048-NLR-NLR-V-27-HANIFFA-UMMA-v.-PARACK.pdf
( 262 )
1926.
Present: Jay ©warden© A.J. and Akbar A.J.HANIFFA UMMA v. PARACK.
150—D. C. Colombo, 1,502.Time—Application to set aside sale—Consent order—Applicant to bedeclared purchaser on payment of purchase money and costs beforecertain date—Delay in depositing money—Equitable relief toapplicant.
Where an/order of Court stated, that on failure of the appellantto bring a sum of money into Court on or before ascertain day,a sale of property in favour of the respondent should stand con-firmed,—
Held, that the appellant was not entitled to obtain relief againstfailure to observe the time condition of the order.
r pHE appellant sought to set aside a sale of land in favour of therespondent. The sale was held on March 31, 1925, withleave of Court, and on conditions of sale approved by Court. OnJuly 9,1925, when the application came on for inquiry, the followingorder, of consent, was passed
“ Ahamadu Lebbe Marikar Haniffa Umma, the first respondent-in the above case, to be declared the purchaser on herdepositing in Court within six weeks from date hereofthe full purchase amount, viz., Rs. 2,000, and costs ofsale, &c. In case the said sum of Rs. 2,000 and costs ofsale aforesaid are not brought into Court within the sixweeks mentioned above, the sale in favour of the presentpurchaser, Dain Kimiss Parack (the respondent), to beeonfirmed . . . . *’
On August 19, 1925, the proctor for the appellant filed amotion•praying for an extension of two weeks* time to bring the amountreferred to in July 9. On August 24, 1925, the respondent filed amotion for an order confirming the sale in his favour. On September3,1925, when the two motions came up for consideration, the learnedDistrict Judge held that the appellant having failed to carry outthe terms of the order of July, 1925, the respondent was entitledto be confirmed as purchaser of the land.
J. 8. Jayewardene, for appellant.H. F. Perera, for respondent.
( 253 )
November 26, 1925. Akbah A.J.—
The appellant, by an application dated May 4, 1925, soughtto set aside a sale in favour of the respondent of a portionof land belonging to the intestate estate of one Saibo DorayAbusali.
This sale was held on March 31, 1925, with the leave of theCourt and on conditions of sale approved by the Court. Prior tothis application the appellant had sought to stay this sale un-successfully and she had appealed from this order, which appealwas pending at the time of the present application.
On July 9, 1925, when the present application came on forinquiry the parties settled their differences and of consent thefollowing order was passed :—
“ Ahamadu Lebbe Marikar Baniffa Umma, the first respondentin the above case, to be declared the purchaser on herdepositing in Court within six weeks from date hereofthe full purchase amount, viz., Bs. 2,000, and costs ofsale Bs. 229*75. In case the said sum of Bs. 2,000 andthe costs of sale aforesaid are not brought into Courtwithin the six weeks mentioned above, the sale in favourof the present purchaser, Dain Kimiss Parack, to be con-firmed and the administratrix to be authorized to executethe necessary conveyance. Each party to bear hiscosts of this inquiry. The partition action No. 14,044to be dismissed, without costs, and the appeal now pendingin the above testamentary case to be withdrawn. Thepresent purchaser will be entitled to the rents until themoney is brought into Court.—Colombo, July 9,1925.”
On August 19, 1925, the proctor for the appellant filed a motionpraying for an extension of two weeks' time from August 19 tobring the amount referred to in the order of July 9, 1925 ; and onAugust 24 the respondent filed a motion for a confirmation of thesale in his favour in terms of the order of July 9, 1925, as theappellant had failed to deposit the amount fixed by this order.The appellant fortified her position still further by depositingthe full amount due by her on August 25, 1925, and by filing theKachcheri receipt in Court on August 26. The two motions cameon for argument on September 3, 1925, and the District Judgein effect held that the appellant having failed to carry out the termsof the order of July 9, 1925, the respondent was entitled to beconfirmed as the purchaser of the land.
1925.
HaniffaUmma vParack
( 254 )
1985.
Akbab A. J.
HaniffaUmma v.Parade
The appeal is from this order.
Mr. Jayewardene urged two grounds in support of his appeal.His first ground was that the payment on August 25, 1925, of thesum due was made in time, and he cited from XXVII. Volume ofHalsbury’s Laws of England, paragraph 868, that a week was to bereckoned as commencing on the Saturday night following July 9,1925. Whatever the term “ week ” may mean in a particularEnglish statute, I do not think the parties to these proceedings everintended that the expression “ within six weeks from date hereof ”should be interpreted in this sense. The parties are both Muslims,and that it was their intention that the six weeks should commencefrom July 8, the date on which the consent motion was signed,is clearly proved by the fact that the appellant on August 19 fileda motion asking for a two weeks’ extension of time for the paymentand by the further admission both in the appellant’s affidavitof September 3, 1925, and in the petition of appeal that there hasbeen a delay of four or five days in the payment.
Mr. Jayewardene’s second point raises a more interesting questionof law. He argued that in contracts for the sale of land, Courtsof Equity will give relief when there has been a delay in payment-The law will be found stated in the Privy Council case of Kilmer v.British Columbia Orchard Lands Ltd.1 as explained by the latteroases, Steedman v. Drinlde and another 2 and Brickies v. Snell2
Where time is of the essence of contract and there has been delay,the Courts of Equity will not decree specific performance, and theonly relief which will be given is relief from forfeiture in the natureof a penalty. What I have to determine in this case is whether timewas essential in the agreement of the parties of July 8, 1925, andconfirmed by the Court on July 9,1925. The test is “ that it mustbe clearly and expressly stipulated and must also have been whollycontemplated and intended by the parties that it shall be so;it is not enough that a time is merely mentioned during which orbefore which something shall be done.” (See Fry on Specific-Performances, p. 503, VI. Edition.) Even when there is no express.stipulation, the inference that time was of the essence of the agree-ment can be implied from the nature of the surrounding circum-stances ; and when such an inference can be drawn, the EnglishCourts of Equity will give effect to it as if it were an expressstipulation. (See cases cited in Brett’s loading Cases, V. Edition,p 216.)
* (1916) 1 A. C. 275.
1 (1913) A. C. 319.
a (1916) 2 A. C. 599.
( 256 )
Here i.s this order of the Court in which a time is expressly men-tioned within which certain things were to be done, and on theexpiration of which certain rights were declared to have come intobeing. Time must be an essence in an order of this nature, forotherwise it will mean that the matter will be left indefinitelyopen for all time with the proceedings cumbering the records ofthe Court. In the case of Punchi Nona v. Peri*#1 the SupremeCourt cited with approval the remarks of West J. in an exactlyparallel Indian case reported in a footnote in the report of the caseof Shirekuli Tima9 Pa* Hegda9 v. Malta9 Blya*.2 It is true thatJayew&rdene J. referred to a latter Indian case, Krisnabai v. HariGovind * in which it was held that this rule as enunciated by West J.was “ not to apply to cases where a party is seeking to enforceby regular action a right to forfeiture contained in a consent decreein terms of a compromise entered into under section 375 of theIndian Civil Procedure Code (section 40 of our Code), and thatin such cases the Court in the exercise of its equitable jurisdictionis not precluded from granting such relief against forfeiture as itmight have granted had the agreement arisen from contract orcustom.
I do not think this dictum applies to this case for a double reason.This is not a case in which a party is seeking to enforce her rightsby regular action. Nor can I see that this is an application forthe enforcement of a right to forfeiture.
The order of July 9, 1925, clearly stated that on the failureof the appellant to bring the money into Court on or before acertain day the sale in favour of the respondent was to be confirmed,or in other words, his title to the property which he had alreadypurchased was to stand unchallenged and the sale was to beimplemented by the Court authorizing the administratrix toissue a conveyance in the respondent’s favour.
The appellant had no right at all to the property; she wasonly to get a transfer if she paid the purchase amount and othercharges by a certain day. It is true that by the terms of the orderthe appellant agreed to withdraw partition case No. 14,044 thenpending and also to withdraw her appeal also then pending. Butthese were merely terms in the consideration which induced thepurchaser respondent to sign the terms of the agreement whichultimately culminated in the order of Court. The appellant hadalready withdrawn her appeal, and I fail to see what the penaltyis which she has incurred and from which she claims relief. She
1 {2924) 26 N. L. /?. ill.2 {1866) 10 Bom. 436.
3 {1906) 31 Bom. 16.
1925.
Akbar A.J.
HaniffaVmma cParack
27/19
( 256 )
1925.
Akbar A.J,
UaniffaTJmma v.Parade
is in exactly the same position as she was in before the order,except for the'withdrawal of the appeal. The appellant is notasking us for leave to reinstate her appeal; what she is in effectasking for is the specific performance of a Court order in whichtime is essential and Where she has been guilty of delay incomplying with the time condition of this order.
The appeal should be dismissed, with costs.
Jayewardene A.J.—I agree.
Appeal dismissed.
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