NAWAB KHAJA HABIBULLAH Vs. ARMAN DEWAN

JUDGEMENT

(1.) This is an appeal by the defendants in a suit for possession of land upon specific performance of an agreement to lease, and, in the alternative, for refund of earnest money. The defendants are proprietors of a newly formed chur which they desired to lease out on the best terms available. The property was accordingly pat up to auction and the plaintiff offered the highest bids for rent and premium, namely, Rs. 10 and Rs. 131 gar kani respectively. This was accepted by the agent of the defendants on the 20th December 1911, and the following is the material portion of the agreement which was executed by the plaintiff in favour of the defendants on that date: Out of whatever amount would be fixed as selami according to the quantity of the land, we do deposit today Rs. 200 as earnest money, and within seven days from this date, we shall deposit with the agent at Barisal the balance of one fourth of the total amount of selami; if we fail to do so, the said sum of Rs. 200 paid as earnest money shall be forfeited to the Sarkar of the Nawab Bahadur without any objection on oar part. We shall pay the balance of the selami money to the agent at the time of the execution of the document. We shall pay rent at the said rate of Rs. 10 par kani for whatever land the agent shall, after personal inspection, ascertain as fit for cultivation, and the said agent shall at that inspection settle what rent would be payable for the ract of, the land till the same become fit for cultivation. Be it also expressed that for whatever land would be reformed in future, we shall pay selami for the same at the said full rate of Rs. 131 per kani and shall pay rent at the said fall rate of Rs. 10 per kani

(2.) It will be observed that two important elements of the proposed lease were left undetermined: (a) the area of the land to be demised, and (b) the rate of rent for land not yet fit for cultivation.

(3.) On the 28th December 1911 the son of the plaintiff appeared before the agent and prayed that ?he terms previously fixed might be varied by the assessment of a progressive rent, the maximum to be less than Rs. 6 par kani, and also by reduction of the rate of selami. The agent refused to alter the terms, recorded an order to that effect on the petition and added: Your father must fulfil the contract, Pay Rs. 1,000 yon say you have brought as part of the selami and bring the balance at once." Rs. 1000 was paid down, but the plaintiff did not otherwise carry out this order and, on the 28th March 1912, the Pleader for the defendants served a notice upon him demanding completion of, the contract. The notice added that if the contract was not carried out in a week, the plaintiff would not get a refund of the sum deposited which, according to the written condition, had been forfeited. The notice further contained a threat that the defendants would, if the plaintiff made further default, lease out the land and realise from him any lost that they might thereby suffer. The plaintiff replied to this notice on the 5th April 1912, urged that the default was on the part of the defendants and claimed a refund of the sum of Rs. 1,200 deposited together with compensation for the loss he bad sustained. Nothing further happened till the 21st December 1914, when the plaintiff instituted the present suit for specific, performance of the contract, on, in the alternative, for refund of the deposit with interest. The defendants repudiated the suggestion that they ware in default and pleaded that the plaintiff was not entitled either to specifics performance or to refund of the deposit. The Subordinate Judge has refused to decree specific performance on two grounds: (1889) 14 App. Cas. 429 at p. 415; 59 L. J. Ch. 214; 61 L. T. 702; 38 W. R. 449 the contract was incomplete, as all the material terms had not been determined, and (1839) 9 A. & E. 508; 1 P. & D. 379; 8 L. J. Q. B. 179; 48 R. R. 568; 112 E. R. 1304. the plaintiff was in default. As regards the alternative claim for refund of the deposit, the Subordinate Judge has held that the first sum of Rs. 200 has been forfeited but that the second sum of Rs. 1,000 can be recovered. He has made a decree accordingly in favour of the plaintiff. On the present appeal by the defendants, it has been argued that the Subordinate Judge should have hell that the second sum of Rs. 1,000 also had been forfeited. Stress has further been laid on the damage alleged to have been suffered by the defendants as the result of the breach of contract, by the plaintiff. This circumstance, however, is not material, as the defendants did not set up a counter claim for damages, nor did they institute a separate suit for recovery of damages for breach of contrast. The only question in controversy, consequently, is whether, in the events which have happened, the second sum of Rs. 1,000 has been forfeited like the first sum of Rs. 200.