GANNON DUNKERLRY AND CO LTD Vs. WESTERN INDIA THRATRRS LTD
LAWS(CAL)-1960-5-6
HIGH COURT OF CALCUTTA
Decided on May 31,1960

GANNON DUNKERLRY AND CO LTD Appellant
VERSUS
WESTERN INDIA THRATRRS LTD Respondents

JUDGEMENT

- (1.) THIS is an appeal from a decision of G. K. Mitter, J. dismissing the appellant's suit for refund of money deposited as security for due performance of a contract for the construction of a cinema house in Calcutta known as the Elite Cinema. The appellant's case is that on the 27th March, 1947 it entered into a contract with Western India Theatres Ltd. (defendant No. 1) for construction of a cinema hall in Calcutta which is now known as the Elite Cinema and it was agreed by and under the said contract that the appellant would have to deposit with the architects of the defendant No. 1 a sum of Rs. 7000/- by way of earnest money to be refunded on satisfactory completion of the work. On the 26th April, 1947 the appellant deposited Rs. 7000/-with Messrs. Abbott and Davis, the architects of the defendant No. 1. Thereafter the work was satisfactorily completed and although the appellant demanded refund of the deposit the defendants did not refund the amount. It appears that although under the original contract the work was to be completed by the 15th October, 1947, the time for completion was subsequently extended by mutual agreement between the parties and the work was in fact completed in or about October, 1948. It appears further that pending completion of the work under the contract Mr. Abbott, one of the partners of Abbott and Davis, died. The appellant has therefore sued the Western India Theatres Ltd. and the surviving partner Mr. J. R. Davis for refund of the money with interest.
(2.) THE defence of the Western India Theatres Ltd. (defendant No. 1) is that there was no agreement with them for deposit of Rs. 7000/- and they had nothing to do with the deposit which was made with their architects and hence there is no cause of action against them. The defence of Mr. J. R. Davis, the defendant No. 2, inter alia is that the firm of Abbott and Davis has done various construction works for Western India Theatres Ltd. and a large sum of money was due to Abbott and Davis from Western India Theatres Ltd. for such works. The firm of Abbott and Davis had adjusted the sum of Rs. 7000/- paid to Abbott and Davis by the appellant towards the dues of the firm from Western India Theatres Ltd. Besides, various other pleas, the plea of limitation was also taken in the written statement of this defendant No. 2. The learned trial Judge has given effect to the contentions of the defendants and has dismissed the suit. The learned Judge has also held that the suit is barred by limitation.
(3.) THE appellant's first contention is that the learned Judge's finding that there is no cause of action against the defendant Western India Theatres Ltd. is wrong. It is argued that the firm of Abbott and Davis was acting as agents in the matter of negotiating the contract between the parties and the contract for the construction work was entered into as a result of negotiations of this firm of architects and the agreement for deposit of Rs. 7000/- was also entered into through this firm of architects as part and parcel of the main contract. The appellant relies strongly on two letters dated the 27th August, 1952 and 28th August, 1952 which passed between the appellant and the respondent Western India Theatres Ltd. The relevant portion of the letter of the 27th August, 1952 written by the appellant to the Western India Theatres Ltd. is as follows:-Re. Elite Cinema and M/s. Abbott and Davis, Architects. Dear Sirs,;


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