Judgment

Patanjali Sastri J,Mahajan

(1) THIS is an appeal by special leave from a judgment and decree of the High court of Judicature at Fort William in West Bengal dated 5/01/1948, which varied a judgment and decree passed by a single Judge on 11/06/1945, on the Original Side of the same court.

(2) THE appellant who is carrying on business as an estate broker in Calcutta was employed by the respondent on the terms mentioned in a commission letter dated the 5/05/1943, to `negotiate the sale` of premises No. 27, Amratolla Street, Calcutta, belonging to him. In pursuance of this contract the appellant found two persons who were ready and willing to purchase the property for Rs. 1,10,000.00, and by letters exchanged with them on 2/06/1943, he purported to conclude a contract for the sale of the property and communicated the same to the respondent by a letter of even date. The respondent, however, entered into an agreement on 9/06/1943, with a nominee of the said persons for the sale of the property for Rs. 1,05,000.00 and eventually executed a conveyance in their favour on 8/12/1943.

(3) THEREUPON the appellant brought the suit alleging that the contract concluded by him with the purchasers for Rs. 1,10,000.00 on the 2/06/1943, was binding on the respondent and claimed that he was entitled to the payment of Rs. 6,000.00 as remuneration in accordance with the terms of his employment as he had done all that he was required to do on behalf of the respondent. In the alternative he claimed the same sum as damages for breach of contract In defence to the suit the respondent pleaded, inter alia, that the appellant had no authority to conclude a binding contract for sale with any one, that the purchasers refused to complete the transaction alleging that they had been induced by the fraudulent misrepresentation of the appellant to agree to a price of Rs. 1,10,000.00, that the subsequent sale was effected independently of the appellant, and that the appellant was not therefore entitled to any remuneration or damages.

(4) GENTLE J. who tried the suit found that the terms of the appellants employment did not authorise him to conclude a contract of sale and that the letters of 2/06/1943, did not effect a contract of sale binding on the respondent. The learned Judge, however, rejected the respondents case that the purchasers refused to purchase on the ground of any fraudulent misrepresentation by the appellant and that the negotiations were later resumed afresh directly between the respondent and the purchasers, and came to the conclusion that the agreement to sell of the 9/06/1943, and the subsequent conveyance of 8/12/1943, were due solely to the efforts of the appellant in bringing the parties together as potential buyers and seller. The learned Judge refused to accept the suggestion that the sale was in fact effected for Rs. 1,10,000.00 as not being supported by any evidence but found that the reduction of the price by Rs. 5,000.00 from Rs. 1,10,000.00 for which the purchasers were ready and willing to buy the property, was made only for the purpose of depriving the appellant of his legitimate remuneration of Rs. 6,000.00. He accordingly held that the appellant, who had performed his part of the contract by finding two persons who were ready, able and willing to buy at Rs. 1,10,000.00 was entitled to the commission claimed.

(5) THE division bench (Harries C.J. and Mukherjea J.) which heard the appeal of the respondent, agreed with the trial Judge that the appellants authority did not extend to the concluding of a binding contract for sale of the property, but differed from his view that all that the appellant was required to do was to introduce a purchaser who was ready and willing to buy for Rs. 1,10,000.00 and that he was entitled to his commission whether or not the property was sold at that price or at all. They held, following certain observations of Lord Russell of Killowen and Lord Romer in the c