1. [His Lordship first set forth the facts of the case and dealt with the requisitions one by one:] I next take various requisitions relating to heirs as mentioned in various documents.
2. Nos. 1 to 5 relate to recitals in the conveyance of 1883 (Exh. L). That was a document about forty-seven years old, and the recitals contained therein should have been accepted, in the absence of anything throwing suspicion on their character, Mr. Kustamji, plaintiff's solicitor, has given uncontradicted evidence of the practice of Bombay solicitors to accept recitals in deeds of over twenty years old, in the same way as is done in England under the Vendor and Purchaser Act, 1874, (Williams, Vol. I, p. 136)...
3. In requisition No. 15 the vendor was required to furnish to the purchaser certified copies of the orders and consent decrees mentioned in the conveyance dated October 21, 1914, and the answer was 'the vendor will do so at the purchaser's costs.' I accept Mr. Rustamji's uncontradicted evidence that this answer accords with the practice of Bombay solicitors in the matter. This follows the practice in England under the Conveyancing Act, 1881 (Williams, Vol. I, p. 121). It might be the case that under the agreement of sale defendant might eventually be able to claim that half of such costs should be borne by plaintiff. What it apparently contemplates is that the bills of the two sets of solicitors should be pooled and shared half and half. But that does not affect the propriety of the answer to the requisition. In the first place the defendant had to bear the cost of getting the copies asked for. [ His Lordship next dealt with the question whether the plaintiff had made out a maketable title.] I find that plaintiff had made out a marketable title at the time he gave his notice of January 25, 1921. It seems to me that his title is really an exceptionally strong one, considering that the title deeds date back to 1808 and that it is supported by various consent decrees, as well as by very well-drawn documents like Exhts. I and J.
4. The correspondence and other circumstances leave no doubt in my mind that defendant through his attorneys was deliberately trying to get out of his agreement, owing to the fall in the market for immoveable properties, which occurred towards the end of 1920, as the Court is well aware from other litigation before it. The intention to take advantage of as possible objections and requisitions in order to delay and prevent completion of the purchase is quite clear. I, therefore, hold that there was such conduct on the part of the defendant as entitled the plaintiff to give the notice of January 25, 1921. The time allowed for completion, viz., ten days, was ample for preparing and executing and registering the necessary conveyance, if due expedition was used. I, therefore, answer issues Nos. 1 to 2B as follows:-
Issues. Answers.(1) Whether the plaintiff or the (1) The defendant on Februarydefendant committed breach of 5, 1921, when the timecontract? limit of ten days expired.(2) Whether the plaintiff has made (2) Yes.out a marketable title?(2A) Whether the plaintiff was (2A) Yes.entitled to give the notioecontained in his letter of January25, 1921?(2B) Whether the time of ten days (2B) Yes.there specified was reasonable?
5. The third issue is whether the plaintiff is entitled to specific relief. I answer this in the negative. Not only is the delay on his part of the investigation of title against him, but he also treated the contract as broken in accordance with the notice given by his attorneys' letter of January 25, 1921, and by subsequently putting up the property for auction. It is not a fact that, as pleaded in para 7 of the plaint, he has been always ready and willing to perform his part of the contract.
6. Issues Nos.4 and 5 are as to the damages, if any, to which plaintiff is entitled. In the plaint Rs. 15,000 are claimed on the basis of the highest bid (Rs. 31,000) obtained at the auction in March 1921. As I have already remarked, this latter fact has not been proved; but this seems to have been due to oversight and I would be disposed to allow plaintiff another opportunity of proving it, but for the fact that I do not think he is in any case entitled to damages on that basis. Firstly, the actual damages are to be assessed at the excess of the contract price over the market value on February 5, 1921 (of illustration (d) to Section 73, Indian Contract Act), and not its market value in March 1921 which may have been considerably lower. And, secondly, the plaintiff's delay from April to September in answering the requisitions and making the inquiry of Exh. N materially contributed to the resulting loss, through the fall of the market. Had the requisitions been answered in May or June 1920, as they might otherwise have been, it seems not improbable that the defendant would have been willing to push through completion, and the contract would have been carried out. In the circumstances, I think plaintiff is not entitled to any more damages than his taxed costs of and incidental to the agreement for sale plus the forfeiture of defendant's earnest money, Rs. 2000. I answer issues Nos. 4 and 5 accordingly.
7. On issue No. 6 I hold the defendant's counter-claim for recovery of earnest money, etc., should be dismissed.
8. Decree for plaintiff accordingly as at A above with costs and interest on judgment at six percent. Counter-claim dismissed with costs.