SWARATH RAM RAM SARAN Vs. RAM BALLABH

JUDGEMENT

(1.) The facts of this case will be better understood by a reference to the following pedigree:

(2.) This is the appeal of the plaintiffs from a decision of the Subordinate Judge of Agra in a suit for specific performance. The learned Subordinate Judge decided, for reasons which we shall discuss, that the plaintiffs were not entitled to the relief claimed by them. The plaintiff-firm is known as Swarath Ram-Ram Saran and Sital Prasad is one of the owners of that firm. For many years they had occupied as tenants a godown at Agra. The landlords were the defendants. The defendants in the year 1913 mortgaged this godown together with other Properties to Nemi Chand for the sum of Rs. 90,000 carrying interest at the rate of 6% per annum. On the 11 of April, 1914 it appears that the defendant firm sent a notice to the plaintiffs enhancing their rent from Rs. 400 to Rs. 750 a year. On the 13 of January, 1917 there was a partition. The principal parties to that partition were the sons of Bal Mukand, Ram Kumar and Ram Gopal. The effect of the partition was that Nandan Lal, the son of Ram Kumar, was bought out and thereafter the son of Bal Mukand, Ganga Baksh, and the sons of Ram Gopal each had a half share in the business which, we have been told, was that of commission agents, that is to say, presumably at the end of each financial year the profits of the business would be equally divided between the sons of Ram Gopal and the son of Bal Mukand. In April 1917, and probably towards the end of that month, there was a conversation between Sital Prasad, Ram Ballabh and Nemi Chand as regards the purchase of the godown by the plaintiffs. There was some conversation as regards the price ranging round Rupees 11,300 but eventually on the suggestion of Nemi Chand, Sital Prasad expressed his willingness to give Rs. 12,000 for the property. Ram Ballabh seems to have acquiesced in this as being a reasonable offer and one which he himself would have accepted had the decision rested entirely with him and he stated that he would return to Sambhar and discuss it with the other people who were interested in the property. At this date there is reason to believe that Ganga Baksh was alive. He was undoubtedly dead on the 27 of May. According to the evidence no message came from Sambhar as to the offer and about the 18 of May, Ratan Lal, munib of the plaintiff-firm, wont to Sambhar and had an interview with Ram Ballabh. The question whether he ever went there has been disputed and it has been pointed out that in this firm one would expect to find a record of his expenses, whereas it is admitted that no record exists. The answer is according to the evidence, that Sital Prasad paid the sum of Rs. 10, 12 or 15 which was said to be the cost of the journey from Agra to Sambhar and back, out of his own pocket.

(3.) We think be must have gone and on his return he said that there had been an agreement by all the interested parties. The next matter is one of importance. It is said that on the 20 of May Ram Ballabh wrote a lotter to Nemi Chand addressed to Ajmere. At that date apparently Nemi Ohand was in Agra. He was at all events in Agra on the 22 May, and on the 22 May, he sent for Sital Prasad who, with Ratan Lal, went to see him. He is stated to have shown the original letter of Ram Ballabh to Sital Prasad and Ratan Lal and Ratan Lal is said to have taken a copy. Before reading the letter we might just mention here that in our opinion the copy of the letter which Was preferred to the Court and which was reserved in evidence ought not to have been received for the reason that the preliminary steps were not taken which would have made that document evidence. Nemi Chand having died, the presumption would be that the letter was in the possession of Tikam Chand, his son and successor to the business, and a notice ought undoubtedly to have been sent to Tikam Chand to produce that document. If Tikam Chand had then said that it was not in his possession, then, if it was likely that it was in the possession of any one else, another notice should have been sent to that person. Indeed it was suggested that the letter had passed into the possession of a man named Ram Kumar who was said to be such a long way away from the Court at a place called Hoshangabad. No matter whether he was there or not, the rules of the Court must be obeyed and before the Judge could have received this copy in evidence he ought to have been satisfied that the preliminary steps bad been taken both as regards Tikam Chand and Ram Kumar to rind out the whereabouts of that original document. However, the case proceeded and the Court accepted the letter and we also now accept it as a true copy of a document which did arrive at Agra on the 22nd of May, 1917 and did come from Ram Ballabh. That letter shows that the writer expected that the munib of the plaintiffs was very likely to have come to Nemi Chand in respect of the sugar godown and the letter further says that the munib has also seen him. That does support Ratan Lal in his statement that he had in fact gone to Sambhar. "Please send for him and get earnest money in respect of Rs. 12,000 deposited. Please bring him round politely." Now that undoubtedly meant that Ram Ballabh did not want to lose a purchaser at Rs. 12,000 and he wanted Nemi Chand, who is a man of considerable social position at Agra, to deal carefully and prudently with the munib and arrange the contract. There is the sum of Rs. 12,000 mentioned and it had already been a matter of assent by Nemi Cband that if this money were paid he would reduce the principal sum under the mortgage to Rs. 78,000 with a corresponding reduction of interest, aud inasmuch as the defendants were receiving Rs. 400 only as rent and were paying Rs. 720 per annum as interest, it was obviously to tbeir interest to get this matter carried through without delay and it was good business to sell the godown. Sital Prasad says that he assented to the terms of this letter and that in faot he gave Nemi Chand a document in writing setting out all the particulars. Again, no stop was taken by the plaintiffs.to get that document and there is no evidence before this Court as to its contents. But we do know that on that day Nemi Chand mentioned Rs. 200 as the necessary earnest money and on that day the Rs. 200 was paid into the account of Nemi Chand. On the 27 of May, 1917 the firm of Seth Ram Ballabh executed a power of attorney to two people, one Tara Chand and the other Kewal Chand. On the 14 of July, 1917 a stamp vendor at Ayra sold a Rs. 120 stamp to a man whose name he recorded as Kewal Ohand, munib of Hira Lal Chunni Lal. It is said that Kewal Chand came down to Agra on this very business and was there round and about the 14 of July. It is further stated that a draft of the sale-deed was prepared by Ikram Husain, that it was submitted to Kewal Chand, that the parties went to a pleader named Basdeo Sahai. Basdeo Sahai thought it better to re-draft the whole agreement. Kewal Chand took that document away with him. At this interview with Basdeo Sahai, and possibly before, the name of Hansraj was mentioned. He, it will be seen; is the son of Chunni Lal and Sital Prasad was anxious that Hansraj should be one of the executants of the sale-deed. Kewal Chand opposed it and said that it was not necessary because Hansraj had become bankrupt in Bombay some time before and bad ceased to have any interest in the business. Sital Prasad was clearly not satisfied with this and instituted enquiries and those enquiries, according to Ratan Lal, took 1 to 2 months and according to Sital Prasad five to six months before it was ascertained that Hansraj had been adjudicated bankrupt. Later we shall show that there is a curious circumstance in connection with this because we have not been able to discover on the record Exhibit IV, mentioned in the evidence of Sital Prasad. The conclusive document which shows that Hansraj did become bankrupt is under the seal of the Bombay High Court. The date when the document was obtained from Bombay is the 30 of September 1918 and it evidences Hansraj's bankruptcy in 1914. On the 29 of July, 1917 the defendants wrote a letter to the plaintiffs. It is a document which has given us cause for a certain amount of doubt as to whether Kewal Chand was in fact in Agra at the time when the stamp of Rs. 120 was purchased because the whole tone of the letter is that of a man who has never seen the text of any draft, who is anxious to got the matter through and who is prepared to send Kewal Chand after the receipt of it. But at all events whatever may be the real truth about it whether Kewal Chand came to Agra or not, this letter of the 29 of July, 1917 asks the plaintiff not to make a delay. From that date, viz., the 29 of July 1917 there is an unbroken silence for a year. It is said that during that period the plaintiffs wore verbally urging the defendants to complete but the evidence is very slender on that and in any circumstance a plaintiff seeking specific performance must show a great deal more than verbal request week after week and month after month to complete. The plaintiffs must force the defendants either to complete or to repudiate. There is no real explanation of how it happened that the delay occurred, but it may very well be that Basdeo Sahai, afc the interview when the name of Hansraj came up, pointed out to Sital Prasad that the mere fact of a bankruptcy of a member of the firm did not make that member walk out of the firm, hut merely substituted his trustee in bankruptcy for him and that if in fact Hansraj had any property in this business that was of value, the trustee in bankruptcy could come in and could claim it. That may have been one of the circumstances that disposed the plaintiffs to hesitate as to whether this contract was worth carrying through. On the 26 of August, 1918 the defendants wrote a letter to the plaintiffs asking for an account relating to the godown which is rented by them. It is very curious that there is no reference whatever to be found in this letter to the fact that they bad through the agency of Nemi Chand entered into a firm contract of the sale of the godown for Rs. 12,000 and the letter is the ordinary letter which one would expect from people who had stood to each other in the relationship of land-lord and tenant. For the moment we pass over a very material date to mention that on the 5 of September, 1918 an account was sent by the plaintiffs in which the included the sum of Rs. 200 which had been paid as earnest money and the further sum of Rs. 120 which had been spent in the purchase of the stamp paper. The explanation of that may possibly be that a munim was told to make out the account as it stood between the parties and he merely took a copy of the ledger exactly as it was and that there was in that ledger no separate rent account and no separate purchase account. An important date to which we have to refer is the 30 of August, 1918. At p. 93 of the record will be found a letter of the most definite repudiation. It shows that there had been a registered letter sent by the plaintiffs after the 12 months of unexplained silence. That registered letter, we are told, was a notice directed to the defendants to complete the contract. We think there is no doubt that by this time the plaintiff-firm had come to know that the defendants second party on the record Sarju Prasad and others had begun the negotiation for the purchase of this godown. The letter of repudiation written on behalf of the firm by a pleader says: "I neither sold any house to you, nor took any earnest money." It makes a reference to the fact that the rent should be Rs. 750 and again asks for an account. Notwithstanding that most plain assertion by the defendants that there was no contract and never had been one, the plaintiffs wait ten more months before they commence the action and in fact sent the account of September 5th. In the interval they sent notices to various people who are connected with Sarju Prasad and others, the defendants second party, telling them that they (the plaintiffs) have entered into a contract for purchase of the godown and warning them not to buy over their head. On the 23 of March, 1919 the defendants first party sold the godown to the defendants second party for the sum of Rs. 14,250. On the 14 of June, 1919 this suit was instituted.