MANMAL PBABHULAL GATTANI Vs. RADHAKISHAN MANMAL KALANI

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiff Radhakishan Kalani against the defendant Manmal Gattani for the recovery of Rs. 36,500 as his brokerage. The claim was based on a written agreement dated 30-4-1950 executed by the defendant in plaintiff's favour. Under the terms of the agreement the defendant had authorised the plaintiff to sell his 'Bone Mill' situated in the village Jaisinghpura near the Neemuch Railway line and Aerodrome for Rs. 34,000. The authorisation was to be operative till 3-5-1950. It was provided in the agreement that the plaintiff should secure from the would be purchaser Rs. 5,000 as an advance at the time of settling the transaction, that amount being liable to be adjusted against the price at the time of the registration of the deed. Whatever amount the plaintiff would be able to secure in excess of Rs. 34,000 as the sale-price would be his commission. The defendant was to get Rs. 34,000 net without any liability as to costs of registration. The defendant further agreed to execute the sale deed in the name of such person as the plaintiff would want. The defendant made it clear that the liability for income-tax in respect of the price in excess of Rs. 34,000 would be of the plaintiff who would either hand over to the defendant the receipt for his having paid the income-tax for that amount or would keep the amount of the tax with the defendant, for such payment. The plaintiff was further authorised to pass a receipt for the amount he would receive pursuant to the sale transaction. The defendant also gave to the plaintiff a letter of authorisation in the following terms on the same date i. e. on 30-4-1950:-

(2.) ON the following day the plaintiff along with the representative of the purchasers Mr. Daruwala went to Neemuch and in the morning of 5th May, 1950 he handed over to the defendant a copy of the agreement of sale which he had executed in favour of the purchasers along with the amount of deposit Rs. 7,000 and secured the handing over of the title-deeds with reference to the land and machinery to Mr. Madhavsingh Choudhari who was the lawyer of the purchasers. ON inspection of those deeds Mr. Daruwala finally accepted the sale transaction, the result whereof was that the sale-transaction as bet-ween the defendant and the proprietors of M/s Dubash Brothers became 'finally complete'.

(3.) THE defendant, in his written statement, contended that contrary to the real intent of his as disclosed in the agreement and the letter of authority dated 30-4-1950 the plaintiff entered into an agreement of sale with M/s. Dubash Brothers on 3-5-1960 including therein the agricultural land when the defendant had, in fact, authorised him to sell the factory premises and the machinery therein and not the outlying agricultural land measuring nearly 39 acres. THE amount of Rs. 34,000 mentioned in the agreement dated 30-4-1950 related to the actual factory premises and the machinery therein and not to the agricultural land. THE defendant denied that the sale transaction had become finally complete as between the purchasers and the defendant. When the defendant came to know that the plaintiff had agreed to sell not only the factory or the 'Bone Mill' but also the agricultural land he totally refused to carry out the sale since he had not authorised the plaintiff to sell the land. Finding himself in tight corner on account of his own misrepresentation to the purchasers the plaintiff implored the defendant to accept Rs. 70,500 as the price of the entire premises including the agricultural land and suggested that the price of the factory premises and the machinery would be nearly Rs. 40,000 and that in that event the plaintiff would be receiving Rs. 6,000 as his commission. THE defendant ultimately acceded to his request due to his relationship with the plaintiff and it was decided between the parties and M Is. Dubash Brothers represented by Mr. Daruwala that the entire sale price of Rs. 70,500 should be broken into two parts of Rs. 40,500 representing the price of the Bone Mill and Rs. 30,000 representing the price of the agricultural land. THE defendant thereupon accepted Rs. 7,000 which the plaintiff had received as earnest money. At that time it was said the plaintiff had not given to the defendant the copy of the agreement of sale dated 3-5-1950 and the defendant was kept in the dark as regards the actual terms therein. It was denied by the defendant that he had handed over the title deeds to the purchasers pursuant to the agreement dated 3-5-1950 and that the said agreement had become finally complete. It was also denied that in furtherance of the agreement dated 3-5-1950 the defendant had made over the possession of the land and the factory, tools and spare parts to Mr. Daruwala. It was admitted that ultimately on 18-4-1951 an agreement of lease was made by the defendant with M/s. Dubash Brothers. But it was denied that this transaction was meant for depriving the plaintiff of his alleged brokerage or commission. THE defendant had not any way colluded with the purchasers nor had the sale transaction been cancelled with that end in view. THE transaction of lease was an honest and legitimate transaction. THE plaintiff, it was said while entering into an agreement of sale pursuant to the authority given by the defendant to him had made misrepresentations to the purchasers. Detailing out the items of misrepresentations, it was said, firstly, that the plaintiff had not disclosed to M/s. Dubash Brothers that he had no authority to sign the agreement of sale in respect of the agricultural land; secondly, that the defendant had only one grandson aged 3 years when in fact he had two grandsons aged 10 and 12, and thirdly, that the defendant would secure authorisation through Court for the sale of the property on behalf of his minor grandsons and would hand it over to the purchasers. THE agreement of sale executed by the defendant had provided that the said agreement was liable to be cancelled if there was any misrepresentation in the averments made therein. THE cancellation of the agreement had become necessary because of this mia- representation on the part of the plaintiff. THE purchasers, it was said, had refused to perform the contract because they had insisted upon the complete fulfilment of all the terms in the agreement one of which was incapable of performance. THE transaction therefore fell through due to the fault of the plaintiff himself. THE subsequent transaction of lease was a separate deal for which the plaintiff cannot lay any claim either for brokerage or for commission. THE plaintiff's claim for Rs. 36,500 was consequently said to be untenable. It was also contended that M /s. Dubash Brothers i. e. Rustamji Dorabshaw Dubash and Firoz Dorabshaw Dubash were necessary party to the suit.