PRITAM DAS Vs. AKBARI

JUDGEMENT

(1.) ON a difference between Honourable Justice Shiv Dayal and Honourable Justice s. B. Sen, the following question has been referred to me for my decision:-" whether the agreements (Exs. D-1 and D-2 ). relied on by the defendants, were executed before the agreement for sale between the plaintiff and defendants 1 and 2 was executed ?"

(2.) TO appreciate the circumstances In which the difference between the honourable Judges arose it is necessary to narrate a few facts. The original defendant No. 1 Hidayatullah owned the suit house situate in Lashkar, Gwalior, near the Town Hall. In one portion of the ground-floor the plaintiff has his shop, while the other portion is occupied by the Bata Shoe Company (the third defendant ). Hashmatullah (defendant No. 2) is the son of defendant No. 1 hidayatullah. Hashmatullah had entered into an agreement with the plaintiff to transfer the suit house for a consideration of Rs. 20,000/- on 30-11-1958. Under this agreement, a sum of Rs. 1,000/- was to be paid by way of earnest money, and rest of the amount was to be ipaid at the time of registration. Inasmuch as hashmatullah had entered into this agreement on behalf of his father as his mukhtyar Aam and inasmuch as he had not 'produced the necessary documents to satisfy the plaintiff that he had the said authority, only Rs. 200/- were paid to him by way of earnest money and he was requested to produce the necessary documents after which another agreement was to be executed. On 8-12-1958. Hashmatullah sent a letter to Pritam Das, the plaintiff, asking him to fix a date for examining the relevant documents at Gwalior and after which and receiving the balance of Rs. 800/- Hashmatullah had shown his willingness to execute another agreement. Accordingly, on 21-12-1958, Hashmatullah executed an agreement (Ex. P-l)agreeing to transfer the property for Rs. 20,000/ -. On that date. he was paid Rs. 800/- thus making up the earnest money originally agreed upon. The agreement was signed by Bishandas (P. W. 1) and Hariram (P. W. 2 ). It was also authenticated by Shri Dalani, Notary, Gwalior. On that date, Hashmatullah had also shown to the plaintiff a registered power of attorney from his father dated 2410-1958. The original agreement dated 30-11-1958, it is alleged, was returned to hashmatullah. On 29-12-1958, Hashmatullah sent another letter (Exhibit P-5)asking the plaintiff to fix a date for completing the sale of the suit house. On 24-11959. Pritam Das. the plaintiff, published a notice (Ex. P-6) in the newspaper "hamari AAWAZ" informing the general public that the plaintiff had entered into an agreement to purchase the house through Hashmatullah s/o Hidayatullah and inviting objections of any claimants within 15 days. It appears that the local agents of the Bata Shoe Company came to know about this agreement and informed their office. On 26-2-1959 a notice (Ex. P-7) was sent on behalf of the bata Shoe Company by their counsel Shri Muzumdar informing the plaintiff that hashmatullah had, under a power of attorney granted to him by his father, entered into a valid agreement for sale of the house with the Bata Shoe Company for a consideration of Rs. 10,500/- on 18-11-1958 and that Hidayatullah was also a confirming party to the said sale and that the notice referred to in "hamari aawaj" dated 24-1-1959 was of no avail to the plaintiff.

(3.) ON 4-3-1959. Hashmatullah sent a letter (Ex. P-10) to the plaintiff expressing his helplessness in the matter of completing the sale and asking him to take back his amount of Rs. 1,000/ -. Hashmatullah had stated in the letter that he had come to know from his father that he had already entered into a prior agreement with the Bata Shoe Company, to sell the house to them. On receipt of this letter, on the same day Pritam Das sent a letter to Hashmatullah informing him about the claim put forward by the Bata Shoe Company and asking Hashmatullah to come personally and clarify the true position. He had also sent 2-3 letters to both hidayatullah and Hashmatullah expressing his surprise as to their activities. On 12-3-1959. a notice (Exhibit P-13) was sent to the Bata Shoe Company asking them to refrain from. purchasing the property and informing them about the intention of the plaintiff to file a suit for specific performance. No reply was given to this notice which was sent through counsel. On 28-3-1959, the Bata Shoe company got a sale deed (Ex. D-3) executed in their favour by Hidayatullah himself. When the plaintiff perhaps came to know about the execution of the sale-deed a letter dated 15-4-1959 was sent by Shri Nigudkar. Advocate, to the Bata Shoe company asking them to give inspection of the alleged agreement with hashmatullah at an early date, time and place which the Company may choose. No reply to this letter was sent by the Bata Shoe Company. An attempt was made by Hashmatullah to send Rs. 1,000/-by cheque, but that was returned by the plaintiff. When no reply was received to the notice (Ex. P-16) sent by Shri nigudkar. Advocate, on behalf of the plaintiff, a second reminder by telegram dated 4-5-1959 (Ex. P-18) was sent by Pritam Das. On 8-5-1959. the Bata Shoe company sent a letter in response to the telegram to the effect that the Bata Shoe company had nothing to add to what was already stated in their counsel's notice dated 26-2-1959 (Ex. P-7 ). On 2-6-1959, the plaintiff filed the present suit. In the plaint it was stated that the Bata Shoe Company, the third defendant, had avoided to show the alleged agreement dated 18-11-1958 and that it was asserted that no such agreement was in existence.