SHANKARLAL NARAYANDAS Vs. NEW MOFUSSIL CO LTD
HIGH COURT OF BOMBAY
NEW MOFUSSIL CO LTD
Referred Judgements :-
VON HATZJELDT-WILDENBURG V. ALEXANDER
BHUP NARAIN SINGH V. GOKHUL CHAND MAHTON
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Du Parcq, J. -
(1.)IN the suit which has given rise to this appeal, the plaintiff (now the appellant) claimed against the defendant company specific performance of an oral agreement made by the company through its liquidator, Sir Shapurji Bomanji Billimoria, for the sale to the plaintiff of a pressing and ginning factory at Dhulia. He claimed the like relief against the remaining defendants, in accordance with Section 27 of the Specific Relief Act, as persons claiming under the defendant company by a title arising subsequently to the contract.
(2.)IT may be said at once that if the plaintiff is entitled to the relief which he claims against the defendant company, no question arises as to the liability of the other defendants. IT is common ground that a contract for the; sale to them of the factory was entered into after the date of the contract alleged by the plaintiff, and they made no attempt at the trial to prove that they had paid the purchase money in good faith and without notice of the original contract. Their Lordships have found it unnecessary to examine the evidence which was called on behalf of the plaintiff to show that these defendants in fact had notice of the earlier contract, since a decision
This Board is clear authority for the proposition that the burden of proving good faith and lack of notice lay upon the defendants. (Bhup Narain Singh v. Gokhul Chand Mahton (1933) L. R. 61 I. A. 115: s. c. 36 Bom. L. R. 421 ).
(3.)THE suit was tried , before the First-class Subordinate Judge of Dhulia. An objection was taken to the jurisdiction of the Court. Both the trial Judge and the Judges of the High Court over-ruled it, and the respondents have not persisted in it. Apart from that objection and from questions as to the relief to which the plaintiff was entitled which are not now the subject of dispute, the case as it was presented to the learned Judge was a simple one. It appeared that the plaintiff had authorized one Nandurdikar, a broker, to buy the factory on his behalf, and, if necessary, to pay as much as Rs. 65,000 for it. THE liquidators of the defendant company were Sir Shapurji Bomanji Billimoria and a Mr. A. M. Kajiji, since deceased, and it was with the former, who undoubtedly had authority to act for the company, that the negotiations were carried on. After some preliminary discussion the negotiations came to a head in a conversation between Sir Shapurji and Nandurdikar at Bombay on July 7, 1936. THEre was little difference between the accounts given by Sir Shapurji and Nandurdikar of what took place on that day. THE trial judge summarizes Sir Shapurji's account of the interview as follows :
He (Nandurdikar)' offered Rs. 62,000 as price of the suit factory. Sir Shapurji declined, Nandurdikar came to his office again on July 7, 1936, at 4 p. m. ; he offered Rs. 83,000 and Sir Shapurji accepted the offer. Sir Shapurji told Nandurdikar that the earnest money was to be Rs. 10,000, that half the costs: were to be borne by each party, that the completion period was to be one month and that there were to be other usual terms which are incorporated in agreements by solicitors. He accepted Nandurdikar's suggestion to pay brokerage at 2 1/2 per cent. Nandurdikar accepted the terms and went to fetch the earnest money. Sir Shapurji called Antia who is a clerk of the defendant No.1 company and told him the terms agreed upon between him and Nandurdikar. He told Antia to take Nandurdikar to Mr. Manekshaw to have the usual agreement drawn up. He told Nandurdikar when he came back to go with Antia. Sir Shapurji left his office at 5-30 p. m. or thereabout. He got a telephone call at his bungalow from Mr. Manekshaw to the effect that the party was offering Rs. 7,000 by way of deposit though he had agreed to pay Rs. 10,000 as earnest. Sir Shapurji agreed to accept Rs. 7,000 on the suggestion of Mr. Manekshaw.
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