Metamorphoses of Electricity in terms of Property

Introduction

Section 2(23) of Electricity Act,2003 defines “Electricity” as means electrical energy-

(a) generated, transmitted, supplied or traded for any purpose; or

(b) used for any purpose except the transmission of a message.

Every commodity changes its characteristics according to its usability. Even in case of Electricity, various legislation and legal precedent have compelled to decide the utility of the commodity. There are various queries that are required to be pondered upon with regard to electricity.

Through this article, I have tried to highlight the legal identity acquired by electricity through judicial precedent.

· Whether Electricity is a Movable Property or Immovable Property.

· If Electricity is a movable property, then is it corporeal property under IPC?

Moreover, I have also discussed the views of various jurist and scholars who have tried to define property as per their schools. The main objective of highlighting the definition of property in their term is to get the apparent crux which was required in segregating the concept of movable property and immovable property and subsequently goods.

Reason for taking “Electricity” as the ground for exploring the principle is very simple. As per Rajiv Gandhi Vidhyutikaran Yojana, the plan of Government of India is to make the country 100% electrified. Electricity is a property and it is the constitutional right of every individual to acquire property. Initiation taken by the Government of India is a bold step and it is certain that within a decade, this scheme will attain its yonder point. But along with accessibility, dispute relating to it will also come into existence and this might turn into a grave concern in future.

Property: Jurisprudential Approach

Property in modern sense can be viewed as a bundle of legal rights that are subject to being shared wholly or at least partially. In common parlance it could be said 'that electricity is neither 'movable' nor 'immovable' property. But the term: property in Jurisprudence has a very wide connotation; it includes all property whether corporeal or incorporeal. Corporeal property is the right of ownership in material things; incorporeal property is any other proprietary right in rem [1].

Incorporeal property is itself of two kinds, namely:

· Jura in re aliena (Patents, Copyrights, Trade marks)

· Jura in re propria, (encumbrances), namely, Leases, Mortgages and Servitudes.

While dealing with the various types of property, Salmond further says (p. 461):

"The subject-matter of a right of property is either a material or an immaterial thing. A material thing is a physical object, an immaterial thing is anything else which may be the subject-matter of a right."

The term 'property' has a bewildering variety of uses. Firstly, it sometimes means ownership or title and sometimes the res over which ownership may be exercised.[2]"

Austin defined things, not being persons, as are sensible or perceptible through the senses --permanent objects in the sense that they are perceptible repeatedly. In common usage of the word, a thing must have a certain element, of permanence as emphasized by Austin in order to distinguish a thing from a fact or an event, and, secondly, it must have a certain element of physical unity'. The legal use is even broader than that of popular speech.

Pollock, in his First Book of Jurisprudence, p. 130, says that "A thing is, in law. Some possible matter of rights and duties, conceived as a whole and apart from all others, just as, in the world of common experience, whatever can be separately perceived is a thing." Dealing with this topic, Paton gives a broad classification of things. He says (p. 409-410):

"Unfortunately, however, legal usage is not consistent, and there are really many different elements of thought. A thing may mean:

1. A thing in the material sense which is corporeal and tangible and has an organic or physical unity, e. g., a horse or a block of marble.

2. A thing which is corporeal and tangible, but consists of a collection of specific things, e. g., of flock of Sheep

3. A thing which exists in the physical world but is not material in the popular sense, e. g., 'electricity'.

4. A thing which is neither material, corporeal, nor tangible but is an element of wealth, e. g., a copyright or a patent.

5. A thing which is not material and which is not directly an economic asset or element of wealth, e. g., reputation ....."

On these authorities and Paton's clear statement, electricity must be held to be a "thing" and, therefore, a"property".

Although there is a possibility of argument that this Section creates only a legal fiction so as to include 'energy' in the term 'property' for the purposes of 'theft' as defined in the Penal Code, 'it can also be said that this Section was enacted for the removal of doubt. All this discussion leads us to the conclusion that 'electricity' is movable property' within the meaning of Section 3(36) of the General Clauses Act.

Electricity: Movable Property

The word 'goods' is not defined in the Limitation Act, but according to the definition in the Indian Sale of Goods Act,1930 it means "every kind of movable property" other than actionable claims and money." Electric energy is bought and sold like any other commodity and there can, therefore, be no doubt that it is 'property.' But is it movable? There does not appear to have been any authoritative pronouncement on this point, though doubt has been expressed as to the extent to which gas and electricity are 'goods' for the purpose of the English Sale of Goods Act[3].

Electricity under the ambit of Sales of Goods Act, 1930

The Sale of Goods Act, 1930 is not applicable to electricity. It was observed by the Calcutta High Court inRash Behari v. Emperor [4] that the view expressed in Pollock and Mulla's 'Sale of Goods Act, 1930' that the Act is not applicable to electricity is correct.

It is also noteworthy that the Constitution itself does not contemplate sale or purchase of electricity as "goods[5]". In List-II of the Seventh Schedule to the Constitution, there is a specific entry with regard to "Taxes on the consumption or sale of electricity". That entry is Entry No. 53. The next entry, namely, Entry No. 54 is as regards "Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List-I". It is obvious that these two entries are on the basis that in the supply and consumption of electricity, there is no sale or purchase of electricity as goods. The aforesaid two entries mean that though a tax on the consumption or sale of electricity can be levied, it cannot be levied as a sales-tax treating electricity as 'goods'.

Whether electricity is “goods” for the purpose of imposition of sales tax. In Kumbakonam Electric Supply Corporation Ltd. v. Joint Commercial Tax Officer, Esplanade Division, Madras[6]the Madras High Court was called upon to decide whether electricity is “goods” for the purposes of the Madras General Sales Tax Act, 1959, and the Central Sales Tax Act, 1956. After referring to the definition of “goods” as given in the Sale of Goods Act, 1930 movable would fall within the definition of “goods”, provided it was transmissible or transferable from hand to hand or capable of delivery which need not necessarily be in a tangible or a physical sense. Reference was also made to the definition given in the General Clauses Act which was quite wide and it was held that if electricity was property and it was movable it would be “goods”. The learned Judge found little difference between electricity and gas or water which would be property and could be subjected to a particular process, bottled up and sold for consumption. It was observed that electricity was capable of sale as property as it was sold, purchased and consumed everywhere.

Controversy was raised before the Supreme Court in a decision reported in The Commissioner of Sales-tax, Madhya Pradesh, Indore v. Madhya Pradesh Electricity Board, Jabalpur[7], while considering whether sales-tax can be levied under the Madhya Pradesh General Sales tax-Act, on electricity, the Supreme Court upheld such levy by observing as follows:-

"...what has essentially to be seen is whether electric energy is 'goods' within the meaning of the relevant provisions of the two Acts[8]. The definition in terms is very wide according to which 'goods' means all kind of movable property. Then certain items are specifically excluded or included and electric energy or electricity is not one of them. The term 'movable property' when considered with reference to 'goods' as defined for the purposes of sales-tax cannot be taken in a narrow sense and merely because electric energy is not tangible or cannot be moved or touched like, for instance, a piece of wood or a book it cannot cease to be movable property when it has all the attributes of such property. It is needless to repeat that it is capable of abstraction, consumption, and use which, if done dishonestly, should attract punishment under Section 39 of the Indian Electricity Act, 1910. It can be transmitted transferred, delivered, stored, possessed etc. in the same way as any other movable property...."

But in Kumbakonam Elec. Supply Corpn. Ltd. v. Joint C. T. O., 1963-14 STC 600[9] a single Judge of the Madras High Court took the view that electricity is property and is capable of movement and delivery, and that electricity is "as much property as gas or water which is subjected to a particular process, bottled up and sold for consumption". With all due respect to the learned Single Judge, we do not find ourselves in agreement with this view. The exposition of electricity on which the learned Single Judge based his conclusion that electricity is "as much property as gas or water" and is capable of movement and delivery is not scientifically correct.

In Jabalpur Cable Network Pvt. Ltd. v. E.S.P.N. Software India Pvt. Ltd[10] The Madhya Pradesh High Court has stated the electronic signals in form of waves can be treated as goods and can be held to be movable property. If we try to take the note of this judgement, it can be inferred that even concept of electricity is synonymous to electric signals.

A similar view was expressed by Tek Chand, J. of the Punjab and Haryana High Court in Malerkolta Power Supply Company v. The Excise and Taxation Officer, Sangrur [11]. It was held that electric energy fell within the definition of “goods” in both the Punjab Sales Tax Act, 1948, and the Central Sales Tax Act, 1956. According to the learned Judge electric energy has the commonly accepted attributes of movable property. It can be stored and transmitted. It is also capable of theft. It may not be tangible in the sense that it cannot be touched without considerable danger of destruction or injury but it was perceptible both as an illuminant and a fuel and also in other energy giving forms Electric energy may not be property in the sense of the term “movable property” as used in the Punjab and Central General Clauses Acts in contra distinction to “immovable property” but it must fall within the ambit of “goods” even if in a sense it was intangible or invisible”.

Moreover, Tek Chand .J very rightly quoted in above mentioned case “ That is no argument in holding that it is not a movable property. Gases and liquids need containers and electricity has to pass through conductors, and the fact that it is fastened at one end to something attached to the earth is no ground for holding that the energy which could be transmitted to long distances has not the attribute of a movable property.”

The statement contained in 18 Am. Jur. 407 [18 AJ 407 (2Electy)] recognises that electricity is property capable of sale and it may be the subject of larceny.

In Naini Tal Hotel v. Municipal Board [12] it was held that for the purpose of Article 52 of the Indian Limitation Act, electricity was property and goods. The plaintiff sued the defendant for a certain sum of money on account of electric energy supplied to the defendant for a period of nearly five years, incorrect bills having been submitted throughout this period owing to a mistake having been made by the meter reader. It was contended on behalf of the plaintiff that Article 96 and not Article 52 of the Limitation Act applied to the case. One of the grounds for this contention was that electric energy was not 'goods'. This contention was negatived and it was held that electric energy was 'movable property' and, therefore, 'goods' within the meaning of Article 52 of the Limitation Act. The decree was confined to a period of three years prior to the institution of the suit.

Constitutional validity of Electricity as Movable property

The Constitution Bench of the Supreme Court in State of A.P. etc. v. National Thermal Power Corpn. Ltd. and Ors.[13] held that electricity though an intangible object is ‘goods’ covered by Entry 53[14] of List II of Schedule VII to the Constitution of India.

In the case of Southern Petrochemical Industries Co. Ltd. v. Electricity Inspector & ETIO and Others[15], made following pertinent observations:

“It may be that electricity has been considered to be “goods” but the same has to be considered having regard to the definition of “goods” contained in clause (12) of the Article 366 of the Constitution of India. When this Court held electricity to be “goods” for the purpose of application of sales tax laws and other tax laws, in our opinion, the same would have nothing to do with the construction of Entry 53 of List II of the Seventh Schedule of the Constitution of India.”

It has also been laid down in the decision reported in Jiyajeerao Cotton Mills Ltd., Birianagar, Gwalior v. State of Madhya Pradesh[16] that Legislative entries in the Constitution are to be interpreted in a broad way so as to give the widest power to the Legislature and not in a narrow and pedantic sense. Entry 84 in List I of the seventh schedule therefore, is to be given a wide interpretation, specially when power of taxation of the Union is wide unlike the restricted power of the state to tax specific subjects as provided in List II. When the Parliament in its wisdom added electricity in the first schedule of the Act for levy of duty, the wisdom of the Parliament is to be respected.

The High Court, in the present case, appears to have relied on Rash Behari v. Emperor[17] in which approval was accorded to the statement in Pollock and Mulla’s Commentary on Sale Goods Act, 1913that it was doubtful whether that Act was applicable to such “goods” as gas, water and electricity. The context in which this matter is discussed in the Calcutta case is altogether different and distinguishable and what was being decided there was the scope and ambit of Section 39 of the Electricity Act, 1910. As regards the entries in List II of the Seventh Schedule to the Constitution, the relevant ones may be produced:

53. Taxes on the consumption of sale of electricity.

54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of Entry 92-A of List I.”

The reasoning which prevailed with the High Court was that a well-defined distinction existed between the sale or purchase of “goods” and consumption or sale of electricity otherwise there was no necessity of having Entry No. 53 but under Entry 53 taxes can be levied not only on sale of electricity but also on its consumption which could not probably have been done under Entry 54. It is difficult to derive much assistance from the aforesaid entries. What has essentially to be seen is whether electric energy is “goods” within the meaning of the relevant provisions of the two Acts. The definition in terms is very wide according to which “goods” means all kinds of movable property. Then certain items are specifically excluded or included and electric energy or electricity is not one of them. The term “movable property” when considered with reference to “goods” as defined for the purposes of sales tax cannot be taken in a narrow sense and merely because electric energy is not tangible or cannot be moved or touched like, for instance, a piece of wood or a book it cannot cease to be movable property when it has all the attributes of such property. It is needless to repeat that it is capable of abstraction, consumption and use which, if done dishonestly, would attract punishment under Section 39 of the Indian Electricity Act, 1910. It can be transmitted, transferred, delivered, stored, possessed etc., in the same way as any other movable property.

Section 39 of the Indian Electricity Act, 1910, which enacts that "whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code".

Even in Benjamin on Sale, 8th Ed. reference has been made at p. 171 to County of Durham Electrical, etc. Co. v. Inland Revenue[18], in which electric energy was assumed to be “goods”. If there can be sale and purchase of electric energy like any other movable object, we see no difficulty in holding that electric energy was intended to be covered by the definition of “goods” in the two Acts. If that had not been the case there was no necessity of specifically exempting sale of electric energy from the payment of sales tax by making a provision for it in the schedules to the two Acts. It cannot be denied that the Electricity Board carried on principally the business of selling, supplying or distributing electric energy.

The statement contained in American Jurisprudence[19] recognises that electricity is property capable of sale and it may be the subject of larceny.

The following statement of the law in n Halsbury (Simonds), para 394, is very useful:

"A distinction must be drawn, however, between cases where the difficulties are due to uncertainty as to the causation of damage, where questions of remoteness arise, and cases where they are due to the fact that the assessment of damages cannot be made with any mathematical accuracy. Lack of relevant evidence may make it impossible to assess damages at all as where the extent of the loss is dependent upon too many contingencies, and in such cases, where liability is established nominal damages only may be awarded. Where it is established, however, that damage has been incurred for which a defendant should be held liable the plaintiff may be accorded the benefit of every reasonable presumption, as to the loss suffered. Thus, the Court, or a jury, doing the best that can be done with insufficient material, may have to form conclusions on matters on which there is no evidence, and to make allowance for contingencies even to the extent of making a pareguess;"

Arun Mishra, J have rightly stated in one case that under the General Clauses Act property is either movable or immovable, electric energy is certainly not immovable property as that expression is defined in the same Act or any other Act. The definitions are not exhaustive, since they use the word "includes" and not the word 'means' but there is nothing in the examples given which would suggest that electric energy should also be included[20]."

In CST v. M.P. Electricity Board, Jabalpur[21], the Court held that electricity is ‘goods’. Electricity cannot be stored and hence, cannot be taken under the perview of Movable Property. In the case of State of Andhra Pradesh v. National Thermal Power Corporation[22], the Constitution Bench approved the observations made in M.P. Electricity Board to the extent that electrical energy can be transmitted, transferred, delivered, possessed, etc., but did not agree with the observation that electrical energy can be stored. The Constitution Bench held that significant characteristic of electrical energy is that its generation or production coincides almost instantaneously with its consumption.

Electricity not a Movable Property

Section 22 of IPC defines Movable property as Corporeal Property or every description but they forgot to define corporeal property in itself .The main issue to highlight this point is that to charge any person under theft, firstly it is necessary to prove that the person has committed theft of corporeal property.

Webster's dictionary defines corporeal property as " such as may be seen and handled (as opposed to incorporeal, which cannot be seen or handled and only exists in contemplation)."

Electric current is not movable property within the meaning of section 22[23] of the Penal Code and cannot be the subject of the offence of theft. The term ’corporeal property’ is not defined anywhere in the Indian Penal Code.

Section 39 of the Indian Electricity Act, 2003 clearly stated that Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code (45 OF 1860) and Section 378 clearly states that Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.

On ground of these two legislation, it was rightly inferred that since theft can only be done of moveable property and hence, Electricity is a movable property. This provision was further justified with the subsequent judgement delivered by the various courts of India.

Electrical energy does not seem to come within the ambit of movable property nor does abstraction of electricity constitute taking away movable property from the possession of the Board or of the licensee. Thus, dishonest abstraction of electricity may not answer Section 378, I.P.C. In fact, It is made an offence by Section 39 of 1910 Act. as theft within the meaning of I.P.C. by fiction which should be followed to the end and the offence so created would entail the punishment mentioned in the Code for that offence.

In the year 1964, a historic judgement was delivered by the division bench comprising SARKAR, A.K. J., WANCHOO, K.N. J, and DAYAL RAGHUBAR .J in the case of Avtar Singh v. State of Punjab (AIR 1964 SC 666) stating Electricity as not a movable property.

Summary of the case

The appellant was prosecuted and convicted for theft of electrical energy from the Punjab State Electricity Board under s. 39[24] of the Indian Electricity Act (9 of 1910). He contended that, as his prosecution was for an offence against the Act it was incompetent, because, it had not been instituted at the instance of any of the persons mentioned in s. 50[25] of the Act. He contended that, as his prosecution was for an offence against the Act it was incompetent, because, it had not been instituted at the instance of any of the persons mentioned in s. 50 of the Act.

The pertinent matter that was noticed in this case is that it was stated by the apex court “Section 378, read by itself even after the enactment of s. 39, would not include a theft of electricity for electricity is not considered to be movable property. The only way in which it can be said that s. 39 extended s. 378 is by stating that it made something which was not a theft under s. 378, a theft within the meaning of that sec- tion. It follows that if s. 39 did so, it created the offence itself and s. 378 did not do so. In this view of the matter we do not think it possible to say that the thing so made a theft and an offence, became one by virtue of s.378”.

After this judgement, it became clear that electricity is not a movable property in context of law , it was mere a presumption in the mind of people.The supreme court clearly stated in this case that electricity become theft only after the broader extension of s. 39 of Indian Electricity Act,1910.

It is true that for the purpose of an offence, Supreme Court expressed that electricity is not considered to be movable property. In this case, however, there was no controversy in that regard to be resolved[26].

Even the apex court of Sri Lanka in NAGAIYA v. JAYASEKERE 38-V. C. Colombo, 26,383 held thatelectric current is not movable property within the meaning of section 20 of the Penal Code and that it cannot be subject of the offence of theft which is similar to section 22 of Indian Penal Code.

There was also reference to an order of the Excise and Taxation Commissioner, Punjab, in the case ofKumar Textile Mills, Amritsar, dated 31st of October, 1963, wherein it was expressed that electricity was not "goods" within the meaning of the Punjab General Sales Tax Act. One reason why electricity was not treated as "goods" was that it was not capable of being moved without support.

Electricity as Property: Recent Judgement

In Ptc India Ltd. v. Jaypee Karcham Hydro Corporation on 13 August, 2010 it was noticed though electricity is movable property yet it is not an ordinary article of commerce and it is also not easily obtainable in the market and has special value and interest to the appellant and consequently, in terms of Section 10[27]of the Specific Relief Act. The issue was related to breach of Power Purchase Agreement and recovery of money for the same. The power purchase agreement was for purchase of electricity which is a movable property as contemplated under Section 10 of the Specific Relief Act, and under the Act, breach of such a contract of a movable property can be compensated in terms of money, and therefore, the agreement cannot be specifically enforced.

Following Avtar Singh case, Electricity was again considered as not a movable property in Paramasivam v. Union of India[28] stating that an offence under Section 379 cannot be attracted in respect of theft of electricity, which is not a movable property and therefore, the cognizance taken for both the offences can only be quashed.

In Nizar Aziz, Nizar Nivas v. State Of Kerala, Represented By on 2 March, 2010, under Para 5, the Kerala High Court upheld the contention of Paramsivam's case and stated that electricity is not a movable property, which can be moved with the dishonest intention of taking it and as there is no deeming provision similar to the one contained in Section 39 of Indian Electricity Act, 1910, as it stood before the amendment introduced on 12.8.1986 and so, the accusation that an offence was committed under Section 379 of Indian Penal Code in respect of electricity is unsustainable. In view of the decision of this Court, it can only be found that an offence under Section 379 of Indian Penal Code is not attracted. If that be so, the cognizance taken for the said offence can only be quashed. Petition is allowed. C.C.No.385/2006, taken cognizance by Judicial First Class Magistrate, Varkala, for the offences under Section 379 of Indian Penal Code and Section 135 of Electricity Act, is quashed. It is made clear that quashing of the cognizance taken will not preclude the learned Magistrate from taking cognizance as provided under Section 151 of Code of Criminal Procedure.

Proximate Conclusion

Electricity has a value, utility and at the same time is transferable. Therefore, taking a broader meaning, there is no escape from the conclusion that electricity is goods coming within the meaning of the word as defined in Article 366(12) of the Constitution.

Electric energy is bought and sold like any other commodity and there can, therefore, be no doubt that it is 'property'. Electric energy is storable and admits of asportation. It can also be transmitted over long distances. It is fungible in so far as it admits of measurements and it also has the property of res-furtive in so far as it admits of theft, vide Section 39 of the Indian Electricity Act and under section 134 of Electricity Act,2003.

In the case of electrical energy, generation or production coincides almost instantaneously with its consumption. Sale, supply and consumption takes place without any hiatus. Electricity is movable property though it is not tangible.

Though, it is a settled law now that ‘electricity’ is goods and also excisable goods which find a mention in The Central Excise Tariff Act. It is also necessary to mention here that generation and distribution of electricity was chargeable to excise duty for a limited period and currently the same has been withdrawn. Any supply of electricity and money realised from such supply is towards supply of goods, it would tantamount of “trading in goods”.

But still, one thing is apparently clear with regard to electricity that being movable , it is not movable. It merely holds some of the characteristics of movable property in terms of legal confabulation .It is also not disregarded that Electricity is not an immovable property under certain circumstances.

[1] Salmond “Jurisprudence”, (11th Edn.) at p. 156

[2] Paton “Book of Jurisprudence” (2nd Edn.) at p. 408

[3] Naini Tal Hotel Co. Ltd. v. Municipal Board AIR 1946 All 502

[4] Rash Behari v. Emperor AIR 1936 Cal 753 at p. 766

[5] Art. 366(12) "goods" includes all materials, commodities, and articles;

[6] 14 STC 600

[7] 1970 S.C. 732

[8] Central Excises & Salt Act, 1944 and Finance Act,1978

[9] AIR 1964 Mad 477

[10] AIR 1999 MP 271

[11] 22 STC 325

[12] AIR 1946 All 502

[13] 2002-TIOL-107-SC-CT

[14] Taxes on the consumption or sale of electricity

[15] (2007) 5 SCC 447

[16] AIR 1963 S.C. 414

[17] AIR 1936 Cal 753

[18](1909) 2 KB 604

[19] 18 American Jurisprudence 407 (S. 2 Electy.) (3) A.I.R. (1946) All. 502

[20] M.P. State Electricity Board v. The Collector & Anrs. AIR 2003 MP 156

[21] 25 STC 188

[22] (2002) 5 SCC 203

[23] §22,Indian Penal Code,1860:The words "movable property" are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.

[24] 39.Theft of energy: Whoever dishonestly abstracts, consumes or uses any energy shall be deemed to have committed theft within the meaning of the Indian Penal Code (45 OF 1860); and the existence of artificial means for such abstraction shall be prima-facie evidence of such dishonest abstraction.

[25] :No prosecution shall be instituted against any person for any offence against this Act or any rule, license or order thereunder, except at the instance of the Government or an Electric Inspector, or of a person aggrieved by the same.

[26] Orient Paper And Industries Ltd. v. Orissa State Electricity Board 1989 (42) ELT 552 Ori ¶ 7

[27] 10.Specific Relief Act,1963:Cases in which specific performance of contract enforceable:

Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced---

(a) when there exists no standard for ascertaining actual damage caused by the non-performance of the act agreed to be done; or

(b) when the act agreed to be done in such that compensation in money for its non-performance would not afford adequate relief.

Explanation.---Unless and until the contrary is proved, the court shall presume--

(I) that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and

(ii) that the breach of a contract to transfer movable property can be so relieved except in the following cases:--

(a) where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;

(b) where the property is held by the defendant as the agent or trustee of the plaintiff.

[28] (2007 (2) KLT 733)

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