CAUSE OF ACTION-ANTICIPATORY BREACH
Suit aimed at enforcing an agreement to sell and DJ ruled that no cause of action had accrued to the plaintiff to sue the 1st defendant as at 28 December 1992 based on the premise that under P1, it was open to the 1st defendant to perform his obligation on or before 31 December 1992. Hence, The plaintiff sued the defendant on 28 December 1992 when the 1st defendant had yet three more days to perform his part of the obligation. It is impossible slrto allege that by 28 December 1992, the 1st defendant had denied the rights of the plaintiff or refused to fulfill an obligation or neglected the performance of a duty. As the plaintiff was unable to establish the accrual of the cause of action, the district court has rightly decided to dismiss the plaintiff’s action
1.Talagune Vs De Livera 1997 (1) SLR 253,
2. Jayaratna vs Jayaratna 2002 (3) SLR 331,
A W ABDUS SALAM, J.
The 1st and 2nd defendants entered into an agreement for the sale of two allotments of land to the plaintiff on or before 31.12.1992. The allotment of land set out in second schedules to the plaint was accordingly sold and conveyed by the 2nd defendant to the plaintiff.
The present suit is aimed at seeking relief against the 1st defendant, based on the ground of his having failed and neglected to perform the obligation arising on the said agreement, in that he had refused and neglected to accept the balance payment and transfer the allotment of land set out in schedule 1 of the plaint. The agreement in question is the “AGREEMENT TO SELL” bearing No 4091 dated 22.08.1991 and attested by K L A Weerasingha NP, produced at the trial marked as P1.
It is common ground that the plaintiff has paid a sum of Rs. 50,000/- and Rs 400,000/- (in US dollars) as stipulated in P1. As a result, he was obliged only to tender the balance sum of money due to the 1st defendant on or before 31.12.1992 and upon the tender, the 1st defendant was under a duty to execute a deed of transfer in favour of the plaintiff.
Parties are in agreement that P1, did not stipulate the notary public before whom the deed of transfer was to be signed. The 1st defendant takes up the position that P1 implies the execution of the transfer deed before the same notary who attested P1. The plaintiff on the contrary urges that the deed was to be attested by R Abeysingha NP, since he had notified the 1st defendant of such intention.
As far as the facts are concerned, the crucial issue is whether the 1st defendant has failed and neglected to accept the balance sum of money which the plaintiff was willing to tender and also neglected to perform his obligation by executing a deed of transfer. The plaintiff maintained that by P5, he notified by registered post, the 2nd defendant that he is willing to deposit the balance sum of money due to him (2nd defendant) at Jaela Bank of Ceylon branch. In the same letter the plaintiff requested the 2nd defendant to inform the1st defendant of this arrangement.
The plaintiff further took up the stand that by P11, the 1st defendant was informed that the balance sum of money due to him (Rs 170,000/-) had been deposited with R Abeysingha, Attorney-At-Law and that the 1st defendant is required to call over forthwith at the office of the latter and sign the deed. In the event of the 1st defendant failing to accede to the request, he was sufficiently put on notice that the plaintiff was contemplating on legal action.
The 1st defendant maintained that he never received any of the letters addressed to him by the plaintiff and that he was totally unaware of the arrangement made by the plaintiff for the execution of the deed. In addition, he emphasized that he expected the deed to be signed before Mr Weerasingha, as it is implied in P1. Mr Weerasingha who was called by the plaintiff testified that the 1st defendant called over at his office on several occasions to sign the deed and that it was the plaintiff who failed to turn up.
Be that as it may, the next step that was taken by the plaintiff in regard to the enforcement of the agreement to sell (P1) was to present a plaint against the 1st defendant making the 2nd defendant also party. The relief sought by her was specific performance of P1. Quite significantly, the plaint has been filed on 28 December 1992. The day stamp of the district court and the first journal entry confirm point of commencement of the suit.
At the beginning of the trial the parties admitted the due execution of P1 and the ownership of the subject matter. The matter of the dispute proceeded to trial on six issues of which the first four were suggested by the plaintiff and the rest by the defendant. The main question that arose for consideration at the trial was whether the 1st defendant had failed and neglected to perform his part of the obligation under P1. The learned district judge having analyzed the evidence concluded that no cause of action had accrued to the plaintiff to sue the 1st defendant as at 28 December 1992. This finding of the learned judge is based on the premise that in terms of P1, it was open to the 1st defendant to perform his obligation on or before 31 December 1992. Hence, it was contended on behalf of the 1st defendant that no cause of action had accrued to the plaintiff to sue him as at the date on which the action had been filed.
The learned district judge by her judgment dated 22 September 2000 held inter alia that the alleged cause of action was premature and therefore the action of the plaintiff against the 1st defendant cannot be maintained.
The expression "cause of action" is defined by section 5 of the CPC as a wrong for the prevention or redress of which an action may be brought and includes the denial of a right, the refusal to fulfill an obligation, the neglect to perform a duty and the infliction of an affirmative injury.
As has been laid down in Talagune Vs De Livera 1997 (1) SLR 253, in a civil matter the court should determine the rights of parties as at the date of the institution of the action. Similarly, in the case of Jayaratna vs Jayaratna 2002 (3) SLR 331, the plaintiff sought to amend the plaint by the inclusion of an additional cause of action based on adultery committed after the institution of the action. It was held that the cause of action relating to adultery is different and independent of the original cause of action pleaded in the plaint and as the rights of parties need to be decided as at the date of the plaint, the amendment cannot be allowed.
As far as the present case is concerned, the plaintiff has come to court on 28 December 1992. By that time the 1st defendant had at least three more days to perform his part of the obligation. In other words he could have signed the deed of transfer as is contemplated by P1 at any time between 28 December 1992 and 31 December 1992. Therefore, it is hardly possible to allege that by 28 December 1992, the 1st defendant had denied the rights of the plaintiff or refused to fulfill an obligation or neglected the performance of a duty. As the plaintiff was unable to establish the accrual of the cause of action, the district court has rightly decided to dismiss the plaintiff’s action.
For these reasons, I am of the opinion that the appeal of the plaintiff should necessarily fail and the judgment of the learned district judge affirmed. Having considered the predicament in which the plaintiff is unusually placed, I make no order as to costs.
Judge of the Court of Appeal
C.A : 688/2000 F
D.C Gampaha: 35792/L
E N D OF THE JUDGMEN
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