ANANT SHAMRAO Vs. NENSUKH BHERULAL KUCHERIYA

JUDGEMENT

(1.) THE facts which give rise to this second appeal are the following. The plaintiff filed suit No. 373 of 1949 in the Court of the Civil Judge, Senior Division at Dhulia for a decree for Rs. 663/- against the defendants. It was the plaintiff's case that land bearing S. No. 52/a of the town of Dhulia belonged to the second defendant, that the second defendant divided the land into plots for conversion to building site and got prepared a plan of the land showing the plots separately and advertised them for sale through the first defendant, who held a power of attorney from the second defendant; that the plaintiff came to learn about the advertisement and approached the first defendant on 17-5-1948; that the first defendant showed Mm the plans and the plaintiff selected plots Nos. 4, 5, 11, 12 and 13 and agreed to purchase the same for Rs. 2250/-, that the first defendant accepted Rs. 565/- as earnest money and undertook to exe-cute a registered sale deed on 5-6-1948; that the first defendant handed over to the plaintiff a printed form bearing the signature of the first defendant which purported to set out the terms of the agreement that the first defendant represented to the plaintiff that the permission for conversion of the land to building sites was expected to be received shortly, that the plaintiff did not subject the contents of the printed form to any scrutiny and signed the terms; that the permission which was represented to the plaintiff would be received shortly was not received by 16-6-1948 which was the date fixed for completion of the sale; that the time to complete the sale was extended till 31-7-1948; that on 31-7-1948 the first defendant represented to the plaintiff that the permission had been received; that the plaintiff then paid Rs. 62-8-0 to the first defendant for purchasing the stamp paper required for the sale deed; that the first defendant brought a draft of the sale deed drawn up on a stamp paper; that it was found at that time that the plots had been described in the draft agreement as 'agricultural plots'. The plaintiff objected to the draft agreement at the time of its registration; that no sale deed: was therefore executed; that the plaintiff then put an end to the contract and filed a suit for recovery of Rs. 565/- which were paid by him as earnest money and for Rs. 62-8-0 which were spent for purchasing stamp paper and for in-terest on the aggregate amount at the rate of 6 per cent per annum. The suit was filed against the first defendant who made the representations set out earlier and took the two amounts from the plaintiff and against the second defendant who was the principal of the first defendant.

(2.) THE suit was resisted by both the defendants. The defendants contended that the plaintiff was not entitled to set up a variation in the terms of the written agreement by leading oral evidence; that the representations alleged to haver been made by the first defendant on behalf of the second defendant were not within the scope of the agency of the first defendant, and those representations were not binding upon the second defendant; that in any event the first defendant had not made representations alleged to have been made by him to the plaintiff; and tliat the plaintiff had not been misled by any such representations; that the plaintiff was not entitled to sue because he had entered into contracts on behalf of other principals; that the time was not of the essence of the contract, and the plaintiff when he terminated the contract was himself not ready and willing to perform his part of the contract; and that the plaintiff had already, read the terms of the draft sale deed and therefore also he was not entitled to claim refund of the earnest money and the amount spent by him for stamp paper.

(3.) THE learned trial Judge negatived the contentions raised by the defendants and passed, a decree against both the defendants for Rs. 663/-with interest at 6 per cent, per annum from the date of the suit till payment on Rs. 627-8-0 or on so much out of it that remains unpaid from time to time. Against the decree passed by the-trial Court an appeal was preferred to the District Court at Dhulia by both the defendants. The learned appellate Judge substantially confirmed the decree passed by tne trial Court. He did not award interest to the plaintiff prior to the date of the suit. Against the decree passed by the District Court the defendants have come to this Court in Second Appeal.