannot ‘blow hot and cold’ to say that
the said property was a total loss and at the same time
receiving rental from the Respondent/Plaintiff albeit on a
monthly basis.
c. In light of this, it is clear that the Learned High Court
Judge has taken into account the particular Clause 17(iv)
of the said Agreement.
and fact when His Lordship has made a finding that the
damage to the property was only 50% [Ground 22 of
said High Court Judge has erred when His Lordship has made
a finding that the damage to the said property was only 50%.
b. However, it is to be noted the Laporan Jabatan Bomba dan
Penyelamat Malaysia was an evidence tendered by the
Appellant/Defendant themselves which clearly showed that
the degree of damage was only 50%. In light of this, it is
humbly submitted that the High Court Judge has made a
finding based on the evidence tendered by the
Appellant/Defendant himself which cannot be denied now.
c. In light of this, it is submitted by the
Respondent/Plaintiff that the ground in the Memorandum of
Appeal is unsustainable.
18. The High Court Judge has erred in the eyes of law and fact
when His Lordship has failed to take into account or make a
finding that the exhibit “P-51” (which is the Laporan
Jabatan Bomba dan Penyelamat Malaysia) was only marked as
exhibit for the purpose of showing that such a report
existed and that the maker of the Report was not called as
a witness. The contents of the Report was not disputed and
should not be accepted as evidence and that the said Report
is a hearsay [Ground 23 of Memorandum of Appeal].
a. It is the contention by the Respondent/Plaintiff that
eventhough the Report from Jabatan Bomba dan Penyelamat
Malaysia was tendered by the Respondent/Plaintiff
themselves but was previously tenderd in the other suit
wherein the Appellant/Defendant has filed a total insurance
claim, to deny its authenticity at this stage would be
unconscionable since the said document was already

41
litigated during the trial and taken into account by the
Learned High Court Judge and was relied upon by the
Appellant/Defendant.
b. In light of this, the Learned High Court Judge was not
erroneous in His Lordship’s Judgment when His Lordship made
a finding that the said Laporan Bomba dan Penyelamat
Malaysia states that the damage to the property was only
for 50%.
19. The Learned High Court Judge has erred in law and fact when
His Lordship failed to consider the testimony and Reports
tendered by the witness for the Appellant/Defendant i.e SD1
[Ground 24 of Memorandum of Appeal].
a. The reason why SD1 was rejected was that in the Court’s
finding, the Court has stated that the report by SD1
tendered as exhibit D61 as not reflective of the actual
structural damafe to the said property despite the detail
description of the damage caused by fire. Contrary to its
report it was difficult to reconcile with the fact that the
said property still remain intact until the date of the
trial and the Respondent/Plaintiff was still carrying on
its tyre business and the Appellant/Defendant continued to
receive rentals albeit on a month to month basis.
Ironically, SD1 still standby his report D61 that the said
property should be demolished as it was not safe for human
habitation.
b. In light of the above, it is the submission of the
Respondent/Plaintiff that the ground in the Memorandum of
Appeal ought to fail.
His Lordship has failed to deny the report and evidence
tendered by SP7 [Ground 25 of Memorandum of Appeal].
a. It is the contention by the Appellant/Defendant that His
Lordship has accepted the evidence and report prepared by
the Respondent/Plaintiff’s witness SP7.
b. However, it is the humble submission by the
Respondent/Plaintiff that the reason why the Court has
accepted the evidence provided by SP7 is as follows:-

42
“The Court accepted the structural report exhibit P58
prepared some 8 years after the fire broke out as
signifying that the property in question was structurally
safe for occupation by the Respondent/Plaintiff to carry
out its tyre business. The Court finds that the report by
SD1 tendered as exhibit D61 as not reflective of the actual
structural damage to the said property despite the detail
description of the damage caused by fire. Contrary to its
report it was difficult to reconcile with the fact that the
said property still remain intact until the date of the
trial and the Respondent/Plaintiff was still carrying on
its tyre business and the Appellant continued to receive
rentals albeit on a month to month basis. Ironically, SD1
still standby his report D61 that the said property should
be demolished as it was not safe for human habitation.”
c. In light of the findings made by the Learned Judge it is
justifiable that the Report tendered by SP1 and the
testimony provided by SP1 was not in line with the
condition of the said property as at the date of the Trial
which shows that this ground in the Memorandum of Appeal is
also unsustainable.
21. The Learned Judge has erred in law and fact when His
Lordship failed to take into consideration the fact that
since July 2002, the Respondent/Plaintiff has been
occupying the said property as a tenant and that the
Respondent/Plaintiff is liable to pay rental at all
material times [Ground 26 of Memorandum of Appeal].
Respondent/Plaintiff is liable to pay rental at all
material times since he has been occupying the said land as
a tenant.
b. However, it must be noted herein that the rental was also
collected after the fire outbreak when the property was yet
to be repaired. In light of this, it is humbly submitted
that the Appellant/Defendant has been collecting rental
over a property which was not fit for human habitation
immediately after the fire outbreak on 12.5.2002 only on
the basis that the Respondent/Plaintiff was in need of the
said property since the tyre business was his sole bread
and butter.
c. In the finding made by the His Lordship, it is humbly
submitted that the Appellant/Defendant has over the period

43
had been collecting rental in the sum of RM150,000.00. The
Appellant cannot blow hot and cold to say that the said
property was a total loss and at the same time receiving
rentals from the Respondent/Plaintiff albeit on a monthly
basis.
d. Hence, it is clear that the Appellant/Defendant has been
collecting rental for a property which was damaged in a
fire outbreak which should not have been allowed in the
first place since the said property prior to the repair was
not fit for habitation.
e. In light of this, it I humbly submitted that the Learned
Judge was not erroneous in His Lordship’s finding herein.
22. The Learned Judge has erred in law and fact when His
Lordship failed to take into account the fact that SP1,
SP2 and SP5’s testimony in denying the
Appellant/Defendant’s right to make an insurance claim for
total loss and that such conduct is inequitable wherein the
witnesses have gone out of their way to give evidence that
the Appellant/Defendant was not entitled to the claim for
total loss due to lack of expertise in providing testimony
on the said issue [Ground 27 of Memorandum of Appeal].
a. It is the contention of the Appellant/Defendant that the
Respondent/Plaintiff’s witnesses i.e, SP1, SP2, and SP5 do
not have the expertise to provide evidence that the
Appellant/Defendant was not entitled to the claim for total
loss due to lack of expertise in the said issue.
b. However, based on the fact that the Appellant/Defendant has
filed a suit in the Magistrates Court at Alor Setar for a
claim on total insurance claim whereby the
Appellant/Defendant was granted damages for total loss,
then it is clear that the Appellant/Defendant is attempting
for a double recovery on the same issue, i.e. total loss
which is clearly reflective of the fact that the

44
Appellant/Defendant is not coming before This Honourable
Court with clean hands.
c. In light of this, it is humbly submitted that the Learned
Judge has considered all the evidence put before His
Lordship whilst considering the testimony provided by the
respective witnesses for the Respondent/Plaintiff before
making a finding that the Appellant/Defendant is not
entitled to total loss. Hence, this ground ought to fail as
well.
His Lordship made a finding that the Court agrees with the
Respondent/Plaintiff that the termination was unlawful as
the Respondent/Defendant had succeeded in his insurance
claim and failed to take into account that the said
insurance claim was only successful vide a decision
pronounced in the year 2010 [Ground 28 of Memorandum of
Appeal].
Learned High Court Judge has erred when His Lordship made a
finding that the termination of the Sale and Purchase
Agreement was unlawful as the Appellant/Defendant has
succeeded in his insurance claim and that the said
insurance claim was only successful in the year 2010.
b. It is the submission by the Respondent/Plaintiff that THE
SAID Sale and Purchase Agreement is not conditional upon
the insurance claim by the Appellant/Defendant. In any
event, the Appellant/Defendant has obtained total insurance
claim vide his action for the same in the year 2010.
c. Hence, the Appellant/Defendant should not be allowed to
enrich himself with another claim for total loss vide the

45
Civil Suit No. 22-238-2002 to the detriment of the
Respondent/Plaintiff.
d. Furthermore, the Learned High Court Judge has made a
finding upon analyzing the evidence provided by the
witnesses and the documentation tendered as to the
intention of the parties and made a finding that “for all
intent and purposes the Agreement should be the determining
document which governs the contractual relationship between
the Respondent/Plaintiff and the Appellant/Defendant.”
e. Furthermore, the witness SD2, should not be allowed to
aprrobate and reprobate in the sense that at one hand to
state that the said property is a total loss and at the
other end, still receive rental from the
Respondent/Plaintiff.
f. In light of this, it is humbly submitted herein that it is
immaterial that the Appellant/Defendant has only obtained a
judgment in 2010 is immaterial since the
Appellant/Defendant should not be allowed.
24. The learned High Court Judge has erred in law and fact in
failing to make a finding that the conduct of the
Respondent/Plaintiff is inequitable as a whole [Ground 29
of Ground of Appeal].
Learned High Court Judge has failed to make a finding that
the Respondent/Plaintiff’s conduct as a whole is
inequitable.

46
b. However, if one is to observe the findings by the Learned
High Court Judge, it is clear that the High Court Judge is
of the view that the witness for the Defendant, i.e. SD2,
Dr. S. Balakrishnan was not a truthful witness considering
the fact that the said witness has always been blowing hot
and cold in his conduct and as such, the witness’s
contention that the conduct of the Respondent/Plaintiff is
inequitable cannot be accepted since the
Respondent/Plaintiff has at all material times complied
with the terms of the Sale and Purchase Agreement.
c. In light of the above, the ground in the Memorandum of
Appeal should fail in limine.
F. CONCLUSION
Based on the all the evidence presented by the witnesses
from the Appellant/Defendant and the Respondent/Plaintiff
as highlighted above and in light of the finding made by
the Learned High Court Judge, it is humbly submitted as
follows:-
(a) That the decision pronounced on 15.5.2011 was reached
based on the facts and evidence produced and presented
before the Learned High Court Judge during the trial
proceeding as well as the advantage enjoyed by the
trial judge by reason of having seen and heard the
witnesses, which are sufficient to explain or justify
the Learned Trial Judge's conclusion herein.
(b) That there is not in existence, a serious misdirection
by the Learned Trial Judge or that the Learned Trial
Judge has taken into account something that His
Lordship should not, or that His Lordship has failed
to take into account something His Lordship should
have had regard to, or that His Lordship’s order
amounts to a miscarriage or failure of justice, which
calls for a need for This Honourable Court to
intervene and exercise a discretion of its own in
reversing the decision made on 15.5.2011 by the
Learned Trial Judge.
Therefore, the Respondent/Plaintiff humbly prays that the
Appellant/Defendant’s Appeal be dismissed with costs.

47
Dated this 17th
day of June, 2013.
..............................
Solicitors for the Respondent/
Plaintiff
Messrs. Presgrave & Matthews
This Respondent’s Written Submission is filed by Messrs
Presgrave & Matthews of Standard Chartered bank Chambers, No.2
Beach Street, 10300 Penang, solicitors for the
Respondent/Plaintiff abovenamed.

THE RESPONDENT'S WRITTEN SUBMISSION AMENDED

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