Pless Pol V. De Soysa

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

PLESS POL v. DE SOYSA et al.

D. C, Kandy, 17, 549.

Building agreement-Damages for delay in completion of works-Liquidated damages and penally-Roman-Dutch Law-English Law.

Where the defendants agreed to grant to the plaintiff a lease of certain premises, and also undertook to effect and complete certain alterations and improvements to the premises before May 15, 1905, and in default to pay the plaintiff Rs. 150 a day, as liquidated damages, for each day after that date, and, where default having been made by the defendant, the plaintiff sued for the recovery of the damages stipulated, -

'Held, that the amount agreed upon must be considered as liquidated damages and not penalty, and that the plaintiff was entitled to recover the same.

APPEAL by the defendants from a judgment of the District Judge of Kandy (J. H. Tempter, Esq. ). The facts sufficiently appear in the judgments.

H. Jayewardene (with him H. J. C. Pereira), for the defendants, appellants.

Bawa (with him VanLangenherg), for the plaintiff, respondent.

Cur. adv. vult.

March 4, 1909. Hutchinson C. J. -

The claim in this action is for damages for breach of an agreement in writing between the plaintiff and the defendants dated February 17, 1905, by which the defendants agreed to grant to the plaintiff a lease of premises called " Haramby House " at Kandy for ten years from June 15, 1905, and to complete certain alterations and improvements to the premises before May 15, 1905, and in default to pay the plaintiff Rs. 150 a day for each day after that date that the work was unfinished. The District Court gave judgment for the plaintiff. The judgment is appealed against on several grounds. (1) On the issue, " Whether the plaintiff requested the defendants to make certain additions to and deviations from the works specified in the agreement, and whether the completion of the work was thereby delayed, " the District Judge has found that the plaintiff did so request the defendants, but that none of the alterations or deviations was requested after June, 1905, at the latest, and that " the work was thereby very slightly delayed, if at all. " And he has found, in answer to the second issue, that the plaintiff extended the time for completion of the work to September 1, 1905, and waived his claim to damages up to that date; and he was of opinion that this extension was due more to the plaintiff's anxiety to get a loan from the defendant, J. W. C. de Soysa, than as any concession to the lessors in consideration of the additions and deviations. The extension was granted by a letter (J 1) dated July 25, 1905, from, the plaintiff to J. W. C. de Soysa. The defendants pleaded that the plaintiff from time to time extended the time for the completion of the work after September 1, and consented to the defendants having such time as they might require for the completion. The District Judge has found that no additions or deviations was made, at the plaintiff's request, after September 1, and that the plaintiff did not grant any further extension of the time for completion. I am. not at all convinced that any of those findings of fact was mistaken. And the result is that the time for completion was by agreement of the parties extended from June 15 to September 1, and no longer.

(2) On the issue, "Was the work completed on December 31, 1905, and did the plaintiff take possession of the house on or about that date ? " The District Judge has found that the work was not completed on December 31, 1905, in terms of the agreement, and that the plaintiff never took possession of it. He said; " There cannot be the least doubt that, even if there had been no additions or deviations on the works contemplated by the agreement, Haramby House, even up to the present date " (March 11. 1907) " has not been completed and finished, fit for habitation or use; neit

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