GOSTHO BEHARI SADHUKHAN Vs. OMIYO PROSAD MULLICK

JUDGEMENT

(1.) THIS appeal from a judgment of Bachawat, J., by which he dismissed the appellants' suit for specific performance of an agreement for lease of premises No. 219, Cornwallis Street, Calcutta and gave a decree for the refund of the sum of Rs. 7,201/ -from the first three defendants, raises several questions of law of which two are particularly important and interesting. One of these is the question as to how far the provisions of Section 110 of the Transfer of Property Act that if no particular date of commencement of the lease is mentioned in the document creating the lease, the date of execution of the document should be the date of commencement of the lease, can be taken into consideration in arriving at a conclusion, where an agreement for lease mentions no date of commencement of the lease, whether any date of commencement has by implication been agreed upon. The other question is : How far delay in the plaintiffs' institution of the suit for specific performance will disentitle him to such relief? The plaintiffs, Gostho Behari Sadhukhan and Sarat Chandra Sadhukhan, brought the suit on the averment that there was a concluded agreement by correspondence by which Omiyo Prosad Mullick, Radha Gobinda Mullick and Shib Prosad Mullick, who will be referred to hereafter as Mullick defendants, agreed to grant them, the Sadhukhans, a lease of 219, Cornwallis Street, of which they are the owners and that though the plaintiffs have, since the date o conclusion of the agreement, always been and are still ready and willing to perform the said agreement, the Mullick defendants have failed to grant the said lease and in breach of that agreement granted a lease of the premises to Indu Bhusan Bose, Phani Bhusan Bose and Satya Bhusan Bose who were impleaded as defendants 4, 5 and 6. Satya Bhusan having died during the pendency of the suit, his heir and legal representative Rama Bose was brought on the record as defendant No. 6. These defendants 4, 5 and 6 will be referred to hereafter as the Bose defendants. The main defence of the Mullick defendants as taken in the written statement is that there was no concluded agreement to grant a lease and by correspondence only certain terms of the lease was agreed upon while 'there were other equally important terms which the plaintiffs and these defendants were still discussing by correspondence and with regard to which no agreement had been reached'. It was further alleged that though the 'defendants proceeded with the negotiation on the assumption that the plaintiffs would, as was the custom in Calcutta, pay these defendants their solicitor's costs of preparation and execution of the lease if one was eventually agreed upon, the plaintiffs by their solicitors' letter dated 29 -3 -1944 and 30 -3 -1944 respectively refused to pay such costs on the ground that there was no express agreement to pay such costs.' It was further urged that 'it was the intention of these defendants and the plaintiffs that they would not be bound by any agreement until a former indenture of lease was prepared and executed'. The Bose defendants besides reiterating the plea that there was no concluded agreement as between the plaintiffs and the Mullick defendants to grant lease, pleaded that they were 'bona fide transferees for value who paid the money and came into possession of the said premises in good faith and without any notice of the alleged agreement'. The Bose defendants also took the further defence that 'the plaintiffs are not entitled to any relief against these defendants on account of delay and acquiescence.' Of the issues that were raised on these pleadings, we are concerned with 6 only for the purpose of appeal. These are :

(2.) ON a consideration of the evidence, oral and documentary, the learned Judge rejected the defendants' contention that the agreement was conditional upon the preparation of a draft of the lease by the lessor's solicitors and the approval thereof by the lessee's solicitor and that the reference for the preparation and approval of the draft lease in one of the letters was a 'mere expression of the desire of the parties as to the manner in which the transaction already agreed will in fact go through'. He was of opinion 'that apart from the question of the date of the commencement of the lease all other essential terms had been settled and agreed upon between the parties', but that 'the date of commencement of the lease was not expressly agreed upon.' On further consideration of the evidence and the arguments based on behalf of the plaintiffs on Section 110 of the Transfer of Property Act, the learned Judge held that 'the parties left the matter of the date of commencement of the lease to be decided by future negotiation'. He observed 'I think that the parties contemplated that in the ordinary course of events the lease would be executed within a reasonable time. They did not anticipate that there would be any difficulty in settling the matter by negotiation. It is possible that if the lease was completed within a reasonable time as contemplated by them they would have agreed that the term of the lease would commence from the date of the execution of the lease. But as the matter stands today the date from which the term is to run is not fixed and is not certain.' Holding that 'the parties had omitted to provide in the agreement about the date of commencement of the term of the lease and consequently the agreement is essentially defective and uncertain and cannot be specifically enforced'', he held 'that a contract for the grant of lease had not been concluded between the parties'.

(3.) THE first contention on behalf of the appellant is that the learned Judge is wrong in his view that the date of the commencement of the lease was left to be decided by a future negotiation, but should have held that the parties agreed, though not expressly, that the lease should commence on the dateof execution of the document for the lease. Next it was contended that the learned Judge was wrong in finding that there was in Calcutta a custom that a lessee pays the lessor's solicitor's costs for preparation and execution of the lease and that even if there was such a custom and so such obligation by the lessee to pay such costs to the lessor be an implied term, the learned Judge was wrong in holding that this was repudiated. It was further urged that even if the evidence justifies the conclusion that such a condition was repudiated this was not an essential term of the contract and repudiation thereof does not in law disentitle the plaintiffs to specific performance.