Case No: Civil Petition for Special Leave No. 335 of 1984
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Mr. Rafique-ul-Huq,Mr. Asrarul Hossain,,
Citation: 37 DLR (AD) (1985) 126
Case Year: 1985
Appellant: H.N. Fabrics Ltd.
Respondent: Mallick Textile Industries and others
Subject: Law of Contract,
Delivery Date: 1985-1-15
FKMA Munim, CJ.
Badrul Haider Chowdhury, J.
Shahabuddin Ahmed, J.
Chowdhury ATM Masud, J.
H.N. Fabrics Ltd.
Mallick Textile Industries and others
January 15, 1985
Breach of contract
The plaintiff is to prove the mutuality of the agreement in an action for breach of contract.
The idea of the purchase price, the offer of money or money value for the defendant's promise remains the essence of consideration. The plaintiff must show that the defendant's promise, upon which he was suing, was a part of the bargain to which he himself had contributed………………(7)
The plaintiff should succeed in an action for breach of contract if he proves that an agreement has been reached under which the defendant has made him a definite promise……………………(8)
The Court will not decree a suit for specific performance of a contract the terms of which are uncertain. There being no concluded contract which could be enforced by specific performance, the suit has rightly been dismissed………....(9)
Cases Referred To-
Hyam vs. Cubbay, AIR 1916 page1 (EB); Rossiter vs. Miller 1878, 3 A.C.1124 Lord Blackburn; Hatzfeld-Wildenburg Vs. Alexander 1912 1 Ch. 284-288 AIR 1933 PC 31.
Asrarul Hossain, Senior Advocate, instructed by Miah Abdul Gafur, Advocate-on-Record—For the Petitioner.
Rafiqul Huq, Senior Advocate, instructed by Sharifuddin Chaklader, Advocate-on-Record—For the Respondents.
Civil Petition for Special Leave No. 335 of 1984
(From the judgment and decree dated 29-7-1984 passed by the High Court Division, Dhaka Bench in F.A. No. 221 of 1981.)
In this petition for special leave the only question is whether there was an agreement for sale of the suit property which could be enforced by a suit for specific performance of contract.
2. Facts are as follows: Plaintiff brought the suit for specific performance of contract alleging, inter alia, that the plaintiff entered into a contract with the principal defendant No.1 through defendant No. 2 the Managing partner, for purchase of the suit property to which defendant 2 agreed to sell and the price was settled at Tk. 9,00,001/-. The plaintiff paid in cash Tk. 1,00,001/- as earnest money and the deed of agreement for sale was executed on 9.1.79 and it was stipulated that defendants would hand over possession of the suit property to the plaintiff on receipt of a further sum of Tk. 4,00,000/- out of the consideration money from the plaintiff by 30.4.1979 or any other date thereafter or with the execution and registration of the deed of sale on 30.6.1979 and on receipt of the balance consideration money by which time the defendants would obtain requisite permission from the authority and necessary income tax clearance certificate at their own costs. The plaintiff however, could not pay the principal defendant further sum of Tk. 4,00,000/- as stipulated but the plaintiff was wiling and ready to pay balance Taka 8,00,000/- but the defendants did not pay heed to the same in spite of repeated request to complete the transaction and therefore suit for specific performance of contract was filed.
3. The defendant has admitted the case of the plaintiff that there was an agreement for sale and the earnest money of Tk. 1,00,001/- was paid but the price was fixed at Tk. 16,00,001,00 and not at Tk. 9,00,001/-.
4. Evidence was led by both sides and the trial court found that there was a contract between the parties and observed as under:
And in this view of the matter the suit was decreed.
5. On appeal, the High Court Division found that there was an agreement for sale but the price was fixed at Tk.16,00,001/-. There was dispute as to terms and observed:
though the plaintiff is not entitled to a decree for specific performance of contract, and accordingly dismissed the suit with a direction to refund the Tk.1,00,001/- to the plaintiff which was paid as earnest money.''
6. Mr. Asrarul Hossain learned Counsel appearing for plaintiff-petitioner canvassed that Ext. 1 is the correct version of the agreement and not Ext. C which has shown variations of terms. In this case the plaintiff produced Ext. 1 as to the terms of the contract whereas the defendants produced Ext. C and the prices in the two terms are completely different. P.W.2 who drafted the agreement was examined and he himself stated;
7. The typical modern contract is the bargain struck by the exchange of promises which must be backed by consideration. The idea of the purchase price, the offer of money or money value for the defendant's promise remains the essence of consideration. The plaintiff must show that the defendant's promise, upon which he was suing, was a part of the bargain to which he himself had contributed. Mutuality is essential. Prof. Cheshire says "to this requirement of mutuality the name of consideration was given" (Law of Contract-Cheshire and Fifoot P 46, 2nd Ed).
8. The plaintiff should succeed in an action for breach of contract if he proves that an agreement has been reached under which the defendant has made him a definite promise; that the parties thereby intended to affect their legal relations and that the defendant has broken his promise though it was supported by the presence of consideration.
9. The question is whether there was a concluded contract between the parties which could be enforced by a suit for specific performance. It is well settled that the court will not decree a suit for specific performance of a contract, the terms of which are uncertain. In Hyam vs. Cubbay AIR 1916 page 1 (EB). It was observed:
In Rossiter vs. Miller 1878, 3 A.C.1124 Lord Blackburn stated:
10. Law does not recognise a contract to enter into a contract (Per Parker, J. in Hatzfeld-Wildenburg Vs. Alexander 1912 1 Ch. 284-288). The Privy Council quoted with approval the following passages: AIR 1933 PC 31
The phrase ''contract to enter into a contract" was explained by the Court of Appeal in 1924 C.A. 97 (at P.114):
Keeping these principles in view, there in no hesitation in saying that the High Court Division took the correct view there was no concluded contract which could be enforced by specific performance.
In the result this petition is dismissed.