Manmal v. Radhakishan — 1964 DIGILAW 72 (MP)

Judgment Newaskar, J. 1. This appeal arises out of a suit filed by the plaintiff Radhakishan Kalani against the defendant Manmal Gattani for the recovery of Rs.36,500/- as his brokerage. The claim was based on a written agreement dated 30-4-1950 executed by the defendant in plaintiff's favour. Under the terms of the agreement the defendant had authorised the plaintiff to sell his 'Bone Mill' situated in the village Jaisinghpura near the Neemuch Railway line and Aerodrome for Rs.34,000/-. The authorisation was to be operative till 3-5-1950. It was provided in the agreement that the plaintiff should secure from the would be purchaser Rs.5,000/- as an advance at the time of settling the transaction, that amount being liable to be adjusted against the price [at the time of the registration of the deed. Whatever amount the plaintiff would be able to secure in excess of Rs.34,000/- as the sale-price would be his commission. The defendant was to get Rs.34,000/- net without any liability as to costs of registration. The defendant further agreed to execute the sale-deed in the name of such person as the plaintiff would want. The defendant made it clear that the liability for income tax in respect of the price in excess of Rs.34,000/- would be of the plaintiff who would either hand over to the defendant the receipt for his having paid the income-tax for that amount or would keep the amount of the tax with the defendant, for such payment. The plaintiff was further authorised to pass a receipt for the amount he would receive pursuant to the sale transaction. The defendant also gave to the plaintiff a letter of authorisation 'in the following terms on the same date i.e. on 30.4.1950;- "I hereby authorise Mr. Radhakishan Kalani to sell my Malwa Manure Manufacturing Co., situated at Neemuch and collect money on my behalf and issue receipt for the same. The letter of authority is valid upto 3.5.1950." Plaintiff's case is that pursuant to the aforesaid agreement and athorisation the plaintiff entered into an agreement on 3.5.1950 for the 'sale of the aforesaid factory to the proprietors of M/s Dubash Brothers, Dorabshaw Mansion, Ballard Estate, Bombay, namely 'Rustamji Dorabshaw and Firoj Dorabshaw for a consideration of Rs.70,500/- after swttling the transaction and receiving Rs.7,000/- as advance or deposit. He also made over to the purchasers the letter of authority given by the defendant to him. 2. He also made over to the purchasers the letter of authority given by the defendant to him. 2. On the following day the plaintiff' along with the representative of the purchasers Mr. Daruwala went to Neemuch and, in the morning of 5th May, 1950 he handed over to the defendant a copy of the agreement of sale which he had executed in favour of the purchasers along with the amount of deposit Rs.7,000/- and secured the handing over of the title deeds with reference to the land and machinery to Mr. Madhavsingh Choudhri who was the lawyer of the purchasers. On inspection of those deeds Mr. Daruwala finally accepted the sale transaction, the result whereof was that the sale-transaction as between the defendant and the proprietors of M/s Dubash Brothers became 'finally complete'. 3. However, as it was not possible to have a single sale-deed both with reference to the agricultural land included in the sale transaction and with reference to the factory and its machinery it was agreed as between the defendant and Mr. Daruwala that the sale price be divided into two parts one of Rs.30,000/- as representing the price of the agricultural land and the second of Rs.40,500/- as representing the price of the rest of the factory, machinery and building etc. An application for permission to sell was accordingly submitted on 3-5-50 by the defendant to the District Sub-Judge Mal. Neemuch for the sale of land. The defendant further handed over to Mr. Daruwala possession of the land of the factory, tools, machinery, spare parts and buildings. Mr. Daruwala had, it is said, put his signature of acceptance upon the application filed before the District Sub-Judge. The plaintiff averred that in the manner aforesaid he had carried out his entire obligation for finding a purchaser and securing a contract for sale, actual registrations of the deed having been left over as it was necessary under the local law, namely, Kanoon Mal Gwalior to have two months' advertisement. The plaintiff's claim for Rs.36,500/- being the difference between the sale price Rs.70,500/- and the amount which the plaintiff was to receive under the agreement dated 30-4-1950 Rs.34,000/- became due and payable to him. The plaintiff's claim for Rs.36,500/- being the difference between the sale price Rs.70,500/- and the amount which the plaintiff was to receive under the agreement dated 30-4-1950 Rs.34,000/- became due and payable to him. However, it is said, the defendant with a view to avoid payment of the lawful dues of the plaintiff, colluded with the purchasers and instead of entering into a deed of sale as had been agreed upon executed an agreement of lease on 18-4-1951 in favour of the very same purchasers with an option to the purchasers to purchase the factory at any time before the expiry of 15 yean for Rs.70,000/-. It was further provided in the agreement that in case the purchasers exercised their option within the time limit mentioned therein they would be given credit for Rs.7000/- paid on 5-5-1950 and Rs.1000/- paid on 18.4.1951 and the balance of price would be paid. Rs.5000/- were agreed to be paid by the defendant to Mr. Daruwala as commission for securing the transaction of lease. This amount, according to the plaintiff, though mentioned as commission, was really a consideration for depriving the plaintiff of his right to brokerage Rs.36,500/-. According to the plaintiff the lease agreement was a fictitious document and is in fact and in substance a deed of sale. It was put in that form with a view to deprive the plaintiff of his legitimate dues. Even on assumption, according to the plaintiff, that the sale-transaction pursuant to the agreement dated 3-5-1950 had been cancelled the said cancellation had no effect upon the plaintiff's right since the defendant had brought that about dishonestly and without information to the plaintiff. The defendant thus had fraudulently committed breach of his agreement for which the plaintiff had become entitled to Rs.36,500/- as damages. 4. The plaintiff on those averments claimed Rs.36,500/-. 5. The defendant, in his written statement, contended that contrary to the real intent of his as disclosed in the agreement and the letter of authority dated 30-4-1950 the plaintiff entered into an• agreement of sale with M/s Dubash Brothers on 3-5-1950 including therein the agricultural land when the defendant had, in fact, authorised him to sell the factory premises and the machinery therein and not the out-lying agricultural land measuring nearly 39 acres. The amount of Rs.34,000/- mentioned the agreement dated 30-4-1950 related to the actual factory premises and the machinery therein and not to the agricultural land. The defendant denied that the sale transaction had become finally complete as between the purchasers and the defendant. When the defendant came to know that the plaintiff had agreed to sell not only the factory or the 'Bone Mill' but also the agricultural land he totally refused to carry out the sale since he had not authorised the plaintiff to sell the land. Finding himself in tight corner on account of his own misrepresentation to 'the purchasers the plaintiff implored the defendant to accept Rs.70,500/- as the price of the entire premises including the agricultural land and suggested that the price of the factory premises and the machinery would be nearly Rs.40,000/- and that in that event the plaintiff would be receiving Rs.6,000/- as his commission. The defendant ultimately acceded to his request due to his relationship with the plaintiff and it was decided between the parties and M/s Dubash Brothers represented by Mr. Daruwala that the entire sale price of Rs.70,000/- should be broken into two parts of Rs.40,500/- representing the price of the Bone Mill and Rs.30,000/- representing the price of the agricultural land. The defendant thereupon accepted Rs.7,000/- which the plaintiff had received as earnest money. At that time it was said, the plaintiff had not given to the defendant the copy of the agreement of sale dated 3-5-1950 and the defendant was kept in the dark as regards the actual terms therein. It was denied by the defendant that he had handed over the title deeds to the purchasers pursuant to the agreement dated 3-5-1950 and that the said agreement had become finally complete. It was also denied that in furtherance of the agreement dated 3-5-1950 the defendant had made over the possession of the land and the factory, tools and spare parts to Mr. Daruwala. It was admitted that ultimately on 18-4-1951 an agreement of lease was made by the defendant with M/s Dubash Brothers. But it was denied that this transaction was meant for depriving the plaintiff of his alleged brokerage or commission. The defendant had not any way colluded with the purchasers, not had the sale transaction been cancelled with that end in view. The transaction of lease was an honest and legitimate transaction. But it was denied that this transaction was meant for depriving the plaintiff of his alleged brokerage or commission. The defendant had not any way colluded with the purchasers, not had the sale transaction been cancelled with that end in view. The transaction of lease was an honest and legitimate transaction. The plaintiff it was said while entering into an agreement of sale pursuant to the authority given by the defendant to him had made misrepresentations to the purchasers. Detailing auf the items of misrepresentations, it was said, firstly, that the plaintiff had not disclosed to M/s Duhash Brothers that he had no authority to sign the agreement of sale in respect of the agricultural land, secondly, that the defendant had only one grandson aged 3 years when in fact he had two grand-sons aged 10 and l2, and thirdly, that the defendant would secure authorisation through Court for the salt of the property on behalf of his minor grand-sons and would hand it over to the purchasers. The agreement of sale executed by the defendant had provided that the said agreement was liable to be cancelled if there was any misrepresentation in the averments made therein. The cancellation of the agreement had become necessary because of this misrepresentation on the part of the plaintiff. The purchasers, it was said, had refused to perform the contract because they had insisted upon the complete fulfillment of all the terms in the agreement one of which was incapable of performance. The transaction therefore fell through due to the fault of the plaintiff himself. The subsequent transaction of lease was a separate deal for which the plaintiff cannot lay any claim either for brokerage or for commission. The plaintiff's claim for Rs.36,500/- was consequently said to be untenable. It was also contended that M/s Dubash Brothers i.e. Rustamji Dorabshaw Dubash and Firoz Dorabashaw Dubash were necessary party to the suit. 6. On the basis of these contentions the following issues were framed by the trial Court:- (1) Whether the defendant had authorised the plaintiff to sell the Bone Mill along with the agricultural land and the authority should be construed like this? (2) Whether the plaintiff was authorised to finalise a contract to sell ? (3) Whether the plaintiff was authorised to impose:- (a) Conditions mentioned in the contract to sell, if not, what will be the effect? (2) Whether the plaintiff was authorised to finalise a contract to sell ? (3) Whether the plaintiff was authorised to impose:- (a) Conditions mentioned in the contract to sell, if not, what will be the effect? (b) Whether the conditions imposed in the contract to sell were incapable of fulfillment, if not, what will be the effect on the suit? (4) Whe1her the plaintiff has misrepresented the fact before the purchaser, if so, what will be the effect on the suit? (5) Whether the sale was complete and its effect on the suit? (6) Whether the act of cancellation of the sale is fictitious and forged? (7) Whether the act of cancellation of the sale is dishonest and with the motive of doing harm to the plaintiff? (8) Whether the plaintiff had completed his contract? (9) Is the plaintiff entitled to get his commission even after the sale is cancelled? (10) Whether the defendant had not authorised the plaintiff to get the sale confirmed? (11) Whether the plaintiff had agreed to have Rs.6,000/- as his commission after estimating the cost of the factory and of the agricultural land separately? (12) Whether the defendant had ratified the agreement to sell by accepting the earnest money and submitting an application to sell the land, hence now the defendant is estopped to challenge the contract to sell performed by the plaintiff? (13) Relief? After recording evidence the trial Court found that the defendant had authorised the plaintiff to sell the Bone Mill inclusive of the agricultural land. It further found that the plaintiff had been authorised to finalise the contract of sale and that the plaintiff had been authorised to impose conditions mentioned in the contract of sale which were not incapable of fulfillment. There was, according to it, no misrepresentation made by the plaintiff to the purchasers and the transaction of sale had not become complete. However, according to it, had no effect upon the suit. The subsequent cancellation of the agreement of sale was held to be fictitious and had been brought about dishonestly with the object of depriving the plaintiff of his brokerage. The plaintiff having performed his obligations under the contract he was entitled to his commission as per terms of the agreement dated 3-4-1950. The subsequent cancellation of the agreement of sale was held to be fictitious and had been brought about dishonestly with the object of depriving the plaintiff of his brokerage. The plaintiff having performed his obligations under the contract he was entitled to his commission as per terms of the agreement dated 3-4-1950. Lastly it was held that the defendant having accepted the earnest money and having submitted an application for the sale of the land was estopped from challenging the transaction of sale. On these findings the trial Court decreed the plaintiff's claim for Rs.36,500/- with costs against the person and property" of the defendant. 8. In this appeal the findings reached by the trial Court on several material points are sought to be assailed. It was contended by Mr. Amin for the appellant that the trial Court had placed an erroneous construction upon the agreement between the parties dated 30-4-1950 and had wrongly found that the property which the defendant had authorised the plaintiff to sell included the agricultural land. According to the learned counsel the expressions 'The Bone Mill' or 'The Bone Factory' represented a separate entity different from the agricultural land and when the plaintiff was authorised by the defendant to sell his 'Bone Mill' he, by no stretch of imagination, could have meant to include the agricultural land in such authorisation. As a material circumstance throwing light upon this question the learned counsel referred to the resolution of the Board of Directors of the Bhavnagar Bone and Fertilisers Company Limited Ex. 'G' dated 13-4-1950 which clearly mentioned that the vendor i.e. the defendant had been insisting upon Rs.80,000 as the price of the entire property including the agricultural land. It was highly improbable, according to the leaned counsel, that the defendant who was known to be insisting upon Rs.80,000/- as the price for his factory would about a fortnight later authorise the plaintiff to sell the same for a consideration of Rs.34,000 only or Rs.34,000 plus a reasonable amount which would go to the plaintiff as his brokerage. Dealing with the plaintiff's statement on this aspect of the question the learned counsel urged that the plaintiff's statement that he had opened his talks with defendant on 21-4-1950 was totally false. It was inconsistent with the evidence of Mr. Dealing with the plaintiff's statement on this aspect of the question the learned counsel urged that the plaintiff's statement that he had opened his talks with defendant on 21-4-1950 was totally false. It was inconsistent with the evidence of Mr. Daruwala who dearly stated that there had been talk with him for the sale of the property by the end of March 1950 and that at that time the sale price had been clearly mentioned to him. The statement of Mr. Daruwala, it was said, was corroborated by resolution of the Board of Directors Ex. 'G' dated 13-4-1950. The statement of Dattatraya Patwari, examined on behalf of the defendant, was also relied upon by the learned counsel for proving the subsequent agreement which had been reached between the parties providing for Rs.34,000 as the price of the 'Bone Mill' a part from the land and Rs.32,000 as the price of the agricultural land which ultimately was reduced to a lesser figure. Referring to the statement of the plaintiff suggesting that when in the morning of 5-5-1950 he had handed over the agreement of the sale and a cheque for Rs.7,000 to Manmal and had read out the agreement to him he had said that it was alright, the counsel contended, that this was highly unnatural statement attributed to the defendant and was inconsistent with the subsequent conduct of the parties. The trial Court ought not to have believed such a statement. The conduct of the defendant, it was said, as disclosed in the statement of Mr. Daruwala in getting puzzled when he met him at the Dak Bunglow at 10 or 10-30 A.M. on 5-5-1950 was eloquent in supporting the defendant's case regarding the agreement which had been reached between the parties for splitting the entire transaction as one of the land and the other for the rest of the factory. It was in respect of the price for the sale of the factory that the commission was payable. On the basis of these submissions the counsel urged that there was no contract between the parties authorising the plaintiff to sell the factory inclusive of the agricultural land. Moreover what the agreement authorised the plaintiff to do, according to Mr. Amin, was to negotiate a sale and not to sign an agreement of sale on defendant's behalf. On the basis of these submissions the counsel urged that there was no contract between the parties authorising the plaintiff to sell the factory inclusive of the agricultural land. Moreover what the agreement authorised the plaintiff to do, according to Mr. Amin, was to negotiate a sale and not to sign an agreement of sale on defendant's behalf. In this connection the learned counsel relied upon the decisions reported in Prior Vs. Moore [3 TLR 620] and Keen Vs. Mear [(1920) 2 Ch. 574]. On the basis of these decisions it was urged that even on the assumption that the defendant had authorised the plaintiff to negotiate a transaction of the sale it could not be said that on the basis of such authority the plaintiff could draft an agreement, agree to all the terms which the purchaser would want him to include whether capable of performance or otherwise and to sign the agreement on defendant's behalf. The conditions which the agreement dated 3-5-1950 included were onerous in character and having regard to the nature of the property involved in the transaction it was not legitimate to assume that the defendant intended to confer authority upon the plaintiff to include all such onerous terms and to sign such an agreement in his behalf. Lastly it was urged that the transaction of lease was one which was brought about not as a result of any collusion between the defendant and the purchasers. He, in this connection, referred to the correspondence that passed between the counsel for the defendant Mr. Trivedi and the purchasers over the question as to the necessity and possibility of implementing the terms of the agreement to sell dated 3-5-1950. The purchasers were adamant and they were insisting upon the meticulous observance of those terms and on defendant's failure to do so they even threatened to hold him responsible for the damages. One of the terms regarding securing of authority from the Court to sell the property on behalf of the minors was incapable of performance in view of the legal position obtaining in the State of Madhya Bharat in which the property in question was situated. It was in these circumstances that the defendant was forced to abandon the contract regarding sale. It was with great effort that the defendant was able to strike a second deal regarding the transactions of lease. It was in these circumstances that the defendant was forced to abandon the contract regarding sale. It was with great effort that the defendant was able to strike a second deal regarding the transactions of lease. That transaction, it was said, cannot be said to be one of sale either in form or in substance. The right claimed by the plaintiff for his brokerage was, it is said, a contingent right and depended upon the happening of the event, namely, the transaction of sale. Where there was no sale there was no right to claim brokerage for the transaction which did not fructify. It was not legitimate, according to the learned counsel, to claim brokerage in respect of the transaction of the sale when the actual transaction was merely a lease at Rs.600/- per month. The learned counsel in this connection referred to and relied upon the decisions reported in Lunar Vs. Cooper [(1941) AC 108] & Abdulla Ahmad Vs. Animendra Kisen [ AIR 1950 SC 15 ]. 9. On the other hand Mr. Chitale for the plaintiff contended that the construction placed by the trial Court upon the agreement between the parties dated 30-4-1950 was a perfectly legitimate construction. It was pointed out that the price of Rs.34,000/- which the defendant had mentioned to the plaintiff was a reasonable and legitimate figure having regard to the circumstances that the defendant himself had purchased this property for Rs.28,000/- about three years prior to the agreement in question and the split value of the agricultural land was mentioned then as Rs.10,000/- and that of the factory at Rs.18,000/- as per entry in the defendant's account dated 1-12-1946. This very property including the agricultural land, machinery and the building was purchased by the vendor of the defendant by the deed dated 13-9-1944 for Rs.19,500/- the split value for consideration mentioned therein being Rs.15,500/- for the factory and Rs.4,000/- for the land. The stand taken by the defendant, according to the learned counsel, regarding the second agreement on 5th or 6th of May 1950 providing for nearly Rs.6,000/- as the brokerage for the plaintiff is wholly unreliable and is not in keeping with the entire circumstances of the case and the conduct of the parties both contemporaneous and subsequent. The stand taken by the defendant, according to the learned counsel, regarding the second agreement on 5th or 6th of May 1950 providing for nearly Rs.6,000/- as the brokerage for the plaintiff is wholly unreliable and is not in keeping with the entire circumstances of the case and the conduct of the parties both contemporaneous and subsequent. It was highly improper, according to the learned counsel that in a case of this description where the prior agreement is evidenced by writing and the parties are businessmen and there would be a second agreement of the nature suggested in the absence of any writing. Even assuming that there was no authority to the plaintiff for the sale of the land and the factory to begin with such authority was clear after the defendants ratification of the contract dated 3-5-1950. It was not disputed that the defendant did accept the cheque of Rs.7,000/-. The subsequent correspondence between Mr. Trivedi and the purchasers from 13-7-1950 up to 5-9-1950 proceeds on the footing that there existed an agreement dated 3-5-1950 which the defendant had ratified. The transaction of sale being authorised or ratified the plaintiff clearly became entitled to his brokerage according to the terms of the agreement Ex. P-1. The change in the form of the transaction did not alter the defendant's liability according to the learned counsel because it was the plaintiff who had brought the parties together and not only secured a firm offer but had actually entered into a binding contract for sale. The subsequent transaction of lease was a mere camouflage to keep the plaintiff out of what he had legitimately earned in the bargain. Rs.5,000/- had been paid to Mr. Daruwala only with a view to bring about the change in the form with a view to evade the payment of the plaintiff's dues. The transaction of lease flowed out of the transaction of sale. The case of collusion between the defendant and the purchasers should, under the circumstances, be held to have been established. But even assuming that there was no collusion the plaintiff could claim the amount in suit because it was he who was the effective cause for the transaction which ultimately came into being and had emerged out of the initial agreement of sale. But even assuming that there was no collusion the plaintiff could claim the amount in suit because it was he who was the effective cause for the transaction which ultimately came into being and had emerged out of the initial agreement of sale. Lastly, it was urged that even if the transaction which ultimately emerged is held to be substantially different from the one contemplated under the agreement dated 30-4-1950 yet the plaintiff having brought the parties together and worked at great expenses to bring about a binding contract the plaintiff was entitled to claim both upon the terms of the bargain and on what may be called quantum merit. The learned counsel distinguished the case reported in Luxor Vs. Cooper [(1941) AC 108] and relied upon the decision of the Supreme Court reported in Abdulla Ahmed Vs. Animendra Kissen [ AIR 1950 SC 15 ]. He also relied upon the decisions in M/s Alopi Prasad Vs. Union of India [ AIR 1960 SC 588 ] and Wragg Vs. Lovett [(1948) All ER 968]. 10. In view of these respective submissions of the learned counsel on either side the points which arise for our consideration are:- 1. Whether on true construction of the agreement Ex. P. 1 dated 30-4-1950 the plaintiff was authorised to sell for Rs.34,000/- merely the factory premises and the machinery therein and not the adjoining land or he was authorised to sell both. 2. Was there a separate and distinct agreement regarding commission on the 5th or 6th of May 1950 between the plaintiff and the defendant in the presence of Dattatraya ? 3. Whether on the terms of Ex. P. 1 and D. 3 it was competent for the plaintiff to execute a contract for sale as he had done on 3-5-1950 or had he merely an authority to negotiate a sale. Assuming that he had no authority to execute a binding contract of sale was the contract later ratified by the plaintiff by agreeing to accept it in the form in which it existed? 4. Whether there was justifiable cause for the defendant not to complete the transaction of sale. Did this cause arise by reason of any default on the part of the plaintiff? 5. 4. Whether there was justifiable cause for the defendant not to complete the transaction of sale. Did this cause arise by reason of any default on the part of the plaintiff? 5. Did the transaction of sale contemplated under the agreement dated 3-5-1950 fall through and had been substituted by the agreement of lease due to collusion between the defendant and the purchasers? 6. Even assuming that there was no collusion, is the plaintiff entitled to claim the commission because of the agreement dated 3-5-1950 even when there was no sale? 11. As regards the first point it seems, by reference to the sale deed dated 30-9-1944 Ex. P. 5 executed by Dr. Shambhuprasad in favour of Aminbhai son of Ibrahimbhai resident of Ahmedabad, that the property which Dr. Shambhu Prasad sought to sell was described as 'Bone Mill, the Manure Manufacturing Factory situated in Mouja Jaisinghpura, the parts of agricultural land, well, building and machinery of the said Mill'. The above description makes it clear that the entire property consisting of the agricultural land, building and machinery was compendiously described as 'Bone Mill' or 'The Manure Manufacturing Factory'. It may also be mentioned that the sale was effected by two separate documents one regarding the factory excluding the agricultural land and the other regarding agricultural land. The total agreed consideration of Rs.19,500/- was split into two parts Rs.15,500/- representing the price of the factory excluding the agricultural land and Rs.4000/- representing the price of the agricultural land. About more than two years later this very property was sold by Aminbhai Ibrahimbhai to the present defendant by means of sale deeds dated 15.12-1946 Ex. P. 6 and dated 14-3-1947 Ex. P. 7. The sale-deed Ex. 6 while describing the entire property mentioned it as Malwa Manure Manufacturing Company and it was mentioned to include the agricultural land, well, building and machinery 0 f the entire Bone Mill. The sale was for a total consideration of Rs.28,000/-. Similar to the earlier transaction of sale the sale in favour of the defendant by Amin Bhai was completed in two separate documents, one with respect to the factory including machinery, building etc. excluding the land and the other with respect to the land. The consideration was split in to two parts Rs.18,000/- representing the price of the factory excluding the land and Rs.10,000/- representing the price of the agricultural land. excluding the land and the other with respect to the land. The consideration was split in to two parts Rs.18,000/- representing the price of the factory excluding the land and Rs.10,000/- representing the price of the agricultural land. The terms 'Malwa Manure Manufacturing Company' and the entire 'Bone Mill' also suggest that the factory and the agricultural land went together and were treated in both these transactions as a single entity though for convenience of transfer the factory together with machinery and building was treated as separate entity from the agricultural land. It may be mentioned here that the land over which the factory was actually situated was also included in the sale-deeds pertaining to land and the sale-deed pertaining to the rest of the factory related to the machinery and the super-structure only. Subsequent to the purchase of the property by the defendant in 1946-47 the defendant admittedly did not run the factory. It was lying idle. When therefore the defendant in Ex. P. 1 and P. 2 described the property as 'Bone Mill' in the absence of any limiting words there would be reason to suppose, in view of the previous transaction, that it was meant to include not only the super structure consisting of building and machinery but also the agricultural land which was the part and parcel of it. It would be unthinkable to assume that the defendant wanted to sell the Bone Mill but did not want to sell the land underneath and around. The factory was meant to be sold with a view to enable the purchasers to run it for profit and not to dismantle the building and the machinery and to take the same away as junk. The statement of the plaintiff is that he was asked to sell the entire property including the agricultural land. This is consistent not only with the purpose for which the sale was effected but also with the subsequent conduct of the defendant as disclosed in his acceptance of Rs.7,000/- as the advance consideration and in the correspondence that proceeded between the defendant's counsel Mr. Trivedi and the purchaser M/s. Dubash Brothers or their Solicitors. Mr. Amin for the appellant mainly stressed the circumstance as disclosed in the resolution of the Board of Directors of the Bhavnagar Bone and Fertilisers Company Limited dated 13-4-1950 Ex. 'G' produced in the cross-examination of Mr. Trivedi and the purchaser M/s. Dubash Brothers or their Solicitors. Mr. Amin for the appellant mainly stressed the circumstance as disclosed in the resolution of the Board of Directors of the Bhavnagar Bone and Fertilisers Company Limited dated 13-4-1950 Ex. 'G' produced in the cross-examination of Mr. Firozshaw Dorabashaw Dubash who was examined on behalf of the plaintiff. Mr. Firozshaw Dubash, in his statement, stated that 'before 13-4-50 some body had approached him for negotiating the sale of the factory. I do not remember who that person was. It is clear from this statement that it was not his stand that the defendant had approached him or contacted him for the sale of the factory. Moreover it is not clear as to how the matter appeared in the meeting of the Bhavnagar Bone and Fertilisers Company which had nothing to do with the transaction in question. The proceedings of the meeting of the Board of Directors of the Bhavnagar Bone and Fertilisers Company were produced in the cross-examination of Mr. Firozshaw Dubash whom the plaintiff was obliged to examine as his witness in order to establish certain facts. According to plaintiff's own statement, if it is to be believed, he had come from Pali Marwad on the 15th or 16th of April 1950. He had come to Neemuch in connection with the marriage of his sister on 21.4.1950. It was then that he met the defendant Manmal Gattani there. The subject regarding sale of the Bone Mill was for the first time opened by Manmal to him at that time. In this circumstance it would not be appropriate on the plaintiff's own statement to suggest that it was the plaintiff who had represented at the Bhavnagar Bone and Fertilisers Company at Pali that Manmal Gattani was expecting Rs.80.000/- as the price for the entire property. Mr. Daruwala, who was the manager appointed by Dubash Brothers at their factory at Pali and who ultimately was responsible in securing alteration of the transaction from the sale into one of leapt, stated that he bad been given details of the property to be sold by the plaintiff by the end of March 1950 or by the beginning of April 1950. In the absence of any positive evidence about the fact that it was the defendant who had represented either to Mr. Daruwala or to Mr. In the absence of any positive evidence about the fact that it was the defendant who had represented either to Mr. Daruwala or to Mr. Firozshaw Dlibash that the price would be Rs.80,000/- for the land, machinery, building etc. not much can be made of this kind of resolution produced; in the cross-examination of Mr. Firozsnaw Dwbash and that too from the Bhavnagar Bone and Fertilisers Company of which Mr. Daruwala was the manager. Oral evidence upon a matter like this would be at lesser value. However, whatever evidence/there is it goes to support the plaintiffs stand that the Bone, Mill included, agricultural land as well. Badrinarayan Kalani, who is the scribe of the letter of authority 'Ex. 'A' (D/3) and is related to the plaintiff being his paternal uncle in the second, degree, says that the factory meant 'Bone Mill' comprising of the land. Mr. Amin has emphasised the statement of Mr. Pathak who was 'employed at the Bone Mill at Pali wherein he had stated that Bone Mill was intended to be purchased and not the agricultural land and that there was no-agricultural' land in the/Bone Mill of Dubash and Company at Pali as suggesting that the parties could not have intended to include the agricultural land in the transaction which was to be brought/about. Such a statement is hardly significant in view of the transaction which ultimately, was put into writing between Dubash Brothers and the plaintiff as representing the defendant Mr. Pathak was not a participant in the negotiations and the circumstances that there was no agricultural land at Pali attached to the Mill there cannot be a decisive criterion to indicate that the defendant could not have meant to include the agricultural land while seeking to sell his Bone Mill. The trial Court's finding therefore, upon this question is correct. 12. As regards the second point in view of my finding that the documents Ex. P-1, P-2, and P-3 meant to include the agricultural land any question regarding a second agreement as to commission, on the 5th or 6th of May 1950 ordinarily ought not to arise. But this question will also be considered on the basis of what took place between the parties and M’s Dubash Brothers as represented by Mr. Daruwala while Mr. Daruwala had been to Neemuch to see the factory after the execution of the agreement dated 3-5-1950. But this question will also be considered on the basis of what took place between the parties and M’s Dubash Brothers as represented by Mr. Daruwala while Mr. Daruwala had been to Neemuch to see the factory after the execution of the agreement dated 3-5-1950. According to the, defendant the plaintiff sent a telegram dated 3-5-1950 informing him of his having sold the Bone Factory and later he actually saw the defendant in the presence of Gyarsilal. It was then that for the first time he disclosed to him that he had sold the Bone Factory and the land. According to him on hearing this from, the plaintiff, he exclaimed that he had not authorised him to sell the land along with the Bone Factory. The plaintiff, sought to explain according to him, that the purchasers, were not willing to purchase the factory without the land that he had settled the transaction at Rs.70,500/-. It was then that the defendant expressed to the plaintiff his difficulty in transferring the land in view of the fact that Gyarsilal was a subtenant in possession of the same and that he was unable to say anything unless he sought advice from his counsel and the Patwari. Patwari Dattatraya's address was given to the Plaintiff who fetched the Patwari with him. The Patwari advised him to strike the bargain at that price as the price offered was a good one. At that time the defendant mentioned Rs.30,000/- as the price of the land and Rs.34,000/- for the factory as already fixed by him. This would leave a margin of Rs.6,500/- for the/plaintiff. The plaintiff accepted this. This talk, according to the defendant, had taken place in the presence of Dattatraya only as Gyarsilal by that time bad left. Dattatraya, in his statement, stated that the plaintiff Radhakishan had been to him in the year 1950-51 in connection with the Bone Mill. He had sought his advice as to whether the land under the Bone Factory could be sold away or not and requested him to persuade the defendant Manmal that he should sell away the land as he had entered into a contract for the sale of the land as well. He asked the Patwari to accompany him to Manmal. Dattatraya further says that he had first refused to accompany him but on his repeated requests be agreed. He asked the Patwari to accompany him to Manmal. Dattatraya further says that he had first refused to accompany him but on his repeated requests be agreed. Both of them went together to the defendant. There Dattatraya asked the defendant to sell the land as well. Manmal expressed difficulty about Gyarsilal whereupon Dattatraya told him that Gyarsilal was their man being their Munim and thereby he could persuade him to part with the land. The price of the factory was stated by Manmal to be Rs.34,000/-. As regards the land he was asking for Rs.32,000. Ultimately the price of the land was settled for less than Rs.32,000. He did not mention the figure for which it was settled. Nor does he say anything about the existence of the commission which the plaintiff would be able to earn by the change as had been suggested by the defendant. In the first place no reference to this subsequent agreement in the presence of Dattatraya was made in the written statement. Apart from that it was clear that the defendant had entered into a contract in writing with the plaintiff setting out the term regarding his commission. If this agreement in writing was either to be modified or clarified one would expect a writing necessary for the purpose. The defendant was a business man and it would be too much to expect that when according to his case the plaintiff had acted contrary to his instructions in entering into a contract for the sale of the land and the factory thereby putting him to the risk of parting with major portion of consideration in defendant's favour amounting to Rs.36,500/- that he would not secure a writing from the plaintiff clarifying the extent to which he would be entitled to his commission namely Rs.6,500. This was a very material and substantial part of the subsequent agreement. Dattatraya speaks nothing about it. He even does not say anything about the price which the defendant fixed for the land. He gives the figure as below Rs.32,000/-. According to Mr. Daruwala, who had gone to Neemuch and had been staying at the Dak Bunglow, that on the 5th of May 1950 plaintiff Radhakishan had met him at the Dak Bunglow. He even does not say anything about the price which the defendant fixed for the land. He gives the figure as below Rs.32,000/-. According to Mr. Daruwala, who had gone to Neemuch and had been staying at the Dak Bunglow, that on the 5th of May 1950 plaintiff Radhakishan had met him at the Dak Bunglow. At that time he appeared to be puzzled and on inquiry about his mental attitude Radhakishan told him that there was nothing to worry about it but that the transaction regarding sale would have to be split into two parts one regarding the sale of the Factory and the other regarding sale of the land. It was thereupon decided to split the value into two parts Rs.40,500/- being allocated towards the price of the factory and Rs.30,000/- for the land: According to the witness his master had paid Rs.7,000/- as earnest money but had not paid the rest of the consideration as the transaction had not been completed i.e. the registration had not taken place. However, Manmal, according to him, handed over the title deeds to the counsel for the purchasers Mr. Madhavsingh. The fact of handing over of the title deeds to the counsel is corroborated by the statement of Madhavsingh who was examined by the defendant. The defendant did not examine Gyarsilal to establish that when the plaintiff for the first time informed him about the sale of the land along with the factory he was surprised. If we do not believe this version of the defendant as to his surprise the rest of his conduct is quite consistent with his having agreed to proceed with the transaction in the form in which the plaintiff had directed him. The defendant's version about the clarified agreement as to commission amounting to Rs.6,500/- is not supported in the form in which it was mentioned by the defendant and by Dattatraya. On the other hand the defendant admittedly decided to proceed with the transaction. He not only accepted Rs.7,000/- as deposit but agreed to divide the entire consideration into two parts Rs.40,500/- representing the price of the factory and Rs.30,000/- that of the land. This he appears to have done as in the prior two transactions of sale for convenience, since for the sale of land certain procedure had to be followed before the revenue authority before executing a registered a sale-deed. This he appears to have done as in the prior two transactions of sale for convenience, since for the sale of land certain procedure had to be followed before the revenue authority before executing a registered a sale-deed. Materials are not sufficient to draw a conclusion that there was a second agreement between the plaintiff and the defendant where under the plaintiff was to receive commission to the extent of Rs.6,500/- only. In fact as the evidence stands there is reason to hold that the defendant's version that he was surprised on being told about the sale of the land is not correct. 13. The third point is as to whether it was competent for the plaintiff to execute a contract for sale as he had done on 3-5-1950. On perusal of Ex. P-1 it seems that by that document the defendant bad permitted the plaintiff to sell his Bone Mill, this authority being limited to the period up to 3-5-1950. The authorisation to sell prima facie would include an authority to execute a contract for sale and not merely to negotiate and inform the results of the negotiations to the defendant. The words, 'when you will confirm Pakka sale at that time at least a sum of Rs.5,000 shall have to be paid as earnest money', indicate that he had been authorised to confirm Pakka sale and to receive at least Rs.5,000 as earnest money. This is made further clear by the last paragraph in the agreement authorising the plaintiff to pass a receipt on behalf of the defendant. The matters did not rest there but the defendant actually gave a letter of authority to satisfy the would be purchasers that the plaintiff had been authorised by the owner to sell his Malwa Manufacturing Company and to collect on his behalf earnest money after issuing a receipt for the same. In face of the clear terms of Ex. P-1 and D. 3 it would not be correct to say that the plaintiff had been authorised merely to negotiate and do no more. In Keen Vs. Mear [(1920) 2 Ch 574 (Vol. 2)] it is held by Russel, J., after referring to Hamer Vs. Sharp [LR 19 Eq. 103] Thuman Vs. Best [(1907) WN 170] Chandburn Vs. Moore [61 LJ Ch. 674] Wilde Vs. Wastson [ILR Ir. 402] and Rosenbaum Vs. Belson [(1900) 2 Ch. In Keen Vs. Mear [(1920) 2 Ch 574 (Vol. 2)] it is held by Russel, J., after referring to Hamer Vs. Sharp [LR 19 Eq. 103] Thuman Vs. Best [(1907) WN 170] Chandburn Vs. Moore [61 LJ Ch. 674] Wilde Vs. Wastson [ILR Ir. 402] and Rosenbaum Vs. Belson [(1900) 2 Ch. 267] that the mere employment by an owner of an estate agent to dispose of a house confers no authority to make a contract the agent is solely employed to find out persons to negotiate with the owner but if the agent definitely instructed to sell at a defined price those instructions involve authority to make a binding contract and to sign an agreement. In the present case there was much more then indicating the price at which it was to be sold as has been discussed above. Mr. Amin’s contention therefore that the defendant had not authorized the plaintiff to execute an agreement such as Ex. P-4 for sale of the property is untenable. Another part of Mr. Amin’s contention on this point is that even assuming that the plaintiff had authority to execute a writing it could only be a writing without containing several onerous terms and conditions some of which it was not possible for the defendant to comply as for example the agreement to obtain an authority of a competent Court sanctioning the agreement to sell as being for the benefit of his minor grand-sons and authorizing the defendant to sell the property in question. This contention would have some force had there been no indication in the documents Ex. P-1 and d-3 justifying the plaintiff action in confirming a Pakka sale and in receiving earnest money pursuant to the bargain. Whether the defendant was well advised to give authority to the plaintiff or no is not a matter which is material for the purpose of the present case. Materials do indicate that he had been so authorized. The defendant also took the matter in that light since when after the execution of the document the plaintiff came to Neemuch with Mr. Daruwala further steps were taken for completing the transaction The entire consideration was agreed to be broken in two parts and the sale was agreed to be effected separately for the factory and the machinery and for the land. Daruwala further steps were taken for completing the transaction The entire consideration was agreed to be broken in two parts and the sale was agreed to be effected separately for the factory and the machinery and for the land. On the 6th of May 19.50 an application was submitted by Manmal in the Court of the District Sub-Judge for transfer of the land into the name of Dubash Brothers as per agreement dated 3-5-1950. Reference in Ex. P. 8, which is a certified copy of the aforesaid application to the agreement dated 3-5-1950 as also in the subsequent applications dated 10-8-1950 seeking, extension of one Months, time from the Registrar to effect registration clearly indicates, that the defendant had definitely consented to comply with the terms of the agreement dated 3-5-1950. It therefore fallows that the plaintiff had sufficient authority to, execute the agreement dated 3-5-1950 under the terms of Ex. P-1 and D-3 and even if there had been any defect in such authority the subsequent ratification by that authority by accepting the earnest money and by agreeing to split the, entire consideration into two parts and by submitting application to the, authority far the sale of the land makes that defect good. 14. This takes us to the fourth point namely whether there was justifiable cause for the defendant not to complete the transaction of sale. It seems from the statement of the defendant Manmal that after presenting the application Ex. P. 8 for the sale of land before the District Sub-Judge the defendant received a letter from the purchasers' counsel Madhavsingh dated 23-7-1950 Ex. D. 4. By this letter Madhavsingh brought to the notice of the defendant the letters addressed by the Solicitors of the purchasers M/s Ardeshir Hormusji Dinshaw and Company dated the 13th and 14th of July 1950 Ex. D-4 A and D. 4-B. By the first letter of the Solicitors they informed that the purchasers insisted that the proceedings for the appointment of the guardian of the property of the two minor grand-sons of the vendor should be started and order of the competent Court ought to be obtained authorising the sale of the property and the execution of the conveyance thereof to the purchasers on behalf of the minor members of the joint family of the defendant. By the second letter dated 14th the Solicitors gave reasons for insisting upon the aforesaid formalities to be gone through by reason of a justifiable apprehension that in transactions of this sort vendors often inspire minor members to set aside the transaction at a later date. The Solicitors warned that their clients would be justified in claiming compensation for the loss caused to them through the delays in carrying out the express stipulation in the agreement of sale for securing Court's order. The express stipulation here referred to was the term No. 6 in the agreement Ex. P-4 dated 3-5-1950 which the defendant had accepted and ratified. On receipt of these letters the defendant approached his counsel Mr. Trivedi who on 26-7-1950 addressed a letter to Mr. Madhavsingh Chowdhari in answer to his letter dated 23-7-1950. Mr. Trivedi wrote informing that the demand made by the purchasers for the appointment of a guardian to the property of the minor grand-sons of the defendant was without any precedent and arose out of his misconception. Mr. Trivedi further asserted therein that no sanction of the Court is necessary for alienation to be effected by a Hindu Manager of a joint family property. The Solicitors there upon wrote back to Mr. Chowdhari by their letter dated 1-8-1950 stating that the requisition made requiring the defendant to obtain order of the Court authorising the sale of the property on behalf of the minors did not arise out of any misconception but was made in terms of the express stipulation in that behalf by the defendant in the agreement dated 3.5.1950 Mr. Madhavsingh thereupon wrote to Mr. Trivedi asking him to satisfy the Solicitors about the matter. Mr. Trivedi thereupon wrote to the Solicitors on 14.8.1950 letter Ex. D-8. He reasoned with the Solicitors in this letter that guardian of minor member of an undivided Hindu family governed by Mitakshara Law was inconceivable. However he expressed the defendant's willingness to make any application before any Court which the Solicitors might suggest. The Solicitors wrote back on 21-8-19 in to Mr. Trivedi insisting upon the fulfillment of the term saying that the practice of obtaining sanction from the Court in such case is well established. References in this letter were made to certain decisions of the Bombay High Court. Mr. The Solicitors wrote back on 21-8-19 in to Mr. Trivedi insisting upon the fulfillment of the term saying that the practice of obtaining sanction from the Court in such case is well established. References in this letter were made to certain decisions of the Bombay High Court. Mr. Trivedi again sent a reply dated 26-8-1950 bringing to the notice of the Solicitors that the High Court's jurisdiction of the nature suggested by the Solicitors extended in the case of minor residing and having interest in the property situated any where in the whole Presidency and not outside it. Thereupon on 2-9-1950 the Solicitors wrote to Mr. Trivedi bringing to his notice that the defendant had failed and neglected to carry out the stipulation in the agreement as to obtaining the Court's order sanctioning the sale or approving and declaring the same as being for the benefit of the minors and that this might be treated as defendant's refusal to carry out the said stipulation which the purchasers considered as essential condition of said agreement of sale. They therefore required the defendant to carry out the terms of the agreement intimating that if this was not done by 15-10-1950 the purchasers would take appropriate action. Without prejudice to that they consented to the proposal made by Mr. Trivedi earlier to have a conference wherein this point might be discussed. It was as a result of this correspondence that Mr. Trivedi along with the defendant went to Bombay. According to the defendant the Solicitors were not prepared to budge an inch. He therefore approached Mr. Daruwala asking him to some way out. Mr. Daruwala agreed to help him in case the defendant would give him Rs.5.000/-. He ultimately acceded to that proposal. It was then that Mr. Daruwala intervened and ultimately the transaction of lease was thought upon. The suggestion made by Mr. Daruwala found favour with Mr. Trivedi also and on the following day the terms were settled with Mr. Firozshaw Dubash. This transaction, according to the defendant, was the result of circumstances brought about due to the inclusion of the term No. 6 in the agreement dated 3-5-1950 and not because he wanted to avoid payment of commission. Daruwala found favour with Mr. Trivedi also and on the following day the terms were settled with Mr. Firozshaw Dubash. This transaction, according to the defendant, was the result of circumstances brought about due to the inclusion of the term No. 6 in the agreement dated 3-5-1950 and not because he wanted to avoid payment of commission. To indicate want of collusion the defendant stated that after execution of the sale-deed the possession of the factory was given to M/s Dubash Brothers on their agreeing to pay Rs.600/- P.M. as rent. This rent had been in arrears and the defendant consequently was required to file a suit for recovery of Rs.11,000/- against the purchasers. The plaintiff says with reference to this part of the defendant's stand that when he found that the sale-deeds contemplated on the 6th of May 1950 had not been executed upto September 1950. He went to Neemuch and enquired from the defendant the cause of the delay. The defendant told him that the inspection of the boiler had not been completed and further that the purchasers were insisting upon the Court's order for sale on behalf of the minors and that in that connection he would go to Bombay with Mr. Trivedi. Thereafter, according to him, Mr. Trivedi and Manmal went to Bombay but in spite of that event after they returned from Bombay the sale-deed was not registered and on asking by him the defendant acted in a suspicious and guarded manner. Thereupon he wrote a letter from Pali Ex. P-11 asking him to inform him about the further developments which had taken place. Subsequent to that he learned that on 18.4.1951 the defendant and the purchasers had got lease-deed registered with an option to purchase at any time within the period of the lease for a consideration of Rs.70,000/-. According to the plaintiff this was a fictitious document intended to defeat his claim for the commission. It seems from the evidence of the plaintiff and the defendant as also from the course of the correspondence that went on between the Solicitors of the purchasers and the defendant that the defendant was required to give up the transaction of sale because of the insistence of the purchasers that the defendant should obtain Court's order sanctioning sale as being for the benefit of the minors. This was not possible for the defendant and when ultimately the defendant found that there was likelihood of the failure of the transaction due to his inability to comply with the term which the plaintiff had got inserted in the agreement dated 3-5-1950 he had no other go but to find a way out through Mr. Daruwala It therefore seems that the course of circumstances made the defendant to abandon the transaction of sale or to put in other words there was justifiable cause for the defendant not to complete the transaction of sale since the term regarding the Court's order as contained in paragraph 6 of the agreement Ex. P-4 had ultimately been ratified by the defendant. It is not legitimate to say that this failure to complete the transaction by the defendant arose due to the default of the plaintiff. 15. As regards the fifth point regarding collusion between the purchasers and the defendant we may say that the evidence is not sufficient to draw any conclusion as to collusion. The agreement Ex. P-4 did contain a condition as to Court's sanction. The purchasers and their Solicitors were insisting upon its strict compliance. Mr. Daruwala no doubt was asked to intervene and to find a via-media on defendant's agreeing to pay Rs.5,000/- to him. But this last mentioned circumstance is not enough to lead to the conclusion that there had been collusion between the purchasers and the defendant. 16. This takes us to the last point viz., whether the plaintiff is entitled to claim the commission because of the agreement dated 3-5-1950 even when there was no sale. 17. On the findings thus reached with reference to the earlier five points and in view of the terms of the suit agreement as evidenced in Ex P-1 and P-2 and the letter of authority Ex. D.3 the position seems to be as follows. 18. 17. On the findings thus reached with reference to the earlier five points and in view of the terms of the suit agreement as evidenced in Ex P-1 and P-2 and the letter of authority Ex. D.3 the position seems to be as follows. 18. The defendant authorised the plaintiff to enter into a contract for the sale of the entire Bone Mill including the agricultural land on conditions that if the plaintiff on or before the 3rd of May, 1950 was able to enter into such firm contract for consideration in excess of Rs.34,000/- the defendant would take Rs.34,000/- out of the sale price free from all expenses and what ever amount excluding the expenses the defendant would receive in excess of the said amount of Rs.34,000/- would be the plaintiff's commission which on receipt from the purchaser would be given to the plaintiff and the defendant would execute a sufficient deed of sale in the name of such person as the plaintiff would mention. In pursuance of this authorisation the plaintiff contracted on defendant's behalf on 3-5-1950 to sell the aforesaid property for Rs.70,500/- to M/s Dubash Brothers on terms and conditions incorporated therein. One of the terms which the purchasers had put in the contract in clause 6 was that the defendant would secure Court's permission for the sale of the property on behalf of his minor grandsons on the ground that the sale was for minors' benefit. Subsequent to the signing of the contract purchasers' man came to see the factory premises and to take further steps for the completion of the contract. The defendant ultimately agreed to complete the sale by executing two separate deeds of sale one regarding the land and the other regarding the rest of the property of the Mill excluding land. Single consideration for both of them was agreed to be split for the aforesaid purpose into two parts Rs.40,500/- representing the price of the factory minus land and Rs.30,000/- representing the price of the land. Later dispute arose regarding implementing the term No.6. The purchasers insisted upon its compliance apprehending that in case this was not insisted upon they would be in trouble due to the fight of the minors in the property while the defendant asserted that such a course was not open in the State in which the property was situated. Later dispute arose regarding implementing the term No.6. The purchasers insisted upon its compliance apprehending that in case this was not insisted upon they would be in trouble due to the fight of the minors in the property while the defendant asserted that such a course was not open in the State in which the property was situated. The purchasers relied upon the term in the sale deed that on failure to carry out any of the terms of the agreement dated 3-5-50 which included one in clause No.6, the contract would become null and void. Faced with this situation the plaintiff defendant visited Bombay to resolve the controversy and ultimately through the intervention of Mr. Daruwala and on agreeing to pay him Rs.5,000/- as his commission the purchasers agreed to take a lease at Rs.600/- P.M. for the initial minimum period of three years with option to them to continue the lease upto 15 years at the same rate and further option to purchase the property for Rs.70,000/-. In case the option to purchase was exercised the defendant would give credit to Rs.8,000/- including Rs.7,000/- received by him as earnest money for the transaction of sale. 19. Such being the position the things to be considered with reference to the last point are, has the plaintiff acquired the right to claim from the defendant Rs.36.000/- as his commission? In the alternative can he claim this amount as damages for the breach of contract committed by the defendant in failing to effect the sale. 20. In order to consider this matter it will be necessary to examine the position in law in cases of this description where the question of broker's commission is involved. 21. In Bostead on Agency (12th Edition) it is said at page 123:- "The right of an agent to be remunerated for his service is founded upon an express or implied contract......... 21. In Bostead on Agency (12th Edition) it is said at page 123:- "The right of an agent to be remunerated for his service is founded upon an express or implied contract......... Where the remuneration of an agent is provided for by an express contract, no other contract which is inconsistent with the terms thereof, whether founded on custom or otherwise, can be implied." At page 120:- "where the remuneration of an agent is a commission upon transactions brought about by him, or is only payable in the event of a transaction being brought about by him, he is not entitled to be paid such remuneration unless the transaction in respect of which it is claimed is a direct, though not necessarily an immediate, result of his agency, and is a transaction the bringing about of which was within the scope of his employment; but it is not necessary, in order to entitle him to payment of such remuneration, that he should complete the transaction, or even that he should be acting for the principal at the time of the completion thereof." 22. Dealing with the case of estate agent, which is material for our present purpose, the author quotes the observations of Jankins, L.J., in Midgley Estates Vs. Hand [(1912) 2 QB 432] at page 435-36:- "So far as any general principle is deducible from the authorities, their effect may, I think, be summarised thus: The question depends on the construction of each particular contract, but prima facie the intention of the parties to a contract of this type is likely to be that the commission stipulated for should only be payable in the event of an actual sale resulting.........That is, broadly speaking, the intention which, as a matter of probability, the court should be disposed to impute to the parties. It follows that general or ambiguous expressions, purporting, for instance, to make the commission payable in the event of the agent 'finding a purchaser', or.........selling the property', have been construed as meaning that the commission is only to be payable in the event of an actual and completed sale resulting, or, at least, in the event of the agent succeeding in introducing a purchaser who is able and ready to purchase the property. That is, the broad general principle in the light of which the question of construction should be apprehended; but this does not mean 'that the contract, if its terms are clear, should not have effect in accordance with those terms, even if they do involve the result that the agent's commission is earned and becomes payable though the sale in respect of which it is claimed, for some reason or another, turns out to be abortive." 23. It is further observed at page 132:- "However that may be, it is clear that the purchaser must remain willing until completion or until such time as the vendor withdraws from the transaction.......Moreover on the purchaser's proving not to be 'willing' at the time for completion, the vendor owes no duty to the agent to sue for specific performance (Reed Vs. Goody [(1920) 2 KB 277 CA]. So, where an agent was to receive commission on the purchase price 'obtained' from a person able and willing to purchase the failure of the vendor to sue the defaulting purchaser was not such a default on vendor's part as to entitle the agent to recover his commission more strictly, damages for being prevented from earning his commission) Boots V. Christopher [(1952) 1 KB 89 CA], French V. Leeston Shipping Co., [(1922) I AC 451], At page 135 it is said:- "Where a principal, in breach of an express or implied contract with his agent, refuses to complete a transaction, or otherwise prevents the agent from earning his remuneration, the agent is entitled to recover, by way of damages, the loss actually sustained by him as a natural and probable consequence of such a breach of contract. The measure of damages, where nothing remains to be done by the agent, is the full amount that he would have earned if the principal had duly completed the transaction, or otherwise carried out his contract with the agent." In Luxor V. Cooper [1941 AC 108], it is held by the House of Lords:- "Where an agent is promised commission only if he brings about the sale which he is endeavouring to effect there is no room for an implied term that the principal will not dispose of the property himself or through other channels or otherwise act so as to prevent the agent from earning his commission." 24. Viscount Simon, L.C., in that considered three different classes of cases with reference to this matter in the aforesaid case. He observed at page 120:- "It may be useful to point out that contracts under which an agent may be occupied in endeavouring to dispose of the property of a principal fall into several obvious classes. There is the class in which the agent is promised a commission by his principal if he succeeds in introducing to his principal a person who makes an adequate offer, usually an offer of not less than the stipulated amount. If that is all that is needed in order to earn his reward, it is obvious that he is entitled to be paid when this has been done, whether his principal accepts the offer and carries through the bargain or not. No implied term is needed to secure this result. There is another class of case in which the property is put into the hands of the agent to dispose of for the owner, and the agent accepts the employment and, it may be, expends money and time in endeavouring to carry it out. Such a form of contract may well imply the term that the principal will not withdraw the authority he has given after the agent has incurred substantial outlay, or, at any rate, after he had succeeded in finding a possible purchaser. Each case turns on its own facts and the phrase 'finding a purchaser' is itself not without ambiguity. Inchbalad's case 17 C.B. (N.S.) 733, might, I think, be regarded as falling within this class. But there is a third class of case (to which the present instance belongs) where, by the express language of the contract, the agent is promised his commission only upon completion of the transaction which he is endeavouring to bring about between the offer or and his principal. As I have already said, there seems to me to be no room for the suggested implied term in such a case. The agent is promised a reward in return for an event, and the event has not happened. As I have already said, there seems to me to be no room for the suggested implied term in such a case. The agent is promised a reward in return for an event, and the event has not happened. He runs the risk of disappointment, but if he is not willing to run the risk he should introduce into the express terms of the contract the clause which protects him." Lord Wright observed at page 149:- "It may well be, as I have already stated, that as soon as a binding executor contract is effected between the employer and the purchaser, a different state of things arises. The property is transferred in equity and the seller can be specifically ordered to complete. The agent may then fairly claim that he is entitled to his commission or at least to substantial damages and a term of that nature may, I think, as at present advised be implied in the contract. It cannot have been contemplated that when a binding contract with the purchaser has been made on the agent's mediation, the principal can as between himself and the agent bread that contract with out breaking his contract with the agent. I understand that this was the view of Scrutton, L.J., and though the question does not arise in this case, I am as at present advised in agreement with it. In that case it may fairly be said that the employer prevented the fulfillment of the condition and was in default under the commission agreement just as much as the agreement of sale. But while negotiations are still in progress, it is a different matter." 25. The Supreme Court in Abdulla Ahmed Vs. Animendra Kissan [ AIR 1950 SC 15 ] has considered the question regarding the right of an estate agent to his remuneration where he succeeds in bringing a purchaser but with the nominee of whom the vendor concludes a sale for a lesser consideration. The Supreme Court in Abdulla Ahmed Vs. Animendra Kissan [ AIR 1950 SC 15 ] has considered the question regarding the right of an estate agent to his remuneration where he succeeds in bringing a purchaser but with the nominee of whom the vendor concludes a sale for a lesser consideration. The majority of their Lordships held in the judgment of Patanjali Shastri, J. that on the construction of the letter of authority the agent having secured a buyer who made firm offer to buy at a higher price had done everything he was required by the vendor to do and he thereby acquired a right to his commission on the basis of that price which he had successfully negotiated subject only to the condition that the buyers should complete the transaction of purchase and sale. The condition was held to be substantially fulfilled when the sale was effected in favour of the nominee of the very same buyers though it be for a lesser price. The decision in Luxor (Eastbourne) Ltd. Vs. Cooper (1941) AC 108 was explained and applied by them. 26. Having regard to the position in law as disclosed in the aforesaid cases it seems to me that on the terms of the agreement in suit Ex. P. 1 the plaintiff would be entitled to his commission out of the sale price which would be received from the purchasers brought by him and this involved that such commission would be earned only on completion of the transaction of sale. In the present case certainly a transaction has taken place with the same persons brought by the plaintiff as buyers and with whom a contract had been entered into but on the terms of that contract the buyers had wanted the vendor to secure Court's order for sale on behalf of the vendor's grand-children that the sale was for their benefit. This term had been introduced in the agreement dated 3-5-1950 which the plaintiff entered into in pursuance of the authority given to him. The contract also contained a term that in case any of the terms of the agreement is not carried out the contract would become null and void. This involved that it would be void irrespective of the fact whether the vendor could or could not have secured the order. The contract also contained a term that in case any of the terms of the agreement is not carried out the contract would become null and void. This involved that it would be void irrespective of the fact whether the vendor could or could not have secured the order. When it came to the question of completion of the sale the purchasers insisted upon performance of the aforesaid term. The vendor expressed his difficulty. The buyer would not agree to excuse the vendor from his performing the condition. It is in this context that there was no sale although the vendor and the purchasers ultimately through the intervention of another person decided to have lease. 27. Can we then say in face of the above discussed authorities that the plaintiff had acquired a right to his commission as stipulated, namely, Rs.36,500/-. The obvious answer is that although the contract had been entered into on 3-5-1950 the plaintiff was to get his commission after the defendant got clear Rs.34,008/- net free of all costs, to the extent whatever had been left over out of the price obtained. There was however no sale and consequently no sale-price was obtained. The defendant did not get Rs.34,000/- net and no balance in his hand was left on receiving that sum which he was entitled to receive under the contract. On terms of the contract therefore the plaintiff could not get the commission, was he then entitled to it by way of damages as he had entered into a firm contract on the authority of the defendant because the defendant failed to execute the contract and prevented him from earning his commission? I think not, because he was to get the commission out of the sale• price and this implied that he would be entitled to it on the completion of the transaction otherwise not. I think not, because he was to get the commission out of the sale• price and this implied that he would be entitled to it on the completion of the transaction otherwise not. But even if we assume that he having done everything to have a binding executor contract and the vendor, that is the principal, having failed in securing fulfillment of the condition which would have brought him his commission, he would ordinarily be entitled to substantial damages, yet in the circumstances of the present case it is difficult to hold the defendant responsible for the breach of his obligation because the failure of the transaction did not arise by reason of his whim or caprice, nor because of his desire to avoid payment of plaintiff's commission, although such evasion might have been to his advantage, but because of the unfortunate inclusion of a term in the agreement which could not be performed and non-performance of which could render the agreement dated 3-5-1950 null and void. 28. No doubt if the second transaction were in substance one of sale though camouflaged and if the defendant had acquired under it substantially the same price on completion of the transaction in substance as a side the plaintiff could rightly have claimed his commission. But the transaction ultimately brought about was not of sale either in form or in substance. It was lease which brought to the defendant only Rs.600/- P.M. It is too much to say in such a situation that the plaintiff should be paid by the defendant Rs.36,500/- all the same. 29. Mr. Chitale counsel for the plaintiff conceded and rightly that the plaintiff could not have asked the defendant to sue the purchasers in the circumstances of the case for specific performance and if he could not have done that the defendant could not have obtained the sale-price out of which to pay to the plaintiff the agreed commission. 30. Mr. Chitale, however, suggested that under the lease the defendant got exactly what he would otherwise have got under a completed sale. According to him there was a firm contract of lease at least for three years and this must have fetched for him Rs.21,600/-. Besides that he had already with him Rs.8,000/- (Rs.7,000/- as advance received on 6.5.1950 and Rs.1,000/- more at the time of the lease transaction). According to him there was a firm contract of lease at least for three years and this must have fetched for him Rs.21,600/-. Besides that he had already with him Rs.8,000/- (Rs.7,000/- as advance received on 6.5.1950 and Rs.1,000/- more at the time of the lease transaction). This made Rs.29,600/- and Rs.5,400/- for the land on completion of the railway siding, making the total of Rs.35,000/-. 31. I am unable to appreciate the arithmetic. The plaintiff certainly did not secure Rs.70,500/- as consideration under the agreement of lease. If the lease stood for fifteen years he would get much more but if it would terminate at the end of three years he would get only his net minimum not immediately but over a period of three years. It is difficult to say that this is substantial completion of the contract. 32. For these reasons I am of the view that the plaintiff's claim either for Rs.36,500/- under the terms of Ex. P. 1 or for damages to that extent as on defendant's breach is not tenable. No claim on the basis of quantum merit could or has been pressed before us. 33. The appeal consequently is allowed and the plaintiff's suit is dismissed with costs.