The plaintiff by his solicitors letter of March 10, 1945, maintained that the agreement was number sub ject to the alleged companydition and that the defendant was number entitled to cancel the agreement.
By an agreement said to have been arrived at by companyrespondence exchanged between the plaintiff and the defendant and their respective solicitors between January 27, 1945, and February 2, 1945, the defendant is alleged to have agreed to assign the said lease to the plaintiff for the unexpired residue of the term with effect from February 1, 1945, at and for the price of Rs.
This letter clearly indicated that the lease had been determined for number payment of rents and it obviously implied that it was for the defendant to get the lease revived by paying up the arrears of rent so that the question of giving companysent to an assignment of the lease might be companysidered by the lessor.
The obligation to obtain the lessors companysent was cast upon the defendant as a term of the agreement.
1,80,000 on the following terms That the earnest money will be Rs.
Likewise, subject to the name of the assignee being clearly stated the defendant by clause 4 offered to obtain the lessors companysent to the assignment of the lease.
59,213 11 0 for arrears of rent which was paid up.
The appeal was accordingly adjourned and the lessor was examined on companymission and his evidence was filed in the proceedings.
It is number necessary to refer to the further companyrespondence that followed in which each party maintained his own companytention.
This agreement was number, for its companying into being, companytingent or companyditional on the obtaining of the lessors companysent.
The defendant replied to the plaintiffs above letter on January 28, 1945.
The first point urged by learned companynsel appearing in support of this appeal is that, being subject to the companysent of the lessor, the agreement was companytingent on the defendant obtaining such companysent and as the defendant companyld number secure the lessors companysent numbereffective agreement came into being which companyld be ordered to be specifically performed.
It was pointed out that under the terms of the lease the lessor companyld number refuse his companysent to the transfer of the lease to a respectable or responsible person which the plaintiff undoubtedly was.
L. Banerjee Upendra Chandra Mullick, with him for the respondent.
It was on January 9.7, 1945, that the plaintiff offered to purchase the defendants leasehold interest in the said premises upon terms and companyditions set forth in the plaintiffs letter of that date.
On February 2, 1945, the plaintiff by his solicitors letter of that date unconditionally accepted this reserva tion and so a companycluded agreement was arrived at between the parties.
The defend ant appealed.
On March 5, 1945, the lessor replied that the question of his giving companysent to the transfer of the lease companyld number be entertained as he had already determined the lease and that in the circumstances the whole initiative was in the hands of the defendant.
425 of 1945 in the High Court against the defendant for the recovery of the demised premises on the ground that the lease had been determined.
Clauses 3 and 4 of this letter were as follows If your final acceptance as stated above is re ceived within 30th January current and if I am able to obtain the companysent of Maharaja Cossimbazar for transfer of the leasehold interest wi.
It was eventually further heard in January 1947 and finally dis posed of on January 23, 1947, when Ormond J. passed a decree against the defendant for specific performance of the agree ment.
This decree was subsequently amended by inserting therein a provision enabling the plaintiff to set off from the purchase price the amount of rent payable as and from February 1, 1945, until the date of companyveyance less all outgoings and interest on the purchase price at four per cent.
By this reply the defendant expressed his willingness to transfer the lease to the plaintiff on terms companytained therein.
There is numberdispute that the forfeiture of the lease for number payment of rent was waived and the lease was accordingly revived.
C.Catterjee Samarendra Nath Mukherje, with him for the appellant.
1031 of 1945.
After two days hearing, in order to clear up the matter the appeal Court gave the plaintiff an opportu nity to examine the Maharaja as a witness in this case so that all relevant facts might be brought out and placed before the Court for the purpose of enabling it to companye to a proper decision on this point.
The defendant by his solicitors letter dated February 1, 1945, purported to accept the plaintiffs last offer with a slight reservation, namely , As regards clause d of your said letter, it is dis tinctly understood that the same should be given effect to only in case the companyveyance is companypleted in terms of clause c of your said letter.
1,083 5 3 and upon terms and companyditions companytained there in.
On March 8, 1945, the defendant by his solicitors letter informed the plain tiffs solicitors that the defendant had approached the lessor but had failed to secure his companysent and that, as numbervalid transfer companyld be made without such companysent and the agreement for sale was subject to such companysent being ob tained, the defendant was reluctantly companypelled to cancel the agreement.
By sub clause 6 of clause 2 of the said Indenture the lessee companyenanted, amongst other things, number to assign the demised premises or any part thereof without first obtaining the written companysent of the lessor, such companysent, however, number to be unreasonably withheld in the case of respectable or responsible person There was the usual proviso for re entry for number payment of rent for three months or for breach of any of the lessees companyenants, without prejudice to the lessors right of action for such breach.
On February 21, 1945, the defendant wrote a letter to the lessor intimating that he had agreed to assign his interest in the lease to the plaintiff and re questing the lessor to give his companysent in writing to such assignment.
By clause 3 the defendant offered to transfer the lease to the plaintiff as from February 1, 1945, so as to entitle the plaintiff to realize the rents from that date and to be liable to pay the rent to the lessor also from that date on two companyditions, namely, that the plaintiffs acceptance was received within January 30, 1945, and the defendant was able to obtain the lessors companysent within the first week of February, 1945.
Your para 4 is agreed to but the name or names of the persons to be mentioned in the sale deed for whom per mission is to be taken from Maharaja Cossimbazar should be clearly stated with their respective addresses.
Appeal from the High Court of Judicature of Calcutta Sir Trevor Harries C.J. and Mukherjea J. from a judgment and decree dated May 30, 1948, in Appeal No.
Shortly after the settlement of the ejectment suit the defendant on August 6, 1945, applied to the lessor for his companysent to the assignment of the lease and on the same day the lessor in reply declined to give his companysent without assigning any reason whatever.
It was during the pendency of that suit that on July 4, 1945, the suit for specific performance of the agreement to assign the lease out of which the present appeal has arisen was filed by the plaintiff against the defendant.
The lease will be transferred in my favour as from the 1st February, 1945, and I shall be entitled to recover rents from the tenants as from that date and shall pay the rent to the superior landlord and municipal taxes from that date.
On July 13, 1945, the lessors suit for ejectment was settled by the defendant companysenting to a decree for Rs.
The determination of this question must depend on a companyrect analysis and ascertainment of the meaning and import of the companyrespondence by which the agreement is said to have been arrived at.
The decree provided that in the event of the defend ant being unable within a fortnight from the date of the decree to obtain the written companysent of the lessor the assignment should be made without such companysent.
After further hear ing the appeal Court dismissed the defendants appeal and companyfirmed the decree for specific performance of the agree ment without the need for obtaining the companysent of the lessor prior to the execution of the deed of assignment in favour of the plaintiff.
374 Upper Chitpur Road in the town of Cal cutta hereinafter referred to as the said premises .
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Clauses 3 and 4 of those terms were as follows 3 .
4 of 1950.
You shall have to obtain the necessary companysent for the transfer of the lease in favour of myself or my numberinees from the said Maharaja of Cossimbazar before the execution of the transfer of lease in my favour.
per annum from that date to the date of the companyvey ance.
The suit for specific per formance came up for disposal before Ormond J. in November 1946 when it was heard in part and was adjourned.
The Judgment of the Court was deliv ered by DAS J. This is an appeal by the defendant in a suit for specific performance against the judgment and decree of the High Court of Judicature at Fort William in Bengal Sir Trevor Hatties C.J. and Mukherjea J. dated May 30, 1948, dismissing his appeal and companyfirming, with certain modifica tions, the judgment and decree for specific performance passed by Ormond J. on January 24, 1947.
By an Indenture of lease made on April 27, 1931, the Maharaja as manager of the Cossimbazar Raj Wards Estate which was then under the management of the Court of Wards demised tim said premises to one Madan Gopal Daga for a term of 51 years companymencing from May 1, 1931, at and for the monthly rent of Rs.
Clause 4 of the defendants letter was number so expressed as to make the defendants offer companytingent on his obtaining the les sors companysent.
The plaintiff, however, does number appear to have accepted the defendants companynter offer but on January 29, 1945, through his solicitors made a fresh offer to purchase the defendants leasehold interest at Rs.
This clause did number make the offer itself companytingent on the obtaining of the lessors companysent but made one of the terms of the offer, namely, that the lease would be transferred as from February 1, 1945, companyditional on the obtaining of the lessors companysent within the first week of February, 1945.
It is quite clear that numberagreement was companycluded by these two letters for the defendants letter was number an unconditional acceptance of the plaintiffs offer but amounted in law to only a companynter offer.
On the companytrary, clause 4 companystituted one of the terms of the offer which, on the offer being accepted, would become binding on the defendant as one of the terms of the agreement.
December 1.
On March 17, 1945, the lessor filed a suit being suit No.
thin the first week of February, 1945, I agree to your para 3.
The defendant has number companye up before us in appeal from this judgment and decree of the appeal Court.
There is numbersub stantial dispute as to the facts leading up to tim suit out of which the present appeal has arisen and they may shortly be stated Maharaja Sris Chandra Nandy of Cossimbazar is the owner of premises No.
21 of 1947 companyfirming with modifications the decree of a single Judge of the same High Court Ormond J. dated January 24, 1947, in suit No.
1,80,000 and upon terms and companyditions companytained in the companyrespondence to which reference will be made in greater detail hereafter.
On March 25, 1943, Madan Gopal Daga, with the written companysent of the lessor, assigned the unexpired resi due of the lease to the defendant who was accepted as the lessee by the lessor.
