LAKSHMANPRASAD AND SONS Vs. A ACHUTAN NAIR

JUDGEMENT

(1.) The facts of this case are simple. The appellants are a firm of dealers in automobiles carrying on business in Madras. The respondent purchased from them a Hindusthan-10 motor car, fixed head type, for a sum of Rs. 9350 (vide Ex. B. 3) on 22-1-1948. That was at a time when the Madras Civil Motor cars Control Order 1947 was in force, and no type of car could be sold for a price exceeding that fixed by the Government under that order. On the evidence, it is clear that at the time when the contract was entered into, both the plaintiff and the defendants thought that Rs. 9350 was the price fixed under the order for the type of Hindusthan-10 purchased by the plaintiff. This was evidently because of the impression created by a Circular submitted to the Provincial Motor Transport Controller by Messrs. Hindustan Motors Ltd., fixing the price of Hindusthan-10 at Rs. 9350 which pcice was apparently approved and confirmed by the Provincial Motor. Transport Controller. In a letter dated 2-12-1947, the Provincial Motor Transport Controller wrote to the Hindustan Motors Ltd., Calcutta, to say that he had informed the appellant firm that the prices contained in Circulars Nos. 60 and 61 were the ruling prices and that they will render themselves liable for prosecution if they exceeded the prica indicated in the said Circulars Nos. 60 and 61. Ex. B. 4 is the Circular No. 61, which specifies the maximum retail price of Rs. 9350 for the fixed head type of Hindusthan-10. The respondent paid the said pcice and obtained delivery of the car. It was subsequently discovered that the Provincial Transport Controller had no authority to fix the price and that it was only the Provincial Government that could fix the maximum retail price under the Control order. From the relevant notifications, it appears that during the period of the contract, the maximum price that was fixed by the Government was Rs. 8195. The respondent thereupon filed a 'suit in the City Civil Court, O. S. No. 635 of 1948 for the recovery of a sum of 11s. 1155 being the difference between the price which he paid for the car, namely, Rs. 9350 and the maximum price fixed, by the Government, namely, Rs. 8195 together with interest on the said sum. In the plaint, it was alleged that the defendants had collected illegally and on false representations the said sum of Rs. 1155 more than what was lawfully payable. The defendants denied that they made any false representation. They stated that the price charged by them, namely, Rs. 9350 was the price in the circular letter above referred to, and that even assuming that there was any misrepresentation, the plaintiff not having rescinded the contract and having kept the car, making rescission impossible, he was not entitled to claim refund of Rs. 1155 as damages or otherwise. The learned City Civil Judge held that the defendants had collected Rs. 1155 over and above the control price from the plaintiff by mis- representation and that the plaintiff's-suit was one for refund of the excess amount collected and not for avoiding the contract and that the plaintiff was entitled to the relief sought. He decreed the suit as prayed for. The defendants filed an appeal to this Court against the decree and judgment of the learned City Civil fudge (C. C. C. A. No. 10 of 1950S. Basheer Ahmed Sayeed J. dismissed the appeal, The learned Judge helu that the authorised price for which the vehicle could have been sold was only Rs. 8195. He, however, found that the appellants were not guilty of any fraud or misrepresentation and 'that both parties were under a 'bona fide' impression and belief that the price at which the car could be sold was Rs. 9350 and therefore the excess money must be deemed to have been paid under a mistake of fact. The learned Judge was of opinion that the case came directly under Section 72, Contract Act. The reasoning of the learned Judge was as follows :

(2.) Two contentions' were raised on behalf of the appellants before the learned Judge, and they have been raised before us. The first contention is that the respondent having alleged misrepresentation on the part of the appellants as regards the price, the contract was voidable under Section 19, Contract Act, and the respondent could have avoided the contract by returning the vehicle and demanding the money paid by him. Not having done so, he was not entitled to claim the amount paid by him in excess of the control price. This contention the learned Judge did not accept, on his finding that there was no misrepresentation by the appellants. The second contention is that as the appellants had sold the car in contravention of the provisions of the Control Order, the contract was an illegal one and the respondent, could therefore have treated the contract as void and obtained refund of the price paid by him on returning the car. The learned Judge overruled the contention, but it is not clear to us on what ground.

(3.) It appears to us that the matter could be looked at from two aspects. One is to consider the contract as having been entered into under a mutual mistake of fact. It was open therefore to the respondent to have avoided the contract and returned the car and got back the money which he had paid. He, however, cannot in law compel the appellants to consent to a new contract, namely, a sale of the car for the control price. It may be that if the contract was for the purchase of a car for such price as was fixed by the Provincial Government, then the appellants would not be entitled to claim anything more than such price. But that was not the case. The contract was lor the sale of the car for a particular price, namely, Rs. 9350. Though the appellants could not have sold the car lawfully for a price more than the maximum fixed under the Control Order, yet there was nothing in law which compelled the appellants to sell at that price. They may not be willing to sell a car if they were not satisfied with the maximum price.