MATTHES APPUHAMY v. RAYMOND et al.

MATTHES APPUHAMY v. RAYMOND et al.

D. C., Colombo, 5, 861.

 

Specific performance-Agreement to sell land-Stipulation for damages Alternative obligation-Conveyance of land to person other than the one to whom owner is under agreement to sell.

An agreement between plaintiff and first defendant for sale of a parcel of land by first defendant to plaintiff contained the stipulation that if first defendant failed, refused, declined, or in any manner objected to sell the land as agreed, he should pay plaintiff Rs. 500 as liquidated damages and return to him the part of the purchase money advanced by him to defendant. It also contained a covenant on the part of plaintiff not to lease, encumber, or alienate his interest in the premises until the deed of transfer was executed by first defendant, and a mortgage of the premises by first defendant to plaintiff to secure return of the part purchase money and payment of the damages aforesaid-

Held, that in the circumstances of this agreement, the penal, stipulation was intended to be an alternative to the principal obligation on the part of first defendant, and not merely accessory to it, and plaintiff was not entitled to claim specific performance of defendant's agreement to sell.

First defendant, before action, had sold and conveyed the parcel of land aforesaid to second defendant, who was alleged to have, at the time, had notice of first defendant's agreement with plaintiff-semble, per Bonser, C. J., and Withers, J., that in consequence of such sale and conveyance first defendant had put it out of his power to specifically perform his agreement to sell the land to plaintiff, and plaintiff could not therefore claim specific performance of such agreement.

THE plaintiff and the first defendant entered into an agreement, dated the 14th April, 1894, whereof the following were the portions material to the issues in the case: -

" That the vendor, in consideration of the sum of Rs. 3, 500 agreed "to be paid to him by the vendee as hereinafter mentioned, doth " hereby for himself, his heirs, executors, and administrators " covenant and agree to and with the vendee and his heirs, " executors, administrators, and assigns that he, the vendor, shall " and will immediately at and after the expiration of fourteen " days from the date hereof, upon a good, valid, and marketable " deed of transfer, giving a good, valid, and marketable title to be " approved by counsel learned in the law, sell, assign, transfer, and " set over, free from encumbrance, unto the vendee and his afore-" written or to any person or persons whom he or they shall or may " nominate, the aforesaid land and premises in the schedule hereto " particularly described.

" That in consideration of the premises the said vendee doth " hereby for himself, his heirs, executors, and administrators " covenant and agree to and with the vendor and his afore written " that he, the vendee, shall and will, immediately after the expiration of fourteen days from the date hereof, purchase the said '' land and premises, and pay unto the said vendor the said sum of " Rs. 3, 500. That if the vendor shall fail, refuse, decline, or in any " manner object to sell, assign, transfer, and assure the said land " and premises, free from encumbrance, unto the vendor or his " afore written immediately after the expiration of fourteen days " from the date hereof, then and in any such cases the vendor " shall and will pay unto the vendee or his afore written, as liquidated " damages, and not by way of penalty, the sum of Rs. 500, in " addition to other damages and expenses that may be recoverable. " That if the vendee shall object to purchase immediately after the " expiration of fourteen days from the date hereof the said land and " premises, and fail, refuse, or decline to pay the said sum of " Rs. 3, 500 unto the vendor as aforesaid, then and in any such " cases the vendor shall

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