Judgement

Appeal (No. 75 of 1932) from a decree of the High Court in its appellate jurisdiction (September 28, 1931) reversing a decree of the Court in its original jurisdiction (April 1, 1931).

The respondent instituted a suit in the High Court against R. Tilden Smith, since deceased and represented by the appellants, claiming Rs. 47,022-1-2, the equivalent of £3508-5-9, under an agreement contained in a letter dated January 7, 1926. Apart from other defences which had been abandoned, the defence was that the plaintiff could not recover as he had not, in accordance with the contract, paid certain costs and written certain letters.

The facts of the case appear from the judgment of the Judicial Committee.

The trial judge, Kemp J., dismissed the suit. The learned judge held that performance by the plaintiff of the undertakings in question were conditions precedent to his right to recover, and that a repudiation of the contract by the defendants did not relieve him from performing them.

An appeal was heard by Beaumont C. J. and Rangnekar J. and was allowed. The learned judges made a decree in favour of the plaintiff subject to his writing the letters referred to. The grounds of the judgment are stated in the judgment on the present appeal.

1933. July 2. Pritt K.C. and Vos for the appellants.

W. A. Greene K.C. and Sir Thomas Strangman for the respondent.

[Reference was made to the Indian Contract Act, 1872, ss. 51, 52, 53 ; 2 Smiths Leading Cases, 13th ed., pp. 29, 42 ; and to Colley v. Overseas Exporters. ([ 1921] 3 K. B. 302.)]

Oct. 9. The judgment of their Lordships was delivered by

LORD WRIGHT. This appeal arises out of a contract between the respondent and Richard Tilden Smith (since deceased), the present appellants being added during the litigation as being representatives of his estate. This contract is contained in a letter dated January 7, 1926, signed by Tilden Smith and addressed to an agent for the respondent and duly accepted on behalf of the respondent. The letter was in the following terms —

" Dear Dinshaw,

Re R. D. Sethnas matter. If Sethna will pay costs in connection with the appointment of the receiver and the receivers costs and give credit of any distribution he may receive in respect of receivers distribution and write letters to his solicitor and to the receiver to the effect that he is satisfied that the affairs of the company have been properly conducted, I will pay him the sum of 5000l. invested by him in Ifold Herds Limited less such credit.

Yours sincerely,

(Sd.) R. Tilden Smith."

The circumstances under which this contract was made were that the respondent had in 1921 invested 5000l. in debentures in Hold Herds, Ld., a limited company incorporated and registered in England. These debentures were part of an issue of 40,000l., the residue being taken by two companies which were the nominees of Tilden Smith, who had also put a large sum of money into the company as a shareholder and whose evidence was that his total interest amounted to a very large sum. It was on his introduction that the respondent took the debentures which he did in the sum of 5000l. The venture having proved a failure, on March 28, 1925, the respondent instituted a debenture holders action against the company in the Chancery Division of the High Court of Justice in London, claiming the usual relief including accounts and the appointment of a receiver. By an order in the action dated April 30, 1925, a Mr. Page was appointed receiver and the usual directions were given. During these proceedings the respondent made various allegations adverse to Tilden Smith in regard to his participation in the affairs of the company it was also intimated by his solicitors that an investigation should or might be held into the management of the company. There is now no suggestion that there was any ground for complaint against Tilden Smith, who was the principal sufferer by the failure of the company.

It was in this state of things and during the cours