The Judgment of the Court was as follows:

1. By this suit, the plaintiff Babulall Choukhani seeks to recover from the defendant Caltex (India) Limited, said to be a company incorporated under the Indian Companies Act, the sum of Rs. 25,000 as retention fee at the rate of Ks. 2,500 a month for ten months from August 1, 1963, to May 31, 1964.

2. A claim as this is rested on a bilateral agreement in the form of a letter dated April 30, 1963, by Caltex to Babulall who by an endorsement at the bottom thereof over his signature dated May 1, 1963, confirmed the terms it embodied. The importance of the document to the fortunes of the present litigation is such that it deserves to be reproduced in full:

PETROLEUM PRODUCTS

CALTEX

CALTEX [INDIA] LIMITED

(Incorporated in the Bahama Islands) Liability of the members is limited. United India Life Building, 22 Chittaranjan Avenue, Post Box 2382, Calcutta-1. Telephone: 2345081-89; Tele-grans— “CALTEX”.

April 30, 1963.

In reply please refer to

C-Misc.:— EMs

Mr. Babulall Choukhani,

24A Deshapriya Park Rd.,

CALCUTTA-26.,

Dear Sir,

Lease of land owned by you at Prince Anwar Shah Road, Tollygunge, Calcutta.

We refer to the discussions which took place this morning between our Messrs. E.M Schmidt, R. Majumdar and K.C Dutta and yourself regarding the abovementioned subject.

We list below the points agreed upon and request that you sign the duplicate copy of this letter as a token of your confirmation and acceptance. It is understood that the conditions listed below are subject to the approval of our General Office and we will confirm the same to you by May 10, 1963, at the latest.

(1) Subject land is to be leased for the purposes of constructing and maintaining a Service Station. The initial period will be for 10 years with 2 renewal options of 10 years each.

(2) The area to be leased will be approximately 144′ × 100′— (one bigha) for which we will pay a rental of Rs. 2500|- per month.

(3) The rental will be increased by 10 per cent as each 10 year option is exercised.

(4) If we receive all the necessary approvals from the concerned Government authorities the lease will then be finalised and retal payments commenced retrospective from 1 May 1963.

(5) For the 3 months period from 1 May to 31 July 1963 we agree to pay a retention fee of Rs. 3750|- which will be non-refundable irregardless of whether we receive all approvals or not.

(6) If we require a further time extension past 31 July in order to receive the necessary approvals we agree to pay Rs. 2500 per month. This amount will be nonrefundable if we are not successful in receiving all the necessary approvals but will be applied against rental if we do receive them.

(7) Necessary ownership documents will be produced by you for review by our lawyers in order to ensure that the subject land is free from all encumbrances etc.

Thanking you and assuring you of our best attention at all times.

Yours very truly,

CALTEX (INDIA) LIMITED

CALCUTTA DISTRICT

By: Illegible.

I confirm the above terms

Sd/- Babulall Choukhani

1.5.63

3. This is a document upon which both parties rely. It therefore appears in the admitted brief of documents, exhibit A, as the plaintiff's document No. 1 and the defendant's document No. 1 too at pages 1 and 2 thereof. Presumably, by way of abundant caution, the original letter is marked exhibit M as well. The conditions listed in this document, exhibit M, seven in number, were subject to the approval of Caltex's “General Office”, confirmation by which was promised “by May 10, 1963, at the latest”; vide the second paragraph of the letter dated April 30, 1963, exhibit M. The promise was honoured. By their letter dated May 8, 1963 which is exhibit N and also the plaintiff's document No. 4 at page 7 of the admitted brief of documents, ext. A, Caltex wrote to Babulall—

“Further to our letter No. C-Misc.: EMS dated April 30, 1963 (just the one reproduced in paragraph 2 ante) we are pleased to advise that confirmation has since been received from our General Office to the terms outlined in our letter under reference”, and informed him (Babulall) that, for putting up the Service Station, they were submitting, to the authorities concerned, applications, copies of which would be forwarded to him (Babulall) for his information and such co-operation he could extend. More, Babulall was requested “to forward the deed of conveyance for verification by our Lawyers.” By the deed of conveyance was obviously meant the lease “the points” about which were “agreed upon” on April 30, 1963: exhibit M.

4. Between May 8 and 10, 1963, Babulall visited the office of Caltex “with the deed of conveyance in original for verification” by the lawyer of Caltex who recorded as much in their letter of May 10, 1963 to Babulall: vide a common document of the parties — No. 5 of the plaintiff and the defendant alike at page 10 of the admitted brief of documents, exhibit A. Verification over, in terms of condition No. 5 listed in the letter of April 30, 1963 exhibit M, Caltex paid, and Babulall received, a cheque for Rs. 3,750 as the retention fee for the first three months from May 1 to July 31, 1963: vide the common document of May 10, 1963 just referred to.

5. By July 31, 1963 Caltex obtained the approval of the Director of Fire Services, but not of the District Magistrate, 24-Parganas, within whose jurisdiction the proposed leasehold is situate. In the first week of August, 1963, when Babulall was not in Calcutta, Caltex told his son, Jagadish, so, and told him to that extension of time past July 31, 1963, was required to receive the District Magistrate's approval. Jagadish consented “for and on behalf of” his father, Babulall. (See paragraphs 8 and 16 of the plaint.)

6. On August 21, 1963 however, Caltex “suggested certain variations to the terms of” the agreement dated April 30, 1963, exhibit M. So they did by a letter of that date: August 21, 1963, exhibit O which is the same as the plaintiff's document No. 6 and the defendant's document No. 11 at page 18 of the admitted brief of documents, exhibit A. What is more, R. Majumdar and S.N Sinha of Caltex called on Babulall with a view to persuading him to accept the new terms. But they failed. Babulall “stuck to the original terms” of April 30, 1963.

7. Babulall's demand for retention fee of Rs. 2500 a month from August, 1963, in terms of condition No. 6 in the agreement of April 30, 1963, exhibit M, was put off on the assurance of payment on execution of the lease agreed upon. On January 9, 1964, however, Caltex addressed a letter to Babulall informing him inter alia—

“The option on this plot of land as mentioned in our letter No. C-Misc. EMS dated April 30, 1963, (exhibit M), expired on the 31st July 1963 and for that we have paid you Rs. 3750. Since we are unable to obtain approvals from the local authorities within the stipulated time, we did not ask for any extension of the option period and the subject was dropped.”

8. This letter is exhibit P and a common document of the parties — No. 7 of the plaintiff and No. 12 of the defendant at page 19 of the admitted brief of documents, exhibit A.

9. Herein lies the seed of this litigation. Some 41 days after the receipt of Caltex's letter of January 9, 1964, exhibit P, to be exact, on February 20, 1964, Babulall replied repudiating in particular that no extension of time was asked for after July 31, 1963, or that the subject was dropped ever. More, he demanded a “cheque for Rs. 15,000” for his dues as retention fee for six months from August 1963 to January 1964 at the rate of Rs. 2500 a month. A letter as this is a common document of the parties too — No. 9 of the plaintiff and No. 13 of the defendant at pages 21-22 of the admitted brief of documents ex hibit A.

10. Babulall alleges that Caltex “purposely and with ulterior motive” “defaulted to obtain” the approval of the District Magistrate with a view to frustrating the agreement of April 30, 1963, for lease.

11. Hence this suit the date of institution of which is June 1, 1964.

12. The pleas Caltex resists the suit with are — one, this Court lacks jurisdiction to try the suit; two, no extension of time beyond July 31, 1963, was required nor granted; three, on a true construction of the agreement dated April 30, 1963, all that was provided for was the option on the proposed leasehold for three months from May to July 1963, and the option period having expired with the expiry of July 1963, nothing further remained in the agreement to be enforced upon; and, four, at all events, there cannot be a decree beyond January 9, 1964, when Babulall was distinctly given to understand that the matter stood dropped and was therefore free to do whatever he liked with his land.

13. The last plea just noticed is the last argument Mr. De, the learned counsel for Caltex, addresses to me, without prejudice to his other contentions. Not that it is in the written statement in so many words.

14. The parties go to trial on the following issues:

(1) Has the Court jurisdiction to try the suit?

(2) What is the true interpretation of the agreement dated April 30, 1963?

(3) Is the plaintiff entitled to Rs. 25,000 at the rate of Rs. 2500 a month from August 1, 1963, to May 31, 1964?

(4) Did the defendant require a further extension of time beyond July 31, 1963, and was such extension granted by the plaintiff, as pleaded in paragraphs 8 and 16 of the plaint?

(5) What reliefs, if any, is the plaintiff entitled to?

15. To the first issue first — the is sue on jurisdiction. True it is, as pointed out by Mr. De, the cause title of the plaint, in so far as it describes Caltex as “a Company incorporated under the Indian Companies Act”, is inaccurate. They are, in fact, incorporated in the Bahama Islands, as it appears from the printed heading in their business letters, exhibits M (reproduced in full in paragraph 2 ante and the heading of which is separately marked as exhibit I), P (that letter dated January 9, 1964, referred to in paragraph 8 ante) and R (another letter dated April 6, 1964, which is a common document of the parties — No. 16 of the plaintiff and No. 15 of the defendant at pages 31-32 of the admitted brief of documents, exhibit A). No less does such incorporation of Caltex in Bahama Islands appear from the unchallenged evidence of their Sales Manager, Shyam Nandan Sinha (S.N Sinha), their only witness (q. 6). But this wrong description about incorporation will not take away the jurisdiction of this Court if it has the requisite jurisdiction under the law to try the suit. Even Mr. De does not go so far as that. Then, there is section 3(7) of the Companies Act I of 1956 to which Mr. Ghose, the learned counsel for Babulall, the plaintiff, draws my attention. By virtue thereof a body corporate or corporation includes a company incorporated outside India. Caltex are just that: a company incorporated in Bahama Islands outside India and therefore a body corporate or corporation. And they are being sued as such too. More, it will not be perhaps out of place to refer to section 599 ibid, falling under Part XI captioned: Companies incorporated outside India. This section (section 599) provides inter alia that any failure by a foreign company (just as Caltex are) to comply with any of the foregoing provisions of this Part (section 599 et seq.) shall not affect the validity of any contract, dealing or transaction entered into by the company or its inability to be sued in respect thereof. So, Caltex, only because they are incorporated in Bahama Island, cannot escape their liability to be sued, even though they may be guilty of infractions of certain statutory requirements. Not that that is the case before me. This only serves as an illustration of the vulnerability of a foreign company like Caltex to a suit instituted against them in the municipal courts of the country.

16. Mr. De, be it said in fairness to him, does not contend either that Caltex have earned immunity from being sued in the courts here. He makes that clear in the first stage of his arguments, when however section 599 ibid, is not referred to, to make it clearer still at the second stage of his arguments when I refer to this section specifically. (See paragraph 34 infra.) But he seeks to negate the jurisdiction of this Court on the ground that Caltex carry on busi ness in Bombay where their head office is. Such is the evidence of their Sales Manager S.N Sinha:

“The head office is in Bombay, and what we call district office, in Calcutta.” (q. 7).

17. Mr. De therefore contends that Babulall has mistaken his forum — Calcutta for Bombay — where his action should have been raised.

18. Let this contention be examined. On June 1, 1964, the time of commencement of the suit, were Caltex, the defendant before me, carrying on busi ness within the local limits of the or dinary original civil jurisdiction of this Court? If they were, clause 12 of the Letters Patent empowers this Court “to receive, try and determine” the suit in hand. As the printed headings of the business letters, exhibits M, P and R, proclaim, the office of Caltex is housed in United India Life Buildings at 22 Chittaranjan Avenue — a place within the local limits of the ordinary original civil jurisdiction of this Court. The accommodation they have at 22 Chittaranjan Avenue looks like rented. Or assume that they are the owners.

19. It does not matter which. What do Caltex do here, or to keep strictly to the point, what did they do here on June 1, 1964, with nine telephone lines: 23-5081-89, a telegraphic address: Caltex, and advertising the wares they deal in, at they very top of such business letters in the manner following:

PETROLEUM PRODUCTS?

CALTEX

(See paragraph 2 ante.) There can be one, and only one, answer: that they were doing commercial business here on June 1, 1964, and that they are doing so even now. The evidence I have heard and other matters I have had put before me lend assurance to such an answer. What is Shyam Nandan Sinha, their solitary witness, in their Calcutta Organization? Sales Manager, as he himself says (q. 2). Such designation simpliciter connotes commercial business. A sales manager is there to promote sales of petroleum products of Caltex in and about Calcutta. That means busines, and commecial business too., Sales Manager apart, Caltex have another, bearing the designation of District Marketing Manager, Samindra Nath Deogun, over whose signature the written statement, the verification thereof, and the affidavit of documents (exhibit S) are: q. 187 et seq to S.N Sinha whose “boss” Deogun is, as Sinha puts it. So was Lall before him. Even without more, a designation as that connotes commercial business. A marketing manager and non-existence of a market, a step in aid of commercial business, go ill together. To quote Sinha again,—

“My duties are to look after the Company's interest as far as sales are concerned which includes taking, on lease, land etc. for the purpose of construction of our depots of service stations.” (q. 14.))

20. To look after the company's interest in sales of petroleum products in which the company deal is to look after the company's business here. A sale is a sale. It is not a charity. So, it is commercial business. Depots of service stations are run for commercial purposes too — surely not for charitable purposes. Indeed, commercial business, and right here in Calcutta, is writ large upon the very transaction which is the basis of this suit. For constructing and maintaining a service station, a lease of a bigha of land on a rental of Rs. 2500 a month for ten years, “with 2 renewal options of 10 years each” and with a provision for increase of rent by 10 per cent as each ten-year option is exercised, has an indelible stamp of commercial business put upon it. And the agreement in the form of a letter for such lease, exhibit M, was subscribed by CALTEX (INDIA) LIMITED, CALCUTTA DISTRICT, (not head office at Bombay) over a curlicue of a signature which none but the signatory himself and those, who know whose signature with such fantastic curl is, can read. Let the man behind the signature be not known. But the organization behind the signature — the Calcutta district office of Clatex — become well known. And still it will have to be held that Caltex do not or did not carry on business in Calcutta.

21. In sum, the very nature of the activity of Caltex from their Calcutta office at 22 Chittaranjan Avenue — a place within the territorial limits of this Cuort's jurisdiction — shows that they do carry on business inside of such limits within the meaning of clause 12 of the Letters Patent. And so it did too on June 1, 1964, “the time of the commencement of the suit”— the present one by Babulall. Mr. De, however, contends that that cannot be said of Cal-tex, in so far as they operate from Calcutta on the level of a district office only, receiving orders and directions from their head office in Bombay. Indeed, he elicits as much from S.N Sinha on the question of a lease.

22. Q. 15. Can you take over lease on behalf of Caltex of any land?— No. We have to refer all matters to our Bombay office.

23. Mr. De therefore concludes that since the head office at Bombay supplies “brain power”, Caltex carry on business there, not here. No doubt, the head office sees the organization whole, no matter where it is, lays down the policy, and perhaps pulls the radial cords, from time to time, as prudence and need dictate. But to say so is far from saying that the head office alone carries on business and that the district office, as the Calcutta office is, do not. Each carries on business — the head office within a larger sphere whereever any organization of Caltex is and the district office wtihin its own limited periphery. Such a general consideration apart, Caltex's own document belies the centrifugal force proceeding in “all matters,” as S.N Sinha says, from the head office to the district office.

24. On March 16|18, 1964, Babulall, presumably out of sheer exasperation, addressed a letter straight to the Resident Director of Caltex, Caltex Building, Ballard Estate, Bombay, bringing to his notice all the facts under which he was smarting, facts the most of which have been summarised in paragraphs 2-10 ante, for his (the Resident Director's) “considerations and actings,” as Babulall put it: vide another document common to the parties — the plaintiffs No. 13 and the defendant's No. 14 at pages 26-28 in the admitted brief of documents, exhibit A. Babulall was not complaining against the Calcutta district office behind its back. He had a sense of decorum which led him to forward to Mr. J.A Finn, District Manager of the Calcutta office, “for information and prompt action”, a copy of his complaint to the address of the Resident Director, Bombay. Only nine days later, to wit, on March 27, 1964 came the prompt reply from or on behalf of the Resident Director, acknowledging Babulall's letter and informing him—

“As this matter comes within the purview of our Calcutta District Office, we suggest that the matter be taken up directly with the District Manager there, to whom you have already forwarded a copy of your letter”: the plaintiff's document No. 15 at page 30 of the admitted brief of documents, exhibit A.

25. Does this show a centrifugal force emanating from the apex (the head office) and proceeding towards the base (the district office), as S.N Sinha deposes to, and as Mr. De contends about? Or does it not show the other way about: a centripetal force proceeding from the district office to the head office and an autonomy for the Calcutta district office in a matter like this. So the old “brain power theory” Mr. De relies upon cannot stand on facts.

26. This becomes apparent from another consideration. That the head office approved of the agreement, exhibit M, is patent. (See Caltex's letter of May 8, 1963, exhibit N, reviewed in paragraph 4 ante.) “We are pleased to advise that confirmation has since been received from our General Office to the terms outlined” in the agreement, as Caltex of Calcutta informed Babulall on May 8, 1963. Confirmation has been received to the terms plainly means confirmation has been received to all the terms. Still S.N Sinha will have me believe from the witness-box that “Bombay office approved of the option”— by which he means option for the first three months only from May to July 1963, that is to say, approval of condition No. 5 only (qq. 105 and 107). But what about the other terms — condition No. 6 for example — all of which were confirmed by the General Office, that is, the head office. It clearly provides that “in order to receive the necessary approvals”, if Caltex require “further time extension past 31 July,” Caltex agree to pay Rs. 2500 per month — which, if the necessary approvals cannot be had, will be “non-refundable”, but, if approvals can be had, will be applied to rent. Surely, it is a little more than the 3-month option only. The word “require” does not stand by itself. It goes with the words “in order to receive the necessary approvals.” Requirement, without more, means properly a need. (See Fowler: Modern English Usage, 1959, at page 498.) But here Caltex's requirement or need is circumscribed. It is not open to Caltex to say: ‘We do not require or need it any more after July 31.’ All that is open to Caltex to say is: ‘We have failed to obtain all the approvals to obtain which we require or need further time extension past July 31’ That, and no more or no less, is the limit of their requirement or need. Hence, so poor appears to be S.N Sinha's sworn testimony that the Bombay office approved the option only (meaning condition No. 5), in the face of Caltex's own letter of May 8, 1963, exhibit N, recording that the head office had confirmed all the terms. His evidence looks poorer still when he suggests that the Bombay office which had approved of the agreement, exhibit M, disapproved of it later by having decided not to extend the option period beyond July 31, 1963 (qq. 105 and 107 again). Asked by Mr. Ghose in cross-examination if he (S.N Sinha) has any documents to show that the Bombay office decided not to extend the option period, all he says is that the decision was taken in the course of telephone talks between Marketing Manager Lall at the Calcutta end and Deputy General Manager Berry at the Bombay end. There is, of course, no written record of such important telephone talks (q. 108 et seq.). Nothing to say of a contemporaneous record of such telephone conversations in the course of which Deputy General Manager Berry from Bombay announced the decision of the head office not to extend the option period and communicated it to Marketing Manager Lall at Calcutta, there appears to be no note anywhere in the Calcutta office to that end.

27. On May 8, 1953, the Calcutta district office of Caltex was “pleased to advise” Babulall of the confirmation by the head office at Bombay of the terms of the agreement of April 30, 1963, exhibits N and M. Do I find a similar communication to Babulall stating that the Bombay office had decided not to extend the option beyond July 31 1963? I do not. The earliest letter after July 31, 1963, is dated August 21, 1963 (ext. O & another common document of the parties — the plaintiff's No. 6 and the defendant's No. 11 at page 18 of the admitted brief of documents, exhibit A: see paragraph 7 ante). By this letter, the Calcutta district office of Caltex proposed new terms (more of which hereafter in paragraph 46 infra) and wrote inter alia:

“We have been advised by our General office to approach you with the request if the following (new terms) may be agreed.”

28. No decision is this of the General Office, i.e, the head office at Bombay, of not extending the option beyond July 31, 1963. Utmost, it is an attempt to sound the other party to the agreement, namely, Babulall, and to explore if he would be agreeable to the new terms in place of the old ones of April 30, 1963, exhibit M. The next letter is dated January 9, 1964, exhibit P: still another common document of the parties — the plaintiff's No. 7 and the defendant's No. 12 at page 19 of the admitted brief of documents, exhibit A.

29. By this letter, the Caltex district office here clearly told Babulall that the “option” “expried” on July 31, 1963 and that since they were unable to obtain approvals from the local authorities within the stipulated time, they did not ask for any extension of the option period with the result that “the subject was dropped.” (See paragraph 8 ante). The truth of such assertion: not asking for any extension because of inability to obtain approvals from the local authorities by July 31, 1963, will be examined in due course. Such assertion is reiterated in two subsequent letters too — one dated April 6, 1964, by the Caltex district office to Babulall, exhibit R and one more common document of the parties — the plaintiff's No. 16 and the defendant's No. 15, and another dated May 13, 1964, by Victor Moses and Company, the defenant's solicitors, to S.N Bagla and Company, the plaintiff's solicitors, still another common document of the parties — the plaintiff's No. 21 and the defendant's No. 17, at pages 31-32 and 39-40 respectively of the admitted brief of documents, exhibit A. What appears to be deserving of notice now is that extension of the option period was not asked for, because of the inability to obtain necessary approvals from the authorities by July 31, 1963; not because of the decision of the head office not to extend the option period. Then came the letter dated March 27, 1964 from the head office at Bombay (reviewed in the preceding paragraph) referring Babulall to the District Manager here for straight talks with him. It does not say — as it would have said, had S.N Sinha's evidence on the final decision taken by the head office of not extending the option period been true — “For nothing, you are blaming our district office. We took the decision of not extending the option period. We regret, we cannot reopen it.”

30. It says instead: “It is a matter which comes within the purview of our district office at Calcutta. Take it up directly with the District Manager there”. This is no manifestation of “the brain power” radiating from the head office.

31. There is thus no documentary evidence in support of the Bombay head office having decided not to extend the option period. The oral evidence is that of S.N Sinha of whom I cannot say: ‘there is section 134 of the Evidence Act I of 1872. And I can go by his uncorroborated testimony’. His is not the best evidence either. The best evidence would have been of Lall and Berry none of whom are examined, though they are in Bombay (qq. 117 and 113 to S.N Sinha). No explanation is forthcoming either, for non-examination of such important witnesses. I may therefore presume in safety, as I do, that were they examined, they would not have supported what S.N Sinha asks me to believe about the decision taken by the head office not to ask for extension after July 31, 1963.

32. Nothing more need be said — though something more may be said yet — to demonstrate the futility of an approach that the head office of Caltex at Bombay is the repository of all “brain power” of the organization, the Calcutta district office performing only a marionettee show, and that Caltex therefore carry on business at Bombay only, not anywhere else such as Calcutta. To sum up, upon a review of all that goes before, I find as facts—

A. Caltex do carry on business in Calcutta.

B. They did carry on business in Calcutta on June 1, 1964, when this suit was instituted.

C. The general supervision of the head office at Bombay is no doubt there, as it must necessarily be. It does not, however, mean that the head office alone carries on business at Bombay and that the Calcutta district office does not. (What does it do here then, if not business?)

D. Upon the whole of the evidence it does not emerge that the head office of Caltex at Bombay decided not to extend the option period, though it appears to have confirmed the terms come to between Babulall and the Calcutta district office on April 30 and May 1, 1963. What emerges instead is that the district office took that decision — a matter which was within its “purview,” as I have it on the high authority of the head office itself: vide the plaintiff's document No. 15 at page 30 of the admitted brief of documents, exhibit A: paragraph 18 ante.

33. I do not overlook Explanation II, to section 20 of the Procedure Code Mr. De has referred me to. No doubt, it provides inter alia that a Corporation shall be deemed to carry on business at its sole or principal office in India. But section 20 (surely inclusive of Explanation II) does not touch this litigation. It does not, because section 120 of the Procedure Code prescribes that the provisions of section 20 shall not apply to the High Court in the exercise of its original civil jurisdiction — just the jurisdiction I am exercising here and now.

34. What touches, and indeed governs, this litigation is clause 12 of Queen Victoria's Letters Patent of December 28, 1865, which, to quote from the judgment of P.B Mukharji, J. in (1) K.G Kalwani… v. Union Of India…., 64 CWN 765 at page 768 : AIR 1960 Calcutta 430 at page 431, “still exhibits surprising vitality”, though a hundred years has passed by. The deeming provision of Explanation II to section 20: that a corporation shall be deemed to carry on business at its sole or principal office, no matter that it does carry on business here, there and everywhere, is not to be found in clause 12 of the Letters Patent. With no such legal fiction there, the only test that has to be satisfied, in the context of the suit in hand, is: do Caltex carry on business in Calcutta? Or, to be exact in the context of the present litigation, did Caltex carry on business in Calcutta on June 1, 1964, the time of commencement of this suit? The findings I have come to in paragraph 21 ante upon a review of the evidence answer these questions in the affirmative and satisfy the test of clause 12 of the Letters Patent provides for. I see no absurdity in Caltex carrying on business in Calcutta, Bombay or in as many places as their business enterprise takes them to. Not to hold so is to shut one's eyes to the reality plain to be seen.

35. Do the decisions Mr. De cites show anything to the contrary? (2) Union of India v. Sri Ladu-lal Jain, AIR 1963 SC 1681, (3) Bata Shoe Company Limited v. Union of India, AIR 1954 Bombay 129, and (1) K.G Kalwani… v. Union Of India…., (supra), are the three cases he refers me to, on jurisdiction. But they all turn on Go vernment carrying on business of run ning the railways—a matter with which I have little to do here. As P.B Mu-kharji, J., pointed out in Kalwani's case, (supra):

“That a private company or corporation can carry on business within the meaning of clause 12 of the Letters Patent is too well-settled to permit re-agitation.”

36. Caltex are a private company. Caltex are a corporation, incorporated as they are outside India: section 2(7) of the Companies Act 1 of 1956. So, why equate Caltex with Government running the railways and re-agitate a question “too well-settled to permit re-agitation”?

37. This is one consideration. The re is still another. In (3) Bata Shoe Company's case, (supra), for short de livery of goods consigned from Agra Fort to Bikaner, both places being out side the territorial jurisdiction of the Presidency Small Cause Court at Bombay, a suit was instituted just there: Presidency Small Cause Court, Bombay, against the Union of India representing the B.B and C.I Railway, the head office of which was at Bombay. Gajendragadkar, J. (as his Lordship then was), held, Vyas, J. agreeing, that the Union of India representing the B.B and C.I Railway could not be said to carry on business within the meaning of section 18(b) of the Presidency Small Cause Courts Act, 1882 (almost in simliar terms to section 20 of the Procedure Code and clause 12 of the Letters Patent), even though the head office of the railway was at Bombay, and that the Bombay Presidency Small Cause Court had therefore no jurisdiction to try the suit. (1) Kalwani's case (supra), reveals non-delivery of a consignment of artificial silk goods from Chandari railway station to Howrah railway station, both places being outside the territorial jurisdiction of this Court on the original side and a suit instituted just here on the ground that the railway concerned had its head office at 17 Netaji Subhas Road within this Court's territorial jurisdiction. G.K Mitter, J., at the trial and P.B Mukharji, J. sitting with H.K Bose, J. (as his Lordship then was) in appeal held that the Union of India owning the railway concerned did not carry on business at the head office of the railway within the meaning of clause 12 of the Letters Patent. Now, compare (2) Ladulal's case, (supra), where, for non-delivery of a consignment of 134 bags of rice from Kalyanganj railway station in West Bengal to Kanki railway station in Bihar, a suit is instituted against the Union of India and the Northern Frontier Railway represented by its General Manager, in the court at Gauhati within the territorial jurisdiction of which Pandu, the principal place of business of the railway, its headquarters, is situate, but Kalyanganj and Kanki are not. Raghubar Dayal, J., speaking for the Court holds that the Union of India does carry on “the business of running railways and can be sued in the court of the Subordinate Judge of Gauhati within whose territorial jurisdiction the headquarters of one of the railways run by the Union is situated.” More, (4) Vratap Chandra Biswas v. Union of India, AIR 1956 Assam 85, holding in favour of the Union of India carrying on such business and therefore dissented from in (1) Kalwani's case, (supra), is impliedly approved by the Supreme Court in (2) Ladulal's case, (supra).

38. It therefore appears that this decision of the Supreme Court overrules by implication not only (3) Bata Shoe Company's case, (supra), and (1) Kalwani's case, (supra), Mr. De cites but also a crowd of other decisions Mr. De does not. That apart, in (2) Ladulal's case, (supra), the contention on behalf of the Union of India before the Supreme Court is that in reality the Union has its “headquarters office” at New Delhi, the head office of the railway at Pandu having been only the Union's branch office which is “controlled by the Union of India from New Delhi.” And certainly the factual position is such that this may be said. If the Railway Board at New Delhi does not control Pandu head office, who does? Still the suit in the Gauhati Court, within the territorial jurisdiction of which the Pandu “branch office” of the Union of India is, is held to be a suit filed in a court of compentent territorial jurisdiction. On this analogy, the present suit against Caltex with their district office at Calcutta may be regarded as a suit in a court having the territorial jurisdiction to try it. But I do not push this analogy too far. I rest my finding instead on the fact that Caltex carried on business on June 1, 1964, at 22 Chittaranjan Avenue within the territorial jurisdiction of this Court, thus satisfying the test clause 12 of the Letters Patent lays down.

39. Now the cases Mr. Ghosh relies upon may be noticed. In (5) Guardian Assurance Company Limited v. Thakur Shiva Mangal Singh, AIR 1937 Allahabad 208 : ILR 1937 Allahabad 234, Sulaiman, C.J, held, Bajpai, J., agreeing that the Assurance Company concerned, a foreign company, whose managing agents were Andrew Yule and Company Limited, Calcutta, could be said to have been carrying on business in Calcutta on the following among other grounds: (i) payment by the Assurance Company of the rent of a room in the premises occupied by Andrew Yule and Company, (ii) setting apart of the said room for carrying on business on behalf of the Assurance Company, (iii) main-tenance of separate account books for such business in Calcutta, (iv) payment by the Assurance Company of the licence tax to the Corporation of Calcutta, (v) display of a sign board by the Assurance Company indicating that it has its office in the same premises, and (vi) authorizing the managing agents, Andrew Yule and Company, under a duly executed power-of-attorney to accept insurance proposals, issuse, cover-notes and policies and pay all claims. If I may say so, care has not been taken to get from Caltex's solitary witness, S.N Sinha, a little more. But is is no function of a judge to be lachrymose over what might have been brought in evidence. His function is to go by evidence that exists. And that, coupled with the probabilities, is enough to sustain a finding that Caltex do carry on business in Calcutta. (See paragraph 17 et seq., supra). To go over that again, side by side with the grounds (5) Guardian Assurance Company's case, (supra), reveals, here are they seriatim:

(i) 22 Chittaranjan Avenue where Caltex carry on business looks like a rented accommodation as the very name of the premises: United India Life Building: goes to show. The name is not CALTEX HOUSE, as in Bombay, where the head office of Caltex is housed. It appears so from the head office's letter of March 27, 1964, to the address of Babulall: the plaintiff's document No. 15 at page 30 of the admitted brief of documents, exhibit A. Thus, it seems, Caltex are paying rent for the accommodation here to carry on business here in Calcutta. If Caltex own the United Life Building which is 22 Chittaranjan Avenue, there is no escape either. They own it so to carry on business too. Even as a licensee without licence fee — an absurd thing to think of — the position will be just so.

(ii) It needs no imagination to see that the accommodation at 22 Chittaranjan Avenue they are in enjoyment of has been set apart for carrying on their business with nine telephone lines: 23-5081-89, on three floors (q. 107 to Babulall), a telegraphic address: Caltex, and a post box too bearing the number: 2382.

(iii) That Caltex run their separate accounting here may be taken for granted, because on matters before this Court the existence of such separate accounts may be considered so probable that a prudent man ought, under the circumstances of this case, to act upon the supposition that separate accounting exists: vide definition of “Proved” in section 3 of the Evidence Act. For the pay and emoluments of the District Marketing Manager, Sales Manager and others — officers, assistants, clerks, typists and menials making a big staff (q. 107 to Babulall) — for receipts from different service stations, for telephone and electric bills for other receipts and expenses galore, separate accounts are bound to be maintained here. My only regret is that Mr. Ghosh did not get all this on record. Nor did I. Still there can be no running away from so probable a fact, so probable that it may very well be regarded as certain.

(iv) Similarly, payment by Caltex of the licence fee to the Corporation may be taken as equally probable, even without direct evidence to that end.

(v) So also about the sign board. The headings of the business letters show how the sign board will be like.

(vi) Caltex do business here on their own, subject, of course, to the general supervision of the “General Office” at Bombay. So they are in a stronger position than the Assurance Company of the Allahabad case carrying on business through agents, Andrew Yule and Company.

40. Let me now close my review of (5) Guardian Assurance Company's case, (supra), noticing an interesting contention advanced there. The contention was: a corporation can carry on business only where it dwells and the corporation can dwell only at the place at which its directors, meet, hold their meetings and carry on the principal business of the corporation. (Incidentally, in the light of this contention, Babulall would have to go to the Bahama Islands to file his suit against Caltex — a result which makes the contention refute itself.) Sulaiman, C.J repelled it. In having done so, his Lordship referred to the provisions of “the 1913” Companies Act, and section 277 in particular, recognizing the obvious fact that foreign companies do carry on business in India. Part XI of “the 1956” Companies Act does recognize just that, laying down “Provisions as to establishment of places of business in India” by “Companies incorporated outside India.” His Lordship referred too to the following amongst other English cases which Mr. Ghosh also refers me to:

(i) (6) La Compagnie Generate Transatalantique and Thomas Law and Company, 1899 AC 431, where the appellants, “a French company formed under the French law with its head office in Paris”, “owned steamers trading between French ports and English ports and other places. The Company were lessees and paid the rent of an office in London where their name was painted up.” One Fanet acted for them there. In an action in the Admiralty Division against the appellants founded on a collision between their vessel and the respondents', the writ was served on Fa-net. The question arose if a foreign company could be sued in England. The House of Lords answered the question in the affirmative. Earl of Halsbury, L.C in his short speech upheld the view of Bacon, V.-C. who, with that broad common sense which not infrequently distinguished that learned judge's observations, said, in a similar case, (7) Lhoneux, Limon and Company v. Hong Kong and Shanghai Banking Corporation, (1886) 33 Ch. D., 446: “They hire an office, write up their name, and beyond all question stamp upon themselves and upon their place of business here the assumption that here they carry on their business”. (I say just so of Caltex. They hire an office in United India Life Building at 22 Chittaranjan Avenue. If they own it, so much the better. They print off thousands of letter papers. See the number 20,000 in print at the top of such letter papers, exhibits M, N, P and R. They write up their name and the products they specialise in. They insert there their telephone numbers — not one, but nine —showing the volume of business they have to tackle with here. They put in their telegraphic address and post box number too. So they must be carrying on business right here. Still to say that they do not is to defy broad common sense.)

(ii) (8)Dunlop Pneumatic Tyre Company v. Actien-Gessellschaft Fur Motor Und Motorfahrzeugbau Vorm Cudell and Company, (1902) 1 KB 342: The defendants, incorporated according to the law of Germany, carried on business there as manufacturers of motorcars, wtih no place of business in England, save that they did hire a “stand” at the Crystal Palace for the exhibition of articles of their manuacture at the National Cycle Show held there, for 9 days only, from November 22 to November 30, 1901. Even so, the Court of Appeal (Collins, M.R, Romer, L.J and Mathew, L.J) held that during the continuance of the 9-day show the defendants were carrying on business so as to be resident at a place within the jurisdiction. (A fortiori therefore Caltex, carrying on business here for months and years on end in the manner noticed, “dwell” within the jurisdiction of this Court within the meaning of clause 12 of the Letters Patent. So the Court has jurisdiction this way too.)

(iii) (9) Saccharin Corporation Limited v. Chemische Fabrik Von Heyden Aktiengesellschaft, (1911) 2 KB 517: As the sole agent of the defendants, the German company, one Blasius carried on business at a fixed place (Fenchurch Street) in London. Amongst other things, he had power to enter into contracts of sale for the defendants. The form of contract was headed with the defendants' name and address in Germany and under the defendants' name appeared that of Blasius as their sole agent in the United. Kingdom.

41. More, on the contract form appeared a telegraphic address and a telephone number purporting to be those of the defendants. So any one desiring to communicate by telegraph or telephone with the defendants in London would do so by wiring or speaking to Blasius's office. Therefore, the defendants adopted Blasius's place of business as their London address, even though Blasius paid the rent therefor (the premises in Fenchurch Street). Of course, if the defendants had rented the office and Blasius had occupied it with their consent, that would have been a very strong piece of evidence against them. (All this I have borrowed from the judgment of Fletcher Moulton, L.J) The defendants, it was held, were carrying on their business at the agent's office so as to be resident at a place within the jurisdiction. (Much stronger is the case before me where no agency is seen. What is seen instead Caltex themselves carrying on business.)

42. Two other cases Mr. Ghosh cites on the point of jurisdiction. One is the (10) Peoples Insurance Company Limited v. Benoy Bhusan Bhowmik, (1943) 47 CWN 292, where Mukherjea, J. (as his Lordship then was), sitting with Blank, J. pointed out towards the close of the judgment that, in view of the clear language of Explanation II to section 20 of the Procedure Code, once it was established that the corporation had got a branch office at any place, it must be deemed in the eye of law to carry on its business at that place irrespective of the nature of the work that was actually carried on there. But this part of Explanation II is such that cause of action, wholly or in part, and a subordinate office of the corporation at a place where such cause of action arises must co-exist. The case before their Lordships presented no difficulty. The branch office of the Insurance company was at Dacca where part of the cause of action due to the death of the insured arose. But in the case before me, even if I take it that part of the cause of action has arisen within my jurisdiction, the other part having arisen at 24A Deshapriya Park Road, Babulall's residence, within the jurisdiction of the Alipore Court, what I miss is leave of the Court which was not obtained, though it was the first thing to have been obtained before the institution of the suit, under clause 12 of the Letters Patent. So this decision cannot help Mr. Ghosh. The other case he cites is (11) Davies v. British Geon Ltd., (1957) 1 QB 1, where a labourer working at the factory at Sully, within the district of Cardiff registry, under the defendant company (which had its principal and registered office in Piccadilly, London) contracted dermatitis and issued a writ against the Company in the Cardiff District Registry. The question arose if, within the meaning of Order 12, rule 4 of the Rules of the Supreme Court, the Company, on whose behalf appearance was entered in London, resided or carried on business within the district of the registry. Denning and Birket L., JJ. held, Harman, J. dissenting, that the defendant company “resided” in London where the principal office was, but “carried on business” both in London and at their factory, so that the Company ought to have entered appearance in the Cardiff registry instead of in London. Thus, a company carrying on business at more places than one is quite a conceivable proposition. It is neither reason nor common sense to say that “an individual can carry on business at more than one place while a company cannot”, to quote from the observations of Denning, L.J in the course of arguments at the Bar at page 6 of the report. Therefore, “the head office theory,” unless backed by a legal fiction, as in the first part of Expalantion II to section 20 of the Procedure Code (the like of which is not there in clause 12 of the Letters Patent), cannot alter the reality I see in Caltex carrying on business both in Bombay and Calcutta. Give the plain meaning to the plain English word “business”. And you cannot but hold that Caltex do carry on business in both the places — Bombay and Calcutta.

43. Upon a review of authorities, the evidence I have had put before me, and the probabilities, the conclusion I have come to is that Caltex did carry on business on June 1, 1964, the date of institution of this suit, as they do now, at 22 Chittaranjan Avenue, inside of the territorial jurisdiction of this Court, within the meaning of clause 12 of the Letters Patent. I therefore find the first issue in favour of the plaintiff Babulall.

44. The question of jurisdiction (issue No. 1) thus settled, I proceed to the next two issues which run into one another. The second one is on the true interpretation of the agreement dated, strictly speaking, April 30 and May 1, 1963. Marked exhibit M at and during the trial, it has been reproduced in full in paragraph 2 ante. Bead as a whole and fairly, its interpretation does not present much of a difficulty. Indeed, it appears to be so easy of solution except on one point dealt with in paragraph 34 et seq infra. It is an agreement following discussions between Babulall on one hand and E.M Schimdt, R. Majumdar and K.C Dutta of Caltex on the other. And such discussions were had on the morning of April 30, 1963 — the very day Caltex district office addressed the letter, exhibit M, to Babulall. The points agreed upon in the course of discussion were:

(1) Babulall's land at Prince Anwar Shah Road, Tollygunge, was to be leased, first for a ten-year term and therefore with two renewal options of ten years each, for constructing and maintaining a service station by Caltex district office.

(2) The area of the land to be leased so would be approximately 144′ × 100′, one bigha, for which Caltex district office would pay Babulall Rs. 2500 a month as rent.

(3) As each ten-year option for continuation of the lease would be exercised, the rent would be increased too by 10 per cent.

(4) On receipt by Caltex district office of “all the necessary approvals from the concerned Government authorities,” the leaise effective from May 1, 1963, and necessarily carrying rent therefrom would be finalised, i.e, executed.

(5) For the first 3 months (May— July 1963) Caltex district office would pay Babulall the retention fee of a consolidated sum of Rs. 3750 which would be “non-refundable,” no matter whether all approvals could be obtained or not, that is to say, even if the lease would fall through, as it was bound to, for lack of approval of the authorities — a condition precedent to the installation of a service station.

(6) If Caltex district office would require a further extension of time beyond July 31, 1963, on the expiry of the first 3-month option, “in order to receive the necessary approvals”, Caltex district office was agreed to pay Babulall Rs. 2500 a month. If the lease would come on receipt of “the necessary approvals”, such payments were to be reckoned as, and applied against, rent. If the lease would fail because of such approvals not forthcoming, such payments (Rs. 2500 a month from August 1963) would be “non-refundable” too.

(7) With a view to ensuring that the land which was being leased out so was free from all incumbrances, Babulall would produce his documents of title for inspection by the lawyers of Caltex district office.

45. In the original letter of April 30, 1963, exhibit M, the seven points above are listed as “the points agreed upon.” Of these, the points bearing serials 2, 4, 5 and 6 use the word “we” and the one bearing serial No. 7 uses the word “our”. Since the writer of the letter is the Caltex district (office) of Caltex (India) Limited, I have substituted, in reproducing the points, points 2 and 4 to 6, Caltex district office for we, that indeed being the plain meaning of we in the context of the letter. By parity of reasoning, I have substituted Caltex district office for our in point No. 7.

46. Such being the clear terms, I see here a completed agreement (for lease) duly executed by Caltex on April 30, 1963 and by Babulall on May 1, 1963. Mr. De however sees here an agreement for an agreement (not necessarily in writing) for lease. How he does so beats me. The subject of the letter is captioned: “Lease of land owned by you at Prince Anwar Shah Road, Tollygunge, Calcutta.” Of the seven points agreed upon, the first one says: “Subject land is to be leased etc.”; the second one says: “The area to be leased is approximately 144″ × 100″” for which the other party to the agreement (Caltex) will pay a rent of Rs. 2500 a month; the third one provides for an increase of rent; the fourth one emphasizes that, necessary approvals forthcoming not only will the lease be executed then, but also will it relate back to May 1, 1953; the sixth one, makes it clear that, necessary approvals not had by July 31, 1963, retention fee will be paid at Rs. 2500 a month, but that such payments “will be applied against” rent, so soon as approvals are had and the lease follows; and the seventh one provides for a prior inspection of the would-be lessor's documents of title so that the lease may be put on a secure basis. If this is not an agreement for lease, I do not know what an agreement for lease is. Mr. De unnecessarily troubles himself with absence of a provision for forfeiture and the like, though such absence enures to the benefit of his client. It will be a lease of the parties, not yours nor mine. And it has been their pleasure to be content with the seven points enumerated above.

47. It has been their pleasure too not to bother themselves with the provisions Mr. De is anxious about. What is more important, any addition of new terms (the like of which Mr. De postulates) will make for a breach of the agreement solemnly come to by them.

48. In, the course of his arguments, Mr. De formulates a test: how the parties to the agreement understood it. Mr. Ghosh accepts the test. So do I. Translating this test to the documentary evidence of Caltex, it is found, as Mr. Ghosh so rightly submits, that Caltex always understood this agreement, exhibit M, as an agreement for lease, and not as an agreement for an agreement for lease. So much so, that they called for, and received, the deed of conveyance, thus leaving no scope for a further agreement. For convenience sake, here is a chart of the documentary evidence, letters all, showing just so.

Serial No. Document with exhibit No., if any. Date of the letter: addressed by whom to whom. What it says about the agreement, exhibit M. 1. P.D No. 2, D.D No. 2 at pp. 3 & 4 of the brief, exhibit A. 6.5.1963 From Caltex to Director of Fire Services. “Mr. Choukhani has already agreed to lease the land to us for 30 years….”. 2. Ext. E/I: also P.D No. 3, D.D No. 3 at pp. 5 & 6 of the brief, ibid. 6.5.1963 From Caltex to District Mgaistrate, 24-Parganas, 8.5.1963 As above kindly arrange 3. Ext. N: also P.D No. 4 at p. 7 of the brief, ibid. From Caltex to Babulall. to forward the deed of conveyance for verification by our lawyers.” 4. D.D No. 4 at pp. 8 & 9 of the brief, ibid. 9.5.1963 From Caltex to Dy. Commr. of Police (Traffic) for a “no objection” certificate. “Shri Choukhani has already agreed to lease the land to us for 30 years.” 5. P.D No. 5, D.D No. 5 at p. 10 of the brief, ibid. 10.5.1963 From Caltex to Babulall. “Further to (the agreement, exhibit M) and your subsequent visit to our office with the deed of conveyance in original for verification by our lawyers”. 6. D.D No. 8 at p. 13 of the brief, ibid. 6.6.1963 From Caltex to Dy. Commr. of Police, Arms Act Department, for a “no objection” certificate. “Shri Choukhani has already agreed to lease the land to us for 30 years….”. 7. D.D No. 9 at p. 15 of the brief, ibid. 18.7.1963 From Caltex to Director of Fire Services. “…….the lease terms would be concluded only on receipt of the various No Objection (?) from Fire Services as well as Calcutta Police.

49. After the illuminating admissions by Caltex tabulated above, it is plain to be seen that throughout they understood and dealt with the agreement, ex-hibt M, as an agreement for lease which indeed it is, in view of the internal evidence it contains: paragraph 30 ante. Mr. De's contention that it was a prelude to a further agreement for lease must therefore fail.

50. Equally ineffective is his other contention that what this concluded agreement, exhibit M, concludes is only a 3-month option for May to July 1963. To contend so is to overlook point No. 6 of the seven “points agreed upon.” Ba-bulall and Caltex, the two parties to the agreement, visualize (presumably from past experience which Caltex must have had and Babulall may have had) that all the necessary approvals — a condition precedent to the installation of the contemplated service station — may not be forthcoming in three months' time. Will Babulall then be free to lease the land to somebody else after July 31? Certainly not. Hence point No. 6 is one of the points agreed upon. And what it clearly provides for, obviously to prevent Babulall from doing so, is this. Caltex will pay Babulall Es. 2500 a month if they require a further extension of time past July 31 in order to receive the necessary approvals. If the approvals are received in the course* of this extended time, a lease will follow. And the lease being there, payment at Rs. 2500 a month will count as rent. If however the approvals elude Caltex, such payments will be non-refundable, the clearest implication thereby being that they will count as retention money paid by Caltex to Babulall as the price for disabling him (Babulall) to seek any other as a lessee for the land in question during this uncertain period.

51. How rightly the parties had foreseen the delay which would drag the matter beyond July 31 is seen from what really happened subsequently. To notice only the more notorious amongst them, here are a few specimens:

A. JULY 18, 1963.

52. Only 13 days remained for the month of July and the 3-month option to run uot. Still Caltex were frantically moving about to get the necessary approval they badly needed. Their Sales Representative K.C Dutta engaged himself in personal discussion with one Mr. Ghose of West Bengal Fire Service “in regard to the No Objection Certificate covering (land in) Prince Anwar Shah Road, Tollygunge”. Manifestly, it then dawned upon the said Mr. Ghose, or somebody else there that a copy of the agreement of April 30, 1963, exhibit M, was necessary, though the Director of Fire Services was written to by Caltex as far back as May 6, 1963, with an “earnest request” “to expedite the matter and for immediate compliance” because the landlord (Babulall) has given them “3 months” time as retention period”.: vide the common document of the parties — No. 2 of the plaintiff and the defendant alike at pages 3 and 4 of the admitted brief of documents, exhibit A. Still on July 18, 1963, Caltex referred to the discussions of K.C Dutta with Ghose, enclosed a copy of the agreement and wrote to the Director, West Bengal Fire Service, in a somewhat plaintive tone:

“Please note that the lease terms would be concluded only on the receipt of various No Objection (Certificates) from Fire Services as well as Calcutta Police.

Please arrange to issue the No Objection certificate at the earliest opportunity.”: vide the defendant's document No. 9 at page 15 of the admitted brief of documents, exhibit A.

53. Point No. 6 agreed to by the parties therefore justifies itself. More is still to come.

B. JULY 22, 1963.

54. Only 9 days remained for the month of July and the option period to run out. The Director of Fire Services condescended to write to the District Magistrate, 24-Parganas, this day saying that there was no objection “from Fire Service point of view” provided that the construction was made according to the specification shown in the endorsed plan (exhibit F: D.D No. 10 at page 16 of the brief, exhibit A). And Caltex had sent the Director “3 copies of of the layout plan” on May 6, 1963: vide P.D 2.D.D. 2 again at pages 3 and 4 of the brief, exhibit A. One more proof of the sagacity of the parties in having agreed upon point No. 6. Surely Caltex were not out to throw away Rs. 3750 — the price of the 3-month option — having a reasonable belief to hold that that much of time was not likely to see the thing through.

C. JANUARY 8, 1964.

55. The month of July and the option period had run out. Worse, five months from August to December 1963 and the first week of January 1964 had passed by. And Deputy Inspector General of Police D. Dhar was writing to the District Magistrate this day to say that there was no objection to the proposed installation of the petrol pump from the traffic point of view, but that the local people were not much in favour thereof, as reported by the Superintendent of Police, 24-Parganas: exhibit G.

56. What more need be said to demonstrate why the parties to the agreement, Babulall and the top-ranking officers of Caltex, vying with one another in shrewdness, had had a point like point No. 6 in the agreed terms, so that both could get a reasonable time, even after the expiry of the 3-month option, to complete what they had set their heart upon, namely, the lease. It does not therefore appear to be right to say, as has been said on behalf of Caltex, that the agreement provides only for the 3-month option, and no more. It does provide for that (3-month option) on a lump payment of Rs. 3750, and also an option beyond that on the expiry of three months (May—July) on a payment of Rs. 2500 a month.

57. But how long beyond? That is the question, and so important a question. Take an extreme view. On the expiry of the 3-month option, Caltex say, as they do (wrongly though in fact and at law): ‘we drop the matter’. Can they do it and run away from the agreement by the sixth agreed point of which they have agreed to go on paying Rs. 2500 a month if for the necessary approvals they require time beyond July 31, as they do very much in the facts before me? Or take another extreme case. Say, the authorities who seem to revel in tortuous progress of even such routine matters take ten years to grant all the approvals needed, Caltex meanwhile losing all interest in the matter. Will Caltex then be mulcted in retention fee of Rs. 2500 a month in terms of point No. 6 for that long? The agreement is silent about it. This silence creates a difficulty but it is a difficulty which is capable of being overcome with reasons. In none of the two illustrations I have taken, Caltex can be saddled for 10 years with the liability of Rs. 2500 a month — the price they had agreed to pay Babulall for the further option on the expiry of the 3-month option. To saddle them so is to make the option period equal to the lease period — the first 10-year term — though a lease is not “born” yet. It will be making the two unequals equal to one another — an inconceivable proposition. That apart, it negates reason and brings the whole thing on the verge of ridicule and absurdity. So, the theory of a reasonable time may have to be pressed into service to work out justice for which alone a court of law exists. I was thinking on this line on the morning of May 20, 1965, the arguments having been concluded on the day previous. At the same time, I was left wondering why this aspect of the case was not argued at the Bar. In fairness to Mr. De, I hasten to record that he had just touched this point on the very first day of hearing (March 19, 1965) never to develop or even mention it again during the carriage of the suit on the remaining days up to May 19, 1965 when he concluded his address to me. So I ordered the suit to appear in the list of May 21, 1965 marked: To be mentioned, after I had failed to get both Mr. De and Mr. Ghosh on May 20, 1965 when I could see Mr. Ghosh only appearing in my court in another case. On May 21, 1965 Mr. De and Mr. Mukherji (Mr. Ghosh's junior) were good enough to appear before me. And I told them what was troubling me. I told them too of another matter — one on section 599 of the Companies Act 1 of 1956 since dealt with in paragraph 15 ante. They wanted to address me on May 31, 1965 on my return from a short leave. I have heard them, as arranged, though not on May 31, 1965 when I was assigned different work on the Appellate Side. Indeed, I could hear them only on September 9, 1965 when I returned to this side. On the point I am on now, Mr. De's argument consists of three propositions. First, the option excludes the agreement and the agreement excludes the option. Second, without possession of the land to be leased out, Caltex cannot be made liable on the foot of any agreement to lease. Third, ‘find out what time— I require to get necessary approvals from the authorities. And make me liable for that long only.’

58. I am unable to accept the first proposition Mr. De enunciates. As I read the agreement of April 30.May 1, 1963 (paragraphs 2 and 29 ante), the 3-month option incorporated in the 5th point of the 7 points agreed upon is included in the agreement of which it forms part. Therefore, this particular option and the agreement as a whole are not mutually exclusive. Both stand together, one being part of the other. Equally ineffective is Mr. De's second proposition. To contend so is to run away from the agreement the 6th agreed point of which stipulates: if Caltex require further extension of time past July 31, 1963 with a view to getting the necessary approvals, they will go on paying Babulall Rs. 2500 a month. Where does Mr. De find here or anywhere else in the agreement that so long Caltex are not inducted into the land, they are not liable to pay on the expiry of the 3-month option on the last moment of July 31? Such contention, therefore, appears to be destitute of merit. Not so, however, the third proposition of Mr. De which comes to this: ‘Make me liable for the time I require to obtain the necessary approvals, and not a day beyond that.’ I accept this subject to one reservation: ‘Make me liable for such reasonable time I require to obtain the necessary approvals.’ The lackadaisical manner in which such matters moved has been noticed. (See paragraph 33 ante.) The Director of Fire Services sat over Caltex's letter of May 6, 1963 for 2 months and 16 days, that is to say, till July 22, 1963 when he condescended to inform the District Magistrate, 24-Parganas, that there was no objection “from Fire Service point of view.” Deputy Inspector General of Police D. Dhar would beat the Director of Fire Services. On January 8, 1964 it was his pleasure to inform the said District Magistrate that there was no objection “from the traffic point of view,” though he was written to on the subject on or about June 6, 1963 as it appears from the notes and Order dated June 5 and 6, 1963 of the District Magistrate's office: exhibit K/1. Some 7 months to attend to, and to report on, a matter as this: (See paragraph 33 again: B and C ante.) That red-tape and delay go together has not been said in vain. The District Magistrate, 24-Parganas, would necessarily beat them both — the Director of Fire Services and the Deputy Inspector General of Police. He informed Babulall on March 20, 1964 that the matter was still under investigation: exhibit B, though Caltex had petitioned him (the District Magistrate) on May 6, 1963: exhibit E/1; and the earliest the District Magistrate could attend to this petition was June 6, 1963: exhibit E/2. Ten months and a half passed by. And the matter was still under investigation: Investigation indeed with vengeance, it seems. No more need be said to demonstrate the deplorable lack of efficiency and earnestness with which such matters were handled by the powers that be. Now, suppose as the result of such a lamentable drift, the matter had dragged its slow length for years, say, 3 or 4 years, (not 10 years I took by way of an illustration as an extreme case), and the authorities decided not to grant the approvals without which the Service Station Caltex were after could not be started and the proposed lease could not be executed either. Will that make Caltex liable to any Babulall Rs. 2500 a month for that long (3 or 4 years) in terms of the 6th agreed point in the agreement of April 30|May 1, 1963? It will not. It should not. Hence, I say, I accept Mr. De's third proposition with a reservation — the reservation being that Caltex are answerable for the payment of Rs. 2500 a month for such time on the expiry of the 3-month option as may be regarded reasonable for getting the necessary approvals. Not to take the reasonable time as the test is to work out injustice, and, what is worse, to put an interpretation on the agreed point No. 6 in the agreement which was not intended by either party thereto. By having agreed to pay Babulall Rs. 2500 a month on the expiry of the 3-month option on July 31, 1963 if Caltex required “further time extension” “in order to obtain the necessary approvals”, they had agreed to no more than paying so for such reasonable time as would be necessary to get the approvals. And Babulall took it to be just that as well.

59. I have pretty good reasons to think so. Look to the averment the 7th paragraph of Babulall's plaint contains:

“7. The defendant obtained the approval (No Objection Certificate) from the Director of Fire Services, West Bengal, Calcutta within 31st July, 1963 but the approval (No Objection Certificate) from the said District Magistrate was not obtained within the said period as indeed it was known to the parties at the time of entering into the aforesaid agreement that such approval may not be obtained before a period of 6 to 8 months had expired from the date of the application for the said approval.”

60. I stress the words: “it was known to the parties at the time of entering into the aforesaid agreement…..” in the excerpt quoted above from the plaint. So, according to Babulall, Caltex knew too on April 30, 1963, what was what. And what was what? Approval needed to start a Service Station could “not be obtained before a period of 6 to 8 months had expired from the date of the application for the said approval.” Eight months from May 6, 1963, (the date of application by Caltex to the District Magistrate for approval: exhibit E|1) would be January 6, 1963, or thereabouts.

61. No doubt, the averment in the 3rd paragraph of the plaint goes a little more and expands this time limit:

“It was further further understood by the parties that 6 to 8 months' or even more time may be required in order to receive the said approval from the District Magistrate, Alipore.”

62. But subject to what I say in paragraph 40 infra, I pin Babulall to what he avers in the 7th paragraph of his plaint where the words—or even more — are not to be found. I pin him so all the more; because that is his substantive evidence before me. The rent for each month agreed upon comes to Rs. 2500 a month. Half of Rs. 2500 is Rs. 1250. The payment for the first 3-month option comes to Rs. 3750 which works out at the rate of Rs. 1250 a month. Thus, for the first 3-month option the rent was halved. (See qq. 28 and 29 to Babulall.) Then, Babulall is asked:

Q. 30. Why was it to be halved for three months?— That the time required to get the permission and other things would take about 6 to 8 months. I was asked to halve the rate for three months.

63. And he did what he was asked to. But what is meant by: The time required to get the permission and other things — Babulall speaks of in answer to question No. 30. He explains:

Q. 105. You told my lord while giving evidence this morning that you had a talk with Mr. Majumdar (of Caltex) and he gave you to understand that it takes six to eight months. What takes six to eight months?— It takes six to eight months to get the approval and the final approval from the District Magistrate and also the ‘no objection’ certificate from the District Magistrate. Mr. Schimdt (of Caltex) also told the same thing in the beginning.

64. Babulall does not say in his sworn testimony, as he avers in the 3rd parapragh of the plaint: ‘6 to 8 months' or even more time’ All he swears to is: ‘six to eight months’: ‘about 6 to 8 months’. This is why I say subject to what I record in paragraph 40 infra, I pin him to his averment in the 7th paragraph of the plaint which is just that and in consonance too with his evidence on oath.

65. I can thus fix Babulall and say that he entered into the agreement of April 30|May 1, 1963 with the clear knowledge and intention that this business of getting approvals would be over, one way or the other, by six to eight months' time from May 1, 1963 or thereabouts. But can I say that of Caltex? Babulall says no doubt both in his plaint and evidence that Caltex had had the same knowledge and intention too. But what do Caltex say? To start with, they deny in their written statement (paras. 7 & 9) that there was ever “any such understanding” about 6 to 8 months' time. S.N Deogun, District Marketing Manager of Caltex, (paragraph 17 ante), who verifies the averments in these two paragraphs of the written statement (7 and 9), along with other paragraphs, as “true to my knowledge”, does not examine himself, though he is in Calcutta, as Sales Manager Shyam Nandan Sinha, the solitary witness examined on behalf of Caltex, says: q. 187 et seq. And Shyam Nandan is one who joined as Sales Manager in July 1963, having worked here in Caltex organization before that in 1956–57 as Sales Representative (qq. 3, 21, 80-82). Necessarily therefore he cannot have, and has not either, any personal knowledge of this understanding shared by Babulall, no one hand, and Schimdt (Smith) and Majumdar of Caltex, on the other, at the time of the agreement, about 6 to 8 months' time to be taken for getting all the necessary approvals: q. 186. Shyam Nandan's evidence therefore draws a blank on a crucial point as this. Deogun, though in Calcutta, is not examined. The Court is not told why he is not examined. I may therefore presume, as I do, that were he examined, he could not have supported Caltex's case on this point of lack of an understanding about 6 to 8 months' time. A presumption as this is strengthened all the more, if I accept, as I do, Babulall's evidence that he had not met Deogun ever and that Deogun had participated never in the conversations touching the proposed lease (qq. 109-111). Schimdt is in New York (q. 5 to Shyam Nandan). I do not expect him to come all the way from there to pledge his oath in a none too important litigation like this. So I make no point of his non-examination save that Caltex deprive themselves of the benefit of his evidence. Majumdar is no longer in the service of Caltex. After having put in over ten years service under them, he resigned, and Caltex, it is said, kept no “track of him”: vide qq. 8-11 and 86-93 to Shyam Nandan, and Majumdar's resignation letter dated November 27, 1964 — exhibit U. But did Caltex try to find him out? His evidence would have had an importance all its own. It was Majumdar who had approached Babulall on behalf of Caltex for the proposed lease in controversy. It was Majumdar again who was one of the three callers on behalf of Caltex — the other two being Schimdt and K.C Dutt — the the house of Babulall on April 30, 1963, for negotiating and finalizing the terms of the agreement in the form of a letter, exhibit M, I have reproduced in paragraph 2 ante of this judgment. He had called on Babulall on an earlier occasion too in mid-April 1963 all to himself. And that was followed by Babulall's visit at 22 Chittaranjan Avenue, the office of Caltex here, in the fourth week of April 1963. (See qq. 10, 15, 17-24 etc.). So, I ask myself again, to get the evidence of such a one — how important his testimony would have been is there only to be seen — did Caltex take any steps? Let Shyam Nandan answer it:

Q. 94. What steps you took to find out whehter he (Majumdar) was in Calcutta?— I did not take any steps.

66. It therefore draws largely on my belief that Majumdar could not have been made available as a witness before me if Caltex were a little in earnest about securing his evidence. The same presumption again. Caltex did make nothing like an attempt to get him, because his evidence would not have shown the absence of an understanding on 6 to 8 months' time usually taken for such approvals, as spoken to and pleaded by Babulall.

67. This is then how the evidence stands. On the one hand, I have before me the clear and categorical evidence of Babulall that both he and those who acted for Caltex distinctly understood the delay of some six to eight months for getting all the requisite approvals as inevitable, thus lending assurance to his averment to that end in the plaint. On the other hand, I have no evidence from Caltex, making the denial of such an understanding in their written statement an idle one. This is not all. Babulall's clear evidence of such understanding is there (qq. 30, 32 and 105). Mr. Ghosh has a point when he sumbits that in spite of such statement in chief there has been no cross-examination on this. Normally, it leads to the inference that Babulall's evidence to that extent: both parties to the agreement knew that all the necessary approvals would take some six to eight months' time — is accepted. The authorities on the point are ample and clear. See, for example, Browne v. Dunn, (1893) 6 The Reports 67 at page 70, relied on by P.B Mukharji, J. in (12) A.E.G Carapiet… v. A.Y Derderian…., AIR 1961 Cal. 359, (13) Chunilal Dwarka Nath v. Hartford Fire Insurance Company Limited, AIR 1958 Punjab 440, etc. No doubt, Phipson on Edivence, 10th edition, in paragraph 1542 at page 595, lists five exceptions where “failure to cross-examine …….will not…… amount to an acceptance of the witness's testimony”. The exceptions are: (i) where “the witness has had notice to the contrary beforehand,” (ii) where “the story is itself of an incredible or romancing character,” (iii) when “abstention (from cross-examination) arises from mere motives of delicacy, as where young children are called as witnesses for their parents in divorce cases,” (iv) “when counsel indicates that he is merely abstaining for convenience, e.g, to save time”, or (v) “where several witnesses are called to the same point,” it being then “not always necessary to cross-examine them all.” The omission I notice here does not come under any one of these exceptions. On the contrary, the story here — the story that six to eight months' time would be taken to get all the requisite approvals — looks so probable. Why probable, now it looks certain. Even on January 8, 1964 eight months and eight days after May 1, 1983 Deputy Inspector General of Police D. Dhar was writing to the District Magistrate to say that there was no objection to the proposed installation of the Service Station (Petrol pump) “from the traffic point of view”. (See paragraph 33 ante.) And still there has been no cross-examination of Babulall on the point. It may therefore be taken as an acceptance of the truth of this part of Babulall's evidence: that both he and Caltex took for granted the delay of six to eight months in obtaining the necessary approvals. I find as a fact just that.

68. But can I go further than this? For example, can I read that as an implied term of the agreement of April 30.May 1, 1963, I see before me? On a problem as this, I should recall what Scrutton, L.J says in (14) Comptoir Commercial Anversais v. Power Son & Company, (1920) 1 KB 828 at page 899, cited by Lord Morton of Henryton in (15) Pragdas Mathuradas v. Jeewanlal (1929) Limited, (1948) 53 CWN 226:

“The Court ……ought not to imply a term merely because it would be a reasonable term to include if the parties had thought about the matter, or because one party, if he had thought about the matter, would not have made the contract unless the term was included. It must be such a necessary term that both parties must have intended that it should be a term of the contract, and have only not expressed it because its necessity was so obvious that it was taken for granted.”

69. I govern myself accordingly. In the case in hand, I do not imply this term (the inevitable delay of six to eight months to get all the requisite approvals), because to my thinking it would be a reasonable term to include if Babulall and Caltex had thought about the matter, or because if either Babulall or Caltex had spent some thought on the matter, neither of them would have made the contract unless this term was included. I imply the term, because both Babulall and Caltex had thought about it, because both of them had intended that so obvious and necessary a thing should be a term of the contract —for which and because of which (six to eight months' delay) they had provided in agreed point No. 6 what would happen if the requisite approvals were not forthcoming on the expiry of the first 3-month option. Furthermore, they have only not expressed it in so many words, because its necessity was so obvious that it was taken for granted by both, as my finding upon evidence is. Though they have not expressed it in so many words, they have done so by implication by providing in the 6th agreed point how things would go on if all the approvals could not be had in the course of the first three months (May-July 1963). Therefore, if I am correct in reading this as an implied term, Babulall can recover Rs. 2500 a month for five months more on the expiry of the first 3-month option on July 31, 1963, 5 plus 3 will make 8 months, just what the understanding was between the parties, as pleaded and deposed to by Babulall and as found by me too upon evidence. At the same time, it does not behave me to make this time-limit of 6 to 8 months a rigid one. In the very nature of things, it may be a little less or more. Say, it is 8 months and a few days more, nearing or even reaching 9 months. Still, it will be within the time-limit of 6 to 8 months and thereabouts. It will be a mistake to see in it a mathematical precision. Regarded so, even the averment in the 3rd paragraph of the plaint (6 to 8 months or even more: paragraph 37 ante) may stand. What I do not allow Babulall to do on the basis of this expression (6 to 8 months or even more) is to claim for far more than 8 months — 10 months from August 1963 to May 1964 as claimed by him in this suit in addition to what he has got for the first 3-month (April-June) option — making it a total of 13 months, and, what is more, for many more months yet from June 1964, as is stated on his behalf. That will be allowing Babulall to take an ell once he has been given an inch under the cover of “even more.” This is why I limit the time-limit of 6 to 8 months that way.

70. Say, I am wrong in implying the inevitable delay of about 6 to 8 months to get all the necessary approvals as a term of the agreement. Even then there can be no running away from the fact that Caltex did inform Babulall on January 9, 1964:

“…….the subject was drop ped.”: exhibit P and paragraph 8 ante.

71. Upon such breach of a valid agreement for a lease, exhibit M, Babulall had two remedies: (1) an action to recover damages and (ii) an action for specific performance of the agreement. Babulall has chosen the first remedy by bringing the suit I am seized of—a suit to recover damages for the breach. From January 9, 1964 he had the liberty to settle the land with anybody else or to deal with it in any other manner; the more so, as he did not choose the second remedy: specific performance of the agreement. Still the ends of justice require that he should have a little more time beyond January 9, 1964. Surely, the prospective lessees were not waiting at his door, so that Babulall would offer them this land of his immediately on getting Caltex's letter of January 9, 1964. It is therefore but just that he should have the whole of January 1964 with a view to finding out a new lessee in place of Caltex guilty of having broken the agreement of April 30|May 1, 1964. To that extent Babulall would be worse off by reason of the loss of retention fee which would have been his but for the breach on the part of Caltex. The measure of his damages would be that too.

72. Mr. Ghosh will not however like me to stop at January 1964. He refers me to the notings in the office of the District Magistrate, exhibits J series, wherefrom it will appear that Caltex did not proceed with the matter in spite of letters written to them— letters by registered post the last of which was received by Caltex, according to the office notes (exhibit J|5), on May 18, 1964. Ultimately, on July 13, 1964 the officer in charge of these administrative matters put it up before Additional District Magistrate V. Misra, who ordered:

Sd. V. Misra

17/7”: exhibit J

series again and q.

56 et seq to

District Magistrate's

office assistant

Prakriti Ranjan

Barua;

73. Mr. Ghosh therefore contends that Babulall is entitled to retention fee beyond January 1964 and up to July 1964. The claim of this suit is up to May 1964. I am unable to accept this contention. Whatever Caltex did or did not do in proceeding with their application for all sorts of “No objection” certificates and the ultimate approval of the authorities for installation of their Service Station, they notified Babulall on January 9, 1984 that for their part they had dropped the matter. So how Babulall can claim retention fee up to July 1964 is not clear to me. The maximum I can stretch in Babulall's favour is up to January 1964. I have stated why.

74. To sum up, I find the two issues under discussion, as follows:

Issue No. 2.

75. On a true interpretation, the agreement, exhibit M, is a completed and valid agreement for lease, not merely an agreement for a further agreement, not merely an agreement for the first 3-month option only, but an agreement for a further option period at an enhanced retention fee till finality is reached one way or the other about the granting of all the requisite approvals, it being understood by both parties to the agreement that some six to eight months' time would be required to reach that finality. Other parts of the agreement speak for themselves and are not in the realm of controversy.

Issue No. 3.

76. No; he (the plaintiff Babulall) is entitled to six months' retention fee from August 1963 to January 1964 at the rate of Rs. 2500 a month amounting to Rs. 15000.

77. The fourth issue I now reach has for its theme Caltex requiring extension of time beyond July 31, 1963 and Babulall (through his son Jagadish) having granted the extension Caltex had pleaded for in the first week of August 1963: just as the averment in paragraph 8 of the plaint is — an averment which is traversed in paragraphs 11 and 12 of the written statement by a denial of such allegation, as also by the assertion that on the expiry of the 3-month option on July 31, 1963 Caltex had informed Jagadish in August 1963 of their desire not to “proceed further in the matter unless fresh terms were made.” Fresh proposals were made but not acceptable. Hence, the plea concludes, the matter was dropped. The fourth issue arises because of this material proposition of fact affirmed by Babulall and denied by Caltex. It also arises in another way. Caltex it is said, pursued their application before the District Magistrate, 24-Parganas, for the requisite approvals even beyond July 31, 1963 (paragraph 10 of the plaint). Again Caltex sought the variation of the terms come to April 30.May 1, 1963. So they did by a letter of August 21, 1963: exhibit O and paragraph 7 ante. Babulall would not however budge. He stuck to the terms of April 30.May 1, 1963: exhibit M and paragraphs 2, 3 & 29 ante. (See paragraph 9 of the plaint.) By such conduct it is implied that Caltex did require extension of time past July 31, 1963 — an extension which Babulall had granted. Such is the averment in para. 16 of the plaint which Caltex do not apparently think much of. They answer in paragraph 14 of their written statement that, “deviod of all material particulars” as such averment is, it “should be struck off.”

78. I read the 6th agreed point of the completed and valid agreement of April 30|May 1, 1963, exhibit M, to mean that should Caltex fail “to receive the necessary approvals” within the first 3-month option, that is to say, by July 31, 1963 they were to pursue their efforts to that end further, and for the period beyond July 31 they were to pay Babulall not at the concession rate of Rs. 1250 a month, but at the full rate of Rs. 2500 a month. More, the requisite approvals not forthcoming in the long run, the lease would not be forthcoming too, and such payments would be “non-refundable”. Again, the requisite approvals forthcoming, the lease would necessarily be forthcoming too, and then such payments would “be applied against rental.” The completed and valid agreement being so clear, there was hardly any scope for Caltex again pleading for further extension and Babulall granting the same. The simple question is: were the necessary approvals received by Caltex by July 31, 1963? If ‘yes’, the lease would follow as a matter of course: vide agreed point No. 4. If ‘no’ Caltex would and did require ‘a further time extension’ during which they were bound to pay Babulall Rs. 2500 a month: vide agreed point No. 6. These are the clear and agreed terms from which there could be no going back, without being charged with ‘going back’ on one's plighted words and thereby committing breach of agreement. So, where, I ask, is the scope for further supplication by Caltex for enlargement of time and for Babulall having condescended to enlarge it? The fourth issue appears to be therefore an idle issue I may not trouble myself with. But it will not be proper to go to that length. I may have fallen in error in reading the agreement in the way I have read it. That apart, when the issue is there — an issue which does arise on pleadings — it is but meet I enter into it, though with the utmost brevity.

79. That Caltex did not receive the requisite approvals by July 31, 1963 is patent. Everything apart, Deputy Inspector General of Police D. Dhar was writing to the District Magistrate on January 8, 1964 that there was no objection “from the traffic point of view.” (See paragraphs 33: C and 35 ante.) Caltex would have me believe that they had dropped the matter. When? On July 31, 1963? Or say, on August 1, 1063? No. I am referred to Caltex's letter dated August 21, 1963: exhibit O. Not a word is here to the effect that the matter was dropped. On the other hand, the writer of the letter, R. Majumdar again, whom Caltex make no effort to examine (paragraph 38 ante), was asking Babulall “to realise our difficulties particularly when we came to an agreement”— meaning, of course, the agreement of April 30.May 1, 1963: exhibit M. The fact that the writer refers to the agreement in the past tense (Mr. De's question: No. 173 to Babulall) matters little. What matters much is that the letter says nothing about the agreement having been no more or the matter having been dropped. It refers instead to the difficulties particularly because of the agreement Caltex had come to. The writer is right. The completed and valid agreement having been there, the difficulties were real indeed. It was not for Caltex to make a new agreement by unilateral action. Caltex however were out for just that: fresh proposals reducing the rent “because of the economics of this particular proposition which are compelling us to hesitate.” And which offerer would not hesitate when he seeks to depart from his previous offer followed by acceptance and that too to the disadvantage of the offeree? Nothing like it troubles or dismays Sales Manager Shyam Nandan who oversimplifies all difficulties and hesitations by thinking that all that the agreement of April 30|May, 1, 1963 provided for was the first 3-month option on the expiry of which Caltex had the complete freedom not to go in for further extension. He would not even agree that his General Office at Bombay had conveyed their confirmation to all the terms outlined in the agreement in the form of a letter: exhibit M. (See qq. 125 et seq. to Shyam Nandan.) But Caltex's letter of May 8, 1963, exhibit N, is explicit and does convey such confirmation in the most unambiguous language. (See paragraphs 4 and 19 ante.) So, what shall I say of Shyam Nandan save that he does not understand or is incapable of understanding what the matter is? Indeed, he is such poor type that he does not remember and cannot therefore explain the arithmetical calculations he himself had entered on the reverse of this letter of August 21, 1963, (qq. 132, 133 et seq.) saying in his evidence-in-chief (q. 48) that the calculations are in his handwriting, denying that in his cross-examination (qq. 102 and 103), and again admitting it in answer to me (q 139).

80. Why does Shyam Nandan, not a moron but an officer of rank in Caltex organization, see nothing but the first 3-month option in the agreement, though it embodies a second option on the expiry of the first — an option which was confirmed by his General Office? The reason is plain. He could time the automatic termination of the agreement on the midnight of July 31, 1963, thus falsifying Babulall's case of Caltex having solicited further extension of time. The 6th agreed point proclaims how grievously wrong Shyam Nandan is. It does provide for automatic termination but only on the final failure to receive all the requisite approvals after the expiry of the first 3-month option. That stage reached, the agreement would die of itself, the further retention fee of Rs. 2500 a month for that long being nonrefundable and no party having any claim against the other.

81. The earliest document where Caltex record the dropping of the matter is Shyam Nandan's letter of January 9, 1964, exhibit P, (q. 72 to Shyam Nandan), three important points in, which are—

A. Recent telephone enquiry by Babulall from Shyam Nandan and Dubash on the possibility of the lease and extension of the option period:

B. Expiry of the option on July 31, 1963, for which Rs. 3750 was paid, and no further extension asked for, because of inability to obtain approvals of the local authorities within the stipulated time:

C. The subject was dropped; in deed, it stood dropped on the expiry of July 31, 1963 the question of renegotiation not arising therefor.

82. Except the obvious truth of the first option period up to July 31, 1963 for which Caltex paid the price of Rs. 3750 none of the points stand scrutiny.

A. On January 23, 1964 according to Shyam Nandan, Babulall's son Jaga-dish, not Babulall had telephone conversations with Dubash (q. 70 et seq.) Dubash is in Calcutta (qq. 95 and 96 to Shyam Nandan), But he is not examined. After Dubash had taken the telephone call, Shyam Nandan who was on the third floor took it and said that the matter “was finished in. September 1963”, no further extension having been asked for. Jagadish for his part denies that he had ever made such telephone call (q. 82 et seq.). After having heard and seen both Shyam Nandan and Jagadish I cannot say I must prefer the former's testimony to the latter's on this particular point. I leave it at that.

B. Inability to get the requisite approvals within the stipulated time is said to be the cause of no further ex tension having been asked for. But Shyam Nandan's evidence (which I have not been able to accept) is that the Bombay office (General Office) decided not to extend the option period. That therefore is also put forward as the cause of no further extension having been asked for. (See paragraphs 19 and 20 ante.) Caltex, it seems, are speaking in two voices. And then what is the stipulated time? Not the first 3-month option only, as provided for in the agreed point No. 5, but the further period after that also, as provided for in the agreed point, No. 6.

C. The matter stood dropped on July 31, 1963. Not automatically, but “the defendant in August 1963 clearly informed” Jagadish so: paragraph 12 (b) of the written statement. Asked to clarify it by a suitable interrogatory (exhibit T), the defendant's solicitor says: “Verbal between our client's R. Majumdar and your client's son Jagadish”. R. Majumdar is not examined (paragraph 38 ante). Jagadish is. He does not say that Majumdar had given him ever to understand, far less to understand clearly, that the matter was dropped.

83. Such then is the position about the three points Shyam Nandan made in his letter of January 9, 1964.

84. It is therefore impossible to hold upon evidence — oral and documentary — that Caltex had informed Babulall of the matter having been dropped on any day earlier than January 9, 1964: exhibit P. But let it not be understood that because it has been my unpleasant duty to criticise the oral evidence led on behalf of Caltex, the evidence led on behalf of Babulall is above criticism. There is a lot to criticise there too. Take the evidence of Jagadish. And upon his evidence depends the finding whether or no Caltex had pleaded for extension of time beyond July 31, 1963, and the extension pleaded for was granted. In August, 1963, says he, Majumdar told him on the telephone that further time would be required to get the ‘no objection’ certificate from the District Magistrate. On that he replied, as he says: “All right. It is already there in the agreement. No further consent is required of me. Our consent is already there”. (See qq. 18-23). It is so out of tune with the averment in the 8th paragraph of the plaint. Jagadish, it seems, has grown wiser in the witness-box and has developed too the power to read the agreement aright. When the plaint was drawn up, nothing more could be attributed to him than this:

“Jagadish Choudhuri consented for and on behalf of the plaintiff” to the extension of time.”

85. Not anything like what he says from the witness-box:

“No further consent is required of me. Our consent is already there (in the agreement)”.

86. This is not all. Jagadish maintains that he had posted his father with this sort of telephone conversation between him and Majumdar. When? In August 1963 (q. 50). But was not his father, Babulall, away at Nawalgarh in Rajasthan in June, July and August 1963, returning to Calcutta in the second week of September 1963, as he (Babulall) says? (See qq. 46-48.) More, Babulall is definite that “there was no occasion” to discuss such matter with Jagadish ever (q. 182). He admits, Jagadish did tell him on his return to Calcutta of this telephone call but only this: ‘I informed Majumdar, I could do little. My father is the man. Better write to him.’ (See qq. 153 and 154 to Babulall.) This falls far short of what Jagadish says he had posted his father with. Jagadish wants to save his evidence, saying: ‘Whether or no my father remembered what I had told him in August 1963. I cannot say’ (q. 51). He forgets, however, his father is far more able and intelligent than he, as I assess the father and the son after having seen and heard them both during their sojourn to the witness-box. He, I am satisfied, is the man not to re member what he was told. Upon the evidence of such a one, Jagadish, I can not bring myself to hold that Majumdar had pleaded for further extension of time beyond July 31, 1963, on behalf of Caltex, or that Jagadish had granted it on behalf of his father.

87. Mr. De stresses the point that the earliest document by which Babulall had demanded retention fee is his letter dated February 20, 1964, P.D No. 9|D.D No. 13, by which he had wanted Caltex to pay him Rs. 15000 for six months from August 1963 to January 1964.

88. Mr. Ghosh emphasizes that there has not been a specific denial ever of the assertion made by Babulall in his letters of February 20, 1964, P.D No. 9|D.D No. 13, and of March 16|18, 1964, P.D No. 13|D.D No. 14, that Shyam Nandan had assured him of the withdrawal of the letter of January 9, 1964, exhibit P, where Caltex recorded for the first time that the subject was dropped. So what? To my mind, these are all idle considerations. Let not the earlier verbal demand of retention fee spoken to by Babulall and denied by Shyam Nandan be not made much of. For anyone to allow money to lie with Caletx is to allow money to lie in a bank. That apart, the sixth agreed point in the agreement of April 30.May 1, 1963, exhibit M, always stared Caltex, and stares them now too, in the face. Even on the expiry of the first 3-month option, they were bound to be ‘up and about’ for receiving all the requisite approvals. Only when the authorities would say: ‘No; we do not accord our approval’, or on the expiry of the 8-month time-limit, (as the implied term is, according to me), whichever is less, Caltex would free themselves from its bondage. But, from documents, it appears that Caltex had not stirred themselves beyond July 18, 1963, when they were writing a frantic letter to the Director of Fire Services. (See paragraph 33 ante). What answer would Caltex have in action for specific performance of the agreement? Ear from having said “No,” the District Magistrate was making a point of Caltex having not pursued their application. (See exhibits J series and paragraph 42 ante.) No more need be said on an idle issue — the fourth one — save recording the finding, equally an idle one, that it must be found in favour of Caltex with no benefit to them, as I read the agreement and see this litigation. Presumably, Babulall furnished in the plaint materials for this issue with a view to strengthening his case. But the strength of his case is the strength of the agreement he had entered into, incapable of being strengthened any the more by any extraneous consideration.

89. The fifth and last issue I have now reached merits the finding that Babulall is entitled to a decree, not for Rs. 25000 as he prays the Court for, but for Rs. 15000 as I have found in paragraph 43 ante, plus costs.

90. In the result, I enter judgment for the plaintiff for Rs. 15000 and award him costs in terms of prayer (c) of the plaint. No other relief.

91. Certified for two counsel.

92. The operation of the decree following this judgment do remain stayed till the end of this year (1965) with a view to enabling the party aggrieved by my decision to carry the present litigation in appeal.

C.R.D