Dalmia Jain And Co. Ltd. vs Kalyanpore Lime Works Ltd. And Ors. on 27 March, 1952
83. A large number of questions--some of them rather hypothetical in nature--were mooted, argued and investigated before us. This was unavoidable to some extent; because what the plaintiff-respondent really wanted was not specific performance of the contract finally agreed on by the parties, but a reconstruction of such contract for his benefit. I agree with my learned brother that from the correspondence between the parties and the draft leases (Exhibits 22 and 22A) which were produced from the office of the Board of Revenue, it is possible to spell out a finally concluded agreement, with regard to the essential terms of the proposed leases, on or about the 10th of May, 1935. This is, however, different from the agreement which the plaintiff-respondent pleaded, or which the plaintiff-respondent wished to be specifically performed. The main argument of the learned Advocate General (Bihar) appearing for the plaintiff-respondent that there was an agreement between the parties for a twenty years' lease on what he called usual terms in respect of upper and lower Murli at a much earlier date than the 10th of May 1935, and his further argument that the correspondence merely worked out the details of that agreement, cannot in my opinion, be accepted, regard being had to the tenor and true import of the correspondence which has been examined by my learned brother. The argument of the learned Advocate General (Bihar) that the date of commencement of the proposed lease was not an essential term, and his further argument that the Court's power to enforce a contract after the time agreed on for its performance has passed implies the power to reconstruct the contract, appear to me to be unsound. My learned brother has referred to the decisions on which the learned Advocate General relied. I need merely point out that the decision in 'MAGNIRAM VITHURAM v. BAKUBAI', 36 Bom 510 was not approved by the Privy Council in 'GAURISHANKER BALMUKUND v. CHINNUMIYA', 45 Ind App 213 (PC). Their Lordships definitely said that 'MAGNIRAM VITHURAM'S CASE', was erroneously decided.