Judgment

Fazl Ali. I. (on behalf of himself and Mukherjea and Chandrasekhara Aiyar JJ.)- This is an appeal from a judgment of the Judicial Commissioner of Coorg in a suit filed by respondent 1 (hereinafter referred to as the plaintiff) against the appellant (hereinafter referred to as defendant 1) and respondent 2 (herein after referred to as defendant 2), for the specific performance of a contract. Defendant 1 owned a bungalow in Mercara known as "Morvern Lodge. The suit which has given rise to this appeal was instituted by the plaintiff for the specific performance of an alleged contract of sale in respect of this bungalow.

2. It appears that defendant 1 owned certain estates in Mercara, and one Mr. White was an alternative Director in one of the estates, and Youngman was the manager of another estate also belonging to defendant 1 and was looking after "Morvern Lodge during his absence. It seems that about the middle of 1944, the plaintiff asked White if be would cable to defendant 1 his offer of Rs. 4,000 for the bungalow, and, on 1-6-1944, White sent a cable to defendant 1 to the following effect: Have enquiries Mercara bungalow if for sale, wire lowest figure. On 24-7-1944, the plaintiff wrote to defendant 1 that he was prepared to purchase the bungalow for Rs. 5,000 and if the offer was acceptable to him, he (defendant 1) should inform the plaintiff to which bank he should issue a cheque in payment of the price. This letter was followed up by a cable from Youngman to defendant 1 to the following effect : "Have had offer Morvern Lodge rupees six thousand ,for immediate possession. On 8-8-1944, Youngman received a cable from defendant 1 saying: "Won t accept less than rupees ten thousand." On 7- 8-1944, the plaintiff wrote to Youngman asking him whether his offer had been accepted, and saying that he was prepared to accept any higher price if found reasonable. Meanwhile, on the 8th August, defendant 1 sent an airgraph to Youngman, which states inter alia: "I got a cable from you a few days ago saying you had an offer of Rs. 6,000 for Morvern Lodge. At the same time I got one from White saying value of Bungalow was Rs. 10,000. So wired you- Won t accept less than Rs. 10,000. " On 9-8-1944, Youngman wrote to the plaintiff as follows : "In reply to your letter, dated 7th August, I received yesterday a cable from Col. MacPherson regarding your offer of Rs. 6.000, which reads as follows: "Won t accept less than rupees ten thousand" MacPherson." The plaintiff has stated in his plaint that this letter of Yoangman was received by him on 14-8-1944, and he immediately accepted the "counter-offer made by defendant 1," and confirmed it in writing in a letter addressed to Youngman. In his evidence, however, the plaintiff has stated that he met Youngmen on the 11th August after receiving his letter and told him personally that he would pay Rs. 10,000 for the bungalow and will require immediate delivery. There was also some talk about the conveyance charges, and ultimately the plaintiff agreed to bear those charges. Afterwards, he wrote to Youngman a letter on the 14th August in which after referring to the conversation he had with the latter he stated as follows : "I hereby confirm my oral offer of ten thousand for the bungalow. I shall be grateful if you will kindly hurry up with consultation with your lawyers at Madras and make arrangement to receive the money and hand over the bungalow as early as practicable." It appears that 3 days later, i. e, on the 17th August, one Subbayya Wrote to Youngman stating that "he confirmed his offer of Rs. 10,500 made to him (Youngman) the previous dey for the purchase of the bungalow," and he excepted that the latter had cabled to defendant 1 communicating the offer as promised. It seems that Youngman did not communicate Subbayya s offer to defendant 1 but sent a cable to him on the 26th August to the following effect : "Offered ten thousand Morvern Lodge immediate possession. May I sell