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notes for civil procedure for semester 8...

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DRAFT

DATED THIS

DAY OF

2010

BETWEEN

(hereinafter called “the Vendor”)

AND (hereinafter called “the Purchaser”)

********************************************************* SALE AND PURCHASE AGREEMENT *********************************************************

PREPARED BY: -

TEL: 03-27335521 FAX: 03-27335522

(REF NO. :

THIS AGREEMENT is made the

)

day of

200

1

BETWEEN

(NRIC NO.:

) of (hereinafter

referred to as “the Vendor”) of the one part;

AND

(NRIC NO.:

) of No. (hereinafter

referred

to as “the Purchaser”) of the other part. WHEREAS: -

I.

The Vendor is the registered owner of the property held under H.S. (D) _____ P.T. No. ____ Mukim of ______, District of ______together with a __________________ which having its postal address known as _________________________ measuring approximately 1850 sq. ft. in area (which expression shall include all the fixture and fitting) (hereinafter called "the Property").

II.

The Property is free from any encumbrances.

III.

The Vendor has agreed to sell and the Purchaser have agreed to purchase the said Property free from all encumbrances and with vacant possession but subject to all existing conditions or restrictions in interest expressed or implied in the issue document of title at the purchase price and upon the terms and conditions hereinafter contained.

IV.

The solicitor acting for and on behalf of the Purchaser is ______________ (hereinafter called "the Purchaser’s Solicitors") while _________________ is the solicitor acting for and on behalf of the Vendor (hereinafter called "the Vendor’s Solicitors").

NOW THIS AGREEMENT WITNESSETH as follows: -

1.

AGREEMENT FOR SALE AND PURCHASE

2

1.1

In consideration of the sum of RINGGIT MALAYSIA (RM

) ONLY (hereinafter collectively referred to as “the

Deposit Sum”) now paid by the Purchaser to the Vendor as deposit and towards account of the purchase price (the receipt of which the Vendor hereby acknowledges) the Vendor hereby agrees to sell and the Purchaser agree to purchase the said Property free from all encumbrances with vacant possession but subject to any condition in the issue document of title (when issued) upon the terms and conditions hereinafter appearing.

2.

PURCHASE PRICE

The total purchase price for the said Property is the sum of RINGGIT MALAYSIA (RM

) ONLY (hereinafter referred

to as “the Purchase Price”) subject to the terms and conditions hereinafter appearing.

3.

LOAN

3.1

If the Purchaser desirous of obtaining a loan to finance the payment of the purchase price of the Property the Purchaser shall, within seven (7) days after receipt of a stamp copy of the Agreement, make a written application for such loan to a financial institution, a bank or a finance company (hereinafter referred to as “the Financier”) and if the loan is approved the Purchaser shall within reasonable time execute all necessary forms and documents and pay all fees and stamp duty in respect thereof.

3.2

If the Purchaser fails to accept the loan or defaults in complying with the necessary requirements for the application or is disqualified as a result of which the loan is withdrawn by the financier, as the case may be, the Purchaser shall then be liable to pay to the Vendor the whole of purchase price or such part thereof as shall then remain outstanding.

3.3

In the event the Vendor upon complying with the terms stated herein, but shall not be able to obtain loan due to reason being the current economic 3

situation or the restriction by the Financial Institution, the parties herein agreed that this Agreement be determined and in which event the deposit sum paid by the Purchaser to the Vendor shall be refunded by the Vendor to the Purchaser and the Agreement is hereby deemed terminated and of no further effect.

4.

PAYMENT OF BALANCE OF PURCHASE PRICE Subject always to the Purchaser obtaining the loan provided in clause 3 herein.

4.1

The balance of the Purchase Price of RINGGIT MALAYSIA ) ONLY (hereinafter refereed to as

(RM

“the Balance of the Purchaser Price”) shall be paid or cause to be paid by the Purchaser to the Vendor Solicitors as the Stakeholders within Ninety (90) days from the date of this Agreement (hereinafter referred to as “the Completion Date”)

4.2

The Vendor hereby agrees that in the event the Purchaser is unable to setter the balance of the purchase price by the said completion date, the Vendor shall permit the Purchaser a further period of thirty (30) days to settle the same (hereinafter referred to as the “Extended Completion Date”) PROVIDED ALWAYS that the Purchaser does reimburse the Vendor with interest calculated at the rate 10% per annum on a day to day basis on the balance sum due from the completion date to the date of full settlement of the balance purchaser price.

4.3

The Vendor’s

Solicitors

(hereinafter referred to as

“the said

Stakeholders”) are hereby authorized to utilize the said balance of the purchaser price for the purpose of redeeming the said Property from the Vendor’s financier (if any) and release the said balance of the purchaser

4

price less any amount retained for the purpose of Real Property Gain Tax in favour of the Vendor. 5.

DEFAULT BY THE PURCHASER

In the event that the Purchaser shall fail to pay the balance of Purchase Price within the period hereinbefore provided in Clause 3 hereof, the Vendor shall be entitled to terminate this Agreement and upon such termination: -

5.1

the Deposit Sum shall be forfeited to the Vendor for the breach of contract by the Purchaser; and

5.2

Any other sums paid to the Vendor towards account of the Purchase Price shall be refunded to the Purchaser free from interest within Two (2) weeks from the date of such termination subject to the Stakeholders having first returned to the Vendor all the documents pertaining to the sale forthwith and thereafter this Agreement shall become null and void and of no further effect and neither party shall have a claim against the other save as to any antecedent breach.

6.

DEFAULT BY THE VENDOR(S)

The Purchaser complying with all the terms and conditions of this Agreement shall be entitled to specific performance of this Agreement and to all relief flowing there from.

7.

EXECUTION OF TRANSFER AND DEPOSIT OF TITLE

Immediately upon the execution of this Agreement the Vendor shall forthwith execute and deposit with the Purchaser’ Solicitors a valid and registerable Memorandum of Transfer (hereinafter referred to as “the said Transfer”) and the issue document of title in respect of the said Property in favour of the Purchaser to be dealt with in the following manner:-

5

7.1

the instrument of Transfer is to be submitted for adjudication of stamp duties and the issue document of title for purpose of registration of transfer;

7.2

in the event that this Agreement is terminated pursuant to the provisions of Clauses 4 or 8 hereof the Purchaser Solicitors shall return the said Transfer to the Vendor PROVIDED ALWAYS that if the said transfer has been duly adjudicated and stamped, the Purchaser Solicitors shall surrender the same to the relevant authorities to obtain a refund of the stamp duty paid by the Purchaser and for their cancellation of the same

8.

REAL PROPERTY GAINS TAX

In compliance with the Real Property Gains Tax Act, 1976 the parties hereto hereby agree as follows: -

8.1

that they shall within Thirty (30) days from the date of the said Sale & Purchase Agreement respectively cause to be submitted to the Director General of Inland Revenue, Malaysia in the prescribed form of the relevant particulars relating to the acquisition and disposal of the said Property;

8.2

Notwithstanding Clause 9.1 hereof, the Vendor hereby undertakes to pay Real Property Gains Tax in respect of the sale of the said Property and further covenants and undertakes to indemnify the Purchaser against any claims or demands whatsoever resulting from the Vendor’s noncompliance with any of the provisions of the Real Property Gains Tax Act, 1976 in respect of the said Property.

9.

APPORTIONMENT OF OUT GOINGS

All quit rent and assessments payable in respect of the said Property shall be apportioned between the parties hereto on the date of vacant possession to the

6

said Property being delivered to the Purchaser (hereinafter referred to as “the said Date”) PROVIDED ALWAYS that the Vendor shall indemnify the Purchaser against any penalty which may be imposed by the relevant authorities in respect of any late or non-payment of such aforesaid payments for the period prior to the said Date.

10.

PROPERTY DAMAGE BY FIRE, ETC.

10.1

In the event that before the delivery of vacant possession of the said Property to the Purchaser, the said Property or any part thereof shall be destroyed or damaged by fire and/or any other cause(s), it is hereby expressly agreed that the Purchaser shall have the option to rescind this Agreement by written notice to the Vendor whereupon the Vendor shall on demand forthwith refund to the Purchaser the Deposit Sum and all whatsoever monies paid herein, in any event not exceeding Thirty (30) days upon receipt of written notification thereof, and upon such payment this Agreement shall become null and void and neither party shall have any claim against the other.

10.2

The risk and benefit of any insurance on the said Property shall remain with the Vendor until the date of delivery of vacant possession whereupon the risk shall pass to the Purchaser.

11.

VENDOR’S REPRESENTATION AND WARRANTIES

11.1

The Vendor hereby covenants, declares, represents, warrants and undertakes with the Purchaser as follows: -

11.1.1

the Vendor is the registered proprietor and beneficial owner of the said Property;

11.1.2

the Vendor has a good and clean title in and to the said Property to pass to the Purchaser;

7

11.1.3

the Vendor has full power and authority to execute deliver and perform the terms of this Agreement;

11.1.4

all quit rent, rates, assessments and other lawful outgoing due to the relevant authorities in respect of the said Property up to the Completion Date or the Extended Completion Date, as the case may be, has been fully paid by the Vendor and the Vendor shall not at any time hereafter do or suffer to be done or commit any act, matter or thing in or in respect of the said Property which may render the said Property or any part thereof liable to forfeiture or attachment or which shall contravene the provisions of any legislation up to Completion Date or the Extended Completion Date, as the case may be.

11.2

The Vendor hereby expressly agrees and acknowledges that the Purchaser are entering into this Agreement and agreeing to purchase the said Property in reliance upon the covenants, declarations warranties set forth herein above contained and the Purchaser may treat the same as conditions of this Agreement and that none of the said covenants declarations representations and warranties shall be deemed in any way modified or discharged by the completion of this sale and purchase transaction.

11.3

Further the parties hereto hereby agree that the truth and corrections of all the matters stated in the representations and warranties hereinabove contained are accurate in this Agreement and shall form the basis of the Vendor and the Purchaser’s Agreement to the Sale and Purchase of the said Property.

11.4

Each representation and warranty shall survive the execution of this Agreement and shall be deemed to have been reiterated as at the Completion Date or the Extended Completion Date, as the case may be.

8

12.5

The Vendor shall at all times save harmless and keep indemnified the Purchaser, their personal legal representatives and assigns against all actions, proceedings, damages penalties, costs, claims and demands by reason of the covenants, declarations, representations as set forth herein or any of them and the Purchaser may at their option, in the event of such breach (es), misrepresentation(s) treat this Agreement as rescinded on the date of receipt by the Vendor of the aforesaid notice.

12.

CONDITION STATE ETC. OF THE SAID PROPERTY

The Purchaser hereby confirms and declares that they have inspected the said Property and are satisfied with the condition state nature and character of the same and the Vendor hereby covenants with the Purchaser that the said Property shall substantially be in and of the same condition state, nature and character (fair wear and tear excepted) at the Date of Delivery of possession of the said Property pursuant to Clause 21herein as it is at the date of this Agreement.

13.

TIME IS OF THE ESSENCE

Time whenever mentioned shall be deemed to be of essence of this Agreement.

14.

COSTS AND EXPENSES

In respect of the costs and expenses in relation to the Sale and Purchase herein, the parties hereto hereby agree as follows: -

14.1

All stamp duty, registration fees and other disbursements for the conveyance herein including the Stakeholder’s fees shall be borne and paid by the Purchaser; and

9

14.2

the Vendor(s) shall bear the costs and expenses in obtaining the said consent from the Developer and re-assignment of the Said Property from the Assignor’s Bank (if any).

15.

NOTICE

Any notice request or demand required to be served by either party to the other under the provisions of this Agreement shall be in writing and shall be deemed to be sufficiently served: -

15.1

if it is given by the party or his/their Solicitors by post in a registered letter addressed to the party to be served at his/their address hereinbefore mentioned and in such a case it shall be deemed to have been received at the time when such registered letter would in the ordinary course of post be delivered; or

15.2

if it is given by the party or his/their Solicitors and despatched by hand to the party to be served or to his/their Solicitors and in such a case notice shall be deemed to have been served upon receipt against delivery; or

15.3

if it is sent by the party or his/their Solicitors by telex or facsimile to the party to be served or to his/their Solicitors and any notice sent by telex or facsimile shall be deemed to have been served Two (2) hour after having been sent by the party sending the notice.

16.

DELIVERY VACANT POSSESSION

Vacant Possession to the said Property shall be delivered to the Purchaser three (3) working days upon full payment of the balance of the Purchase Price together with all interest on late payment, if any. 17.

BINDING EFFECT

10

This Agreement shall be binding on the personal legal representatives and assigns of the parties hereto.

18.

AMENDMENTS

It is hereby expressly agreed and declared by the parties hereto that notwithstanding any of the provisions of this Agreement to the contrary, the provisions and terms of this Agreement may at any time and from time to time be varied or amended by mutual consent of the parties hereto by means of mutual exchange of letters or such other means as the parties may agree upon from time to time and thereupon such amendments and variations shall be deemed to become effective and the relevant provisions of this Agreement shall be deemed to have been amended or varied accordingly and shall be read and construed as if such amendments and variations have been incorporated in and had formed part of this Agreement at the time of execution hereof.

19.

INTERPRETATION

In this Agreement where the context so admits: -

19.1

Where Two (2) or more persons are included in the expression “the Vendor” and “the Purchaser” this Agreement binds such persons jointly and severally.

19.2

The expression “the financial institution” includes any bank, finance company and statutory body.

19.3

Words importing the masculine gender only include the feminine and neuter genders and vice versa.

19.4

Words importing singular number only include the plural number and vice versa.

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19.5

The heading herein shall be ignore in construing the terms and provision of this Agreement.

************************************************* (the rest of this page is intentionally left blank)

IN WITNESS WHEREOF the Vendor and the Purchaser have hereunto set their hands the day month and year first above written.

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SIGNED by the said VENDOR in the the presence of:-

) ) ) ) ) ________________________________

SIGNED by the said PURCHASER, in the presence of:-

) ) ) ) ) _________________________________

13...