Bimalendra Nath Maitra, J. - (1.) The plaintiffs have alleged that one of his brothers has a ration shop near the Landsdowne Market, Calcutta. Defendant No. 2 Promod Kumar Gupta, has stalls Nos. 6 and 7 in Block 'H' of that market and he is a licensee under the Corporation of Calcutta. Promod Kumar was unable to run the stalls and he kept them it under lock and key. There was an agreement with the plaintiffs to transfer the licence of the stalls to the plaintiffs for a sum of Rs. 500/-. Pursuant to that agreement, the plaintiffs paid Rs. 500/-on 17.11.1967 and H.L. Gupta (defendant No. 1), father of Promod Kumar, granted a receipt on behalf of his son and accepted the amount. The transfer was dependent on the permission of the Corporation of Calcutta. Promod Kumar made an application to the Corporation for permission to make the transfer. Similar application was also made by the plaintiffs. The Superintendent of the Corporation of Calcutta granted such permission and directed the plaintiffs to submit a registered deed of transfer. Then the plaintiffs asked the defendant to execute a document. A lawyer's letter was also sent but no amount was taken. A false reply was given that Rs. 10,000/-must be paid as consideration for transfer of licence. The plaintiffs performed their part of the contract. The suit is for specific performance of contract.
(2.) Defendant Nos.1 and 2 filed a written statement alleging, inter alia, that there was no such agreement and hence, the suit was not maintainable. The agreement was to transfer the stall on payment of Rs. 10,030/-. But the learned Munsif believed the plaintiff's version and stated that the defendants' version, that the agreement was to transfer the stall for a sum of Rs. 10,000/-, was an afterthought. The suit was decreed. An appeal was filed and it was dismissed. Hence, this second appeal by the defendants.
(3.) It has been argued on behalf of the appellants that the provisions of section 16 of the Specific Relief Act have not been complied with because the plaintiffs have not averred in the plaint that they were always ready and willing to perform their part of the contract. In the absence of such averment in the plaint, the suit is liable to be dismissed. Licence is merely a privilege. Reference has been made to section 456 (c) of the Calcutta Municipal Act in this respect. So, the alleged licence cannot be transferred and necessarily, no suit can lie for transfer of such right of a licensee. Reference has been made to pages 2 and 3 of Gale on Easement, 10th edition, to show that an easement differs from a licence. A licence unless coupled with a grant is not binding on the assignee of the licensor and is not generally assignable by the licensee. There is a difference between lease and licence. The well known case of B.M. Lall v. Messrs. Dunlop Co., in AIR 1968 SC 175 has been referred to. At all events, the alleged agreement was signed by the agent, defendant No. I, vide, chit Ext. 2. The agent acted beyond his power and the principal is not bound by the agent's action. Reference has been made to page 446 of the Law of Contract by Cheshire and Fifoot, 7th Edition, to show that the principal is bound by every contract or disposition of the property made by the agent with his authority. If a man acts as an agent without any authority whatsoever, or if he exceeds his authority, the principal is not liable. Reference has been made to sections 197 and 227 of the Indian Contract Act. It has been lastly stated that the defendant's letters, Ext. A series, were not considered. So, for non-consideration of material evidence, the decision of the Court below cannot be supported. There was no consideration for the alleged transfer.;