CARRITT MORAN AND CO Vs. MANMATHA NATH MUKHERJEE

JUDGEMENT

(1.) This is an appeal from a judgment of McNair J. delivered on 24 April 1939, and the consequent decree, whereby he awarded a sum of Rs. 28,530-4-1 to the plaintiff as damages. The plaintiff, Manmatha Nath Mukherjee, is a gentleman who has been interested for some time in tea companies; he is also a director of the Bengal Central Bank, Ltd., which has its head office in Calcutta. The defendants are a firm of auctioneers and tea brokers, who sell tea in the wholesale way in Calcutta. The damages awarded are in respect of the sale by the defendants of tea grown and manufactured on the Parkul Tea Estate in Sylhet between April a December, 1936, on the ground that the said sales were wrongful sales of the plaintiff's tea.

(2.) In July 1935 the Parkul Tea Estate was owned by the Chandpore Tea Company, Ltd., a company with its registered office in London; the agents of the company in Calcutta were Messrs. Barry & Co. Mr. P.C. Syam, a gentleman of about 35 years of age who had already agreed to buy the Longucherra Tea Estate from the Bengal Central Bank on an instalment purchase, was in negotiation with Messrs. Barry & Co., for the purchase of the Parkul Tea Estate. Between 24 July 1935 and 20 September 1935, letters had passed between Messrs. Barry & Co. and Mr. Smart, the Superintendent of the Chandpore Tea Company and Mr. Syam relative to the purchase of this estate. The parties had got a long way towards an agreement but had not definitely arranged the final terms. On 23 September 1935, the plaintiff, who as a Director of the Bengal Central Bank had dealings with Mr. Syam in connexion with the purchase of the Longucherra Tea Estate, had a conversation with someone in Messrs. Barry & Co.'s office in Calcutta and made a verbal offer for the purchase of the Parkul Tea Estate which is set out in Messrs. Barry & Co.'s letter to the plaintiff of 23rd September 1935. This offer was slightly better as regards the price and more definite as regards the terms, than the offer previously made by Syam. From that time onwards, Syam disappeared from the picture with respect to the purchase of the Parkul Tea Estate. Other letters passed between the plaintiff and Messrs. Barry & Co., during the first half of October and, as a result, an agreement in writing dated 14 October 1935, between the Chandpore Tea Company and the plaintiff was entered into. The relevant terms of that agreement are: (1) The company to sell and the purchaser to buy the Parkul Tea Estate free from all encumbrances together with the lands, buildings, machinary, fuel, implements, tools, tea boxes, stores standing or being in or upon the premises and also all the tea and crop and all tea already manufactured or to be manufactured during the season 1935. (2) The purchase price fixed at a total of rupees two lacs, subject to certain adjustments in respect of tea grown and manufactured up to 14 October 1935. (3) Subject to due payment of the whole of the consideration money by the purchaser on or before 14 October 1935, formal delivery of possession of the Parkul Tea Estate to be given by the company to the purchaser on 15 October 1935. (4) As from delivery of possession on 15 October 1935, all tea on the garden whether growing, plucked, manufactured, or in the process of manufacture, to become the absolute property of the purchaser and to be under his sole and absolute control. (6) The execution of a formal deed of conveyance to be executed later. (8) The purchaser to be entitled to the benefit of all tea purchased or manufactured by the tea estate during the 1936 season, and the company to render to the purchaser account sales of all teas sold by the company whether in London or Calcutta less shipping, freight, warehouse, landing, and selling charges and to pay to the purchaser the net proceeds of such sales on realisation.

(3.) The agreement was signed by Mr. Cooper, on behalf of the Chandpore Tea Company, and by Mr. Mukherjee, the plaintiff. The tea producing season is from March to November each year. On 15 October 1935, the plaintiff paid Messrs. Barry & Co.'s agent rupees two lacs in respect of the purchase. On the same date the plaintiff wrote to Messrs. Barry & Co. asking them to inform the Tea Licensing Committee and the Secretary of the Indian Tea Association that he had bought the Parkul Tea Estate. On 16 October 1935, Messrs. Barry & Co. wrote back informing the plaintiff that they were advising the various interests concern-ad of the change of ownership. It will be noticed that only the plaintiff's name occurs as purchaser in the agreement of purchase. Syam contends that he had an arrangement with the plaintiff whereby the plaintiff was to buy the Parkul Tea Estate and put Syam in possession of it so that he could work it on his (Syam s) behalf, and out of the profits Syam was to pay off the purchase price. The plaintiff denies this arrangement. It should also be mentioned that Syam had sold tea from the Longucherra Tea Estate through the defendants, but the tea from the estates in which the plaintiff was interested had never previously been sold by the defendants. On 17 October 1935, Syam wrote to the defendants as follows: We have purchased Parkul Tea Estate at rupees 2,00,000 with all teas so far made here this season. I have taken possession of the garden on 15 October 1935. The property appears to me to be quite nice. Today I have despatched 54 chests of tea from this garden to Calcutta for sale with export rights through your firm...You will get R/R from the Bengal Central Bank, Ltd., whom I have instructed to hand it over to you. I am sending another challan of similar quantity tomorrow. Please try to realise the best rate in the market so that I can make up the capital lay out early.