- (1.) This is an appeal from a judgment and decree of the High Court of Judicature at Bombay dated 26-1-1948 reversing the decree passed by Chagla J. on 7-7-1947.
(2.) The suit was brought by one Laxmibai, wife of Inderlal Nandlal of Malad on 26-5-1943 for specific performance of an agreement dated 29-4-1929, said to have been arrived at between her and Messrs. Gorakhram, Sadhuram, a firm carrying on business at bankers and commission agents at Kalbadevi Road, Bombay. By the agreement the defendants were to transfer the bungalow in suit at Malad to the name of the respondent whenever demanded on payment of costs of such transfer and were to debit the sum of Rs. 40,000 the value of the bungalow, to the current account of the firm of Messrs Thackersidas Nandlal, of which the plaintiff's husband and father-in-law were the owners and which firm was indebted in a large amount to Messrs. Gorakhram Sadhuram. The principal defence to the suit was that the plaintiff was not a party to the agreement and could not therefore sue upon it. It was also pleaded that the suit was barred by S. 66, Civil P. C., but no issue was raised on the point and the plea was later on abandoned. In spite of the abandonment of the plea, the point was argued at the hearing.
(3.) Chagla J. dismissed the plaintiff's suit and held that the plaintiff not being a party to the agreement, could not claim specific performance of it. He further held that the suit was barred by S. 66, C. P. C. This decision was reversed in appeal by Bhagwati and Tendolkar. JJ. on the finding that the plaintiff was a party to the agreement and was ready and willing to perform her part of the contract. It was further held that the suit was not barred by S. 66 Civil P. C. Chagla J. has also held that the plaintiff was not ready and willing to perform her part of the contract inasmuch as her husband was not in a position to pay the sum of Rs. 40,000, the price fixed for the conveyance of the house. This aspect of the case, however, was not pressed before the Court of appeal by the counsel for the respondent and was not agitated before us. Having regard to the terms of the agreement which was arrived at between the parties, the defendants were bound on being called upon to do so, to transfer and convey the property to the name of the plaintiff, she being under an obligation to pay the costs, charges and expenses in connection therewith. The consideration money of such transfer, i.e. Rs. 40,000 had to be debited on account of the firm. There was no question whatever of any cash payment having to be made by the firm or its partners.;