Attilio v. Mbowe. No. 2 Civ. 95-D-69; 23/1/70; Georges C. J. (See [1969] H.C.D. n. 284).

 

Attilio v. Mbowe. No. 2 Civ. 95-D-69; 23/1/70; Georges C. J. (See [1969] H.C.D. n. 284).

The plaintiff claimed possession of a part of the Splendid Hotel on Independence Avenue, Dar es Salaam, which he alleged the defendant was unlawfully occupying. The defendant claimed that he was in possession under a contract of sale between the plaintiff and himself, and counter claimed for specific performance of the contract. In a previous judgment, the High Court held that there was a contract granted specific performance, and awarded damages to the defendant, which were to be assessed. Under the order, the plaintiff was to execute a transfer to the defendant, who was to pay the purchase price in instalments. The defendant defaulted on the first installment, being unable to raise a loan from his bank who informed him that they could not advance the money due to a change in credit policy. The plaintiff’s advocates wrote to him on the day after the one on which the installment was due, saying that they were rescinding the contract. The defendant produced the money some days later. The plaintiff refused to accept it. The defendant applied to the court for an extension of time for the payment of the money. The plaintiffs filed an application asking that the contract of sale annexed to the decree of specific performance be rescinded and that the defendant be ordered to hand over the premises.

            Held: (1) It would appear that in England it is not usual to set out in a decree for specific performance the dates on which payment is to be made or a conveyance executed. It is merely ordered that there be specific performance of the contract. If the steps necessary for that purpose are not taken by the appropriate party, the person who whished to enforce the decree can apply to have dates fixed and methods of performance detailed. Two cases were cited by Mr. Talati: - Foligno v. Martin 16 Beav. 586 and Simpson v. Terry 34 Beav. 423. in the latter case the Court fixed a date three weeks from the date of the hearing of the application for the payment of the purchase price. In the former it was clear that the defendant would not perform and that it would be idle to have a date fixed. In both case was an extension granted of a date already fixed, and both cases differ in that sense front the case under consideration. The general principle on which the Court acted, however, seems in my view, apposite in this matter – the granting of further relief in consequence of one party or the other defaulting in the performance of something which it was his duty to perform under the judgment. Implicit I the decisions also is the power assumed b the Court to supervise the order until it is performed or until it is clear that it cannot be performed and some alternative remedy will have to be granted. These principles appear to me to be both convenient and sensible and unless something positive can be found in our law to make them inapplicable they could be adopted by reason of the provisions of the Judicature and Application of Laws Ordinance cited above.”

(2) “It is urgued, in effect, that there was such a positive provision which made these principles inapplicable. He stated that the Court on 23^rd December, 1969, had issued a decree which was in effect a final decree as far as the date for payment and executions were concerned. Under Order XX Rule 3 of the Civil Procedure Code the judgment once signed could not after wards be altered or added to, save as provided y s. 96 of the Civil Procedure Code or on review. Section 96 provides for the correction of clerical, arithmetical and other mistakes and accidental slips and omissions in judgments. It cannot apply here.” “Even though a suit may come up for final disposal it does not necessarily follow that the order made there after is a final order. The decree in this case was in some respects unarguably a preliminary decree. Damages for breach of contract were still to be agreed or assessed. The total sum which the plaintiff would eventually receive nett had not been quantified though the purchase price had been fixed. The Court specifically reserved to both parties liberty to apply. All of this would clearly indicate that the Court still retained general super-intendance of the matter and that the decree was a preliminary decree and not a final decree. No provision was made as to the consequences of default by the defendant in meeting any of the instalments he was ordered to pay. In the event of default the plaintiff would have had to come to court to ask for the rescission of the contract. This would not involve a review of the decree for any of the reasons set out in Order XLII. It would involve a working out of the consequences of the order or the occurance of an event for which the Court had not provided namely the defendant’s inability to meet his obligations under it. Review would involve correction of an error which was either apparent on the face of the record or had become clear because f subsequently discovered circumstances. The principle underlying a review is that the Court would not have acted as it had if all the circumstances had been known. In specific performance cases the Court does not review its order for specific performance because the party ordered to perform has failed to do so. It cancels the contract ab-initio.” “Mulla Civil Procedure Code (13^th Ed.) page 12 states as follows in its commentary on the definition of decree in the Indian Civil Procedure Code, 1908 which is identical with the definition in the Tanganyika Civil Procedure Code: - “A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be worked out in further proceedings. Then as a result of the further enquiries conducted pursuant to the preliminary decree, the rights of the parties are finally determined and a decree is passed in accordance with such determination.” Mr. Jhaveri pressed very strongly that this decree was final as regards the manner of payment of instalments though preliminary as regards the assessment of damages. It is possible for a decree to be in part preliminary and in part final. I don not think this was the case here. Even the provisions for the payment of the instalments must be regarded as preliminary since the consequences of non payment were not provided for.” The Chief Justice then referred to the case of Someshwar Dayal and others v. Widow of Lalman Sah and others A. I. R. 1958 Allahabad 488 and stated the facts. “The dominant view was that a decree for specific performance was in effect nothing more than an affirmation that a contract existed and had to be performed. Any time limits therein set out therefore, could only have the same force as time limits set out in an ordinary contract. Once time was not the essence, failure to fulfill the time limits set out in a contract did not result in total loss of all rights under the contract. Extension of time was always possible – the extended time often being made of the

essence of the contract. The situation was no different in the case of a contract the existence of which had been affirmed by the court and therefore an extension of time was also possible in such a situation to enable a party to carry out the obligation imposed. This approach strikes me as not raising any serious clash of conflicting principles. I would hold that in granting extension of time in such circumstances the court is acting under its inherent power preserved in s. 94 of the Civil Procedure Code “to make such orders as may be necessary for the ends of justice.” I would hold that the situation is not one in which an alternative remedy of review is available because the decree partakes of the nature of a preliminary decree, and the court remains seised of the matter.” (3) “It may well be that the Court could in effect have make the decree a final decree by fixing a date for payment and providing that in default of payment on that day the contract should be deemed rescinded abinition – thereafter specifying the remedies to which the party not in default would be entitled. The order here was not in that form. The plaintiff would in any event have had to come to the court in an application in this action to have the contract declared rescinded.” (4) “The rule is that time is not normally of the essence of a contract and there is nothing here to take the case out of the rule,” (5) Time for payment of first instalment extended. Plaintiff’s summons dismissed with costs.