AMARASINGHE APPUHAMY v. BOTEJU et al.

Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,

.    and Mr. Justice Wood Renton

 

AMARASINGHE 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 instrument dated June 4, 1906, agreed to convey certain land to the plaintiff, or in default to pay Rs. 100 as liquidated damages, and where the first defendant subsequently, to wit, on December 6, 1906, transferred the said land to the second defendant, who mortgaged it to the third defendant, and the plaintiff sued the defendants, claiming (1) that the first defendant be ordered to execute a conveyance of the land, (2) Rs. 100 damages from first defendant, (3) that the transfer and mortgage of December 6, 1906, be declared    null     and    void-

 

Held (reversing the judgment of the District Judge), that the plaintiff was entitled to damages, even although he is unable to get specific performance of the contract, if the other conditions stipulated    in    the    agreement    were    complied    with.
 

The second and third defendants having denied that they were aware of the agreement between the plaintiff and the first defendant, and   no   issue   having   been   settled   on   the   point   and   no   evidence   led-
 

Held (affirming the judgment of the District Judge), that the action  against  them    was    rightly    dismissed.

 

APPEAL by the plaintiff from a judgment of the District Judge dismissing   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.

 

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 his plaint he alleged that by an agreement dated June 4, 1906, the first defendant, in consideration of Rs. 50 paid to him and of a further Rs. 450 to be paid to him by the plaintiff, agreed with the plaintiff to transfer certain land to him within four months from that date, and, in the event of any breach of the agreement, to pay him Rs. 100 as liquidated damages. He said that the land had been mortgaged by the first defendant to the third defendant, and also by a secondary mortgage to the second defendant and had been also leased to the 

 

second defendant, and that the second and third defendants were well aware of the agreement with him, and (paragraph 4) agreed  with him to receive from him the sum due on their mortgages and the surrender value of the said lease, and to cancel the mortgages and the lease on the conveyance of the land by the first defendant to him being completed; that (paragraph 5) he had been always, during the said four months and after, ready and willing to pay the first defendant the balance due, and from time to time offered it to the first defendant and requested him to transfer the land, but the latter failed to do so, and had, in contravention of the agreement, transferred the land by deed of December 6, 1906, to the second defendant, who had by deed bearing the same date mortgaged it to the third defendant. He alleged (paragraph 6) that the first defendant being party to the agreement of June 4, 1906, and the second and third defendants being well aware of its terms, had fraudulently and in breach of it caused the transfer to and the mortgage by the second defendant to be executed. And he claimed that the first defendant be ordered to execute a conveyance of the land to him; (2) the said Rs. 100 damages from the first defendant; (3) that the transfer and mortgage dated December 6, 1906, be declared void and be cancelled.

 

All the defendants admitted the agreement of June 4, 1906, but ea

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