AGHA ALI HYDER, J.----These appeals from the judgment and decree of the learned Additional District Judge, Nawabshah, will be disposed of by a common judgment. These have arisen in the following circumstances:-
1. Messrs Ralli Brothers Limited, a company incorporated in London, had a Ginning and Pressing Factory at Nawabshah which they wanted to dispose of towards the close of 1960. The allegation in the plaint filed by the appellant in the latter appeal, (who will hereinafter be referred to, as the appellant) was that he was offered 2 Y. Brokerage on the sale price by Messrs Ralli Brothers Limited, who had also promised to arrange the same remuneration from the buyer, as was customary with them, on the completion of the sale. It was further alleged that on or about 29-11-1960, he had introduced the respondent, who is the appellant in the former appeal, to them. An agreement of sale was entered into between the parties on 30-12-1960 for the sale of the factory in the sum of Rs.
8,25,000, and the hessian and other stores for another sum of Rs. 3,00,000 and Rs. 1,12,500 were paid as earnest money. However, for certain persons, the sale-deed was registered on 27-2-1962, but the brokerage was not paid to him by either party. He made the demand in August 1962, and the promises were honoured only in the breach. This led to the filing of the suit against Messrs Ralli Brothers Limited and the respondent.
2. The written statement filed by Messrs Ralli Brothers Limited was to the effect that the appellant, by their letter-dated 4-11-1960, was authorised to bring offers within a period of only one week.
Nothing was done by the appellant during that period. They had therefore engaged some other brokers also, and the transaction was brought about through the instrumentality of Ismail and Wali Mohammad who had been paid the brokerage. It was however admitted in paragraph 2 of the written statement, that brokerage was promised to the appellant at the rate of 2 % in their letter dated 4-11-1960. A plea was also raised that the suit was barred by limitation as the cause of action had arisen on the 30th December 1960, when the agreement of sale was entered into between the parties, and the suit had been filed on 17-8-1968.
3. The written statement filed by the present respondent, alleged that Messrs Ralli Brothers had no authority to bind him in respect of brokerage. The deal was arranged by him directly, though the two letters containing the offers of purchase were sent through the appellant. The plea of limitation was also taken up.
4. Nine issues were framed out of which the following would be material: ---
(1) Whether the suit is time-barred ?
(2) Whether the sale of the Factory of defendant No. 1 to defendant No. 2 was brought about by the plaintiff as Broker? If so, what were the terms and conditions of the brokerage?
(3) Whether the plaintiff is entitled to recover brokerage at 2 Y. On the purchase price of the Factory of defendant No. 1, from each of the two defendants?
5. The appellant, apart from himself, examined Masood Ahmed Khan, Jhamandas, Loharimal, Nazir Hussain, Shamshad Hussaim and A. G. Pasha, a Handwriting Expert. One witness by the name of Alexandar Andrew Dendrino was examined on commission on behalf of Messrs Ralli Brothers, while the respondent appeared as his own witness. Before the close of the trial, a compromise was arrived at between the appellant and Messrs Ralli Brothers. It appears that Messrs Ralli Brothers paid up the amount claimed from them and the suit against them was accordingly withdrawn. The case against the respondent alone proceeded thereafter, and the learned Additional District Judge, who tried the suit, found all the material issues in favour of the appellant. However, as he found that the appellant "cannot be stated to have put the labour up to the final stage," the remuneration awarded to him was, at the rate of 1% amounting to Rs. 11,250. He therefore decreed the suit for that amount with proportionate costs. None of the parties felt satisfied with the judgment and they have come in appeal.
6. The witnesses on the point of remuneration, apart from the appellant, are P. W. 2 Masood Ahmed Khan, P. W. 3 Jhamandas, P. W. 4 Loharimal, and P. W. 5 Nazir Hussain.
7. The appellant has deposed that he was working as the broker of Messrs Ralli Brothers for their Ginning and Pressing Factory at Nawabshah since 1950, and used to look after their purchase of "phutti" and the sale of their cotton-seed. Messrs Ralli Brothers used to collect the brokerage from the parties also, and pay him after adding an equal amount of their own. On 4-11-1960, he was asked by D. W. Alexandar Dendrino, the General Manager of Messrs Ralli Brothers to bring offers for the factory in question, as it was decided to dispose it of. The time specified for the purpose was only one week, ending on 11-11-1960, as mentioned in the letter Exh. 42 addressed to him. The record however abundantly shows that this time limit was not adhered to. The written offer made by the respondent, through the appellant was dated 29-11-1960. As this was not acceptable to the sellers, another offer, and again I n writing, was made by the respondent through the appellant on 15-12- 1960. This time the respondent offered Rs. 10,00,000 for the factory, and Rs. 3,00,000 for the stocks and stores. The agreement of sale Exh. 66, was entered into between the parties on 30-12-1960, surprisingly for only a sum of Rs. 11,25,000, but that need not detain us. There is no mention of any broker in the agreement of sale. It is however an admitted position, that the appellant was not present, when the agreement of sale was signed by the parties. The case set up by the respondent is, that he had not engaged any broker, and had made the offers, once. He learnt about the intentions of the sellers, which was being openly talked of in the town. The defence of Messrs Ralli Brothers, as disclosed in the written statement, and as deposed to by Alexandar Dendrino was that the trans--action was brought about by one Mohammad Ismail who was assisted by Wali Mohammad and 2 Y. Brokerage from their side had been paid by them.
8. The first offer of the respondent dated 29-11-1960, unequivocally mentioned that he had taken a round of the factory "with our broker Mr. Sarfraz Ahmad". The second offer inter alia, reads as under:- "In continuation of my offer for your Nawabshah Ginning & Pressing Factory written to you on 29th November 1960, through broker Sarfaraz Ahmad of Nawabshah, which is not approved by you, I beg to offer a fresh on approach to Sarfaraz Ahmad, after going through minutely the cyclostyled list . . . . . . . . . . . . . . . This offer is however conditional that Mr. Sarfaraz Ahmad will either bring a counter-offer of your minimum demand if this offer is not acceptable or give security of Rs. 10,000 for accepting this offer or no offer from any body else to be accepted until I refused to accept the offer. Mr. Sarfaraz Ahmad has accepted this condition. I have promised him payment of same brokerage through you as customary with you, if factory and stores etc. Are sold to me on registration of site. He has also accepted this. Now I am awaiting immediate reply from you."
9. In the face of all this, the respondent had the temerity to testify that the appellant had nothing to do with him in bringing about the deal. He has stated that hearing about the proposed sa a of the factory, he had gone there on the 29th of November to see it for himself. He had however met the appellant there, and gave him the offer, without any talk of employing him as a broker, or any mention of brokerage. He admitted that Exh. 44 bore his signature, but the contents of the document, which were prepared by the appellant, were not read over to him. He however conceded that the appellant had mooted out the talk of brokerage at the time of the second offer, whereupon he (the respondent) had replied that he would pay "the customary brokerage at the rate of 1 0 for the amount exceeding Rs. 5,00,000. All the same he admitted his signature on Exh. 45, and the fact that the same was sent to Karachi through the appellant. He states to have meet Mohammad Ismail two weeks later and then casually mentioned Wali Mohammad, as his "representative". All-the same he has clearly stated that no remuneration of any sort was paid to Mohammad Ismail. He is reticent about any payment to Wali Mohammad either. He has also denied that he was asked by the sellers to pay any thing to the appellant. Admitting his signature on Exh. 45, he again repeated, that the contents thereof had not been read over to him. It is also to be seen that neither Mohammad Ismail nor Wali Mohammad were examined by him. All that speaks for itself. The effort to wriggle out from his commitment, as the matters stand, was manifestly puerile.
10. The appellant has also produced a letter Exh. 54 from Antipas, Assistant General Manager, Ralli Brothers, dated 24-1-1962, which reads as under :- "I shall be coming to Nawabshah-the date is not fixed yet-for signing the sale-deed of the Nawabshah factory. I will let you know the exact date etc., but in the meantime can you please find out when we can get some rose plant, which I can pick up the day I will be there. Both will pay you 2 % brokerage."
11. Danderino has admitted the dispatch of this letter. It was however their case that the last line was a forgery. To meet the challenge, the appellant had examined a handwriting and finger-print expert, P. W. A. G. Pasha. The latter, for the reasons given by him, deposed that "the whole of the letter has been written with the same machine con--tinuously at the same time. There is no difference in the characterization of the writings of the last line and the rest of the letter. There is no mark on the back side of this letter". Nothing worthwhile could be elicited from him in the cross- examination, which was extensive in nature. No other expert was examined from the side of the respondent, or Messrs Ralli Brothers, the defendant No. 2 in the suit, who retired from the contest, when the end of the trial was very much in sight. Dendrino had admitted that they had to pay the customary brokerage of 2 % on their own behalf, on finalisation of the deed, and the same was actually paid by them to Ismail and Wali Mohammad. The rate of remuneration at 2 also finds mention in the written statement filed on their behalf.
12. There can therefore be no doubt, that the parties were brought together by the appellant, and the respondent, with whom we are concerned in these appeals, had promised him remuneration at the rate of 2% of the price. There is also the evidence of Masood Ahmad Khan, Jhamandas, Loharimal and Nazir Hussain. Much of it is vague, and from chance witnesses but that would hardly matter. Nothing will also turn on the appellant's not furnishing the security in the sum of Rs. 10,000 as no occasion arose for the same and no such demand was made by the respondent.
13. On the merit of the claim, the address of the learned counsel for the parties was confined to facts merely. The law on the subject, however, is that it is not necessary for the agent to establish that he should have been the other party's first or only source of information: Mansell v. Clements (1874 L R 9 C P 139). However if the relation of buyer and seller is really brought about by his act, he will be entitled to commission, although the actual sale has not been effected by him: Green v.
Bartlett ((1863) 14 C B N S 681). Nor can a party' by employing another broker in the midst of negotiation, however innocently, deprive the broker of his remuneration: Wilkinson v. Martin ((1837)
8 C & P 1). As held in the case of Municipal Corporation, Bombay v. Goverji Hirji and another (I L R 20 Dom. 124) "the commission becomes due, if the broker has induced in the) party for whom he acts, the contracting mind, the willingness to open negotiations upon a reasonable basis, even though a change or modification of the terms of the contracts is made by the buyer and seller without his intervention". The test in such cases is whether the broker who claims brokerage is the effective and efficient cause of the completion of the transaction-the causa causans and not the causa sine qua non of the deal. If the transaction has resulted only as a casual and remote consequence of the broker's intervention, that would not be sufficient: Burchell v. Gowrle and another (1910 A C 614).
Further if the negotiations on the part of the broker have completely ceased and had been abandoned "at the time his employ--ment as a broker has ceased, the agency of the broker ceased too, and t with it the right to claim remuneration". Laladhar Chatrabhuj v. Mathurodas Gokuldas (AIR 1934 Dom. 158).
14. The appellant, looking to the record, was the effective and) efficient cause in the deal. His claim for brokerage at the rate of 2% could not be slashed down to 1%. The reason as furnished by the learned Additional District Judge has no basis at all. He is fully entitled to what) he had bargained for.
15. I might as well mention that Mr. Jan Muhammad Dawood learned counsel for the respondent, at the end of the address took up the plea of limitation and referred to the case of Liladhar Chaterabhuj v. Mathuradas Gokaldas referred to earlier. There is no substance in this contention, as Exh. 45, clearly stipulated that the brokerage was to be paid on the completion of the transaction. It is not denied that in that event, the suit will be very much within time.
16. In the result, the impugned judgment is varied, the latter appeal is allowed and the suit filed by Pir Sarfaraz Ahmad against the respondent Haji Qabool Mohammad Shah for a sum of Rs. 22,500 is decreed with costs. The former appeal, that is the one filed by Haji Qabool Mohammad Shah is dismissed, and the parties will bear their own costs in the said appeal.
ABDUL HAYEE KURESHI, J.----I agree.
S. A. H: