Jobling J:

The facts sufficiently appear from the judgment.

The plaintiff in this case claims specific performance of an agreement for sale of certain property executed by the defendant or alternatively for damages.

The facts in the matter are admitted and are as follows:

The defendant is the son of one Vengadasalam Chettiar who died in India in April 1942.The defendant was at that time the only member of deceased's family in Penang and was carrying on deceased's business under a Power of Attorney from deceased.This Power was extinguished by deceased's death and defendant applied for letters of administration to his father's estate carrying on the business in the meantime.His application was approved subject for the due administration of the estate by defendant being forthcoming.The defendant was unable to obtain the sureties.

The deceased prior to his death had charged certain property in Burmah Road, Penang to the Indian Overseas Bank by way of equitable mortgage to secure a sum over $30,000 and after deceased's death the Bank demanded payment of the advance from defendant.

Defendant negotiated the sale of the Burmah Road property to the plaintiff for $75,000 and later in June 1945 when he entered into the agreement of sale he demanded a higher price on the ground that prices had generally increased and it was agreed the purchase price should be $105,000 Japanese currency and this amount was paid to defendant.The agreement for sale was then executed and in it defendant agreed and covenanted to extract the grant of letters of administration as early as possible and to apply to Government for the necessary permission to sell the land to the plaintiff.

Plaintiff was aware of the difficulty of obtaining sureties and offered himself as one.Defendant did not, however, succeed in obtaining the second surety and did not extract the letters of administration.The day before the hearing of this claim he renounced his right to letters of administration and his brother, the only other beneficiary has applied for representation to the estate.

The defendant is sued in his personal capacity on the agreement.Defendant states that he could not extract the letters of administration because he could not obtain sureties.He says this was due to the fact that the Japanese were in occupation of Malaya at the time and the proprietors of the Chettiar firms (among whom he would normally have expected to find sureties) were in India.Defendant did not, however, take any steps to obtain sureties after the reoccupation of Malaya.He says he did not do so because he was not satisfied that the estate was solvent but admitted in evidence that his brother would not agree to the sale of the Burmah Road property to plaintiff.Further, defendant did not apply to the Court to accept plaintiff as sole surety, although he was aware that plaintiff was a man of substance.

It is clear that defendant has not done all he could to carry out his obligation to extract letters of administration and he has now put the performance of his agreement out of his power by renouncing his right to a grant.Specific performance of the agreement is now impossible but defendant is at fault and plaintiff is due damages for the loss he has sustained.His Counsel does not dispute this but urges that the cause of action arose during the Japanese occupation and the damages must be in Japanese currency as at the date the cause of action arose.

Evidence was led that the value of the property at the time of the agreement was $30,000 Malayan currency and that that is still its value to-day.The fact that plaintiff paid $105,000 Japanese currency for the property is beside the point.The measure of damages for non-performance of an agreement of this nature is stated in Day v. Singleton [1899] 2 Ch 320 to include damages sustained by plaintiff for loss of his bargain, and I see no reason why this decision should not apply in this case.

The plaintiff performed his part of the contract to purchase