J I J HYAM Vs. MEGUBBAY

JUDGEMENT

(1.) This appeal arises out of a suit for specific performance brought by the plaintiff, who claims to have entered into a concluded contract for the sale to the defendant of immoveable property in Calcutta. Negotiation is not denied, nor is there any dispute as to the identity of the property or as to the price, but it is contended by the defendant that there is no concluded contract and certainly not one that should be specifically enforced. The offence failed before Mr. Justice Chitty, and he passed the decree for specific performance from which this appeal is preferred.

(2.) The property in dispute belongs to the plaintiff, Mr. Gubbay, who lives in London. Mr. R.C. Cohen, acting on his behalf, instructed Mr. Owen, a house-broker, to find a purchaser. The price ultimately asked was Rs. 1,33,000. Mr. Owen found a person ready to purchase at that price in the defendant, Mr. Hyam, who is in the habit of buying property with a view to subsequent building operations. Mr. Hyam was told by Mr. Owen that there were certain conditions on which Mr. Cohen insisted. As the precise limit of those conditions is a matter in dispute between the parties, I will describe them generally as designed (1) to prevent the building of a temple or mosque on the land, and (2) to secure to the Jewish School, which occupied a part of the premises, a continuance of their possession for a year. To these terms Mr. Hyam expressed his assent in the sense in which he understood them. On the 13th November Mr. Owen wrote to Mr. Gregory, the plaintiff s attorney, as follows: Calcutta, 13th November 1912. 7/1 and 8, Pollock Street and 1, Mansook Lane. Gal. Gregory, Esq. Dear Sir, With reference to our conversation of date in regard to the above premises, my principal accepts your client s offer made by you to me for rupees one lac and thirty-three thousand only. My principal agrees to have no temple or mosque built on these premises or to cause any nuisance to the Jewish Synagogue. He further agrees that he will not ask the Jewish school to vacate for 12 months from the date of execution of the conveyance. The time to execute and complete the conveyance shall be for six weeks from the date of the contract, subject to approval of titles by my principal s solicitor. Please ask your client to confirm this to-day, if possible. Yours faithfully. Owen Owen.

(3.) On the 14th Mr. Cohen confirmed the arrangement orally to his attorney, Mr. Gregory, subject to the purchaser paying Rs. 5,000 as deposit money. Up to this time Mr. Hyam had not orally discussed matters with Mr. Cohen or Mr. Gregory, nor was he known by them to be the intending purchaser.