WILLIAM CHARLES BINNS Vs. WAND TAVERY LTD

JUDGEMENT

(1.) (His Lordship stated the facts as given above and after discussing the evidence concluded.) I find that the plaintiff agreed to accept a salary of Rs. 500 on 15 April 1932, and that the agreement was drawn up for a salary of Rs. 600 owing to a mistake on the part of the defendant company and did not express the intention of the parties, and that the plaintiff, fully realising the mistake, deliberately sought to take advantage of it. It was argued for the plaintiff that, on those findings, the result must be that the Court must enforce the contract as drawn up, for, as there was no counter-claim for rectification of that document, this Court could not give any equitable relief and that Section 22, Contract Act, provides that an agreement is not affected by a unilateral mistake. For the defendant, it was argued that a case of fraudulent misrepresentation had been established, and that, apart from anything in the nature of fraud, there was a mutual mistake of fact, or a mistake on the part of the defendant company in recording the agreement, or a mistake induced by the conduct of the plaintiff. Any case of fraud must come within the particulars given. There is nothing to support the allegation that the plaintiff fraudulently concealed that he was then only drawing Rs. 460 a month. I find nothing to support the allegation that the defendant company relied on anything stated by the plaintiff, but, as stated above, in my opinion, the plaintiff knew when he saw and signed the agreement that the real agreement was that his salary should be Rs. 500. Whether this amounts to fraud and comes within the particulars will be discussed later. I find nothing to support any case of a mutual mistake?the fact being that the plaintiff was under no mistake of fact at all.

(2.) The parties appear to have been ad idem in the sense that both Mr. Allinson and the plaintiff knew that they were signing an agreement for Rs. 600. At the same time the plaintiff knew that that was not the real agreement and Mr. Allinson then thought that it was. Unless it was the duty of the plaintiff to point out the mistake, he did nothing to induce the defendant company to sign the agreement. Undoubtedly when a written contract has been signed by the parties, the party alleging that it has been erroneously recorded and that he signed it under a mistake, must establish that fact beyond all doubt. Even if such mistake is established it was contended that unless fraud is also established the plea must fail. On this point Jenkins, C. J., in 28 Bom. 420 Dagdu V/s. Bhana, (1904) 28 Bom 420 laid it down that a mistake known at the time to the other party may be proved and performance In accordance with the terms of the error will not be compelled. He also said that this rule applied when the party could not have reasonably supposed that the words expressed the real intentions of the parties.

(3.) In 30 Beav 445 Garrard V/s. Frankel, (1862) 30 Beav 445 Romilly, M. R. ordered the rectification of a lease where the lessee agreed to pay ? 230 and signed the lease for ?130, knowing that there was an error, but he did not characterize the conduct of the defendant as fraudulent and based his decision on the ground that the lease did not correctly express the agreement of the parties.