SORABSHAH PESTONJI Vs. SECRETARY OF STATE FOR INDIA

JUDGEMENT

(1.) [His Lordship after setting out the facts of the case, proceeded ] This brings me back then to what are the strict legal rights of the plaintiff Mr. Thakor very frankly in.his opening said that he did not think he could properly put his case as one of fraud. We have looked at the definition of fraud in some of the authorities, and it seems to us that that submission of Mr. Thakor was only a right and proper one to make. It is but fair to say that there is not before us the slightest evidence that any officer of Government deliberately put forward this statement about the shops with the intention to deceive the plaintiff s, or in any other but the honest belief that the statement was correct. At most it amounts to this that there was an omission to state a material fact.

(2.) The consequences of that omission I will now consider. Here I wish to repeat that we have not thought it necessary to call on the pleader for the respondent, and therefore anything that I may say must be taken subject to that fact. But it seems to me that the Only remedy now oPen to the plaintiffs is one under Section 19 of the Indian Contract Act on the ground of misrepresentation. Section 18 defines misrepresentation as inter alia "(2) any breach of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him? by misleading another to his prejudice or to the prejudice of any one claiming under him; (3) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement."

(3.) Now, here, the vendor put forward a statement as to the liquor shops. He was under no obligation to do so. But if he did so, then prima facie that statement ought not to be misleading. It is said, therefore, that the case comes within Section 18(2), and that in any event it comes within Section 18(3) because the plaintiffs thereby made "a mistake as to the substance of the thing" they were contracting for, viz., that they thought they were buying a liquor shop whose nearest rival was some six miles away in an unfavourable locality, whereas the liquor shop they in fact bought had a rival placed in much more favourable circumstances than that. Whether there was such a misrepresentation it is unnecessary for us to hold. But for the sake of argument only I will assume that there was misrepresentation within the meaning of Section 18.