IN THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Civil Action No. 549 of 1994

BETWEEN:

ANIL PRAKASH SINGH
(f/n Chandar Prakash Singh) of Samabula, Suva, Businessman
PLAINTIFF

AND:

SHAMBHU MAHARAJ
 (F/N Bhagauti Maharaj) of Wainasasa, Naitasiri Retired as Administrator and Trustee of the Estate of SATENDRA KUMAR (f/n Ram Prasad) of Nasinu, 6 Miles, Retired Taxi driver, Testate.
DEFENDANT

Appearances: Mr V. Maharaj for the Plaintiff
Mr G O' Driscoll for the Defendant

Date of Judgment: 30th May, 2011

JUDGMENT

1.	In these proceedings, the plaintiff has sought specific performance of an oral agreement entered into on 5th July, 1994, with the late Satendra Kumar (the deceased defendant) to purchase the property of the said deceased defendant as comprised in CT No.8112, Lot 14 on DP 1864 in Suva for $26,000. The plaintiff has also sought general damages and special damages in a sum of $10,000 for improvements made on the land. Upon the death of Satendra Kumar, the defendant as Administrator and Trustee of the Estate of Satendra Kumar was substituted in place of the deceased defendant by Order of Court on 2nd June, 2005. 
 
The defendant resisted the action on the ground that time was of the essence of the contract, and the agreement to sell the land rescinded on 21 July, 1994, being the settlement date agreed upon by the plaintiff and the deceased defendant. The plaintiff contended that the deceased defendant had consented to his request to extend the settlement date from 21 July, 1994, to 22 July, 1994.

2.	The hearing of the action had commenced before Mr Justice Jitoko on 16 May, 2007. The plaintiff and Mr Suresh Chandra (Solicitor) had given evidence on behalf of the plaintiff. The defendant and Mr Avinesh Raj had given evidence for the defence. Both parties had filed written submissions. The Judge's notes of 22nd June, 2007, provide that judgment was to be delivered on notice.

On 9th March, 2011, the matter was mentioned before this Court, and counsel for the plaintiff and defendant stated that the hearing was concluded and judgment was to be delivered.

On 19th May, 2011, I invited counsel for the plaintiff and defendant to make submissions on the transcript of the Judge's notes of the evidence. On 23rd May,2011, counsel for the plaintiff and defendant made application that judgment be delivered on the transcript of Mr Justice Jitoko's notes of evidence, and filed joint motion inter alia clarifying matters pertaining to the exhibits produced at the hearing. 

3.	The following Agreed Facts were recorded at the pre trial conference:

I.	"The Defendant is sued in the capacity or the Executor and Trustee of the Estate of SATENDRA KUMAR (f/n Ram Prasad) of Nasinu, 6 Miles, Retired Taxi Driver (hereinafter referred to as the "Deceased Defendant").

II.	The Plaintiff and the Deceased Defendant entered into an agreement on the 5th of July 1994 for the purchase of the Defendant's property comprised in Certificate of Title No. 8112, Lot 14 on DP 1864 situated in the Island of Viti Levu together with all the improvements thereon (hereinafter referred to as the said property) for a consideration sum of $26,000.00;

III.	The Deceased Defendant executed the transfer document on the 7th of July 1994 and was later stamped by the Commissioner of the Stamp Duties on the 3rd of August 1994;

IV.	The Plaintiff arranged for the payment of the consideration sum of $26,000.00 to the Deceased Defendant on the 22nd of July 1994 which was refused by the Deceased Defendant;

V.	The Plaintiff had possession of the said property prior to settlement date."

4.	The Plaintiff, in his evidence, stated that the defendant consented to his request to defer the settlement date. The Solicitor, Mr Suresh Chandra (who had been instructed by both parties to prepare the transfer document) and the defendant testified that the deceased defendant was displeased when the settlement was not effected on 21st July, 1994. It could be inferred from this testimony, that the deceased defendant had not consented to the deferment of the settlement date. I am not convinced that the deceased defendant had consented to extend the settlement date to 22 July, 1994. In my judgment,the plaintiff was in breach of contract by failing to complete the settlement on 21st July, 1994.

It transpired in the testimony of the Solicitor that on 22 July, 1994, the deceased defendant had been at the Solicitor's office with a prospective purchaser. The transaction however, had not materialised. The conduct of the defendant is suggestive of a repudiation of the agreement with the plaintiff, who was also at the Solicitor's office on 22 July, 1994. However, there is no evidence nor was it contended that the repudiation was accepted by the plaintiff. "An unaccepted repudiation is a thing writ in water and of no value to anybody: it confers no legal rights of any sort or kind" -Asquith L.J. in Howard v Pickford Tool Co (1951) 1 KB 417 at page 421. 
Accordingly, the contract survives and continues to be in existence.

5.	 I now proceed to consider the contention of the plaintiff that time was not of the essence of the contract.

The plaintiffs contend that in the absence of a written agreement, the equitable jurisdiction of Court to decree specific performance has to be considered. The cases of Stickney vs. Keeble and Another (1915) AC 386 and Lock vs. Bell (1931) 1 Ch 35 have been cited by the Plaintiff in its written submissions. Maugham J in Lock vs. Bell stated:

"..the real difference between the court of law and the court of equity was that the court of equity was accustomed to relieve against a failure to keep the date 
assigned by such a contract for either completion or steps towards completion, if it could do justice between the parties".

The House of Lords in Stickney vs Keeble encapsulated the principle that "in equity the time is not of the essence of the contract", as follows:

"A Court of Equity will indeed ... enforce, specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion, or for the steps toward completion, if it can do justice between the parties, and if ...there is nothing in 'the express stipulations between the parties, the nature of the property, or the surrounding circumstances,' which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract." (emphasis added)

 And Lord Atkinson in the same case said, at p. 401:

"There is no occult or elusive mystery hidden in the phrase, 'in equity time is not of the essence of the contract.' It merely expresses in a condensed form the doctrine that if a court of equity, looking not at the letter but at the substance of a contract to purchase land, sees that in none of the three ways above mentioned is an intention disclosed that the time limited for completion, or for any step towards completion, is to be strictly adhered to, that court will relieve against breaches through mere lapse of time touching these matters when that can be done without substantial injustice.....".(emphasis added, footnotes omitted)

Lord Parker of Waddington in a concurring speech at page 416 observed that "it was only for the purposes of granting specific performance that equity in this class of case interfered with the remedy at law." (emphasis added)

Lord Fraser of Tullybelton in Raineri v Miles (1981) AC at page 1050 at page 1090 referring to the above quoted passages from the judgment of Stickney vs. Keeble said:

" All these statements show that the noble and learned Lords who made them regarded any breach of a stipulation as to time in a contract for the sale of land as unquestionably a breach of the contract, although they said that a party in breach of that stipulation might be relieved of the full consequences of his breach to the extent of allowing him to obtain specific performance of the contract. There is no suggestion that he would be relieved from any liability for damages..." (emphasis added)

The defendant relies on the case of Union Eagle Ltd v Golden Achievement Ltd [1997] 2 All ER 215.In that case, the parties had entered into a written contract, which provided that completion should take place on or before a specified date and time. The Privy Council held that failure to perform on time, however small,(the purchaser was ten minutes late), entitled the deceased defendant to terminate the contract. Time was to be in every respect the essence, and hence this case does not address the issue before the Court.

In the matter before the Court, the deceased defendant executed the transfer document on 7th July, 1994, and possession had been given to the plaintiff prior to the settlement date. In the circumstances, in my judgment, time was not the essence of the contract. The deceased defendant had not, as contended by the plaintiff, entered into an agreement to sell the property to another buyer. Hence, there would be no injustice caused to the defendant, if the agreement between the parties is effected. 

6.	The defendant was not in breach of contract, and hence the plaintiff's claim for general damages does not arise for consideration. The plaintiff has also sought special damages in a sum of $10,000 for improvements made on the land. The plaintiff has been in possession of the land and the alleged improvements were made for his benefit and enjoyment, which he would now be entitled to.

7.	The plaintiff, in its closing written submissions, has stated that the transfer document was signed and stamped by the deceased defendant on 5 July, 1994, in A-5 paper and the Registrar of Titles now only accepts transfer signed on A4 paper. The plaintiff moved that Court make an Order pursuant to Section 168 of the Land Transfer Act, for the Registrar of Titles to accept the original stamped document signed on 7th July, 1994 for registration. The plaintiff's application is allowed. 

8.	Counsel for the plaintiff and defendant have in their joint motion dated 23rd May, 2011, moved that Caveat No 362664 registered against the land and extended by Justice Mr Scott on 18th November, 1994, in this case be removed. I make order that Caveat No 362664 be removed forthwith.

Counsel for the plaintiff and defendant have also moved that the Court direct the Registrar of Titles to issue provisional title and that the consideration sum of $ 26,000.00 less any unpaid rates be paid into the Trust Account of Mr Gavin O' Driscoll, as Solicitors for the defendant, for payment to the persons lawfully entitled to the proceeds "in the light of the death of the defendant". The Court does not supervise orders for specific performance. The law has to take its course.

9.	Orders

a)	The defendant is specifically ordered to hand over the Certificate of Title No.8112,Lot 14 on DP 1864 in Suva to the plaintiff for settlement to be effected in terms of the agreement entered between the plaintiff and the deceased defendant on 5th July,1994.

b)	The plaintiff's claim for general and special damages is disallowed.

c)	the Registrar of Titles is ordered to accept the original stamped document signed on 7th July, 1994, by Satendra Kumar in respect of the property comprised in CT No.8112, Lot 14 on DP 1864 in Suva.

d)	Caveat No 362664 in CT No.8112, Lot 14 on DP 1864 be removed forthwith.

e)	The Court makes no order for costs.

A.L.B.Brito-Mutunayagam
Judge

At Suva
 30th May, 2011