TMI Blog1955 (8) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... Sm. Himangshu Bala Bose, who owns an eight annas share in premises No. 52, Durga. Charan Mitterg Street, brought a suit for a partition of the house. Her co-sharers are Respondent No. 2, Sailendra Prosad Bose and Respondent No. 3, Anil Krishna Ghose, each of whom owns a four annas share. The preliminary decree passed in the suit provided that if it was found that the house could not be conveniently partitioned by metes and bounds, the Commissioner of Partition should sell it by public auction or private treaty to the best purchaser or purchasers available, subject to at least the reserved price being obtained. The Surveyor appointed by the Commissioner of Partition reported that a physical division of the house in accordance with the shares of the parties was impossible and the parties accepted that position. They also accepted the valuation made be the Surveyor. The house was then put up for sale by public auction on the 21st November, 1953, but as none of the bids offered reached the reserved price, the sale was abandoned The plaintiff then applied to the court for directions. On the 4th May, 1954, the court ordered that the Commissioner should sell the house by public auction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortion which he was occupying. The conditions of sale had accordingly stated that the purchaser would have to obtain possession by taking steps on his own account and at his own expense. After rejecting the offer of Sushil Kumar Mukherjee on the ground: that it was a qualified offer, the meeting proceeded to the consideration of the two remaining offers which were unqualified, but before it did so, some of the terms of the sale were made clear. The solicitor for Anil Krishna Ghosh stated, and the solicitor for the plaintiff agreed, that one or the other of the two remaining offers might be accepted, provided the purchaser would not ask for either vacant possession or production of the original title deeds and would abide by the conditions of sale, of which he might have a copy from the plaintiff's solicitor before the agreement for sale was entered into. By conditions of sale were meant the conditions prepared at the time of the previous sale by public auction, for no fresh conditions had been drawn up for the purposes of a private sale. While the above opinion was expressed on behalf of the plaintiff and Anil Krishna Ghosh as regards the acceptance of the remaining two offers, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R.M. Kar on the 17th June, 1954. The agreement, so sent, did not conform to the conditions of sale but included a number of terms, some of which were new and some ran counter even to those conditions which were specifically mentioned at the meeting of the 12th June. Thus, the draft agreement sought to make it a condition that before the sale was completed, Sarat Chandra Bose would be evicted from the premises and, further, that if on a measurement to be held before the completion of the sale, the area was found to be less than what had been stated in the Notification of sale, the price would abate at a certain rate per cottah. It appears that Mr. R.M Kar did not return the draft to Mr. B.K. Mukherjee even up to the 7th July, 1954, for there is a letter addressed by Mr. Mukherjee to Mr. Kar on that date in which he was complaining that in spite of several reminders, the draft had not yet been returned. In the meantime, on the 18th June, 1954, Messrs. R.C. Basu Co., a firm of solicitors acting for Sushil Kumar Mukherjee, had written a letter to the Commissioner. In that letter they stated that they had heard that the Commissioner had agreed to accept an offer lower than their clie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Judge, however, stopped the sale to the Appellants and directed the Commissioner to hold a fresh sale as between them and Sushil Kumar Mukherjee, subject to an undertaking given on behalf of the latter to offer a bid for at least Rs. 40,000. He proceeded on the view that there had been no concluded agreement for sale with the Appellants and since a higher offer had since been received for the property, it would be proper to allow the owners to have the benefit of it. The present appeal has been preferred against that order. 8. On behalf of the Appellants it was contended that there had been a completed agreement for sale with them and that the learned Judge had erred in directing the Commissioner not to proceed with it and carry it out, simply because a higher offer had since been received. The Respondents contended that there had been no concluded agreement with the Appellants and, further, that there had been certain irregularities in the proceedings which had led up to the acceptance of their offer, for which reason also the sale to them could not be completed. On their side, the main argument addressed to us was on behalf of Respondent No. 4, Sushil Kumar Mukherjee. 9. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That direction would seem to imply that for a sale by private treaty, purchasers would have to be secured by private efforts. It was said that the learned Judge had also directed that the sale should be to the best purchaser or purchasers and that the best purchaser could not be secured except by publishing advertisements. The practice of the court was also invoked. As the order set out in paragraph 14 of the plaintiff's petition reads, the condition as to the best purchaser appears to have been attached only to a sale by public auction, but assuming that it was attached also to a sale by private treaty and assuming further that the rules of the Court required advertisements to be issued, neither the plaintiff, nor Anil Krishna Ghosh raised any question as to the issue of advertisements but, on the other hand, their solicitors proceeded to consider the offers which had been received and even to accept one of them. If, again, the solicitor representing the Appellants was allowed to be present at the meeting of the 12th June, he was so allowed at the request of the solicitors for the plaintiff and Anil Krishna Ghosh. If the Appellant's offer was accepted without reference t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g as they did not reject improperly the offer sent in by any of the intending purchasers. In a sale by private treaty, the only right of Respondent No. 4 was to insist that the offer submitted by him must not be wrongly rejected, but that right not having been violated, he is not competent to maintain any objection to the acceptance of the offer of any other person or the manner of its making or acceptance. Indeed, it was strange to find Respondent No. 4 in the same camp with the plaintiff and Anil Krishna Ghosh and protesting against the acceptance of the Appellants' offer by them, they themselves joining in the protest. 12. Complaints of alleged irregularities in the sale proceedings are thus not open either to the plaintiff and Anil Krishna Ghosh or to Respondent No. 4, Sushil Kumar Mukherjee. But the first two, being co-sharers of the property under partition, are competent to contend that there was no concluded agreement with the Appellants and therefore, in view of the higher offer received, the Court ought to direct the Commissioner not to proceed with the sale to them. In my view, even this contention is not open to Respondent No. 4, who is a stranger to the suit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase their offer in the absence of Satcowri Sett. Again, if he thought that after he had accepted the offer of the Appellants, there was a binding contract with them, as he told Respondent No. 4, it is not intelligible why, at the same time, he asked for a clarification of his new offer so that necessary steps could be taken in the matter. There could be no question of taking any steps, if the sale was no longer open. 14. To proceed now to a consideration of the question, the objection that there is no concluded agreement is generally taken in one or the other of two forms. It is said that there was only a conditional agreement and since the condition has not been fulfilled. the agreement never matured into a binding contract of which specific performance could be had. Or it is said that there was only a partial agreement, covering only some of the terms of the contract and since the remaining terms still remained to be agreed to, there was no completed contract which could be enforced. Mallick, J., appears to have regarded the present case as falling under the second category. He held that the offer of the Appellants had not been made on the basis of the conditions of sale, beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be held that there was no complete and concluded contract. In all cases where one party seeks to hold another to a contract which the party charged says is not a binding or concluded contract, the enquiry must be as to whether a final agreement was reached or the parties were still in negotiation. So long as the parties are in negotiation, either party may retract, but once there is a final agreement, the contract cannot be avoided except by the consent of both parties. 16. The principles I have summarised above have been laid down in a multitude of decided cases but the distinction between those in which it has been held that there was a concluded contract and those in which it has been held there was none, is often remarkably fine. Where the controversy is as to whether there was a complete or partial agreement, cases have differed as to what terms are essential to the making of a complete contract and what terms are merely subsidiary or incidental. Where the controversy is as to whether there was an absolute or a conditional agreement, the difference of opinion has been as to when a stipulation is a condition of the acceptance and when it is only a term of the contract it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance, it was held by Kay, J., that although the two letters, first exchanged, would by themselves be sufficient evidence of a complete agreement, yet the correspondence was to be read as a whole and since the negotiation for an additional term subsequently opened by the buyers showed that they themselves regarded the two letters as containing only an incomplete bargain, there was no completed contract which they could specifically enforce. The argument which the Respondents wanted to advance on the basis of this case perhaps was that the Appellants' own action in incorporating in the draft agreement certain new terms, as also certain terms opposed to the conditions of sale, indicated that there had been no completed agreement when their offer was made and accepted. I must point out, however, that in so far as it was held in the case cited that an incomplete agreement could be inferred from subsequent negotiations, commenced on new points, after a contract complete in itself had been signed, it was dissented from by North, J., in Bellamy v. Debenham, (4) (45 Ch. D. 481), and the dissent was approved of by the Court of Appeal in Perry v. Suffields Ltd., (5) [(1916) 2 Ch. 187] whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a-hari Sarkar, (7) (A. I. R. 1955 Cal. 210), where it was held by Renupada Mukherjee, J., Mookerjee, J., concurring, that when a prospective lessee demanded title deeds from the prospective lessor for his investigation and approval, it could not be said that there had been a final and concluded agreement between them, although most of the other material terms might have been agreed upon and that since in such a case the lessee was free to back out if he was not satisfied about the lessor's title and thus one party was left free to back out of the contract at his choice, it could not be said that any-binding contract had been arrived at. I do not see the application of that decision to the present case, because the express stipulation was that the original title deeds were not to be asked for. But with regard to the decision itself, I venture to think, with great respect, that it goes against established principles. An agreement to buy or take on a lease, subject to approval of the vendor's or the lessor's title, is not an agreement, restricted by a condition which prevents its being a final agreement or prevents its being enforceable, Gordon v. Mahony (8) (13 1 Eq. R., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce was made to the decisions of the Privy Council in Harichand Mancharam v. Govind Luxman Gokhale, (15) (L.R. 50 I.A. 25) and Shankarlal Narayandas Mundaff v. New Mofussil Company Ltd., (16) (L.R, 73 I.A. 98). Those decisions do not seem to be of any assistance. They deal with the case where the parties discuss and agree to the terms and also agree that a formal document shall be executed and then a question as to whether the parties made the operation of the contract conditional on the execution of the document or they came to a final agreement and merely intended that it should be put into a formal documentary shape. In both the cases it was held that a binding contract had been entered into without and apart from any formal document and that the stipulation as to the preparation of a formal contract was not a part of the terms of the contract, affecting either its validity or its enforceability. There was no contention in the present case that the preparation of a formal deed of sale was one of the terms on which the operation or completion of the contract for sale depended. 19. I have referred to the cases at some length out of deference to the argument addressed from the B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept it. The words the intending purchasers may have a copy of the conditions of sale on request to Mr. R. M. Kar. solicitor, before the agreement of sale is entered into would seem to suggest that before the purchasers gave their final assent, they would have an opportunity for considering the conditions and that, on the one hand, their assent would depend on the conditions being acceptable to them and, on the other hand, acceptance of their offer would depend on their acceptance of the conditions. If an offer was made after the stipulation as to the conditions of sale had been thus stated, there was obviously no concluded contract even when the offer was accepted, because offer and acceptance were both tentative. But it must be remembered that the essential conditions of sale were all stated at the meeting and I shall assume that what the sellers meant was that the buyers might take a copy of the conditions of sale for drafting purposes, in order to be able to refer to it when the draft agreement was drawn up, though the expression before the agreement of sale was entered into would hardly warrant that meaning. Even then, it has to be seen how the Appellants themselves view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alterations made in the draft agreement by the plaintiff's solicitor cannot be of any avail to them, because the alterations only reduced the terms contained in the agreement to the conditions of sale laid down by the sellers and if, as the Appellants insist, they did not understand any such conditions to be attached to the sale and did not accept any such conditions when they made their offer, no contract came into existence then and their present acceptance can only make a new contract, if the acceptance is accepted by the sellers. In my opinion, it is perfectly clear from the Appellant's own case that there was no concluded contract with them when their offer was accepted and that none can be created by their offer to accept the conditions, made after the matter has been brought up before the Court. 20. I am, however, unable to agree with the learned trial Judge in regard to the second reason given by him in support of his order; He has held that the agreement for sale was also not concluded, because no earnest money had been paid, as required by Rule 10 of Chapter XXVII of the Rules of the Original Side. A further observation made by him is that unless the earnest m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants it is not correct or relevant to say that there was no completed sale to them because of their failure to pay the earnest money or that the agreement with them did not become binding, because the earnest money was not paid. 21 Although the Court has a supervisory jurisdiction over proceedings held by a Commissioner of Partition for the sale of a property in pursuance of directions contained in a decree, it will certainly not be proper to direct him to withdraw from a sale on any grounds which would not be open to a private seller or direct him not to complete a sale after the acceptance of an offer, simply because before the completion of the formalities, another purchaser had appeared with a better offer. In the present case, however, the Appellants, on their own showing, never intended to purchase the property on the conditions on which it was actually offered for sale and in spite of the clear indication given of those conditions at the meeting of the 12th. They say that they made their offer on a different basis altogether. The Commissioner or the owners have therefore no obligation to them, contractual or otherwise, and no illegality or impropriety is involved in di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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