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HOLMES v. ALIA MABIKAR.
D. O., Colombo, C 5,507.
Action for specific performance of contract, or damager for breads thereof—intention of parties—form of decree.
Where plaintiff prayed for specific performance of a contract set forthin a deed which had been assigned to him, or in the alternative fordamages, and it appeared to be the intention of the parties that thedefendant should be ready to hand the document of transfer to theplaintiff’s assignor, and the plaintiff’s assignor should be ready tohand over the price stipulated,—
Held, that plaintiff was entitled to a decree for specific performance,and if it be found, tor any valid reason, impossible to execute the con-veyance ordered, the Court below should deoree the defendant to pay tothe plaintiff the damages claimed.
HE plaintiff in this case sued the defendant upon a deed ofassignment, whereby one Wapuchi Maricar transferred and
set over unto him all sums payable upon, and all right, title, andinterest in, a certain deed made by the defendant in favour of the
said Wapuchi Maricar.
January 17and 21.
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By that deed, dated 6th June, 1893, the defendant agreed to Bell 1896.and convey to Wapnchi Maricar, within two months of the date ofli
its execution, a portion of a land belonging to him for the price of
Rs. 150, and it was farther agreed that in the event of the defendantrefusing or neglecting to make the conveyance in question, heshould refund to Wapnchi Maricar the sum of Rs. 50 paid to himin advance, and pay an additional sum of Rs. 50 as damages.
The plaint alleged that, on or about the of June, 1893,
Wapnchi Maricar tendered to the defendant, within the period oftwo months aforesaid, the price of Rs. 150, and requested him toexecute and deliver to him a proper conveyance of the said land,but that the defendant refused and neglected to do so; thatthereupon Wapuchi Maricar, by his proctor, requested him todeliver the title deeds of the said premises in order to enable hisproctor to prepare the necessary deed of transfer in his favour forexecution by defendant, but that the defendant failed to do so.
It was further alleged in the plaint that defendant had noticeof Wapnchi Maricar’s assignment of the deed of agreement toplaintiff; that on or about the 30th of October, 1893, the plaintifftendered to the defendant Rs. 150, the price of the land, andrequested him to execute and deliver to him a conveyance of thesaid land, or to deliver to his notary, Mr. Perera, the title deeds ofthe said premises for the purpose of preparing a deed of con-veyance for execution by the defendant; and that the defendantrefused and neglected to do so.
The plaintiff prayed that the defendant be ordered to convey tothe plaintiff the said land upon a proper deed of conveyance,receiving from the plaintiff the said sum of Rs. 150 ; and in thealternative that defendant be decreed to pay to the plaintiff thesum of Rb. 50 paid by Wapuchi Maricar to him, and a furthersum of Rs. 50 as damages.
The defendant pleaded, inter alia, that the plaintiff could notclaim specific performance of the agreement set forth in the deedof agreement between Wapuchi Maricar and the defendant.
The question of law thus raised was discussed on the trial day.
The District Judge ruled in favour of the plaintiff and orderedthe case to be listed for trial on the merits. On a subsequent dayhe dismissed plaintiff's action, on the ground that he was notsatisfied with the evidence laid before him of the tender of theprice to the defendant.
Domhorst and Sampayo appeared for appellant, and Batva forrespondent, on the 17th January, 1896.
Cur. adv. vult.
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January SI.Withers, J.
21st January, 1896. Withers, J.—
This is an action to compel specific performance of anagreement to sell a certain piece of land, more particularlydescribed in the schedule at the foot of the plaint, or inthe alternative for damages. The parties to the agreementcontaining the promise to sell this land were one WapnchiMarikar and the defendant. The agreement bears date the 6th ofJune, 1893. By that agreement the defendant, in considerationof the sum of Rs. 50 paid in advance, and admittedly received,covenanted with the said Marikar, the plaintiff’s assignor, thatwithin two months from the date of the agreement he would sell,convey, and transfer to the said Marikar the piece of land inquestion on a valid and marketable notarial document for thesum of Rs. 150. The said Marikar for his part covenanted withthe defendant, that within the said period of time he wouldpurchase this piece of land for the sum of Rs. 150 upon a validand marketable notarial document. It was further agreedbetween the parties that, in the event of the defendant refusingor neglecting to sell and transfer this piece of land on a valid andmarketable notarial document within the time given, for the saidsum of Rs. 150, he would refund to the said Marikar the Rs. 50paid and received in advance, together with an additional sum ofRs. 50 by way of damages ; and in the event of the said Marikarrefusing or neglecting to purchase the said land for the sum ofRs. 150, he was to forfeit to the defendant the sum of Rs. 50 paidin advance. Lastly, it was agreed that the said Marikar shouldbear the expense of preparing the conveyance.
On the 12th October, 1893, the said Marikar assigned to theplaintiff all his right and interest in the said agreement.
The intention of the parties to be gathered from their act was,I think, that within the time stipulated, if either required it of theother, the defendant should be ready to hand the document oftransfer to the plaintiff’s assignor, and the plaintiff’s assignorshould be ready to hand over the price of Rs. 150. In short, thefulfilment of the respective promises was to be simultaneous.Not that the obligations were conditional.
As to the payment of the expense of preparing the document, Ithink the utmost which defendant could do would be to detain thedocument as a lien, he having of course the right to recover theamount as money paid at the other party’s request.
Before going into the merits of the case it is necessary todetermine the point of law raised in the Court below and pressedupon us in appeal by Mr. Bawa, and that is, whether the doctrineof specific performance is known to our law ; not that this point,
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even if determined in defendant’s favonr, would conclude the 1896.case, for the plaintiff claimed alternative relief: specific per- Jewry 81.formance in the first place, and if that relief was not open to him, Withxbs. J.damages for the alleged breach by defendant of his agreement.
The District Judge, as regards the merits of the case, has foundagainst the plaintiff on both grounds of relief, and has dismissedhis action altogether.
To this judgment I shall revert after dealing with the questionof law.
If this was a case of first impression, I should pay more regardto the passages in the books relied on by Mr. Bawa, but really Ithink it is too late to call in question the law as it has beenadministered in our Courts.
The right specifically to compel a person to give somethingwhich he has promised to give, or to do something which he haspromised to do, has been frequently recognized and given effectto in our Courts. If the thing cannot be given or done, then itsequivalent, id quod creditoris interest prcestationem fieri, isexacted. The present is a common case in our Courts. It has beenbefore the Supreme Court since 1837. Take the cases reportedin Morgan and Beling, p. 145 (183 7); 43]55, Rdmandthan'sReports, p. 158 (1851); Grenier, D. G., p. 39 (1873). No doubt thepoint on those cases was not taken, but had there been any doubtabout the law it surely would have been taken ; but the case citedby Mr. Dornhorst shows that in later times the right has beendistinctly recognized of compelling the specific performance of acovenant to sell a piece of land—e.g., S. 0. M., 19th November,
1886, D. G., Negombo, 14,007.
Let me add the authority of Van der Linden and Grotius. Asto Van der Linden, see Juta’s translation, 2nd edition, p. 107,sections 6 and 7, chapter XIV.: “ If the obligation consists in’ “ doing something, the creditor can compel the defendant to“ perform the act or to pay damages and interest.” As for Grotius,see Herbert’s translation, p. 300, chapter XLI.
Further, our Civil Procedure Code, section 331 et seq., takesthis law for granted.
So much for the question of law.
Mr. Bawa, however, urged that plaintiff’s assignor was boundto tender to the defendant within the stipulated time the priceof Rs. 150 before he could exact the document of transfer ; thatthis was a condition precedent to his right to demand, and defen-dant’s obligation to execute a transfer. In any event, he arguedthat plaintiff was precluded from calling for the transfer, inasmuchas he had not brought the Rs. 150 into Court. In the view I have
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IMS. taken of the agreement which the parties entered into, I am ofyeaeory 8t. opinion that the plaintiff’s assignor was not bound to tender thisVitbih,J. sum of money, or even bound to bring it into Court. Theplaintiff is no doubt bound to hand the money to the defendantas soon as the defendant has executed the document of transfer.
The question remaining for decision is, has the plaintiff shownhimself entitled to demand specific performance or damages ?The District Judge has dismissed the action because, in his opinion,the plaintiff failed to establish a legal tender of the Rs. 150 withinthe stipulated time. 1 am not disposed to say that that finding offact is wrong, but, as I have said before, the plaintiff was notrequired to tender the price as a condition precedent. I think allthat the plaintiff was bound to establish was that he required thedefendant to execute the promised transfer, and that he was readyand able, on that being done, to pay the Rs. 150 to the defendant.So much I think he has established, and in my opinion he isentitled to relief.
To which form of relief then is he entitled? It seems to me heis entitled, in the first instance, to qn order, directing the defen-dant to execute a transfer. He will not have the conveyancedelivered to him till he has paid into Court Rs. 150 for thedefendant's benefit and secured the payment of the expenses, ifany, agreed or found to be due for the preparation of the transfer.
Before framing the decree, I would like to say one word aboutan encumbrance which was mentioned to us as affecting thepremises. The argument on this part of the case left me underthe impression that the nature and amount of the mortgage overthe premises was known to the plaintiff to exist when he enteredinto the agreement to buy the land, and that what he engaged topay for the land was the price of it with that particular encum-brance subsisting.
I set aside the judgment, and order the defendant to execute a<conveyance of the land in favour of the plaintiff, and to produceit to the Court on a day to be fixed by the District Judge. If thedefendant refuse to obey the order, the Court below will deal withthe case in the manner required by the 331st and subsequentsections of the Civil Procedure Code.
If a draft conveyance, whether Bottled by the parties or theCourt, is eventually prepared, the Court will require the plaintiffto pay into Court the sum of Rs. 150, and pay or secure thepayment cf the amount (if any) found to.be due for the expenseof preparing the draft.
That done, the conveyance will be delivered to the plaintiffand the money to the defendant.
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If it is found impoesible for any valid reason to execute theconveyance, the Court will decree the defendant to pay theplaintiff a sum of Rs. 100.
The appellant should have his costs in both Courts.
I agree. Our Courts in Ceylon are Courts of Equity, and I donot doubt that they have power to interfere and decree a specificperformance of agreement. For myself, I may say that for manyyears I have regarded the chapter on specific performance inStory’s Equity Jurisprudence as applicable and as of authorityin Ceylon.
This contract was not performed within the time originallyfixed. For that both parties are (I think) to blame; but thedefendant is more to be blamed than the plaintiff’s assignor,because (as I read the contract) it lay on the defendant (who hadreceived an instalment of the price) to prepare and to offer aconveyance. It was not until that was done that the plaintiff'sassignor was bound to pay the money. Within the time fixed itwas the assignor’s duty (if he wished to purchase) to give thedefendant notice that he had the money ready, and desired theconveyance to be prepared and signed, but he was not, I think,bound to tender the money absolutely and unconditionally. Thedefendant has not shown that subsequent events have made itimpossible for him to perform his contract, and I therefore agreein the judgment of my brother Withers.
The decree entered was as follows :—
“ It is ordered and decreed that the docree made in this actionby the District Court of Colombo, and dated the 17th October,1891, be and the same is hereby set aside, and in lieu thereof it isordered and decreed that the defendant do execute a conveyanceof the land in question in favour of the plaintiff, and produceit in Court on a day to be fixed by the District Judge. If thedefendant refuse to obey thi6 order, then the said Court will dealwith the case pursuant to section 331 and subsequent sections ofthe Civil Procedure Code, but if a draft conveyance, whethersettled by the parties or by the Court, is eventually prepared,then it is ordered that the said Court do require the plaintiff topay into Court the sum of Rs. 150, and further pay or secure thepayment of costs (if any) incurred in«£he preparation of thedraft conveyadce. On these conditions being fulfilled, it isordered that the said Court do deliver the conveyance to theplaintiff and the money to the defendant.
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1896. “And it is further ordered, that if it be found, for any validJanuary 21. reason, impossible to execute the said conveyance, the said Courtdo then decree the defendant to pay to the plaintiff the sumof Rs. 100.
“ And it is also farther ordered and decreed that the defendantdo pay to the plaintiff his taxed costs of this action, both in thesaid District Coart and in this Coart.”
HOLMES v. ALIA MARIKAR