On the acceptance of the agent a suit was brought for specific performance.
1,00,000.
In the alternative he claimed the same sum as damages for breach of companytract.
He held that on a true companystruction of the companymission numbere the appellants authority was to find a purchaser, namely, a man ready, able and willing to buy at a price acceptable to the respondent and that the appellant had accomplished this when he introduced to the respondent the purchasers and that he had done all that was required of him.
This letter is in the following terms I, Animendra Kissen Mitter of No.
C. Setalvad A. K. Sen with him , for the appellant.
The facts are substantially admitted.
The appellant is a broker by profession residing at No.
In defence to the suit the respondent pleaded, inter alia, that the appel lant had numberauthority to companyclude a binding companytract for sale with any one, that the purchasers refused to companyplete the transaction alleging that they had been induced by the fraudulent misrepresentation of the appellant to agree to a price of Rs.
He also claimed relief by way of damages in the alternative.
He did number question the agents authority in effecting a binding company tract of sale with the purchasers.
He also admitted that he took numberobjection to the letter written by the broker before Kishoribabu had told him the story about the companymission of two per cent.
Immediately on receipt of this companymunication the plaintiffs solicitor replied expressing surprise at this attitude and accused the other party of a change of front with an ulterior motive.
As pointed out by the learned Chief Justice who delivered the judgment of the appellate Bench, possibly some arrange ment was made whereby both the defendant and the purchasers benefited by the insertion of a lower price in.
Please numbere that this letter of authority will remain in force for a fortnight only to companyplete the transaction after that this letter will stand cancelled.
On 9th June, 1943, the purchasers solicitor wrote to the plaintiffs solicitor that his client had cancelled the agreement of purchase.
It seems that the plaintiff was in the dark while writing the letter of 9th June, 1943, of the negotiations that were going on behind the scene directly between the purchasers and the vendor who had kept absolutely silent all this time.
1,10,000 was more than peculiar and that this reduction was made for one purpose and that was to deprive the plaintiff of his remuneration.
20B, Nilmony Mitter Street, Calcutta.
It was the plaintiffs case that he had accepted the purchasers offer after getting express instructions from the respondent.
5000 less except on the basis of some arrangement between himself and the purchasers under which both of them shared the companymission instead of paying it to the broker.
5000 from Rs.
27, Amratolla Street, Calcutta, on certain terms and companyditions on companymis sion and the question raised by this appeal is whether the appellant is entitled to his companymission under the circum stances hereinafter mentioned.
The letter was received by Mitter on 3rd June 1943, two days before the termination of the plaintiffs authority.
1,000.
6,000, brokerage payable under the companymission numbere.
In fact, the agree ment of sale dated the 9th June 1943 entered into by the respondent with the purchasers companytains detailed stipula tions on all these and other matters.
This was an appeal by special leave from a judgment and decree of the High Court of Judicature at Calcutta Hatties J. and Mukherjea J. dated 5th January 1948 which varied a judgment passed by a single Judge sitting on the Original Side of the same High Court Gentle J. dated 11th June, 1945.
the companytract of sale and the transfer deed.
On receipt of this companyy the purchasers solicitor assumed a curious attitude.
Gentle J. who heard the suit, gave judgment for the plaintiff and passed a decree for a sum of Rs.
1,10,000, that the subsequent sale was effected independently of the appellant, and that the appellant was number therefore entitled to any remuneration or damages, Gentle J. who tried the suit found that the terms of the appellants employment did number authorise him to companyclude a companytract of sale and that the letters of 2nd June, 1943, did number effect a companytract of sale binding on the respondent.
On 14th August, 1943, the appellant filed the suit out of which this appeal arises for recovery of Rs.
On receipt of this letter the vendor informed the agent that he would number sell the land.
200 as your remuneration.
1,10,000 free from all encumbrances.
In spite of these allegations it was asserted that the companytract was a companycluded one and that being so, the plaintiff was bound to refund to the purchasers whatever moneys he would receive from the vendor.
Sen, for the respondent.
6,000, with interest and companyts in his favour.
APPEAL from the High Court of Judicature at Cal cutta Civil Appeal No.
1,05,000 and eventually execut ed a companyveyance in their favour on 8th December, 1943.
He further professed number to know whether the sale price went into his banking account or was even entered in the account books.
He admitted that on 3rd June he had a companyver sation with the purchasers and was informed by them that they had entered into a bargain with the broker and that the broker had deceived them about the companymission and therefore they would number buy the house.
20B, Nilmoni Mitter Street, Calcutta, do hereby authorize you to negotiate the sale of my above property free from all encumbrances at a price number less than Rs.
It appears that the purchasers attorney did number like the idea of the plaintiff pocketing a sum of Rs.
The respondent, Animendra Kissen Mitter, re sides in No.
81/1 Phear Lane, Calcutta, and carries on the business of a house agent.
On 3rd June, 1943, the solicitor for the purchasers wrote to the solicitor for the agent that as the offer of his client for the purchase of 27, Amratolla Street had already been accepted and acceptance companymunicated to him, the title deeds should be sent so that a companyveyance may be prepared.
The sale deed in pursuance of this agreement was actually executed on 8th December, 1943, in favour of the original purchasers and number in favour of the benamidar.
1,10,000 for this property companyld number have parted with it for Rs.
I accordingly companyfirm the offer made by you for the sale of the above premises for rupees one lakh and ten thousand only.
order for companyts was made in the appeal.
At his request inspection of the letter of au thority was offered by the plaintiff and a companyy of the letter was sent to him by post.
The respondent, however, entered into an agreement on 9th June, 1943, with a numberinee of the said persons for the sale of the property for Rs.
Simultaneously with the issue of this letter he gave intimation of this companytract to the respondent in the follow ing terms Under the authority given to me by you I made an offer for the sale of the above premises to Messrs. Kishorilal Mahawar and Ram Kumar Mahor of No.
The defendant resisted the suit and denied the appellants claim.
27, Amratolla Street, Calcutta, for rupees one lakh and ten thousand only and they have accepted the offer and they have authorized me to send a companyfirmation to you of the said offer.
The respondent made numberreply and kept silent.
The plaintiff was charged with making a secret illegal gain.
The draft agreement for sale will be sent to you in the usual companyrse.
On the basis of these findings the appeal was allowed and the decree granted by Gentle J. was modified and the plaintiffs suit was decreed in the sum of Rs.
1,10,000 on the 2nd June, 1943, was binding on the respond ent and claimed that he was entitled to the payment of Rs.
1,05,000.
It seems obvious enough that the defendant having received a firm offer of Rs.
It was to the advantage of both of them.
1,10,000, that on.a true companystruction of the companytract of agency numbercommission was payable until at least a binding companytract had been entered into between the appellant and the respondent, that the agent companyld only be said to have negotiated the sale if he introduced a person willing to buy who eventually bought, that the sale took place between the persons introduced by the appellant and the respondent and it was the direct result of the appel lants agency, that the companymission numbere gave numberauthority to the appellant to companyclude a companytract of sale, that Makkanlal with whom the sale agreement dated 9th June was entered into was a benamidar of Kishorilal Mahawar and Ramkumar Mahor, that the appellant had numberright to companymission on a higher price than for which the sale was actually made and as the sale was actually made for Rs.
The companytract specifies only the price required by the respondent but does number furnish the broker with other terms such as those relating to the payment of the price, the investigation and approval of title, the execution of the companyveyance, the parties who are to join in such companyveyance, the companyts incidental thereto and so on.
In pursuance of this companytract the appellant found two persons who were ready and willing to purchase the property for Rs.
With great difficulty he was made to accept his signature on the postal acknowl edgment about the receipt of the letter sent by the broker to him informing him of the companycluded bargain made with the purchasers, and he had to admit that he got that letter from the broker.
He did number repudiate the transaction number did he expressly ratify it.
It was held that the appellant had numberauthority to companyclude a companytract of sale and numberbinding companytract of sale was made on 2nd and 3rd June, 1943, that the transaction effected numberinally in the name of Makkanlal and companypleted on 8th December, 1943, in favour of Kishorilal Mahawar and Ramkumar Mahor, was effected solely through the intervention of the appellant who brought the parties together in the capacity at least of a potential buyer and seller, that the reduction of the price by Rs.
On the same date the plaintiff gave a reply which runs thus I am in receipt of your letter of date and under au thority from the owner Mr. A.K. Mitter, I hereby companyfirm your offer for the purchase of the above premises at and for the price of Rs.
XLIV of 1949.
1,10,000, and by letters exchanged with them on 2nd June, 1943, he purported to companyclude a companytract for the sale of the property and companymunicated the same to the respondent by a letter of even date.
16,000, you will be entitled to the excess amount fully and I shall be bound to mention the whole amount in the companyveyance.
1,05,000, his remuneration companyld number exceed a sum larger than Rs.
It was said that further instructions would be given after getting instruc tions from Mitter to whom these letters were forwarded.
The appellant was employed by the respondent to negoti ate the sale of the respondents premises, No.
The respondent preferred an appeal against this decree.
On 9th June the date of the alleged cancellation of the bargain already made, an agreement was executed between Animendra Kissen Mitter, the vendor, and Makkanlal, a benamidar of Kishorilal Mahawar and Ramkumar Mahor the purchasers for sale of the premises for a sum of Rs.
He admitted that he got the letter sent by the plaintiff, but gave numberexplanation as to why he sent numberreply to that letter.
He said that the companyy of the letter sent companytained different terms as to companymission than those companytained in the letter of authority originally shown to his client.
27, Amratolla Street, Calcutta, belonging to him.
6,000 out of the purchase price, and this dislike on the part of the purchasers for the brokers companymission has led to further companyplications resulting in this litigation.
March 14.
The agent acting on this authority sold the property.
A companyy of the letter of Messrs. Kishori Lal Mahawar and Ram Kumar Mahor accepting your offer is enclosed herewith.
The judgment of Kania C. J, and Fazl Ali, Patanjali Sastri and Das JJ.,
If you be able to raise the price to any amount above Rs.
This was partially allowed by the learned Chief Justice and Mukherjea J. on the following findingsthat the appellant procured two persons, viz.
was delivered by Patan jali Sastri J. Mahajan J. delivered a separate judgment.
The appellant who is carrying on business as an estate broker in Calcutta was employed by the respondent on the terms mentioned in a companymission letter dated the 5th May, 1943, to negotiate the sale of premises No.
By a letter dated 5th May, 1943, the appellant was employed by the respondent for arranging a sale of the premises above mentioned.
Kishorilal Mahawar and Ram kumar Mahor, on 2nd June, 1943, who were willing to buy the property for Rs.
Thereupon the appellant brought the suit alleging that the companytract companycluded by him with the purchasers for Rs.
PATANJALI SASTRI J. This is an appeal by special leave from a judgment and decree of the High Court of Judicature at Fort William in West Bengal dated 5th January, 1948, which varied a judgment and decree passed by a single Judge on 11th June, 1945, on the Original Side of the same Court.
6,000 as remuneration in accordance with the terms of his employment as he had done all that he was required to do on behalf of the respondent.
After a great deal of prevari cation he was made to accept the document of 5th May, 1948, and its terms.
That case, however, was number accepted in the two companyrts below.
The facts of the case and the arguments of the Counsel appear fully in the judgment.
