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SULEHA UMMA v. NAGOOR MOHAMADO
NLR46V415
1945 Present: Soertsz
A.C.J. and Canekeratne J.
SULEHA UMMA. Appellant, and NAGOOR MOHAMADO. Respondent.
65-D. C. (Inty.) Colombo, 1,913.
Contract-Sale under Partition
Ordinance-Condition that property " shall be liable to be, resold " on failure
of payment of purchase price within-one month-Default of
purchaser-Interpretation of phrase " shall be liable to be re sold ".
Where one of the conditions of a sale under the Partition Ordinance was that "
the property shall be liable to be re-sold " if there was default on the part of
the purchaser to pay the full purchase price within one month-
Held, that the Court had no discretion to allow the money to be deposited after
the time fixed had elapsed; the effect of the words " shall be liable to be
re-sold was that, in the event of default, the property had to be re-sold unless
the parties came to a settlement.
APPEAL
from an order of the District Judge of
Colombo.
W. S. de Saram for the second defendant, appellant.
A. Gnanapragasam (with him H. S. Perimpanayagam), for the purchaser,
respondent.
Cur adv. vult.
October 18, 1945. SOERTSZ
A.C.J.-
This was a sale held under the Partition Ordinance on notarially attested
conditions of sale No. 53 of April 1, 1942. At that sale Nagoor Mohamado, the
tenth respondent to this appeal, became the purchaser, being the highest bidder
at Rs. 750. In compliance with condition 3, he paid Rs. 75, that is one-tenth of
the purchase amount, and by condition 5 undertook to pay the balance within one
month. Admittedly, he made default in that respect. He did not pay the balance
of the purchase price within the one month, and by operation of condition 7 by
which he was bound he forfeited his deposit, and the property became liable to
be re-sold at his risk. On April 19, 1942, the purchaser moved for time till May
31. 1942, to pay the balance due. The Proctor for the plaintiff had no objection
to that, but the Court, even if we assume that it had a discretion to interfere
with the contract of the parties and grant an extension of time because
condition 7 provided that " the property shall be liable to be re sold, " and
not peremptorily, that it " shall be resold ' exercised that discretion only to
the extent of making the consent of the other co-owners the condition for the
allowance of the time asked for. Again on May 29, 1942,.weeks after the month
had expired, another application was made for an extension of time till the end
of June, 1942, and once more the Court directed " File consent of first and
second defendants". This was not done, but the balance due was deposited in
Court on June 19 or 20, 1942, and on July 1, 1942, certificate of sale was
issued. On July 23, 1942, this sale was confirmed. On September 15, 1942, the
second defendant, the appellant now before us, filed objections to all that had
gone before, and after inquiry into them the certificate of sale was recalled
and the Court fixed a date for consideration of the question whether the sale
should be confirmed or not, with an opportunity given to the second defendant to
be heard on that question.
At that inquiry the objections taken to the sale were that-
(a) the land had been undervalued, that it was reasonably worth Rs. 1,500 and
that, therefore, the advertisement of the sale had been inadequate;
(b) the purchaser, the tenth respondent, was a nominee of the plaintiff-
respondent and that the sale was bad for that reason;
(c) the balance of the purchase money was not deposited within the month fixed
for its deposit and that, consequently, the sale proved abortive.
I do not see any reason for taking a different view from that of the trial Judge
in regard to (a) and (b) when he held against the second defendant. But
objection (c) appears to me to be quite formidable, and has to be seriously
considered. Conditions 3, 5 and 7 of the conditions on which
this sale was held are
substantially the s
