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STATE OF MAURITIUS v SUNKUR S

2016 SCJ 520


Record No. 186/2015
Chambers
THE SUPREME COURT OF MAURITIUS
In the matter of:
The State of Mauritius
Applicant
v.
Suryadeo Sungkur
Respondent
In the presence of:
1.
2.
3.
4.
5.

The District Council of Pamplemousses


The Beach Authority
The Tourism Authority
The Development Bank of Mauritius Ltd
V S Agochar Ltd
Co-respondents
----------

JUDGMENT
This is an application by the State for a writ habere facias possessionem to issue against
the respondent to quit leave and vacate a portion of land of an extent of 248 square metres and
the building found thereon. The application is resisted.
It is established that the applicant has a clear title to the land in question.
There is a lease agreement which has been entered into by the respondent and the
Senior Chief Executive, Ministry of Housing and Lands and which contains a clause
rsolutoire.

The applicant is relying on a breach of the conditions of the lease by the

respondent, namely articles 3 (h), 3 (i) and 5 (a) in support of its averment that it has put an end
to the said lease. It is therefore contended that the respondent is illegally occupying the land
and premises and should be ordered to vacate same.

The respondent contends that he is not in breach of the terms of the lease and that the
lease is still valid.
Extensive averments with annexed documents, including plans and photographs have
been forthcoming from the parties.
co-respondents in the application.

These include affidavits from two of the five


Co-respondent no. 5 an alleged assignee of the

respondents rights in the lease, also filed an affidavit. Learned Counsel for the respondent also
appeared for co-respondent no. 5.
It is admitted by the respondent that after obtaining the lease, he erected a building on
the land in lite in breach of certain conditions in respect of which he was granted delays to
rectify those breaches.

The respondent is, however, relying on subsequent negotiations

between him and the lessor to comply with conditions, to claim that the lease has not been
terminated. He also avers that the notifications in question were not sent by way of registered
post.
The issue for consideration is for me to consider whether there is a breach of the
conditions of the lease for the clause rsolutoire to become operative as per Gopal v Radaelli
[1990 SCJ 318 bis].
The applicant contends that the respondent is in breach of the following conditions of the
lease:
3(h)

The lessee shall not construct any addition/extension of any kind to any
building or structure prior to the site and building plans having been approved
by the lessor.

3(i)

the lessee shall submit development plans drawn up by an architect and


should comply with the design guidance of the Planning Policy Guidance.

5(a)

the lessee shall not sublet, assign or pledge the whole or any part of her
interest under this lease without the express written permission of the lessor.

The applicant has, after an exchange of correspondence with the respondent including
sending of notices, served a mise en demeure on the respondent on 24 December 2014
informing him that he is in breach of the conditions of the lease and that it has put an end to the
lease. or the lease has been terminated.
A few of the salient events including site visits and letters are:

On 3 and 14 March 2014, during a site visit, it was found the respondent had
encroached by 5 square metres onto the public beach. This is admitted by
the respondent.

A letter dated 28 March 2014 was sent to the respondent calling upon him to
remove unauthorised structures and encroachment on the public beach
within a delay of 15 days. This is admitted by the respondent.

A letter dated 25 June 2014 was sent to the respondent following a site visit.
The respondent was called upon again to remove all unauthorised structures
which were not in conformity with the plan and the encroachment of the
platform onto the public beach within 15 days, failing which recourse to legal
procedures would take place. This is admitted by the respondent.

On 10 July 2014 during a site visit, it was found that only the encroachment
on the public beach had been removed whereas the unauthorised structures
contrary to the approved plan were still present. No plans complying with the
PPG had been submitted despite previous requests. This is admitted by the
respondent.

On 17 July 2014 the respondent agreed to remove unauthorised structures.


This admitted by respondent.

On 22 September 2014 the respondent pleaded guilty to a breach of the


Building Control Act 2012 for the construction of a building contrary to
approved plan.

A letter dated 08 October 2014 was sent to the respondent requiring him to
submit new plans as the amended plans he had submitted (in August) had
not been approved. This is admitted by respondent.

During a site visit on 20 November 2014, the applicant found that the
respondent had failed to remove the illegal and unauthorised structures. This
is denied by the respondent.

Service of a notice 24 December 2014 on the respondent that the lease was
cancelled.

Removal of unauthorised structures after service of 24 December 2014


notice.

There is also the averment of subletting, assigning or pledging of the interest in the lease
which is subject to express written permission of the applicant.

The issue regarding the

involvement of co-respondent no. 5 which seemed to have come to the applicants knowledge
only in November 2014 will be dealt with later.
The submission of the respondent was that as the letters dated 28 March 2014 and 25
June 2014 were not sent by registered post in compliance with condition 13 (d) of the lease
agreement, therefore, they could not be relied upon as being notices bringing the clause
rsolutoire into effect. He also submitted that in view of the negotiations that have taken place
between the respondent and the applicant, latter had waived its right to invoke the clause
rsolutoire. He added that in any event, the respondent has complied with the letters sent to
him inasmuch as the encroachment on the public beach has been removed. He relies on the
letter of 8 October 2014 (sent after the respondent had pleaded guilty with respect to the illegal
constructions on 22 September 2014) to show that there were still ongoing negotiations.
Clause 13 of the lease, titled Cancellation of lease, which is reproduced as is,
specifically states:
The lease is cancelled de plein droit without the payment of any indemnity where:
..
(d)

the lessee fails to comply with any other obligation or condition of this lease
and a written notice sent by registered post to the Lessee requiring him to
remedy the breach has not been complied with within the period specified in
the written notice.

It is interesting to see how compliance with service of notices have been dealt with both
by French authors and in Mauritian case law in relation to the need to serve mise en demeure
for a clause rsolutoire to take effect. It is stated in Pandectes Franaises, Nouveau
Rpertoire, Bail en gnral, Titre IV, Chapitre cinquime, section V, Effet de la condition
rsolutoire, note 2453
Et cette demande en rsolution de bail pour inexcution des conditions est non
recevable, si le bailleur na pas t pralablement mis en demeure dexcuter ses
obligations.
It is not a strict requirement that there be service of a mise en demeure where
contracting parties agree to same, as can be illustrated from the following extract :
In Jurisclasseur Civil Code 2014, Art 1184: fasc. 20, pages 8 10
3o

Rsolution de plein droit avec mise en demeure

note 10
Cependant, en labsence de prcisions particulires, le crancier doit mettre
le dbiteur en demeure dexcuter ses engagements; cette mise en demeure
consiste en une sommation ou en tout acte quivalent

Pour carter toute incertitude, il est frquent que les parties prcisent dans la
convention que la rsolution jouera de plein droit, aprs envoi dune sommation par
le crancier, mettant en demeure le dbiteur dexcuter dans tel dlai. Le dbiteur
pourra bien videmment excuter son engagement tant que la mise en demeure ne
lui aura pas t adresse, mais aussi tant que le dlai prvu compter de lenvoi de
cette sommation ne sera pas expir, ou, dfaut de prcision relative ce dlai,
dans un bref laps de temps (M.Planiol et G. Ripert, op. cit., t. X, Vente par Hamel,
no. 165. - J. Borricand, art. prc., no. 17.
4o

Rsolution de plein droit sans mise en demeure


Note 11

Aussi est-il rare en pratique que la clause rsolutoire exclue la ncessit


dune mise en demeure, ou tout au moins, dune dclaration de volont adresse
par le crancier au dbiteur (J. Borricand, art . prc., no. 17): le dbiteur peut ainsi
excuter ses engagements et carter la rsolution, tant que cette mise en demeure
ou cette dclaration ne lui a pas t adresse (V.D. Ledouble, Lentreprise et le
contrat: Litec 1980, no. 231).
A clause rsolutoire reflects the will of the contracting parties and can be applied even
without the service of any mise en demeure or letter if the parties so wish. In the present
case, it is not a mise en demeure which is specified but a registered letter. It has been held in
Gopal v Radaelli (supra):
Although the rigour of a clause rsolutoire is toned down by the necessity of a
mise en demeure, the mode of effecting a mise en demeure has been interpreted
liberally. It was held, for example, that under article 1139, Code Napolon, une mise
en demeure peut rsulter dune simple lettre lorsquil ressort de ses termes une
interpellation suffisante.
I find in the present case, the letters of March, May and June 2014, even if not
registered, amount to notice being given to the respondent that he is in breach of the conditions
of his lease and a delay is given to him to rectify them. The fact that the letters were not sent by
registered post is no bar to them being considered as due notice under condition 13 of the lease
agreement. It is to be noted that the letter of 25 June 2014 is headed By registered post. I,
therefore, take the view that the applicant was perfectly entitled to rely on these letters.

Renonciation
The respondent, who used the term waiver in his submission, contended that
subsequent to these letters, the applicant agreed to certain changes and retention of the works
done by him. He relies on a subsequent letter in October 2014 stating that his amended plans
were still not in compliance and requesting new ones. It is important to note that this letter does
not specify a delay within which he had to provide the new plans. This is in opposition to the two
previous letters dated March, May, June 2014 where a specific delay was given by the applicant
to the respondent.
This aspect is also examined in Jurisclasseur Civil Code 2014 Art 1184: fasc. 20 pg
12 in the following terms:
a)

renonciation initiale

20.
la renonciation ne se prsume pas, elle doit expressment rsulter dune
manifestation claire et prcise de volont de la part du titulaire du droit (Cass. 1re
civ., 21 mars 1995, Calara c/Bouquier, no. 93-12.177).
b)

renonciation aprs linexcution

21.

Mais il faut viter que le dbiteur ne soit tent, comme on le voit trs souvent
dans la pratique, dinvoquer trop largement une prtendue renonciation de son
crancier pour empcher la rupture du contrat. Aussi la Cour de Cassation exiget-elle que la volont du crancier de renoncer soit certaine et rsulte dactes non
quivoques ou de faits qui limpliquent ncessairement (Cass. 3e civ., 11 oct. 1968:
JCP G 1969, II, 15769 ).
The last cited decision of the Cour de Cassation referred to above, is interesting in that
the threshold for a renunciation is very high: in this case, after the acceptance of partial payment
without any comment or reservation on two occasions, it was still held that there was no waiver
of the clause rsolutoire.
The letter of October 2014 relied on by the respondent cannot be interpreted as a waiver
or renonciation. It is significant that in that letter reference is made only to the plans submitted
by the respondent and not to the encroachment and unauthorised structures. It is also to be
noted that the applicant, in fact, copied the letter of June 2014 to the relevant authority which
had resulted in the applicant being prosecuted and convicted for breach of the Building Control
Act.
It is also significant that the respondent had not rectified the breach under article 3(h)
which was brought to his attention by the two letters of May 2014 and June 2014. It is salient to

note that the respondent was careful not to give the specific date when he had removed all
unauthorised structures. His affidavit dated 21.04.2015 filed after the entering of the present
case, only stated that at present all structures had been removed. Though he has denied that in
November 2014 the unauthorised structures were not removed, it is evident that he had in any
event, not complied within the delay given to him. The applicant was accordingly perfectly
entitled to invoke the clause rsolutoire.
Droit de rtention
The cases of Bonarien v Loloth [1998 MR 26] and Cartwright v Ross [2013 SCJ 433]
(the latter is distinguishable on the facts from the present case) referred to by the respondent,
do not find their application in the present matter. The major difference is that the applicant has
from the outset objected to the respondent carrying out certain construction work. The basis for
the ending of the lease between the applicant and respondent is that the latter has not
respected the conditions of the lease.

The fact that at various points in time there were

meetings between the relevant parties to discuss the breaches shows the good faith of the
applicant and reflects adversely on the respondent who persistently flouted the law, regulations
and conditions of the lease, despite being given the opportunity to comply with same. It cannot
be said that the applicant accepted that the building and its extensions be put up in the manner
it was and did not show any opposition to the conduct of the respondent. The respondent
cannot claim to be entitled to a droit de rtention and droit de superficie on the basis that he has
constructed a building on the land leased to him. In any event, there are clauses in the lease
governing its cancellation and the removal of buildings and installations.
On the third alleged breach of conditions of the lease, I agree with learned Counsel for
the respondent that no prior notice was given to the respondent about any alleged breach of
article 5 (a) of the lease agreement and as a result cannot be relied upon. I however find that
as no delay was given to the respondent to comply with article 3(i) in the two letters dated
28.03.2014 and 25.06.2014 and therefore the applicant cannot rely on this particular breach. I
am also of the view that the third breach alleged and the assigning of interest need not be
considered given that a breach of article 3(h) is sufficient in itself.
The respondent has failed to show a serious or bona fide defence. Having found, for the
reasons given above, that there has been a breach of the conditions of the lease, the clause
rsolutoire, therefore, finds its application.

I, accordingly, grant the application and order that a writ habere facias possessionem be
issued for the respondent to vacate the leased premises on 31 January 2017, unless the
respondent vacates the premises before that date. With costs.
I certify as to Counsel.

R. Teelock
Judge
15 December 2016

For Applicant

For Respondent and


Co-Respondent No 5

State Attorney
State Counsel

Ms M Sumodhee, Attorney
Mr D Dodin, of Counsel

For Co-Respondent No 1

:
:

Mrs A K Ghose, Attorney


Mr R Sauhoboa, of Counsel

For Co-Respondent No 2

State Attorney
State Counsel

For Co-Respondent No 3

Mr R Bucktowonsing SA

For Co-Respondent No 4

Ms P Jhoty, Attorney