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TMI Blog1950 (12) TMI 28X X X X Extracts X X X X X X X X Extracts X X X X ..... araja as manager of the Cossimbazar Raj Wards Estate which was then under the management of the Court of Wards demised tim said premises to one Madan Gopal Daga for a term of 51 years commencing from May 1, 1931, at and for the monthly rent of ₹ 1,083-5-3 and upon terms and conditions contained therein. By sub-clause (6) of clause 2 of the said Indenture the lessee covenanted, amongst other things, not to assign the demised premises or any part thereof without first obtaining the written consent of the lessor, such consent, however, not to be unreasonably withheld in the case of respectable or responsible person ......... There was the usual proviso for re-entry for non-payment of rent for three months or for breach of any of the lessee s covenants, without prejudice to the lessor s right of action for such breach. On March 25, 1943, Madan Gopal Daga, with the written consent of the lessor, assigned the unexpired resi due of the lease to the defendant who was accepted as the lessee by the lessor. By an agreement said to have been arrived at by correspondence exchanged between the plaintiff and the defendant and their respective solicitors between January 27, 1945, and Febr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled by the plaintiff against the defendant. On July 13, 1945, the lessor s suit for ejectment was settled by the defendant consenting to a decree for ₹ 59,213-11-0 for arrears of rent which was paid up. There is no dispute that the forfeiture of the lease for non-payment of rent was waived and the lease was accordingly revived. Shortly after the settlement of the ejectment suit the defendant on August 6, 1945, applied to the lessor for his consent to the assignment of the lease and on the same day the lessor in reply declined to give his consent without assigning any reason whatever. The suit for specific performance came up for disposal before Ormond J. in November 1946 when it was heard in part and was adjourned. It was eventually further heard in January 1947 and finally disposed of on January 23, 1947, when Ormond J. passed a decree against the defendant for specific performance of the agreement. The decree provided that in the event of the defend ant being unable within a fortnight from the date of the decree to obtain the written consent of the lessor the assignment should be made without such consent. The defendant appealed. After two days hearing, in order to cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaintiff s above letter on January 28, 1945. By this reply the defendant expressed his willingness to transfer the lease to the plaintiff on terms contained therein. Clauses 3 and 4 of this letter were as follows: (3) If your final acceptance as stated above is received within 30th January current and if I am able to obtain the consent of Maharaja Cossimbazar for transfer of the leasehold interest wi. thin the first week of February, 1945, I agree to your para 3. (4) Your para 4 is agreed to but the name or names of the persons to be mentioned in the sale deed for whom permission is to be taken from Maharaja Cossimbazar should be clearly stated with their respective addresses. It is quite clear that no agreement was concluded by these two letters for the defendant s letter was not an unconditional acceptance of the plaintiff s offer but amounted in law to only a counter-offer. By clause 3 the defendant offered to transfer the lease to the plaintiff as from February 1, 1945, so as to entitle the plaintiff to realize the rents from that date and to be liable to pay the rent to the lessor also from that date on two conditions, namely, that the plaintiff s acceptance was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accept the plaintiff s last offer with a slight reservation, namely ,-- As regards clause (d) of your said letter, it is distinctly understood that the same should be given effect to only in case the conveyance is completed in terms of clause (c) of your said letter. On February 2, 1945, the plaintiff by his solicitors letter of that date unconditionally accepted this reservation and so a concluded agreement was arrived at between the parties. This agreement was not, for its coming into being, contingent or conditional on the obtaining of the lessor s consent. The obligation to obtain the lessor s consent was cast upon the defendant as a term of the agreement. In our judgment the Court below was right in holding that the agreement itself was not contingent as contended for by the appellant. The contentions next advanced by learned counsel for the appellant relate to the lessee s covenant contained in subclause (6) of clause 2 of the lease to which reference has already been made. The legal incidents of such a covenant are now well established by judicial decisions referred to in the judgment of the High Court and it is not necessary to refer to them in detail. Suffice it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... way of specific performance should be given. The Court could not force the defendant to apply to the lessor for his consent nor could the Court force the lessor to give his consent and, if the matter only depended on the consent, the Court would not have ordinarily, in those circumstances, directed the agreement for assignment to be specifically enforced. The Court, therefore, had also to consider, for the purposes of this case, as to whether the circumstances were such as would indicate that the defendant had been relieved of the burden of his covenant by reason of the lessor having unrea sonably withheld his consent. It is true that a decision on that question in this suit would not be binding on the lessor, but nevertheless the Court had to come to a decision on that question for the purposes of this suit as between the parties thereto in order to award the relief of specific performance to the plaintiff. The third objection of the appellant is that the appeal Court should not have allowed the plaintiff to adduce further evidence. It will be recalled that the appeal Court directed the evidence of the Maharaja of Cossimbazar to be taken during the hearing of the appeal. The j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, (1) that the defendant should have, by proper language, made his obligation to transfer dependent or conditional upon his being able to obtain the lessor s consent which he did not do and (2) that the plaintiff being a respectable and responsible person of means, the measure of damages could only be a problematic conjecture. Indeed, it may have been precisely for this very consideration that the defendant had unconditionally agreed to obtain the consent of the lessor and to assign his interest in the lease. That the plaintiff was a respectable and responsible person cannot, on the evidence before the Court, be denied or disputed and, indeed, learned counsel for the appellant did not so contend. We find ourselves in agreement with the High Court that in the circumstances and on the evidence on record the lessor had unreasonably withheld his consent so as to enable the defendant to assign the lease without such consent. In the circumstances, we are satisfied that both the trial Court and the appeal Court exercised their discretion properly and no ground has been made out for our interfering with the judgment of the High Court. The appeal is accordingly dismissed. The appellant to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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