TATA INDUSTRIAL BANK, LIMITED Vs. RUSTOMJEE BYRAMJEE JEEJEEBHOY

JUDGEMENT

(1.) This is an appeal from a judgment of Mr. Justice Kajiji delivered on an Originating Summons taken out for the determination of the question whether the plaintiffs or one of them are or is not entitled to specific performance of so much of the contract of the 10th of December 1917 as the defendants can perform and compensation in money for the deficiency. The defendants are the present trustees of the Jeejeebhoy Dadabhoy Charity Fund, and as such trustees are the owners of an immovable property in Meadows Street, for the sale of which at the price of Rs. 7,41,000 they have obtained the sanction of the Court. The agreement between the defendants and the plaintiffs is contained in two letters of the 10th of December 1917. The first is an offer by the defendants, the material passages in which are: Our clients have agreed to sell to you their property at Meadows Street containing by admeasurement 1482 Sq. Yds. or thereabouts of quit and ground rent tenure bearing Collector s Old No. 131,131, New No. 4977,4978 and the New Survey No. 9429, and Municipal Ward A No. 1120, Street No. 117, for the sum of Rs. 7,41,000. Our clients have brought to your notice that notice has been served on them under the Land Acquisition Act for compulsory acquisition of a part of the property, namely, 160 Sq. Yds. or thereabouts, situate at Armenian Lane, and the sale is subject to the sanction of the Court.

(2.) The acceptance was in the following terms. Messrs. Tata Sons & Co. wrote: With reference to your letter of date written on behalf of your clients, trustees of Jeejeebhoy Dadabhoy Charity Fund, we beg to confirm the agreement to sell to us their property at Meadows Street mentioned therein for the sum of Rs. 7,41,000 upon the terms and conditions mentioned therein. We enclose herein our cheque for Rs. 25000 by way of earnest money.

(3.) On the 18th February the solicitors of the plaintiffs Bank submitted to the defendants solicitors a draft conveyance in the schedule to which the area of the property to be conveyed was stated to be 1482 square yards. On the 15th March the same solicitors wrote to the defendants solicitors as follows:- We were compelled to send for the engrossment of the conveyance etc., herein this afternoon as it was found that the area stated on the plan prepared by Mr. Chambers was shown as 1281 Sq. Yds. whereas in the correspondence leading to the agreement to purchase, in the Deeds and in the Collector s Bill the area appears as 1480 and 1482 Sq. Yds. respectively. Under our clients instructions we have written to Mr. Chambers this afternoon asking him to measure the property at once and we will write to you further as soon as, we are in a position to do so.