40. Save where time is of the essence in respect of the Closing Date, the following provisions shall apply:
(a) if the sale be not completed on or before the Closing Date either party may on or after that date (unless the sale shall first have been rescinded or become void) give to the other party notice to complete the sale in accordance with this condition, but such notice shall be effective only if the party giving it shall then either be able, ready and willing to complete the sale or is not so able, ready or willing by reason of the default or misconduct of the other party;
(b) upon service of such notice the party upon whom it shall have been served shall complete the sale within a period of twenty-eight days after the date of such service (as defined in Condition 49 and excluding the date of service), and in respect of such period time shall be of the essence of the contract but without prejudice to any intermediate right of rescission by either party;
(c) the recipient of any such notice shall give to the party serving the same reasonable advice of his readiness to complete;
(d) if the Purchaser shall not comply with such a notice within the said period (or within any extension thereof which the Vendor may agree) he shall be deemed to have failed to comply with these Conditions in a material respect and the Vendor may enforce against the Purchaser, without further notice, such rights and remedies as may be available to the Vendor at law or in equity, or (without prejudice to such rights and remedies) may invoke and impose the provisions of Condition 41;
(e) if the Vendor does not comply with such a notice within the said period (or within any extension thereof which the Purchaser may agree), then the Purchaser may elect either to enforce against the Vendor, without further notice, such rights and remedies as mat be available to the Purchaser at law or in equity or (without prejudice to any right of the Purchaser to damages) to give notice to the Vendor requiring a return to the Purchaser of all moneys paid by him, whether by way of deposit or otherwise, on account of the purchase price. Condition 38 shall apply to all moneys so to be returned, the period of five working days therein being computed from the date of the giving of such last mentioned notice. If the Purchaser gives such a notice and all the said moneys and interest (if any) are remitted to him, the Purchaser shall no longer be entitled to specific performance of the sale, and shall return forthwith all documents in his possession belonging to the Vendor, and (at the Vendor’s expense) procure the cancellation of any entry relating to the sale in any register;
(f) the party serving a notice under this Condition may, at the request of or with the consent of the other party, by written communication to the other part extend the term of such notice for one or more specified periods of time, and, in that case, the term of the notice shall be deemed to expire on the last day of such extended period or periods, and the notices shall operate as though such extended period or periods, had been specified in this Condition in lieu of the said period of twenty-eight days, and time shall be of the essence in relation to such extended period;
(g) the Vendor shall not be deemed to be other than able, ready and willing to complete for the purposes of this Condition:
(i) by reason of the fact that the Subject Property has been mortgaged or charged, provided that the funds (including the deposit) receivable on completion shall (after allowing for all prior claims thereon) be sufficient to discharge the aggregate of all amounts payable in satisfaction of such mortgages and charges to the extent that they relate to the Subject Property;
or
(ii) by reason of being unable, not ready or unwilling at the date of service of such notice to deliver vacant possession of the Subject Property provided that where it is a term of the sale that vacant possession thereof be given) the Vendor is, upon being given reasonable advice of the other party’s intention to close the sale on a date within the said period of twenty-eight days or any extension thereof pursuant to Condition 40 (f), able, ready and willing to deliver vacant possession of the Subject Property on that date.