“Failure to meet payment schedule not a fundamental breach of contract” – Datadin
– as CCJ hears longstanding dispute over Kayman Sankar rice land
The Caribbean Court of Justice (CCJ) on Tuesday heard arguments in the case of Blairmont Rice v Kayman Sankar, with Blairmont’s lawyer, Sanjeev Datadin, urging the Court not to treat his client’s failure to make payments as a fundamental breach that repudiated the entire contract.
Blairmont had entered into an agreement back in 2006 to purchase land from Sankar at Von Better, Berbice, on the condition that the land would be paid for in six-month instalments. But When Blairmont failed to make two payments, Sankar deemed the agreement repudiated and went to court.
According to Datadin, however, the contracts the two parties entered into did not include a provision for all payments to become due when one payment was missed. While Datadin acknowledged that there was a breach, he argued that it was not a breach of such a fundamental nature that would entitle the respondents to deem the contract at an end.
Datadin told the court said that there was no clear indication from the appellant, Blairmont Rice Investments, that he was unwilling to pay. Rather, there was correspondence between the two and efforts to make good on the payments.
“He had in fact engaged them in an effort to make good his payments that were outstanding. And that process was an offer he was trying to have make that payment,” the attorney-at-law told the court.
“The substance of the dispute arose following the agreements being entered into in 2006. And in 2010 when payments were due, they were not made. That is not disputed. The appellants were required to make payments under that contract every six months over a period of 10 years. And they did not.”
Datadin stated that the respondents subsequently wrote a letter in which they made it clear they considered the contract at an end and that they commenced legal proceedings. He said there was an exchange of correspondence in October 2010 and an understanding that payments would be made in instalments.
“All three contracts are identical. And there was no provision in the contract that the failure of one instalment rendered all the instalments payable. That is not disputed. In fact, as can be seen from the response on October 6, what was being sought by the respondents was that clause be inserted into the new arrangement.”
“So, it is my humble submission that at that stage the amount that would have been due to the respondents would be the amount that should have been paid, whatever was the instalment… the three contracts provided for payment by instalments over a lengthy period of 10 years. And there had been payments made. The reason for the half-yearly instalments was because it coincided with the rice crop. That’s when funds would be available.”
Datadin further explained that Blairmont, which has been struck off the Companies Register since 2010 over its failure to file annual returns, is trying to get itself reregistered as a company, pending the retroactive accounting of its accounts.
Appearing for Kayman Sankar were Attorneys-at-Law KA Juman Yassin and Teni Housty. Yassin pointed out that the correspondence between the two parties included a letter that spoke to the bank agreeing to Blairmont Rice paying US$50,000 payments per month and a change in the contract specifying that if Blairmont failed to make even one payment, everything becomes payable.
“The evidence in this matter is that there was no response to this letter. And because of the non-payment of the instalments, [for instance] a bank would have been able to come down and take possession of the property,” Yassin explained.
“The payment clause was fundamental. And let’s suppose no payments were made to the financial institution in 2010, 2011 and they come down and take possession of the property. That would have been calamitous. It is my submission that the failure to pay the instalments was a fundamental breach.”
Following submissions by Housty and closing submissions, CCJ President Justice Adrian Saunders indicated that the Court will reserve judgement at a later date.