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HOLMES v. ALIA MARIKAR
NLR1V282
HOLMES v. ALIA MARIKAR.
D. C, Colombo, C 5,507.
Action for specific performance of contract, or damages for breach thereof
-intention of parties form of decree.
Where plaintiff prayed for specific performance of a contract set forth in a
deed which had been assigned to him, or in the alternative for damages, and it
appeared to be the intention of the parties that the defendant should be ready
to hand the document of transfer to the plaintiff's assignor, and the
plaintiff's assignor should be ready to hand over the price stipulated,
Held, that plaintiff was entitled to a decree for specific performance, and if
it be found, for any valid reason, impossible to execute the conveyance ordered,
the Court below should decree the defendant to pay to the plaintiff the damages
claimed.
THE plaintiff in this case sued the defendant upon a deed of assignment, whereby
one Wapuchi Maricar transferred and set over unto him all sums payable upon, and
all right, title, and interest in, a certain deed made by the defendant in
favour of the said Wapuchi Maricar.
By that deed, dated 6th Jane, 1893, the defendant agreed to sell and convey
to Wapuchi Maricar, within two months of the date of its execution, a portion of
a land belonging to him for the price of
Rs. 150, and it was further agreed that in the event of the defendant refusing
or neglecting to make the conveyance in question, he should refund to Wapuchi
Maricar the sum of Rs. 50 paid to him in advance, and pay an additional sum of
Rs. 50 as damages.
The plaint alleged that, on or about the 20th of June, 1893, Wapuchi Maricar
tendered to the defendant, within the period of two months aforesaid, the price
of Rs. 150, and requested him to execute and deliver to him a proper conveyance
of the said land, but that the defendant refused and neglected to do so ; that
thereupon Wapuchi Maricar, by his proctor, requested him to deliver the title
deeds of the said premises in order to enable his proctor to prepare the
necessary deed of transfer in his favour for execution by defendant, but that
the defendant failed to do so.
It was further alleged in the plaint that defendant had notice of Wapuchi
Maricar's assignment of the deed of agreement to plaintiff; that on or about the
30th of October, 1893, the plaintiff tendered to the defendant Rs. 150, the
price of the land, and requested him to execute and deliver to him a conveyance
of the said land, or to deliver to his notary, Mr. Perera, the title deeds of
the
