Judgement

Consolidated Cross-Appeals (No. 21 of 1931) from a decree of the High Court (August 23, 1929) varying a decree of the Additional Subordinate Judge of Asansol (October 12. 1928).

The suit was instituted by L. A. Creet, the effective respondent to the first appeal and appellant in the cross-appeal, claiming khas possession of certain mining properties, an account in respect of coal extracted, damages, and other relief. Currimbhoy & Co., Ld., the appellants in the first appeal, were joined subsequently as defendants No. 3 ; they were assignees from the original defendants, a company which afterwards went into liquidation. The liquidator was joined as a party to the appeal, but did not appear.

The facts appear from the judgment of the Judicial Committee and more fully from a report of the proceedings in the High Court at I. L. R. 57 C. 170.

The judgment of the High Court, delivered by C. C. Ghose J. and concurred in by Page J., varied the judgment of the trial judge. The effect of the judgments at the trial and on appeal appear from the judgment here reported.

1932. Oct. 13, 14, 17, 18, 20, 21, 24, 25, 27. Upjohn K.C., De Gruyther K.C., and Parikh for the defendants No. 3.

Dunne K.C., Gavin Simonds K.C., Hyam and Pugh for the plaintiff.

Nov. 22. The judgment of their Lordships was delivered by

LORD THANKERTON. These are two consolidated appeals from a decree of the High Court of Judicature at Fort William in Bengal, dated August 23, 1929, varying a decree of the Additional Subordinate Judge of Asansol, dated October 12, 1928.

On May 14, 1924, the present suit was instituted by L. A. Creet against Oosman Jamall & Sons, Ld., for khas possession of certain coal mining lands in Mauza Khandra for an account of the coal extracted therefrom by Jamalls, and for damages for breach of contract. In the alternative a somewhat unusual decree for specific performance was asked for.

In June, 1926, Jamalls went into compulsory liquidation, and on July 17, 1926, the liquidator was added as defendant No. 2 ; on October 2, 1926, the liquidator filed a written statement adopting the written statement filed by Jamalls.

On July 28, 1927, Currimbhoy & Co., Ld., were added as defendants No. 3, as a party claiming to be interested in the lands in suit under an agreement with Jamalls dated September 13, 1922, and filed a written statement on August 12, 1927. On January 25, 1928, the liquidator of Jamalls assigned to Currimbhoys the whole rights and interests of Jamalls in their alleged contract with Creet, in the subject-matter of the present suit and in the plant and equipment of their colliery on the lands in suit, as well as in the moneys deposited by them under orders of the Court.

Early in 1920 Creet had obtained mine-prospecting leases in respect of certain of the lands in Mauza Khandra, and had started sinking a shaft. By letter dated April 18, 1920, he proposed to Jamalls that they should take over the enterprise from him on certain terms ; negotiations followed, mostly by correspondence, in course of which Creet agreed that Jamalls should take over the place immediately, and, in fact, they took possession from Creet of certain lands, which included the shaft, on June 1, 1920, and proceeded to develop and work the minerals. On the other hand, Creet, who at that time had only got prospecting leases, proceeded to obtain titles to the minerals, and became involved in certain litigations, which delayed his obtaining some of the conveyances of the mineral rights. Some of these suits were still pending when the present suit was commenced.

The main case for the plaintiff Creet was that a contract was concluded between him and Jamalls in May, 1920, under which the parties were contractually bound to execute a formal agreement embodying the terms of the contract, that Jamalls delayed their execution of the formal agreement, that, finally, in February, 1923, he gave them notice that, if they did not execute the agreement within fourteen days, he wo