BEENESSREESINGH D & ANOR v BHOLAH F M

2016 SCJ 308

Record No. 1188
THE SUPREME COURT OF MAURITIUS
[Court of Civil Appeal]
In the matter of:1. Mrs Devita Beenessreesingh
2. Hookoomsing Beenessreesingh
Appellants
v
Farouk Mohammad Bholah
Respondent
---------JUDGMENT
In an amended statement of claim lodged against the appellants who are husband
and wife, the respondent, then plaintiff, prayed for a judgment ordering the appellants (then
defendants):- (a) to appear before Notary Public Edward Redmond Hart de Keating to sign a
bordereau or the authentic deed witnessing the sale to the respondent of a portion of land
of 150 toises at Rose Hill; (b) to deliver to him the said portion of land free of all charges,
mortgages, encumbrances and easements; and (c) to cash the balance of the sale price.
Alternatively, he prayed for an order decreeing that the duly transcribed judgment of
the Court be held as valid title on the deposit of the balance of the sale price to the Cashier
of the Supreme Court, should the appellants fail to appear before the Notary.
There was also a claim for damages in the sum of Rs 100,000 against each
appellant.
The respondent claimed before the trial Court that on 3 September 1988, appellant
no. 1, with the consent of appellant no. 2, agreed to sell to him the land in lite with a building
standing thereon for and in consideration of a sum of Rs 825,000. A non-refundable deposit
of Rs 50,000 was made towards payment of the purchase price.

Appellant no. 1 also

undertook not to sell the land to another party and agreed to sign a bordereau before the
15 October 1988.

On 1 October 1988, with his concurrence, the signature of the

bordereau was postponed to the 30 November 1988. Thereafter, appellant no. 1 refused
to proceed with the sale of the property on the ground that the agreement was null and void.

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The plea filed by the appellants was that the proposed sale of the property was
conditional on their acquiring by 15 October 1988 another immoveable property for their use
and occupation. On the non-materialisation of the said acquisition by 30 November 1988,
the extended delay for the said acquisition, the agreement between the parties had,
therefore, lapsed.

The appellants also pleaded that since the agreement between the

parties had lapsed, the question of signing either the bordereau or the authentic deed, did
not arise. As regards the cheque of Rs 50,000 which they acknowledged having received
from the respondent but which they said they did not cash, they claimed it was a token of the
respondents good faith and was not to be cashed until the signature of the authentic deed.
It was also the appellants case that since the service of the statement of claim
they have, au vu et au su, of the respondent made considerable extensions, additions,
improvements and renovations to the property which was now worth more than Rs 5 million.
They, accordingly, claimed a right of retention over the said property and payment of
the sum of Rs 5 millions, or such other sum as the Court might determine, should the
agreement be held valid.
They further claimed that the respondent had acted in breach of Articles 16, 17 and
1134 of the Civil Code and was not entitled to his alternative prayer for having allowed them
to make the extensions, additions, improvements and renovations.
A counterclaim put in by the appellants was not pressed at the trial.
After a thorough and extensive analysis of the evidence adduced before her,
the learned trial Judge concluded that there was a common, firm, and unequivocal
agreement between the parties that ownership of the immoveable property situated at
44, Selmour Ahnee Street, Rose Hill, the subject matter of the sale, would be transferred to
the respondent in consideration of the sum of Rs 825,000, being the agreed purchase price.
She found that this express and common agreement of the parties regarding the sale and
transfer of the said immoveable property was explicitly embodied in document P1 which she
concluded amounted to a promesse de vente which vaut vente with all its legal implications.
She also found that her conclusion on document P1 was further buttressed by the payment
of a sum of Rs 50,000 in the form of a cheque to appellant no. 1 towards the purchase price.
She rejected the arguments advanced on behalf of the appellants that document P1
was not a promesse de vente but more in the nature of a pre-sale or pre promesse de vente
for the parties to discuss and agree on the terms of the promesse de vente. She was
satisfied from the tenor of document P1 that there was consentement rciproque des deux

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parties sur la chose vendre et sur le prix such that document P1 had the same effects as,
and was enforceable as, a sale.
The learned trial Judge also rejected the further arguments made on behalf of the
appellants on the existence of an alleged lien on the said immoveable property. She was
also not convinced by the appellants claim that the sale of the property was conditional upon
the acquisition of another house for their occupation.

She accordingly rejected the

appellants contention that the sale of the property was subject to a condition suspensive or
that there was a clause rsolutoire in the contract. She further rejected the appellants
defence of droit de rtention over the property as she found that no evidence was adduced
to substantiate same.
The learned Judge found the case for the respondent proved and ordered the
appellants:
(i)

to appear before Mr. Edward Redmond Hart de Keating, Notary

Public, at his office, situate at Sir Virgil Naz Street, Port Louis,
on 21 June 2013 then and there to:
(a) sign the deed bordereau or the authentic deed witnessing
the sale of the aforesaid portion of land to plaintiff;
(b) bring and produce to the aforenamed Notary Public on the
aforesaid day and hour all the relevant documents
including their title deed, acts of birth, act of marriage,
identity cards, passport size photos;
(c) deliver to plaintiff the aforesaid portion of land free of all
charges fixed or floating, mortgages, encumbrances and
easements;

(ii)

cash from the plaintiff the balance of the aforesaid sale price.

Furthermore, she ordered that in default of the defendants complying with the aforesaid
order of the Court, on the deposit of the aforesaid balance of the sale price with the
cashier of the Court, the judgment of the Court when transcribed shall be good and valid title
in respect of the aforesaid property.

The appellants now appeal against the judgment of the trial Judge as follows:
Ground 1
The Learned Judge failed to consider that the promise of sale has been
accompanied by a deposit and as such each of the contracting parties may
rescind the agreement.

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Learned Counsel for the respondent took objection to ground 1 which challenges the
legal nature of the payment of Rs 50,000. He questioned the appropriateness of this point
being raised now on appeal as in his view this was not made a live issue either in the
appellants pleadings or canvassed in the course of the examination-in-chief of appellant
no. 1 or in the submissions of learned Counsel, who incidentally appeared for the appellants
before the trial Court, after late Mr G. Ollivry, QC was taken ill.
Learned Counsel argued that although points in law need not be pleaded, issues of
facts and law must be canvassed before a trial Court. He also argued that it is only in
exceptional circumstances that a Court of Appeal will allow new issues to be raised for the
first time on appeal.

In support of his argument, learned Counsel relied on Joseph R.

Bolker v Commissioner of Internal Revenue 760 F.2d 1039, a judgment of the United
States Court of Appeals, Ninth Circuit.
In his reply, learned Counsel for the appellants, whilst conceding the above,
nevertheless took the view that since ground 1 deals with an issue in law, it can, therefore,
be taken even for the first time on appeal.
We have exceptionally allowed Counsel for the appellants to address us on ground 1
and shall therefore give it our consideration. We, however, hasten to add that this should
not be taken as a precedent for raising on appeal issues not canvassed before the trial
Court.
Learned Counsel for the appellants submitted that the sum of Rs 50,000, which the
appellants did not deny having received from the respondent, was a deposit and in the
nature of arrhes, the legal consequences of which are that the parties are free to rescind the
agreement and not an acompte which in his contention is an advance payment. In support
of his arguments, learned Counsel relied on Article 1590 of the Civil Code and on the
contents of document P1, more specifically that part which reads if Dr Farouk Mohammad
Bholah fails to purchase the above mentioned property his deposit [Rs 50,000] will not be
refunded...
In Counsels view, mention in document P1 of the forfeiture of the sum of Rs 50,000
upon the respondent not purchasing the property should be construed in favour of that sum
being a deposit and not an advance payment towards the purchase price of the property.
He, therefore, contended that the agreement reached between the parties on 3 September
1988 did not satisfy the legal requirements of a promesse de vente.

5
In his reply, learned Counsel for the respondent whilst conceding that there is a
distinction between arrhes and acompte, however submitted that the legal nature of the
payment must be determined in accordance with the parties intention which is a matter for
the sole appreciation of the trial Judge. He took the view that, having regard to the evidence
on record, the payment of Rs 50,000 was more in the nature of an acompte which was to be
deducted from the sale price of the land rather than arrhes.
Learned Counsel referred us to Anderson Ross Holdings Ltd. v The Business
Parks of Mauritius Ltd. [2012 SCJ 373] in which is cited note 20 in Juris-Classeur
Civil Code, Notarial Rpertoire Vo Contrats et Obligations Art. 1184 Renonciation
Initiale. He also referred to Azumtally v Goobeea [1959 MR 18] in which was considered
note 22 of Encyclopdie Dalloz Vo Arrhes on the distinction between arrhes and acompte
and the legal consequences that flow from each of them from the non-execution of a
contract by one of the parties to it.
The nature of the payment of Rs 50,000 made by the respondent to the appellants,
that is, whether it was arrhes or an acompte was a factual issue for the sovereign
appreciation of the trial Court based on the evidence of the common intention of the parties
at the time of the drawing up of document P1.
This is made explicit by the following notes from Encyclopdie Dalloz, Rpertoire
de Droit Civil, Tome I, Vo Arrhes:6.
Quune somme dargent soit verse titre de ddit, dacompte, ou
encore titre de rparation dun ventuel dommage, cela relve de la volont
souveraine dans son domaine qui est le contrat. Sur ce point, les juges du
fond doivent justement dterminer la nature juridique de la somme
avance en analysant lintention commune des parties et les
circonstances de la cause (Cass. req. 16 fvr. 1932, S. 1932. 1. 133 ; Civ.
1re, 30 mai 1969, JCP 1969. II. 16039)
[]
10.
La somme verse davance a le sens que les parties lui
reconnaissent : ce sont les contractants qui lui donneront la fonction
voulue, savoir une fonction de ddit, dacompte, ou encore, une
fonction probatoire. Cette commune intention des parties doit tre
recherche par les juges du fond
[]
12.
Si les parties sont daccord sur le prix et si, au surplus, elles
conviennent quen cas de dsistement de lacqureur la somme verse
titre dacompte restera acquise au vendeur, le juge doit conclure
lexistence dun acompte et non pas simplement des arrhes, donnant
une facult rciproque de ddit

13.
Ainsi, sil apparat des circonstances de lespce que le
vendeur avait la conviction et lattitude dun contractant
irrvocablement engag, le juge peut qualifier la somme verse
dacompte en dpit de lutilisation par les parties du terme arrhes (CA
Paris, 13 dc. 1955, D. 1956. 131, RTD civ. 1956. 362, obs. J. Carbonnier).
Cest notamment le cas lorsque le juge constate laccord des parties sur
la chose et le prix et le caractre dfinitif de la vente (Civ. 1re, 28 juin
1955, D. 1956. somm. 84). Cette approche concrte, qui chasse toute
mthode de qualification systmatique de la somme verse en arrhes ou
acompte, permet dapprhender davantage la volont relle des parties et de
connatre leur vritable but [Emphasis ours]
As rightly submitted by learned Counsel for the respondent, the nature of the
payment of Rs 50,000 was not an issue that was canvassed before the learned Judge.
Be that as it may, although the learned Judge, through no fault of hers, did not specifically
pronounce on the legal characteristic of the sum of Rs 50,000, whether it was arrhes or an
acompte, we, however, take the view that on the basis of (a) her analysis and conclusion on
the legal purport of document P1, (b) her finding that the seriousness of the parties common
intention was evident from the fact that on the very day that the agreement was entered
into, the plaintiff tendered a cheque in the sum of Rs 50,000 to the defendant No. 1
towards the purchase price, and (c) her conclusion that ...The modality of payment
of the balance of the purchase price was never made an issue be it in the defendants
plea or as part of the evidence adduced on their behalf that there was no particular
arrangement regarding payment of the balance, we can safely say that had this issue
been raised before her and had she addressed her mind to it, she would have necessarily
concluded that it was an acompte and not arrhes. [Emphasis ours]
In view of the clear and unambiguous intention of the parties regarding the nature of
the transaction entered into by them and the payment effected by the respondent, the trial
Judge could not have interpreted differently the parties intention as this would have been
tantamount to dnaturer le sens donner la somme verse davance and la stipulation
adopte. In this regard it is appropriate to cite note 11 of Encyclopdie Dalloz [supra]
which reads:
Lorsque les contractants se sont clairement exprims sur le sens
donner la somme verse davance, le juge ne peut interprter autrement la
stipulation adopte : le pouvoir souverain dinterprter les conventions nest,
en effet, donn au juge du fait qu la condition de ne pas les dnaturer
We must also point out that we have also perused the evidence adduced on behalf
of the parties.

The only reference to the payment of Rs 50,000 is to be found in the

examination-in-chief of the respondent and it is to the effect that out of the sale price of
Rs 825,000, the appellants received a sum of Rs 50,000. We note in this respect that

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note 22 of Encyclopdie Dalloz Vo Arrhes as reproduced in Azumtally provides that
les acomptes simputent sur le prix et lautre partie reste crancire pour le surplus
We therefore do not agree with the interpretation of learned Counsel for the
appellants as to the legal nature and consequence of the payment of Rs 50,000 made to the
appellants by the respondent and see no merit in his argument.
Ground 1 accordingly fails.
Ground 2 was dropped at the hearing of the appeal.
Ground 3 reads:
The Learned Judge failed to consider that the agreement in question is not a
valid contract inasmuch as the Appellants did not have the required capacity
to conclude it as a result of which their consent to the contract had been
consequently vitiated.
Under ground 3, it was submitted by learned Counsel for the appellants that the
property in question was subject to a lien, thereby, preventing the appellants from freely and
voluntarily concluding the sale.

Learned Counsel referred to part of the testimony of

appellant no. 1 before the trial Judge and argued that this was evidence of the lien on the
property. He also argued that in the absence of the consent of the person in whose favour
the lien was created, appellant no. 1 was precluded from entering into an agreement for the
sale of the property.
In his reply, learned Counsel for the respondent submitted that firstly, the issue of the
property being subject to a lien never formed part of the appellants pleadings. Secondly,
there was no conclusive evidence from appellant no. 1 to substantiate her claim regarding
any alleged lien on the property, save for some vague allusion by her. Thirdly, the existence
of a lien is no impediment to the sale of an immoveable property as the purchaser can
acquire it together with the charges.
The findings of the learned Judge on this issue read:
...I note that at the sitting of the 29 January 2013, the defendant No. 1
herself gave a reason different from that raised in her plea, to explain the
postponing of the signature of the bordereau. She stated that the signing of
the bordereau was postponed because there was a lien on the property and
same had to be cleared before the bordereau could be signed.

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The need for the defendants to clear an alleged lien on the house prior
to the sale, which the defendants sought to invoke in court as a pre-condition
to perfect the sale, was not averred in the pleadings or embodied in
Document P1. This was never the case for the defendants, nor was any
evidence adduced by the defendants in respect of any such alleged lien.
At any rate if the sale was subject to certain specific conditions, it is odd that
no mention whatsoever was made in the agreement signed between the
parties...
In the light of the pleadings and the evidence adduced before her, the findings of the
learned trial Judge are unimpeachable. Ground 3 must also fail.
Grounds 4 and 5
Grounds 4 and 5 were argued together and they read:
4. The Learned Judge erred in coming to the conclusion that the parties had
a definite and mutual intention to proceed with the sale of the property and
the clause providing for the signature of the authentic deed at a later date
was in the circumstances merely a formality by virtue of which, the
contract would culminate to its already determined conclusion.
5. The learned Judge erred in coming to the conclusion that there was no
condition suspensive in the contract.
Under the above grounds, it was submitted on behalf of the appellants that
document P1 was not pointing towards a final sale but was an instrument for further
negotiations and therefore the learned trial Judge wrongly concluded that it was a promesse
de vente. It was also contended that document P1 was to be followed by an authentic deed
of sale which was itself subject to a condition suspensive.
In reply to the above, learned Counsel for the respondent argued firstly, the
appellants cannot proceed with ground 5 of their grounds of appeal as the issue raised in it
was neither part of the appellants pleadings before the trial Court nor mooted before it.
Secondly, the appellants case as is apparent from their defence was not that document P1
was not a promesse de vente but that the sale of the property was conditional upon the
appellants acquiring another house. Thirdly, document P1 cannot be anything other than a
promesse de vente which vaut vente as it satisfies all the legal requirements of a promesse
de vente.
Learned Counsel for the respondent also pointed out that a bordereau is a term of
art used by notaries; it is nothing more than a promesse de vente commonly used by parties
when drawing up a private deed like in the present case; and that mention of the term

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bordereau in document P1 was mere surplusage and did not have for effect to alter its
legal nature.
We have reviewed the evidence adduced before the learned trial Judge in the light of
the submissions of both learned Counsel. The finding of the learned Judge that the parties
had expressly reached an agreement regarding the subject matter of the sale and had
determined the price, and they had a common intention to transfer the ownership of the
property on the agreed terms and her reliance on the opening words and what follows in
document P1, which are hereunder reproduced, to conclude on the nature of the transaction
between the parties is fully warranted:
This is to certify that Mrs. Devita Beenessreesingh does hereby engage to
sell her house situated at 44, Selmour Ahnee Street, Rose Hill to Dr. Farouk
Mohammad Bholah for the sum of Rs 825,000.
[]
Under no circumstances, Mrs. Devita Beenessreesingh will engage herself
with another party for the above sale
We have not been swayed by the arguments of learned Counsel for the appellants
that the learned Judges appraisal of the evidence of the parties intention and her
conclusion on the legal purport of document P1 is flawed. Her reference to Aubry & Rau
Droit Civil Franais Vol. V, Vente, para. 349 on the legal significance of Article 1589 of
the Civil Code and her finding that the parties had ever since the 3 September 1988
conclusively and unequivocally agreed upon the essential terms of the sale when they drew
up and signed Document P1 and had on that day further agreed to proceed to the
transfer of ownership of the property and to perfect the sale by the signing of the authentic
deed on the date earmarked i.e. the 30 November 1988 are beyond reproach.
We are satisfied of the soundness of her finding that the parties had a definite and
mutual intention to proceed with the sale of the property ever since 3 September 1988 and
the clause providing for the signature of the authentic deed at a later date was in the
circumstances merely a formality by virtue of which, the contract would culminate to its
already determined conclusion...
There is equally nothing wrong in her conclusion that the essential and material
conditions ou modalits sous lesquelles lune des parties a dclar vouloir vendre, ou
lautre, vouloir acheter have been spelt out in Document P1... and that the absence, in the
addendum to document P1, of a specific date for the sale, upon the postponement of the

10
signature of the bordereau, did not have for effect to alter the parties clear, serious and
common intention to proceed with the sale of the property.
She was furthermore perfectly entitled, on the evidence adduced before her, to reach
the conclusion that At no time was there any question that the defendants would not
proceed with the sale, nor was there any condition suspensive or clause rsolutoire in the
contract... As she rightly pointed out any agreement between the parties that payment
was to be effected by instalments such that the modalities thereof and the interests had to
be agreed upon was neither supported by any evidence nor raised in the appellants plea.
Her conclusion that in the absence of any particular arrangement regarding payment of the
balance payment was to be effected in the usual manner which is upon the signing of the
authentic deed before the Notary is, accordingly, irreproachable.
Her reference to notes 161 and 162 from Encyclopdie Dalloz Droit Civil Vol VIII
Vo Promesse de Vente, and her conclusion that neither the terms of the agreement nor
the circumstances denote any intention on the part of the parties that the signing of the
authentic deed was to be une condition de formation de la vente or un lment constitutif
de celle-ci was fully warranted. Her further finding that the fixing of a new date for sale
would simply be a formality une condition accessoire du contrat which does not alter in
any way the legal nature of the agreement signed between the parties... is also
unimpeachable.
As she rightly pointed out it was not part of the defendants case that the
agreement was not a promesse de vente nor was such an issue raised in the reply to the
mise en demeure that the plaintiff sent to the defendants for them to proceed to the
signature of the authentic deed before the notary... She was fully justified to find that
at any rate if the sale was not to be proceeded with, there would have been no need to sign
the bordereau and to earmark a date for such signature...
We have no qualms in the soundness of her interpretation and conclusion that
document P1 satisfied the legal criteria of a promesse de vente which she reached after a
consideration of notes 161 and 162 from Encyclopdie Dalloz (supra) and an extensive
assessment of the evidence.
We, therefore, concur with the submissions of learned Counsel for the respondent
that the learned Judge was fully justified from the evidence adduced before her to conclude
that document P1 was a promesse de vente.

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Accordingly, we see no reason warranting our interference and find no merits in any
of the complaints of the appellants. Grounds 4 and 5 must also fail.
For the reasons given above, all the grounds of appeal fail.
For the date 21 June 2013 on which the appellants were ordered to appear before
Notary Public Hart de Keating, we substitute therefor 30 September 2016.
The appeal is otherwise dismissed. With costs.

E. Balancy
Senior Puisne Judge

N. Devat
Judge
09 August 2016
Judgment delivered by Hon. N. Devat, Judge
For Appellants

: Mr G. Ramdoyal, Attorney-at-Law
Mr S. Trilochun, of Counsel together with Mr H. Ramlogun,
of Counsel

For Respondent : Mr A. Rajah, SA

Mr H. Duval, of Counsel in lieu and stead of Mr I. Collendavelloo,
SC together with Ms L. Churrittur, of Counsel and Ms C. Sohun,
of Counsel