Peter S. Shirima v. Lalaito Kirikengori, Civ., App. 3-A-67, 28/10/67, Platt J.

Peter S. Shirima v. Lalaito Kirikengori, Civ., App. 3-A-67, 28/10/67, Platt J.

Plaintiff orally agreed to purchase from defendant an automobile. The defendant delivered possession of the automobile against an initial payment; a receipt acknowledged the payment understanding between the parties being that the title would not pass until the price was completely paid. Some time thereafter, the car was detained by the police, and plaintiff was obliged to make certain repairs. A dispute soon developed as to the payment of the remainder of the purchase price, and the defendant repossessed the car. Plaintiff complained of this to the police, who advised that parties to settle the matter among themselves. Defendant then wrote “ a humble letter” to plaintiff promising to refund the part of the purchase price which had been paid. Shortly thereafter, defendant paid back a portion of the amount promised; plaintiff gave him a receipt recording that defendant had promised the remainder by 15 October 1966 Plaintiff, on 21 September 1966, sent a letter demanding both the remainder of the refund and the cost of the repairs. Receiving no answer, he instituted this suit on 30 September.

            Held: (1) Although the defendant’s specific promise was for payment by 15 October, the suit was not premature. The cause of action had arisen, and indeed the defendant had admitted his indebtedness, before 30 September. The plaintiff’s right to sue on that date was not affected by his agreement to give the defendant until 15 October to pay his debt. (2) The contract for purchase here was void able at the option of the defendant. Under the Law of Contract Ordinance, Cap. 433. s. 64, the party rescinding such a contract shall restore any benefits received there under from the other party. [Also citing Pollock and Mulla, Commentary on the Indian Contract Act, 8^th edition, and cases cited therein at pages 383, 386 and 387; Clough v. L. & N.W.R. (1871) L.R. Ex 26; and Dies v. British and International Mining and Finance Corp. Ltd. (1939) 1 K.B. 724.] (3) While defendant might, on his part, have claimed damages occasioned by the plaintiff’s non-fulfillment of the original sale contract, he has not done so. He is therefore liable to refund the full amount paid by plaintiff toward the purchase price, and the total cost of repairs by the plaintiff.