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    277 views9 pages

    Low Kar Yit & Ors V Mohamed Isa & Anor

    Uploaded by

    Praveena Ravi

    Copyright:

    © All Rights Reserved
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    of 9
    Leong Ah Hong v. Hup Seng Co. Ltd. (1963) 29 M.LJ. (Guffian J.) 165 meeting, it might be months before civil suit No, 457 of 1961 was determined and it was most undesirable and against the interest of the mem- bers of the company to wait indefinitely before an annual general meeting could be held and that in view of the dispute and pending the determination of the civil suit it would be im- possible for the company to convene or conduct a meeting in the usual or in a proper manner and he therefore asked that the Court should exer- cise its power under sub-section (2) of section 116 and order a meeting of the company to be called to discuss : a tb cr of ems ed re ae pee eee omy ts EYE Tae Sub-section (2) of section 116 reads as follow: SO ete a a ie of eevee ees ah Bi cepamiay Bafa ances Scoop rec cieige gi nirete Sige: Garatate We meee Serie oe ales Ste Sees SL eer mts sity mie aoe ber called, held and conducted in such manner as’ the The only decision on the corresponding pro- vision in the English Companies Act, 1948, is In re El Sombrero Ltd. \\) where Wynn-Parry J. uel ig db le ht te ten og th ine Be TL cr gk nei’ tae Seek bee Bae eo Oe Sie SEL at Bane oman eae a Ste Se ara meomane us with the Word ‘impossible’; and it 3 the Guestion ‘nocesatliy raised by" the introduction of that word ‘impracticable’ is merely this: examine the cir~ ‘cumstances of the particular case and answer the question swhether, 6-8 practical matter, the desired meeting can be'condicted, there being no doubt, of course, that it can be convened and held.” There the company concerned had three members, namely the applicant with 900 shares and the respondents each with 50 shares. The respon- dents were already directors when the applicant acquired his shares, and had remained as direc- tors. No general meeting of the company in- cluding the first annual general meeting, had ever been held and no annual return had been filed. ‘The company’s articles provided that the luorum at general meetings of the company thould be two members present in person oF by proxy and that, if within half an hour from the time appointed for a meeting the quorum should not be present, the meeting, if convened ‘on the requisition of members, should be di solved. Wynn-Parry J. held that in these ci cumstances it was impracticable to hold a meet~ ing of the company, as the two directors could always see and always saw to it that there was no quorum for any meeting and he accordingly granted the application, directing that one mem- ber of the company present in person or by proxy should be deemed to constitute ¢ quorum. A In my judgment, in a matter such as the ‘one before me it is not enough for the applicant to satisfy me that it is impracticable to call or conduct a meeting; he must further satisfy me that it is impracticable to call a meeting of the company in any manner in which meetings of that company may be called, or to conduct the meeting of the company in manner prescribed by the articles or the Ordinance. In the case cited the applicant satisfied the Court that while it was possible to convene and hold a meeting it would be impracticable to conduct it in manner prescribed by the articles or the Act, as the other two members of the company always ensured the lack of a quorum. But here I do not think that the applicant could have satisfied the learned Senior Assistant Registrar, from whose decision this appeal is, and has not satisfied me that the articles or the Ordin- ance make it impracticable to call or conduct a meeting of the company. The pending civil suit No. 457 of 1961, which’ made it uncertain who ‘were and who were not directors of the company, did make it impracticable to call or conduct a meeting of the company, but that suit is no longer pending, having been ‘determined on the 20th August, 1962. In these circumstances I feel obliged to dismiss this application. Accordingly this appeal by the company is allowed. _, As regards costs, I said when delivering judgment in civil suit No. 457 of 1961 that I shall consider the costs in these two matters to- gether. Having considered the representations of the parties, I am of the opinion that in that civil suit there shall be no order regarding costs, it being my view that the assets of this company are better preserved for the benefit of its un- fortunate members rather than be squandered away in litigation and that in this summons the applicant shall pay the respondent's costs. Application dismissed. a Solicitors: P. T. Wong & Co.; T. K. Sen & . LOW KAR YIT & ORS. v. MOHAMED ISA & ANOR. (0.04. (GIN 3 February 23, 1968) fee cra gen eelees er cea apace Sete of land, — Option to purines of st rea St Otto fo parte pss Te Bgercie of option Wy plantife— Refsaal to Smplete BV defendants Wadiner there, wan baaing Ggreement “Specific performance. Contract States) Ordinance, 1980, #7. ¥ Land Laws — Sale of land — Subject to “formal contract to be drawn up” — Option — Exercise of — De- fendant refusing to complete — Specific performance. ‘The defendants gave an option to the agent of the plaitife to boy lec of land sublet ta, (A) 0 formal snd) the approval of ehe sal€ snd oF the ald’ cOnsract bythe High Court at Kuala Lumpur. The plaintife ‘gent duly exercised the option and on the defendant's Low Kar Yit & Ors. v. Mohamed Isa & Anor. 166 Gill 5) (1963) 29 MLLJ. failing to sign the agreement of sale, the plaintifs in- A stituted the present Proceedings for specific performance or damages for breach of contract Held: (1).on the construction of the document sued upon, the option was conditional upen and sul 2 Yormal contract to be drawn up and agreed upon between the parties, ao. that the exereige of the option amounted to nothing’ more than an agreement to enter into” an Sgreements a (@) accordingly, there was no concluded contract between the parties, Cases referred to:— (1) Govind Luzman Gokhale v. charam ALR, 1919 Bom. 40. Harichand Man- (2) Rossiter v. Miller (1878) 3 App. Cas. 1124 at pe 1182. (8) Chinnock v. Marchioness of Ely 4 D.J.&8. 638; © 46 ER. 1066. (4) Horichand Mancharam v. Govind Luzman Gok- hale 50 LA. 25. pe oe eee Harr tng adh eeealeatata a You Hatzjeldt-Wildenburg v. Alexander [1912) D er eerste ee ea eee ca Chillingworth v. Esche [1924] 1 Ch. 97. Ce me Pr fa see's Se Sa Pare ee al peayaer a eee fara Birds se elaine nee tas Ph © © o @) @) ao) aay 2) aay ad) as) as) an as) as) Hutton v. Watling [1948] 1 Ch. 398. ‘Alezander Brogden and Others v. The Directors Se. of, the Metropolitan Railway Company (876) 2 App. Cas. 666. ACTION. R. Ramani (Ng Ek Teong with him) for the plaintiffs. Chung Shiu Tett for the defendants. Gill J.: In this case the plaintiffs claim specific performance or alternatively damages for breach of an agreement alleged to have been entered into by them with the defendants for the sale of a piece of land. To be precise, their 1 claim is for an order requiring the defendants as administrators of an estate to execute an agreement for the sale by them to the plaintiffs of a piece of land belonging to the estate and to apply to the High Court for approval of such agreement of sale, in accordance with the terms of an option dated the 20th January, 1961 granted by the defendants to one Mohamed Yusuff who as agent for the plaintiffs duly exercised the said option by serving through his solicitors on the defendants a letter dated the 21st January, 1961. The facts of the case are not in dispute and the evidence in the case is purely documen- tary. By a writing dated the 20th January, 1961 the defendants as administrators of the estate of Jamiah binti Abdul Rahman gave an option to one Mohamed Yusuff bin Mahyuddin to sell the land held under E.M.R. No. 6246 for Lot No. 4739 in the Mukim of Batu in the Dis- trict of Kuala Lumpur comprising an area of 10 acres 1 rood 10 poles belonging tothe estate of the said deceased for the sum of $206,250 at the rate of $20,000 per acre. It was stipulated that the option was to be exercised by giving notice in writing to the defendants or either one of them, such notice to reach on or before the Sist January, 1961 at 5.00 p.m. It was further provided that if the option was exercised in the manner stipulated it shall be subject to:— “(@) a formal contract to be drawn up and agreed upon {) joatealt and ‘carsales? 7m 8D and (©) the approval of the ale and of the said con- ‘tract ‘by the High Court at” Kuala Lumpur.” ‘The option was duly exercised by Mohamed Yusuff through his solicitors by serving on the defendants a letter dated the 2ist January, 1961. Following the exercise of the option, discussions took place between the plaintiffs’ solicitors and the defendants’ solicitors with reference to the agreement to be signed by the parties. A final agreement as reached between the solicitors of both parties was prepared by the defendants’ solicitors who by their letter dated the 7th February, 1961 sent, six copies of the agree- ment to the plaintiffs’ solicitors for execution by the plaintiffs. “The plaintiffs’ solicitors by their letter dated the 10th February, 1961 returned the six copies of the agreement duly executed by their clients to the defendants’ solicitors for execution by the defendants and asked for the return of five copies after they had been signed by the defendants and stamped. The plaintiffs’ solicitors stated in their letter that the sum of $20,937, being the deposit, had been deposited with them and would be handed over to the defendants’ solicitors upon receipt of five copies of the agreement duly signed by their clients. The plaintiffs’ solicitors later received a letter dated 28th March, 1961 from the defendants’ solicitors to say that defendant No. 2 had refused to execute the said document. The plaintiffs com- enced these proceedings on 10th September, The sole question to be determined in this case is whether there was in fact a concluded agreement between the parties as alleged by the plaintiffs. Mr. Ramani on behalf of the plain- tiffs conceded at the very commencement of his submissions that the law applicable ip this ease is not essentially different from the English law of Contract and that the legal position is governed by section 7 of our Contracts (Malay States) Ordinance, 1950 which reads :— “7. In order to convert a into a promise the crept order te © proposal into a promi (a) be absolute and unqualified; anit), ME GEPTpSeG in some usual and reasonable whieh i stort nocbpeede LP One proponsl presence Tanner in’ which it is to be ‘and the acceptance is not made in such manner, the proposer may, within & ‘Low Kar Yit & Ors. v. Mohamed Isa & Anor. (1968) 29 M.LJ. “Gil 5) ea pavers, ins, fos acPanatt fe Seema eke A Because it is within, the contemplation of the ‘manner, and net otherwise; but, f he 0, be accepts the accepiance.” ‘Thus the case turns on the elementary principles of offer and acceptance. It is plain that a contract, comes, into existence where there has, been an eceptance of @ ‘and unequi- is that there can be no binding contract either if a conditional offer is followed by an unqualified acceptance or if an unqualified offer is followed by a conditional acceptance; in either of these two cases no legally binding contract will arise unless and until the stipulated condition is fulfilled. In other words, where a condition is attached to an offer, an un- ¢ qualified acceptance of that offer must result in 2 similar situation as will arise on a qualified acceptance of a definite offer. I mention thi because in some of the decided cases to which 1 shall refer in the course of my judgment there was a definite offer followed by a conditional acceptance, but, as I have stated, in my judgment p the legal position is the same whether the con- dition is attached to the offer or to the acceptance. The offer in this case was contained in the option granted by the defendants to Mohamed Yusuff. Mr. Ramani’s contention on behalf of the plaintiffs is that the option coupled with the letter of 2ist January, 1961, whereby notice of E exercise of the option was given, constituted a concluded agreement between the parties. His argument is that an offer is to be distinguished from an option and in support of this argument he quoted the following passage from Salmond and Williams on Contracts (2nd Edition), section 46, page 133: fF “

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