S. RAJAM, PROPRIETOR, MURRAY AND CO. Vs. THE INDIAN UNION, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF REHABILITATION

JUDGEMENT

(1.) THE controversy in this appeal by the plaintiff is as to the rate of commission at which he is entitled to be paid for certain auction sales of evacuee properties in Madras, Bangalore, Mysore, Ootacamund and Coonoor, which he held in five batches between 22nd February, and 26th June, 1955, on behalf of the defendant. He has been paid at one per cent of the sale proceeds in respect of the first batch of sales held between 22nd February, and 26th February, 1955, at Madras. With regard to the other batches of sales between 7th April, and 16th April, 1955, 26th April, and 1st May, 1955, 9th May and 13th May, 1955 and 26th June, and 27th June, 1955 the defendant paid the plaintiff only a sum of Rs. 7,324.56 against a claim of Rs. 23,098.35. The suit is to recover the difference, the main ground of the appellant being that there was no reason to make a distinction between the sales made prior to 1st April, 1955, and those subsequent thereto, as the work involved in respect of both the sales were just the same, and there was no reason why the general rule as to the reasonable quantum of remuneration payable in respect of sales should not be applied. On the ground that certain sales held on 28th April, and 10th, 12th and 13th May, 1955, were for prices below sixty per cent of the reserve price, the defendant denied liability to pay any commission whatever. The plaintiff contended that the sales were effected by him not gratuitously and was therefore, entitled to a reasonable remuneration.

(2.) THE suit was resisted by the defendant pleading an agreement fixing the rate of compensation and stipulating that for sales fetching prices less than sixty per cent of the reserve price no commission would be payable. The agreement set up was that the plaintiff had agreed to receive commission at such rate as the Government might fix.

(3.) ON behalf of the plaintiff, who has appealed to this Court, his learned Counsels Mr. K. Rajah Iyer, contends (i) that if there was a concluded agreement between the plaintiff and the defendant fixing the rate of commission, it was void for non -compliance with the mandatory provision of Article 299 of the Constitution, and that as the work done by the plaintiff was not intended to be gratuitous, he was entitled to commission at a reasonable rate; (ii) that, alternatively, if the agreement was, for any reason, valid, it failed to fix a rate of commission and that, in any case, the parties meant that a reasonable rate of commission would be paid for the Work done by the plaintiff. On the other hand, the learned Government Pleader contends that, though there was no formal agreement drawn up and executed, there could be a valid agreement entered into by correspondence between the parties after conforming, to the requirements of Article 299 of the Constitution and that an agreement by which the plaintiff agreed to accept such rate of commission as may be fixed by the defendant is valid and it is not open to the Court to depart from its terms and tenor and fix a rate which it may consider to be reasonable.