049-NLR-NLR-V-11-AMARASINGHE-APPUHAMY-v.-BOTEJU-et-al.pdf
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Present; The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Benton
1908.
July 8.
AMABASINGHE APPUHAMY v. BOTEJU et al.
D. C., Colombo, 24,407.
Specific performance—Damages—Sale to third party—Notice.
Where the first defendant by a notarially 'executed instrumentdated June 4, 1906, agreed to convey certain land to the plaintiff,or in default to pay Bs. 100 as liquidated damages, and wherethe first defendant subsequently, to wit, on December 6,1906,
transferred the said land to the second defendant, who mortgagedit to the third defendant, and the plaintiff sued the defendants,claiming (1) that the first defendant be ordered to execute aconveyance of the land, (2) Es. 100 damages from first defend-ant, (3)thatthe transfer and mortgageof December6,1906, be
declarednulland void—
Held(reversingthejudgmentoftheDistrictJudge), thatthe
plaintiffwasentitled to damages,' evenalthough heisunable to
get specific performance of the contract, if the other conditionsstipulated in the agreement were complied with.
The second and third defendants having denied that they wereaware. of theagreement between the plaintiff and the firstdefendant,
and noissuehaving been settled on thepoint and noevidence led—
Held(affirmingthejudgmentoftheDistrictJudge), thatthe
action against them was rightly dismissed.
A
PPEAL by the plaintiff from a judgment of the District Judgedismissing his action. The facts material to the report
sufficiently appear in the judgment of the Chief Justice.
Bawa, for the plaintiff, appellant.
F. J. de Saram, for the second defendant, respondent.
A. Drieberg, for the first and third defendants, respondents.
Cur. adv. vult.
July 6, 1908. Hutchinson C.J.—
The plaintiff appeals from a decree dismissing his action. In hisplaint he alleged that by an agreement dated June 4, 1906, the firstdefendant, in consideration of Bs. 50 paid to him and of a furtherBs. 450 to be paid to him by the plaintiff, agreed with the plaintiffto transfer certain land to him within four months from that date,and, in the event of any breach of the agreement,• to pay him Bs. 100as liquidated damages. He said that the land had been mortgagedby the first defendant to the third defendant, and also by a secondarymortgage to the second defendant and had. been also leased to the
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1908. second defendant, and that the second and third defendants weraJuly 8. 'well aware of the agreement with him, and (paragraph 4) agreedwith him to receive from him the sum due on their mortgages andC.J. the surrender value of the said lease, and to cancel the mortgageeand the lease on the conveyance of the land by the first defendantto him being completed; that (paragraph 5) he had been always,during the said four months and after, ready and willing to paythe first defendant the balance due, and from time to time offeredit to the first defendant and requested him to transfer the land, butthe latter failed to do so, and had, in contravention of the agreement,transferred the land by deed of December 6. 1906, to the seconddefendant, who had by deed bearing the same date mortgaged it tothe third defendant. He alleged (paragraph 6) that the first defend*ant being party to the agreement of June 4, 1906, and the second andthird defendants being well aware of its terms, had fraudulently andin breach of it caused the transfer to and the mortgage by the seconddefendant to be executed. And he claimed that the first defendantbe ordered to execute a conveyance of the land to him; (2) the saidEs. 100 damages from the first defendant; (3) that the transfer andmortgage dated December 6, 1906, be declared void and be cancelled.
All the defendants admitted the agreement of June 4, 1906, buteach of the second and third defendants denied that he was awareof it (t’.e., I suppose, at the date of the deeds of December 6), anddenied the agreement alleged in the 4th paragraph of the plaint.The first defendant stated that the plaintiff failed to carry out hispart of the agreement of June 4, and that he (first defendant),,after the four months mentioned in the agreement had elapsed,transferred the land to the second defendant, who. had in the mean*tune sued on his mortgage bond and obtained judgment. And theyall denied the allegation of fraud.
The parties agreed on an issue of law (whether the action wasmaintainable on the ground stated in the 6th paragraph of theplaint) and an issue of faet (whether the plaintiff tendered to thefirst defendant the Rs. 450 within the four months). The agreementof June 4 was put in, but no other evidence was taken; and theDistrict Judge dismissed the action on the first issue without makingany reference to the second. He held that the plaintiff was notentitled to specific performance of the agreement, because it wasnow out of the first defendant’s power to specifically perform it;that he was not entitled to damages, because where specific perform*ance is the main thing claimed, and the plaintiff fails in that claim,he cannot recover damages as an alternative; and that their claimagainst the other defendants failed because they were not partiesto the agreement.
The agreement of June 4, 1906, recites that in consideration ofEs. 500 the first defendant agrees to sell to the plaintiff within fourmonths the land therein described, subject to the terms thereinafter
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mentioned; and the terms Me, (1) that on payment of the Rs. 5001908.
within the said period the first defendant will transfer the land toJvtyB.
the plaintiff; (2) that the plaintiff has paid Rs. 50 in advance; Hutchthsok
that if the plaintiff fails to pay the amount to the first defendant C.J.within four months, the sum paid in advance shall be forfeited;
that the first defendant cannot during the four months sell oralienate the land; (5) that if the first defendant commits a breachof any of the above agreements, Rs. 100 shall be paid as damagesto the plaintiff.
Under this agreement, if the buyer tenders the balance of thepurchase money within the four months, he is entitled to a transfer;if he does not, he forfeits his deposit, and is under no furtherliability. And if the seller, upon the money being tendered to himwithin that time, fails to execute a transfer (I do not say if he failsto execute it within the four months, but at all events if he failsaltogether), he has to pay Rs. 100 as damages. The plaintiff con-tends that, having been ready within the four months to carryout his part of the agreement, he is entitled to specific performanceof it. But a fatal objection to that claim is that it is no longer inthe seller’s.power to specifically perform the agreement.
I think there is no good cause of action alleged against the secondand third .defendants. They denied that they were aware of theagreement, and no issue was settled on that point, or as to whetherthey knew that the plaintiff had complied with, or that the sellerhad failed to comply with, the agreement; and the four months hadexpired before the transfer and mortgage to them.
But as regards the first defendant, his counsel admits that theaction ought not to have been dismissed, but that there should havebeen evidence taken and an adjudication on the second issue.
Under our procedure a claim for specific performance of an agree-ment can be made in the same plaint with a claim for damagesfor breach of it. If the second issue is answered in the affirmative,the plaintiff will, unless some other good defence is proved, beentitled to the Rs. 100 damages stipulated for in the agreement,and also (I presume, although he has not hitherto asked for it inthis action) to the return of the money which he paid on account.
I think the appeal as against the second and third defendantsshould be dismissed with costs, but that the decree so fM as itdismisses the action against the first defendant and orders the plaintiffto pay his costs should be set aside, and the action remitted for trialof the second issue, and for adjudication thereafter on. the claim fordamages against the first defendant. The costs as regMds the firstdefendant to be costs in the cause.
Wood Renton J.—I concur.
Appeal allowed as against first defendant.
Appeal dismissed as against second and third defendants.