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Haribux Singhania Vs. Sm. Omrao Debi and ors. - Court Judgment

LegalCrystal Citation
SubjectContract
CourtKolkata High Court
Decided On
Case NumberSuit No. 2929 of 1949
Judge
Reported inAIR1956Cal232
ActsContract Act, 1872 - Section 182
AppellantHaribux Singhania
RespondentSm. Omrao Debi and ors.
Appellant AdvocateS. Majumdar, Adv.
Respondent AdvocateP.R. Das and ;S. Roy, Advs.
DispositionSuit dismissed
Cases ReferredRimmer v. Knowles
Excerpt:
- p.b. mukharji, j. 1. this is plaintiff's action against the defendants for the recovery of the sum of rs. 9,000/- as the agreed brokerage earned by him for sale of the divided northern portion of premises no. 24, burtolla street, calcutta. the plaintiff was employed as a broker by rai bahadur badridas tulsan. badridas tulsan died in june,1948, leaving his widow and sons who are defen-dants to this suit. 2. the plaintiff's case is that in november, 1943 badridas tulsan employed him as a broker to negotiate for and put through the sale at a price of rs. 50,000/- in favour of badridas tulsan or his nominee and that the plaintiff would be entitled to a lump sum brokerage of rs. 9,000/- from badridas tulsan upon the agreement for sale being effected and possession of the said northern portion.....
Judgment:

P.B. Mukharji, J.

1. This is plaintiff's action against the defendants for the recovery of the sum of Rs. 9,000/- as the agreed brokerage earned by him for sale of the divided northern portion of premises No. 24, Burtolla Street, Calcutta. The plaintiff was employed as a broker by Rai Bahadur Badridas Tulsan. Badridas Tulsan died in June,1948, leaving his widow and sons who are defen-dants to this suit.

2. The plaintiff's case is that in November, 1943 Badridas Tulsan employed him as a broker to negotiate for and put through the sale at a price of Rs. 50,000/- in favour of Badridas Tulsan or his nominee and that the plaintiff would be entitled to a lump sum brokerage of Rs. 9,000/- from Badridas Tulsan upon the Agreement for sale being effected and possession of the said northern portion of the premises being made over to Badridas Tulsan or his nominee by Keshavdeo Tulsan.

Incidentally. Badridas Tulsan and Keshavdeo Tulsan were two brothers the former being the owner of the divided southern portion of the said premises and the latter being the owner of the divided northern portion of the same premises. The sale for which the plaintiff was employed was a sale of Keshavdeo's northern portion to Badridas.

3. The defence of defendant Omrao Debi, widow of Badridas Tulsan, in her written statement is in substance this. Keshavdeo was not a willing seller. Having entered into an Agreement for sale, he refused to convey his northern portion of the said premises. The result was that Badridas Tulsan through his benamdar Baldeodas Jhun-jhunwalla had to file a suit in this High Court being Suit No. 1278 of 1944 for specific performance of the said Agreement for sale. It was defended by Keshavdeo.

A decree was passed in favour of Baldeodas Jhunjhunwalla, the benamdar of Badridas, on 7-7-1947. But Keshavdeo Tulsan was not content and he appealed from that decree. On 12-4-1948 Keshavdeo's appeal was dismissed with costs. That even was not the end of Keshavdeo's refusal to convey. Thereafter he filed a suit in this Court being Suit No. 1298 of 1948 against both Badridas Tulsan and Baldeodas Jhunjhunwalla for a decree that Keshavdeo was entitled to a reconveyance of the said northern portion from the defendants in that suit.

In fact, he applied and obtained an injunction in that suit restraining both Badridas and Baldeodas from executing the decree made in Suit No. 1278 of 1944. Keshavdeo's main contention throughout was that it was not an outright sale at all but at best only a conditional sale, and he pleaded an agreement to reconvey. This was not the end of the story. There was a further crop of litigations.

4. Aftef the death of Badridas who was the karta of a joint Hindu Mitakshara family his son Arun Kumar through the said Keshavdeo as his next friend instituted a suit against his other brothers and sisters and the widow of Badridas for partition of the joint family properties belonging to the parties. In 1948 there was another suit filed by Keshavdeo being suit No. 3376 of 1948 against the defendant for a declaration that another premises No. 19, Banstolla Street, Calcutta, formed part of the joint family properties and that he was entitled to a half share of such premises.

5. Finally all these various suits and proceedings were amicably settled and the Terms of Settle- ment set down in an Agreement in writing dated 13-11-1948. The actual Terms of the Settlement will be important in deciding the issues in this suit and will be referred to later on. Pursuant to that agreement Messrs. T. Banerjee and Co., solicitors for Keshavdeo, withdrew the sum of Rs. 47,500/-which had been paid into Court by Badridas Tulsan under the decree dated 7-7-1947 in suit No. 1278 of 1944.

6. No conveyance in respect of the said northern portion of the premises 24, Bartolla Street has yet been executed or registered by or on behalf of Keshavdeo or in accordance with, the aforesaid agreement for sale entered into by him with Badridas Tulsan or in accordance with the decree. It is alleged that Keshavdep did not give vacant possession of the said premises.

7. The defence taken on these facts is that having regard to the costs and expenses which had to be incurred by Badridas Tulsan and sub-sequently by his heirs in various litigations with Keshavdeo. Tulsan and which costs and expenses the defendant had to agree to abandon and forego in arriving at the aforesaid settlement and secondly also having regard to the fact of various other considerations expressly stated in the Terms of Settlement such as payment of Rs. 20,000/- for the marriage and maintenance of Keshavdeo's daughter the sale or rather the decree for a sale does not entitle the plaintiff to claim any brokerage in the circumstances.

The defence also is that, Keshavdeo was not a willing seller at all but had to be compelled by the processes of law. In other words the defence is that the sale was not the result of broker's labours but the result of litigation.

8. The following issues were settled by the Court and accepted by counsel on either side:

1. What were the terms of employment of the plaintiff?

2. Did the plaintiff as broker put through the sale?

3. Has the agreement for sale been effected and possession made over to Badridas Tulsan c.r his nominee by Keshavdeo Tulsan?

4. Have the terms on which brokerage was payable to the plaintiff been fulfilled?

5. To what relief if any, is the plaintiff entitled?

9. On behalf of the plaintiff, the plaintiff Haribux Singhania himself gave evidence. On behalf of the defendant Pokermull Gupta, a manager of the defendant, gave evidence. Apart from the oral evidence of these two witnesses the rest of the evidence is a number of documents and correspondence marked by consent as Exhibit A in these proceedings & the original pleadings in suits Nos. 3376 of 1948 and 1292 of 1948 and the original agreement dated 13-11-1948 setting various litigations.

10. The First issue: The contract of employment which the plaintiff had with Badridas Tulsan was an oral contract. It is, however, not difficult to find out the terms of that oral contract in this case because of the admitted pleadings on this point. The plaintiff himself admits in para. 2 of his own plaint in this suit that the terms were:

(1) The plaintiff as the broker of Badridas Tulsan would 'negotiate for and put through the sale' of the said premises at a price of RS. 50,0007-in favour of Badridas Tulsan.

(2) The plaintiff would be entitled to a lump sum brokerage at Rs. 9,000/- from the said Badridas Tulsan upon the agreement for sale being 'effected and possession' of the said premises being made over to Badridas Tulsan or his nominee by Keshavdeo Tulsan.

11. In para. 2 of the written statement defendant Srimati Omrao Debi admits that 'Badridas Tulsan employed the plaintiff as a broker to negotiate for and put through the sale' of the said premises in favour of Badridas Tulsan or his nominee at a price of Rs. 50,000/- and that he also agreed to pay the plaintiff a lump sum brokerage of Rs. 9,000/- on the 'completion of the sale'.

12. From these admissions in the pleadings it is quite clear what the terms of the employment were and I hold they are:

(1) that the plaintiff as the broker of Badridas Tulsan shall negotiate for and put through the sale of the said premises in favour of Badridas Tulsan OB his nominee for the price of Rs. 50,000/-; and

(2) that the plaintiff would be entitled to a lump sum brokerage of Rs. 9,000/- only from Badridas Tulsan on completion of the sale and possession having been made over to Badridas Tulsan or his nominee by Keshavdeo Tulsan.

I accordingly answer issue No. 1 in terms of the above.

13. Issue No. 2: The question now is has the plaintiff as such broker put through the sale? The words 'put through' are vague, but taking them in their ordinary meaning they appear to me to indicate that the broker has to complete the sale. The question now is, has the broker dons so on the facts as I have already stated?

14. On behalf of the plaintiff it has been contended that the plaintiff brought about the Agreement for sale dated 19-11-1943 between Medi-nindra Lala Mitra and Keshavdeo Tulsan on the one hand and Baldeodas Jhunjhunwalla on the other. This Agreement recites that Mitra was the owner of a divided half portion (front portion) of 24, Burtola Street and that he had agreed to sell the same to Keshavdeo Tulsan at a price of Rs. 45,000/- and Keshavdeo in his turn has agreed to sell to Baldeodas Jhunjhunwalla the same for the sum of Rs. 50,000/-.

By Clause 3 of that Agreement for sale it was agreed that the purchase should be completed within a fortnight from the date of the delivery of the title deeds provided of course that the title was good and approved by the purchaser's solicitors. By Clause 4 of this Agreement for sale it was agreed that the vendor would execute a proper conveyance in favour of the purchaser or his nominee in which the vendor should make all necessary parties join and the purchaser should be entitled to the possession of the property from the date of the purchase.

By Clause 7 of this Agreement it was also provided that in case the vendor failed to sell after-approval of title the purchaser would be at liberty to enforce specific performance of this Agreement by institution of legal proceedings and or to sue for damage.

15. On the terms of employment of the plaintiff as found by me in the facts and circumstances of the case I am of the opinion that the execution of the Agreement for sale is not enough to qualify the plaintiff to earn the remuneration. This Agreement for sale had to be 'put through' which means that the actual sale had to be brought about by execution of a proper conveyance and by delivery of possession as stipulated in the agreement.

As I read this brokerage contract, it is not a contract only for introduction of a possible purchaser to a possible vendor by means of only an Agreement for sale. It is very much more. It involves negotiation, agreement for sale, sale with conveyance and possession. It was open to the broker to so make his contract as to qualify him for the remuneration either merely on the introduction or merely on the execution of an agreement for sale which might or might not fructify into an actual sale. But that is not the contract here.

16. Then it is contended on behalf of theplaintiff that although the Agreement for sale by itself may not qualify the plaintiff for the commission, he as a broker ultimately did put through the sale and the sale has, in fact, taken place.

17. Now that question raises many considerations. It is plain on the records of the suits I have mentioned that Keshavdeo refused to perform his part of the Agreement for sale. In fact a suit for specific performance had to be instituted. Various litigations intervened before the property came to the possession of Badridas Tulsan or rather his heirs.

18. When the machinery of the Court and all the litigious processes of law had to be employed, could it be said then that it was the broker who put through the sale? In my opinion, the answer must be in the negative. The logic behind that opinion is plain. I shall put it in this way. There was no obligation upon Badridas Tulsan to sue the vendor for specific performance. He could have easily said, 'I am not prepared to enter into the chances of litigation although I might win.'

In that case, certainly the broker could not be said to earn his commission. If, therefore, Badridas Tulsan or his heirs have ultimately obtained the property, then that was obtained by litigation and not by the efforts of the broker.

In my view when a person employs a broker j to buy a property and agrees to pay him a commission on the completion of the purchase and execution of conveyance and delivery of possession, he does so on the understanding and in the sense that it is the broker's efforts which will produce a private sale and not a forced sale through the machinery of the Court litigation. These are ordinary commercial contracts and must be understood in their ordinary sense. That ordinary sense is that the contract is to buy a property privately and not to buy a litigation.

19. It was thereafter contended on behalf of the plaintiff that if there was no Agreement for sale as brought about by the broker, then the suit for specific performance could not have been filed and the ultimate result obtained. Hence it was argued that the broker's efforts were the primary cause leading to the decree. Again, I am unableto accept that view. Property obtained by litigation is not property obtained as fruits of broker's labours. In such a case, broker's labours or effortsare not the efficient cause.

As pointed out by Collins, M. R., in -- 'Millar Son and Co. v. Radford' (1903) 19 T.L.R. 575 at p. 576 (A) : that in such a case the right to commission did not arise out of the mere fact that the Agent had introduced a purchaser, that it was not sufficient to show that the introduction was a 'Causa Sine Qua non', and that it was necessary to show that the introduction was an efficient cause in bringing about the sale.

The law as I understand, is that it is not enough for the broker to earn his commission on a contract of this nature to show that he was a remote cause or a causa sine qua non but he has to show that he was the 'causa causans'. This is the very essence of the doctrine of efficient cause in this branch of jurisprudence. The broker to earn his commission on a contract of this kind must be the direct cause in the chain of causation and not a mere preceding link out of many but for which the causa causans could not become operative.

20. Notice may here be taken of a false sentiment and a misplaced sympathy likely to delude judgment on this point. It is often said that this theory of efficient cause works a great hardshipon the honest broker because it throws him to the mercy of a chance and faults for which he is not responsible.

For instance even when he brings about a good valid agreement for sale which normally should result in a sale he may find that litigation ensues due to the fault of the vendor or purchaser and for no fault of the broker and the transaction ultimately takes place under and by virtue of a decree of Court and thereby the broker is deprived of his commission. The answer to this argument of hard-ship to broker is twofold.

The first answer is that the broker need not take all this chance at all by stipulating in his contract that he will earn his commission merely by the introduction or only upon the agreement for sale and not on 'completion' and 'delivery of possession' as in this case. But if his contract is that he gets his commission only on 'completion' of sale and 'delivery of possession' then he cannot under the contract avoid the risk of losing his commission where the transaction has to be aided by litigation to produce the result which the broker was employed to achieve.

The other answer is that in such a case where commission to broker is payable on 'completion of sale and delivery of possession' then to pay him commission even when the sale was the result of litigation and decree of Court, would mean greater hardship to the party who has to incur all the costs, expenses, delay and uncertainty to obtain the fruit which the broker was expected to give him. In other words, the question in the last ana-lysis is not one of hardship but of the actual terms of the contract of employment with the broker.

21. Here it will be useful to refer to some terms of the agreement recording the settlement of the various litigations dated 13-11-1948, to show that the broker's efforts were not the efficient cause of the ultimate sale of this property to Badridas Tulsan or his heirs.

By Clauses 2, 3 and 4 the decree for specific performance was allowed to stand and Keshavdeo was to execute a formal conveyance in favour of defendant Omrao Debi and her sons in respect of the said portion of premises No. 24, Burtolla Street, in default of which the Registrar was to execute the same. They also provided for T. Banerjee and Co., Solicitors of Keshavdeo, to withdraw from the Court the sum of Rs. 47,500/- deposited by Badridas under the decree dated 7-7-1947. But all this was purchased at a great cost. By Clause 6 of the terms of settlement as embodied in that agreement, the defendants had to waive all-claims for costs payable by Keshavdeo under the decrees and orders both of the original Court and of the Appellate Court in Suit No. 1728 of 1944. It is true that such forfeiture of costs was only to operate if Keshavdeo made over possession of the premises before 16-4-1949.

But that is not the point. The point is that this was an extra burden added to the purchase price of Rs. 50,000/-. Nor was this all. Vacant possession could not be given under Clause 7 and the defendants were to take over possession with tenants. The agreement for sale was construed by the decree for specific performance to be an agreement to give vacant possession. That again is not according to the bargain which the broker brought about.

In addition to this, there was a further burden put upon the defendants by Clause 9 of the terms of settlement as embodied in that agreement under which defendant Omrao Debi had to set apart out of the estate of her husband Badridas Tulsan asum of Rs. 20,000/- for the maintenance and marriage expenses of the daughter of Keshavdeo Tulsan. I consider each one of these to be new intervening factors which made it possible for the defendants to have the sale of the property completed which it was the broker's duty to do.

All these intervening factors imposed very much more extra burden upon the defendants than what the broker had bargained for. It was only after these extra burdens had been accepted by the defendants that the sale could be put through. In such circumstances and on such facts, I am unable to hold that the broker put through the sale.

I, therefore, answer Issue No. 2 in the negative.

22. Issue No. 3: This issue is in two parts. The first part asks the question whether the agreement for sale has been effected. The second part refers to the question whether possession has been made over to Badridas Tulsan or his nominee by Keshavdeo Talsan.

23. Having regard to the terms of settlement as embodied in the Agreement dated 13-11-1948, I am bound to hold that the sale has been effected. Evidence shows that there is as yet no registered deed of conveyance or any deed of conveyance for the matter of that.

But I consider the absence of a deed of conveyance immaterial in this connection because Badridas Tulsan or his heirs now have the power under the decree to have the conveyance either from Keshavdeo Tulsan or, in default, through the Registrar of this Court. I, therefore, answer this part of the issue in the affirmative and say that the agreement for sale has been effected.

24. With regard to the second part of this issue about possession, the evidence of the plaintiff Haribux Singhania is that possession has been obtained and either Badridas Tulsan in his time or now his heirs realise the rents from the house. That will be found from his answer to question 52. That answer has not been in any way shaken in cross-examination.

What is more, the defendant's Manager Pokar-mull Gupta said in his evidence that the defendants have got the occupation of some portions of the said premises in February, 1955 (Q. 11) and with regard to other portions there are the tenants who deposit rents with the Rent Controller and such deposits although made in the name of Keshavdeo up to 1951 have since been made in the name of Bimal Kumar and Jagdish Prosad being the sons of Badridas Tulsan (Qq. 12 to 15). In fact, he has admitted that as Manager he collects rents through Durwans (Qq. 27 to 28).

25. On these facts and evidence I am bound to hold that possession has been also made over to Baldeodas Tulsan and his nominee by Keshavdeo Tulsan even though there was and is no formal deed of conveyance. I therefore answer the second part of this issue also in the affirmative.

26. But I hasten to add that effectuation of the Agreement for sale or delivery of possession was not due to the efficient cause of the broker's labours.

27. Issue No. 4: In this issue the question raised is whether the terms on which brokerage was payable to the plaintiff have been fulfilled. The answer to this issue follows from my finding on the forgoing issues. While it is true that the sale has been put through and possession has been made over, the fact remains that neither such sale nor such possession was due to the efforts of the plaintiff as a broker nor was such sale or possession made on the terms which the broker arranged but on very much more burdensome terms.

28. It will be appropriate at this stage tomake some reference to the cases which have beencited at the Bar.

29. Reference was naturally made to the decision of the House of Lords in -- 'Luxor Ltd. v. Cooper' 1941 A.C. 108 (B). The actual point of that decision however does not materially concern us in this case.

In -- 'Jack Windle (Jack) Ltd. v. Brierly' (1952) 1 All E.R. 398 (C) the Court came to the decision that although at the time of the broker's introduction the purchaser was willing, he was not then able to do so and by the time the final agreement between the purchaser and the seller the broker's agency had been terminated and the introduction had ceased to be an operating factor in the sals and was therefore not an effective cause with the result that the brokers were not entitled to their commission. Lynskey J. there came to the conclusion at page 400 that:

'The effective cause of the subsequent sale to Mr. Greatorex was not the introduction but the provision of finance by the defendant which enabled the sale to take place; I am not satisfied that the introduction was the effective cause. In those circumstances I cannot find that any offer on the part of the plaintiffs was an effective cause of the sale and this claim fails.'

30. It was there contended that once an introduction was effected, then the subsequent sale to the same party or by the same party was always the operating factor but was negatived by the learned Judge. In -- 'Martin v. Perry and Daw' (1931) 2 K.B. 310 (D) the brokers failed to earn their commission. In that case the plaintiff put his business in the hands of the defendants who were estate agents to find a purchaser and commis- sion was payable on a sale being effected and the estate agents found a purchaser who in fact paid a deposit to the estate agents and entered into a binding contract with the plaintiff to purchase the business. For reasons of which no evidence was given by the estate agents the purchaser did not complete the purchase. Then the plaintiff claimed the deposit back from the estate agents.

The defendants admitted the claim and counter-claimed a larger sum as commission. There it waa held that the defendants were not entitled to the commission because the purchaser was not ready and willing and able to complete. The ratio of that decision is that in such a case where commission was payable on effecting! a sale it is necessary to introduce a purchaser who pursues the matter to completion or that one introduces a purchaser Who at all times and at the proper time is ready, able and willing to execute the contract into which he enters.

The decision of the Supreme Court in -- 'Ab-dulla Ahmed v. Animendra Kumar Mitter' : [1950]1SCR30 dees not really bear on the point for decision in this case. The older decision of -- 'Battams v. Tomkins' (1892) 8 T.L.R. 707 (F), is more relevant for the purposes of the present enquiry. There the contract by which the broker was employed was to intoduce a purchaser for 17,000/- whereupon it was agreed that 750/-would be paid to the broker 'on the completion of the purchase'.

The introduction was duly made but Instead of paying the purchase money in cash, the mode of payment was changed into paying by first mortgage debentures and fully paid up preference shares and the balance in cash.

Even then Lindley L. J. held at page 708 that 'a particular purchase could not be said to have been completed when the vendor did not get the purchase money which was agreed upon' although this variation was made by the vendor and the purchaser without the consent of the broker and although the purchaser was willing to pay in cash as the broker had arranged but it was the vendor who not being in need of immediate money preferred to be paid in the manner mentioned above.

In fact, the mere introduction of a purchaser does not necessarily qualify a broker for the commission if the terms of his employment are completion of the purchase or putting through the sale and handing over possession.

In the Privy Council case -- 'Valarshak Seth Apcar v. Standard Coal Co., Ltd.' Lord Russell allowed commission to a broker on a second contract when it was found that 'the second contract was as much the result of the introduction as was the first. The principle in each case is whether the broker is the efficient cause on the particular terms of his employment in each case.

31. On behalf of the plaintiff Mr. Majumdar, learned counsel, referred me to a few decisions. One was the House of Lords' decision in -- 'Bow's Emporium Ltd. v. A. R. Brett and Co. Ltd.' (1927) 44 T.L.R. 194 (H).

In that case it was held that where an agent was employed to make enquiries about a particular business with a view to his employers acquiring it, and the terms of his being paid by the purchaser a commission on the purchase price if business was transacted and where the parties were brought together through his agency, he was entitled to commission even where actual purchase is ultimately effected through the intervention of another agent, provided that his services were really instrumental in bringing about the transaction.

I do not think this case helps the plaintiff on the facts here. The rules there laid down by the House of Lords also insisted that the brokers must really be instrumental in bringing about the transaction and if that is so, then it does not matter even though there was an intervention of another agent. The question in my opinion always is in such cases whether a particular broker was the efficient cause of the sale.

In that case there was no litigation which intervened, and secondly it was found as a fact that the first broker's services were instrumental in the same being put through. None of these two factors are present in the facts before me. I, therefore, distinguish that decision from the present case.

32. The other case relied upon the plaintiff's counsel is -- 'Burchell v. Gowrie and Blockhouse Collieries Ltd.' 1910 A.C. 614 (I). This is a decision of the Privy Council where it was held that as the broker had brought his principal into relation with the actual purchaser he was entitled to recover his commission although his employer had sold behind his back on terms which he had advised them not to accept.

There again Lord Atkinson who delivered the judgment of the Privy Council emphasised that the agent must be the effective cause and at page 625 Lord Atkinson observed:

'If an agent such as Burchell was, brings a person into relation with his principal as an intending purchaser, the agent has done the most effective, and, possibly, the most laborious and expensive, part of his work, and that if the principaltakes advantage of that work, and, behind the back of the agent and unknown to him, sells to the purchaser thus brought-into touch with him on terms which the agent theretofore advised the principal not to accept, the agent's act may still well be the effective cause of the sale'.

33. I am satisfied on the facts of the case be-fore me that the most laborious and expensive part of the work here was the litigation, not one but many, and the long drawn out character of such litigations. There was no underhand dealing by the principal in this case and there was no act on the part of the principal behind the back of his agent the broker, but there was bitter litigation between the vendor and the purchaser and which transpires on evidence to have been with the fun knowledge of the broker himself.

In Burchell's case the Privy Council was not concerned with the question whether the property was obtained as the result of litigation or as a result of the efforts of the broker.

34. The next case relied on by the plaintiff's counsel in -- 'Boots v. E Christopher and Co.' (1951) 2 All ER 1045 (J). It is a decision of the English Court of Appeal which holds that on the true construction of the contract before it commission was only payable when the purchase price wast received on completion and that the plaintiff waa. under no obligation to sue for specific performance or for damages so as to enable the broker to obtain his commission; and therefore the plaintiff had not by any wrongful act prevented the broker from earning his commission. Denning L. J. at page 1049 said:

'In -- 'McCallum v. Hicks' 1950-1 All ER 864 (K) I said that the agent would be entitled to commission because if the purchaser did not complete, the vendor could recover the amount of the commission from the purchaser by way of damages, but in the later case of -- 'Dennis Reed, Ltd. v. Goody' 1950-1 All ER 919 (L) I said that the vendor was not bound to bring an action simply to enable the agent to get his commission.

After hearing the arguments in this case I think that my second thoughts were best. The right view is that the readiness, the willingness, and the ability must be present at 'the proper time', which is the time for completion. In the present case the purchaser was not willing at the time for completion. The agent, therefore, was not entitled to his commission.'

35. If these observations are Intended to lay down any general proposition then that proposition is definitely against the plaintiff's contention in this case. But what Mr. Majumdar wanted to do was to draw a distinction between the case of a vendor and that of a purchaser and he tried to do so by taking his stand on the observations of Denning L. J. made subsequently in the same judgment at the same page at 1049 where the learned Lord Justice observed:

'I agree that, if a vendor gets the full purchase price as a result of an action for specific performance or if he gets damages which include the amount of the commission he has to pay to the agent--he would have to pay the agent his com- mission. It is true that in such a case the purchaser could not properly be said to be willing to complete. He would have only completed under compulsion.

That means that the claim for commission would not be recoverable on the contract as such. It would, however, be recoverable in an action for restitution, or, if you please, on an implied contract. But what is the position if the vendor getspaid part only of the damages or the purchaser forfeits the deposit? Is the agent entitled to nothing?

No claim can be made for commission on thecontract as such taut it may well be said that, ifthe vendor takes the benefit of the agent's services to that extent, he should pay a reasonable remuneration in an action for restitution, which may be a good deal less than full commission'.

36. This, however, is no claim for restitution. Besides the contingencies or eventualitieson which the learned Lord Justice was speculating, namely, whether the full purchase price as the result of the action for specific performance or full damages had been paid cannot necessarily arise in this case, because as I have said in the bargain settling the various litigations as embodied in the written agreement of 13-11-1948 the purchaser (1) had to forego a good deal of his costs and expenses & (2) had to be content with possession with tenants and not vacant possession as stipulated and (3) had to pay Rs. 20,000/- for the marriage of the daughter of the vendor.

As was pointed out by the same learned Lord Justice Denning in '1950-1 All ER 919 at page 925 (L) 'if estate agents desire to get full commission, not only on sales but also on offers, they must use 'clear and unequivocal language' '.

While no body disputes that the rights and liabilities of house-owners in these cases should not depend on fine verbal differences it is desirable that a sensible meaning should be given to the ordinary words when house owners employ agents to find purchasers or to sell their houses or buyers want to buy houses. After all as I have already said, what they do by employing a broker is to have that private transaction of sale or purchase without litigation. They do not employ broker to buy litigation.

37. Finally reference was made by the plaintiff's counsel to the case of -- 'Rimmer v. Knowles (1874) 30 LT 496 (M)'. In that case although theemployment of the broker was for sale, what happened ultimately was a lease. But it was held in that case that the lease was in the nature of a purchase.

Cockburn C. J. at page 498 held although the plaintiff did not get a purchaser for the defendant in the strict legal sense, he did so, I think, in what may be called the ordinary acceptation of the word, I think the effect of this ground lease was the same as that of a conveyance in fee and the lessee is in the positon of a purchaser'. Naturally the Court decided that the broker had earned his commission.

38. On a review of these authorities I am satisfied that in this case the broker fails in the test of efficient cause on the facts before me.

39. I hold that the terms of the brokerage in this case have not been fulfilled by the plaintiff. I hold on the facts as stated above that although the result intended by the plaintiff as broker had ultimately happened but the same did happen by the individual effort of the purchaser Badridas Tulsan or his nominee by the use of the compulsive machinery of law and even then notin terms of the bargain as contained in the Agreement for sale brought about by the plaintiff as a broker. I, therefore, answer the issue accordingly.

40. Issue No. 5: The answer to this issue follows and I hold that the plaintiff is not entitled to any relief.

41. For the reasons stated this suit must fail. I dismiss this suit with costs. I certify thiscase to be a fit one for the employment of two Counsel.


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