Full Judgment Text
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PETITIONER:
DELHI MOTOR COMPANY AND ORS.
Vs.
RESPONDENT:
U.A. BASRURKAR AND ORS.
DATE OF JUDGMENT:
08/01/1968
BENCH:
BHARGAVA, VISHISHTHA
BENCH:
BHARGAVA, VISHISHTHA
SHAH, J.C.
RAMASWAMI, V.
CITATION:
1968 AIR 794 1968 SCR (2) 720
ACT:
Transfer of Property Act, 1882 (4 of 1882), ss. 106, 107,
53A-Specific Relief Act, 1877 (1 of 1877), s. 27A-Portions
of business premises given on sub-lease-Documents purportng
to constitute sub-lease not registered-Applicability of ss.
106, 107-Enforceability of agreement under s. 53A-Specific
performance of contract-Effect of s. 27A.
HEADNOTE:
Certain documents were executed between the appellant firm
and the respondent company in respect of premises of which
the latter was a tenant. According to the appellant these
documents were intended to effect a sublease of three
portions of the premises in question though in order to
avoid consequences under the Delhi and Ajmer-Merwara Rent
Control Act 10 of 1947 they apparently purported to create a
partnership. The firm was actually given possession of two
of the three portions thus given to it. After some time the
firm was dispossessed by the company of the premises
occupied by it and it therefore filed a suit claiming
delivery of possession. In defence the company contended
that the documents relied upon by the firm did not evidence
either a sub-lease or a partnership. According to it there
were negotiations for a partnership which never fructified.
The trial court held that the documents executed by the
parties evidenced an agreement for a sub-lease and since the
agreement did not require registration the firm was entitled
to the reliefs claimed by it on the basis of the agreement.
In appeal by the company the High Court held that the
documents constituted a completed lease of at least an
agreement to lease falling within s. 2(7) of the Indian
Registration Act, and since the lease or the agreement to
lease was evidenced by documents in Writing and they were
unregistered, the lease or the agreement to lease could not
be enforced. On this sole ground, the High Court allowed
the appeal and dismissed the suit of the firm, which
thereupon, appealed to this Court.
HELD : (i) The three documents in question were relied on by
the appellant firm itself as evidence of the lease and the
terms thereof; the firm could not therefore be heard to say
that these documents did not represent the completed lease
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and did not, for that reason, require registration. [724 C-
H]
(ii) According to the firm’s case based on the said
documents rent in the first instance was payable to. the
company in the shape of 10% of the profits of the firm for
the period 1st April 1950 to 30th June 1951. Therefore the
lease that came into existence through these documents was
certainly for more than a year. Section 107 of the Transfer
of Property Act was thus clearly applicable and such a lease
could not have been validly made except under a registered
instrument. Admittedly there was no registration of the
documents which constituted the lease, and, consequently,
the firm could not claim any rights on the basis of this
lease evidenced by unregistered documents. [725 B-F]
(iii) Merely because the ]case was for an indefinite
period and related to immovable property which was not used
for agricultural or manufacturing purposes it could not be
held to be a lease from month to month
721
to which s. 106 of the Transfer of Property Act was
applicable. There was nothing in the terms of the lease
which showed that it was from month to month. [725 F-H]
Ram Kumar Das v. Jagadish Chandra Deb Dhabal Deb & Anr.
[1952] S.C.R. 269, distinguished.
(iv) Section 53A of the Transfer of Property Act is only
meant to bring about a bar against enforcement of rights by
a lessor in respect of property of which the lessee had
already taken possession, but does not give any right to the
lessee to claim possession or to claim any other right on
the basis of an unregistered lease. Section 53A is only
available PA a defence to a lessee and not as conferring a
right on the basis of which the lessee can claim rights
against the lessor. [726 C-E]
In the present case the claim which was put forward by the
firm in the plaint, could by no means be construed as a mere
defence of the firm’s rights. What the firm was actually
seeking to do was to enforce the rights under the lease and,
in such a case, s. 53A of the Transfer of Property Act was
clearly inapplicable. [727 H-728 A]
Probodh Kumar Das & Ors. v. Dantmara Tea Company Ltd.,& Ors.
I.A. 293, relied on.
Ram Chander v. Maharaj Kunwar & Ors., I.L.R. 1939 All. 809.
distinguished.
(v) Specific performances of the lease could not be
enforced because (a) In the plaint no specific
performance was claimed by the appellant, (b)The appellant’s
own case was that the entire contract was not included in
the three written documents, and s. 27A of the Specific
Relief Act under which only the contract could be enforced
requires the whole contract to be in writing; (c) The
difference between the words of s. 53A of the Transfer of
Property Act and s. 27A of the Specific Relief Act brings
out clearly that the latter is applicable when the entire
property under contract has been taken possession of by the
lessee in part performance of the contract. In the present
case only two out of the three portions of the premises
leased out to it were taken possession of by the appellant.
[728 G-H, 729 H, 730 A-B]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 495 of 1965.
Appeal by special leave from the judgment and decree dated
December 22, 1959 of the Punjab High Court, Circuit Bench at
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Delhi in Regular First Appeal No. 78-D of 1953.
Rameshwar Dayal and A. D. Mathur, for the appellants.
Veda Vyasa,K. K. fain and H. K. Puri, for respondent No. 6.
The Judgment of the Court was delivered by
Bhargava, J. The first appellant, Messrs. Delhi Motor Com-
pany, is a partnership firm (hereinafter referred to as "the
firm"), of which the other four appellants Nos. 2 to 5 are
partners. Respondent No. 6, New Garage Ltd., is a private
limited company (hereinafter referred to as "the Company"),
of which respondent
722
No. 1 was the Managing Director, and respondents Nos. 2 to 5
were members of the Board of Directors. The firm brought a’
suit against the Company for possession of part of the
building known as "Scindia House" situated in Connaught
Circus, New Delhi, on the basis of an agreement of subleases
Possession was claimed of a portion of the Show-Room on the
ground floor, of 1/2 portion of the Balcony, and another
portion of the premises which were, in the year 1950, in the
possession of Messrs. Kanwar Brothers Ltd. The case put
forward by the firm was that the Company was the tenant of
Scindia House and was in occupation of the Show-Room and
other parts of the building, while a, part of it was
occupied by Messrs. Kanwar Brothers Ltd. as sub-lessee of
the Company. According to the firm, the agreement to sub-
lease, or the sub-lease on the basis of which possession was
claimed by the firm from the Company, is evidenced by three
documents, the first one of which is letter, Ext. P. 1,
dated 20th February, 1950, written by K. S. Bhatnagar,
appellant No. 2, on behalf of the firm, to U. A. Basrurkar,
respondent No. 1, who was the Managing Director of the
Company. The second document is letter, Ext. P. 2, dated
22nd February, 1950, written by respondent No. 1 Basrurkar
to appellant No. 2 Bhatnagar; and the third document is Ext.
P. 3, which purports to be notes on agreement arrived at
between Basrurkar and Bhatnagar on 22nd February, 1950. The
case of the firm was that, though these documents did not
purport in so many words to be an agreement of sub-lease. to
be granted by the Company to the firm, in substance and in
fact, the agreement arrived at was of a sub-lease in respect
of the premises mentioned above. Since, under the Delhi and
Ajmer Merwara Rent Control Act 19 of 1947, if a sub-lease
had been granted by the Company to the firm without the
consent of the landlord, the Company would have been liable
to ejectment from the premises, the agreement was not made
as directly evidencing a sub-lease, so that the landlord
should not have an opportunity of suing the Company for
ejectment. In February, 1950, when the agreement evidenced
by these three documents was arrived at, respondent No. 1,
U. A. Basrurkar as Director did not have the authority
to enter into this transaction on behalf of the Company with
the firm and, consequently on 22nd March, 1950, the Board of
Directors of the Company, by a resolution Ext. P. 9,
authorised the Managing Director to enter into this
transaction. Thereafter, the firm came into possession of
two portions of the leased property and started its business
in them with effect from 1st April, 1950. The two portions
of the leased property, which came into the possession of
the firm, were a portion of the ShowRoom on the ground floor
and a half portion of the Balcony on the first floor. The
agreement contained in these letters and,
723
documents also required parties to carry out some other
obligations and, according to the firm, it complied with
them. In order to avoid the, liability of the Company for
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ejectment under the Delhi and Ajmer Merwara Rent Control
Act, 1947, the agreement was sought to be given the. form of
a partnership; and in order to enable the Company to enter
into such a transaction, a special resolution Ext. P. 4 was
passed on 24th November, 1950 at an Extra-ordinary General
Meeting of the Share-holders of the Company amending the
Memorandum of Association of the Company. This amendment
was subsequently approved by the District Judge and was
registered with the Registrar of Companies. So far as the
landlord is concerned, lie was not a party to these t-
ransactions, though, on 5th April, 1951, the landlord gave a
letter Ext. P. 22 recognising the possession of the firm,
but he specifically stated in that letter that the firm
would be a licensee and not a sub-lessee. One other term in
the, agreement arrived at was that appellant No. 2, K. S.
Bhatnagar, was to be taken as a Director of the Company and
he was in fact included in the Directors of the Company
thereafter. The further case of the firm was that when
Messrs. Kanwar Brothers Ltd. vacated the portion of the
premises which was included in the sub-leases the Company
did not give possession of that portion of the leased
property to the firm and also started obstructing the use of
those portions of the property by the firm of which the firm
had secured possession by 1st April, 1950. A stage came
when the firm was completely dispossessed from the property
]eased and, ultimately, after giving notices, the firm
instituted a suit on 18th June, 1952. The principal prayer
in the suit was for delivery of possession in respect of
all the three portions of the leased property. Then, there
was a claim for damages to the extent of Rs. 10,000/- in
respect of loss incurred on account of dispossession and
obstruction in use of the leased property at the instance of
the Company. Injunctions were also sought restraining the
Company from interfering with the rights of the firm and
with their uninterrupted use of the leased property. There
were further prayers for other consequential injunctions
which need not be described in detail.
On behalf of the Company and its Directors, the plea put
forward was that there was no agreement of sub-lease or a
completed sub-lease between the Company and the firm and
that, in fact, all that took place were negotiations for
entering into a partnership. Even the agreement for
partnership was never completed, so that the firm was not
entitled to any relief at all.
The trial Court held that the contract evidenced by these
documents was an agreement for a sub-lease and, since this
agreement did not require registration, the firm was
entitled to the
724
reliefs claimed on the basis of this agreement. The Company
and its Directors appealed to the High Court of Punjab and
that Court held that these documents constituted a completed
lease or at least an agreement to lease falling within s.
2(7) of the Indian Registration Act and, since the lease or
the agreement to lease was evidenced by documents in writing
and they were unregistered, the lease or the agreement to
lease could not be enforced. On this sole ground, the High
Court allowed the appeal and dismissed the suit of the firm.
The firm has now come up in, appeal to this Court by special
leave.
The first point urged on behalf of the firm was that, in
this case, there was a completed sub-lease, but it did not
require registration for Iwo reasons. The first reason
advanced was that the lease was not evidenced by the
documents Exts. P. 1, P. 2 and P. 3 only, but was, in fact,
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completed subsequently when, after the resolution of the
Board of Directors of the Company, the Company gave
possession of the leased property to the firm on or about
the 1st April, 1950. The second reason was that, in any
case, this lease was not a lease from year to year or for
any term exceeding one year or reserving a yearly rent, so
that s. 107 of the Transfer of Property Act was not
applicable and registration was not compulsory. These
submissions fail, because the lease, as relied upon by the
firm, has to be held to be a lease of immovable property for
a term exceeding one year, and such a lease is fully
governed by s. 107 of the Transfer of Property Act. The
firm itself came forward with the case that the rights that
were being claimed were under a lease and the lease was in
respect of immovable property consisting of the three
portions of the Scindia House which have been mentioned
above. It was, however, urged that this lease was not for
any fixed term at all and was for an indefinite period, so
that it could not be held to be a lease from year to year
either. It was further submitted that yearly rent had not
been reserved in respect of this lease. Even these
submissions were made on the basis that the terms of the
lease have to be ascertained from the three documents Exts.
P. 1, P. 2 and P. 3 which were relied upon by the firm to
claim the relief in the suit. It appears to us that, if
these documents are properly interpreted, an inference
necessarily follows that the lease, if any, brought into
existence by these documents was certainly for a period
exceeding one year. Since reliance was placed on these
documents on behalf of the firm to urge that there was a
completed lease, learned counsel for the firm was asked to
point out the provision which fixed the rent payable in
respect of the leased property. The only provision, on
which he relied to show that rent had, in fact, been agreed
upon the fixed, was para 1 of Ext. P. 3 which
725
contains notes on agreement, dated 22nd February, 1950.
That paragraph is as follows :-
"Profit share of party No. 1 would be 10% of
net profit of New Delhi business only and will
be settled at the end of the 1st closing of
the financial year which would be 30th June,
1951."
Accepting this submission that this paragraph lays down the
rent payable, it is clear that, under it, the rent payable
for the first time would be 10 % of the net profits earned
by the firm in its New Delhi business up to 30th June, 1951.
The period would naturally begin on the date on which the
lease commenced. That date, according to the firm itself,
was 1st April, 1950. From these facts it follows that when
the rent is to be paid for the first time, it would be an
amount of 10% of the net profits earned by the firm in its
New Delhi business between 1st April, 1950 and 30th June,
1951, and, naturally enough, the rent will be in respect of
the same period. This term, therefore, clearly laid down
that the very first payment of rent was to be for a period
of one year and three months, so that, even though so
further period for the continuance of the lease after 30th
June, 1951 was laid down, the lease at least made rent pay-
able for the first period of fifteen months. The lease was,
therefore, at least for a period of fifteen months and,
consequently, for a period exceeding one year. Section 107
of the Transfer of Property Act was, thus, clearly
applicable and such a lease could not have been validly
made, except under a registered instrument. Admittedly,
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there was no registration of the documents which constituted
the lease and consequently, the firm could not claim any
rights on the basis of this lease evidenced by unregistered
documents.
Learned counsel tried to urge that, since in these documents
no definite period for the lease was mentioned, we should
hold that s. 106 of the Transfer of Property Act was
applicable and the lease being in respect of immovable
property for purposes other than agricultural or
manufacturing must be deemed to be a lease from month to
month. We are unable to accept this submission, because
none of the documents, on which reliance has been placed on
behalf of the firm to prove the lease, contains any clause
indicating that the tenancy was to be from month to month or
the rent was payable monthly. In fact, the indication from
para 1 of Ext. P. 3 quoted above is that the rent was to be
payable annually, so that the contract itself seems to give
an indication that it was to be a lease from year to year
and annual rent was payable. These circumstances, however,
are immaterial, because we have already indicated earlier
our
726
finding that this lease was at least for a minimum period of
15 months and, consequently, S. 107 of the Transfer of
Property Act becomes applicable, irrespective of the
question whether it was a lease from month to month or from
year to year. The High Court was, therefore, quite correct
in holding that on the basis of this lease the reliefs
claimed by the firm could not be granted to it.
In these circumstances, an argument was put forward on
behalf of the firm that, though this contract to lease had
not been registered, the firm could claim possession under
it in view of the provisions of s. 53A of the Transfer of
Property Act, because, in this case, the Company would be
debarred from enforcing against the firm any right in
respect of that property of which the firm had already taken
possession, viz., part of the Show-Room and a portion of the
Balcony. In our opinion, this argument proceeds on an
incorrect interpretation of s. 53A. because that section is
only meant to bring about a bar against enforcement of
rights by a lessor in respect of property of which the
lessee had already taken possession, but do not give any
right to the lessee to claim possession or to claim any
other rights on the basis of an unregistered lease. Section
53A of the Transfer of Property Act is only available as a
defence to a lessee and not as conferring a right on the
basis of which the lessee can claim rights against the
lessor. is interpretation of s. 53A was clearly laid down by
their Lordships of the Privy Council in Probodh Kumar Das
and Others v. Dantra Tea Company Limited & Others(1).
Learned counsel for the firm, however, relied on a decision
of the Allahabad High Court in Ram Chander v. Maharaj Kunwar
and Others(2). In that case. the lessee, under a registered
lease which was detective and (lid not comply with the
requirement of s. 107 of the Transfer of Property Act,
brought a suit against a subsequent purchaser of the house
of the lessor on the allegation that the purchaser ha(], in
collusion with the Municipal Board, procured the demolition
or a portion of the house, and claimed a relief of perpetual
injunction retraining the purchaser from demolishing the
house or otherwise interfering with the lessee’s rights as
such. and for restoration of the demolished portion at the
purchaser’s cost. The High Court, in allowing the claim of
the lessee, held
"Now, in the present case, what is it that the
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plaintiff is attempting to do ? He is not
attempting to set up a transfer which is he
has not instituted a suit for the declaration
of the validity of the transfer;
(1) I.L.R. [1939] All. 809.
(1) 66 I.A. 293.
727
he has not instituted a suit in which he
claims an order against the defendant
directing him to perform any convenant of the
transfer. What he is seeking to do is to
debar the defendants from interfering with his
possession into which he has entered with the
consent of his transferor after the execution
of a transfer in his favour. He is, in other
words, seeking to defend the rights to which
he is entitled under s. 53A of the Transfer of
Property Act. The defendants Nos. 1 and 2 in
demolishing part of the property of which the
plaintiff had obtained possession were acting
suo motu with the aid of the Municipal Board
of Moradabad. It is the defendants who are
seeking to assert rights covered by the
contract. The plaintiff seeks merely to debar
them from doing so; the plaintiff is seeking
to protect his rights. In a sense, in the
proceedings he is really a defendant and we
see nothing in the ;terms of section 53A of
the Transfer of Property Act to disentitle him
from maintaining the present suit."
Without expressing any opinion as to the correctness of the
view taken by the Allahabad High Court, we have to point out
that the interpretation put on s. 53A of the Transfer of
Property Act even by that Court is of no assistance to the
firm in the present case. In this case, the firm is seeking
to enforce rights under the unregistered lease and to seek a
decree for possession against the lessor. The Allahabad
High Court in that case proceeded on the basis that the
plaintiff of that suit was in the position of a defendant
and was only seeking to protect his right,; by resort to the
provisions of s. 53A of the Transfer of Property Act, so
that no principle was laid down by the High Court that s.
53A is available to a lessee otherwise than as a defence.
We are unable to accept the submission that the judgment in
that case should be read as recognising a right of a lessee
to enforce rights on the basis of an unregistered lease by
resort to that provision, of law. In, fact, if that case be
interpreted as laying down such a principle, it must be held
that it. has been directly over-ruled by the decision of the
Privy Council in the case of Probodh Kumar Das and Others(1)
and is not correct. ’Mat decision may be justified, if at
all, on the basis that, though the lessee in that case was a
plaintiff, he was actually -seeking protection under s. 53A
of the Transfer of Property Act by being in the real
position of a defendant. On the question whether a person,
who sues as a plaintiff, may still be regarded as defending
the rights ’Sought to be conferred upon him by an
unregistered deed, we need express no opinion. In the
present case before us, the claim, which was put forward by
the firm in the plaint, can by
(1) 66 I.A. 293.
728
no means be construed as a mere defence of the firm’s
rights. What the firm is actually seeking to do is to
enforce the rights under the lease and, in such a case, s.
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53A of the Transfer of Property Act is clearly inapplicable.
Reliance was also placed on behalf of the firm on the deci-
sion of this Court in Ram Kumar Das v. Jagadish Chandra Deb
Dhabal Deb and Another(1), in which case also, a registered
Kabuliyat executed by the lessee did not comply with the
requirements of s. 107 of the Transfer of Property Act, and
on the facts of the case it was held that, though under the
Kabuliyat the land was leased out for a period of ten years,
the lease in fact must be presumed to be from month to month
under s. 106 of that Act. The facts of that case were,
however, quite different. In that case, the terms of the
lease were not ascertained from the Kabuliyat in which the
period of lease was fixed at 10 years. The terms of the
lease were ascertained from other documents, including
receipts for rent paid by the lessee to the lessor, and on
the basis of that evidence it was found that a lease had
come into existence under which rent was being paid monthly.
No such circumstances appear in the case before us. In
fact, it was at no stage pleaded and no evidence was led to
show that, independently on the three documents Exts. P.
1, .P. 2 and P. 3, there was material from which it could be
inferred that a lease from month to month had come into
existence between the firm and the Company. No such point
was urged either in the trial Court or before the High Court
and no such finding of fact exists. In these circumstances,
s. 106 of the Transfer of Property Act would clearly be
inapplicable, and the lease has to be held to be for a
period exceeding one year for the reasons given by us above.
In the alternative, learned counsel for the firm urged that
the firm was entitled to contend that these documents Exts.
P. 1 to P. 3 constituted an agreement in writing to lease
the property in suit and could claim specific performance of
this contract. There are three reasons why we are unable to
accept this submission. The first is that, in the plaint
itself, no specific performance of contract was claimed on
behalf of the firm. Though the pleadings included averments
about this contract, the relief claimed was for a decree for
possession, damages and injunctions. These reliefs could
only be claimed on the basis of a completed lease and could
not be the reliefs in a suit for specific performance of a
contract to lease. The second reason is that, as mentioned
by us earlier, the firm itself came forward with the case
that the entire contract was not included within these three
documents Exts. P. 1 to P. 3, because, at the stage when
(1) [1952] S.C.R. 269.
729
these documents came into existence, the Managing Director
of the Company had no authority to enter into such a
contract on behalf of the Company and that the contract was
only completed subsequently when the Board of Directors
passed a resolution authorising the Managing Director to
enter into such a contract and actual possession of part of
the property was given on or about the 1st April, 1950. The
contract being a contract to lease immovable property and
unregistered, specific performance of it could not be
sought, except under s. 27A of the Specific Relief Act.
That section, however, applies only if the entire contract
is made in writing, while, according to the case put forward
on behalf of the firm itself,’ the entire contract was not
in writing. The third reason why specific performance of
the contract cannot be claimed by the firm under s. 27A of
the Specific Relief Act is that such a claim under that
provision of law is only available to a lessee, when the
lessee, in part performance of the contract, has taken
possession of the property, or, being already in possession,
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continues in possession in part performance of the contract.
In the present case, the pleas put forward on behalf of the
firm itself show that the firm never got possession of the
entire property to which the contract related. Possession
was taken by the firm of only two items of property, while
the firm never obtained possession of the third item of
property which was in possession of Messrs. Kanwar
Brothers’ Ltd. Clause (b) of s. 27A can apply only if
possession of the entire property, which is the subject-
matter of the contract of lease, has been taken by the
lessee. The pleadings in the plaint show that, even though
the third item of property was vacated by M/s. Kanwar
Brothers Ltd. in December, 1950, possession of that property
was never obtained by the firm.
To meet this objection, it was urged by learned counsel on
behalf of the firm that we should interpret s. 27A of the
specific Relief Act as being applicable even if possession
of part of the property, which is the subject-matter of the
contract, is obtained by the lessee; but we are unable to
accept this submission. The language used makes it clear
that possession must be obtained of the entire property to
which the contract relates. In this connection, it is
significant to note that under s. 53A of the Transfer of
Property Act, a transferor is barred from interfering with
the rights of the transferee, even if the transferee gets
possession of any part of the property sought to be trans-
ferred by the unregistered document of transfer. That
section specifically uses the expression "taken possession
of the property or any part thereof", whereas the words used
in s. 27A of the Specific Relief Act are : "taken possession
of the property". The omission of the words "any part
thereof" in s. 27A of the Specific Relief Act when compared
with the provision in s. 53A of the
730
Transfer of Property Act clearly brings out the position
that the former section is only applicable when possession
of the entire property, which is the subject-matter of the
contract, has been taken, while the latter section is made
applicable even if the lessee takes possession of any part
of the property. Consequently, on the facts of the present
case, the firm could not claim specific performance of the
contract under s. 27A of the Specific Relief Act, even if
such a claim had been put forward in the plaint. This
alternative contention also, therefore, fails.
The appeal is, consequently. dismissed, but, in view of the
cirucumstances of this case and the conduct of the parties
relating to the contract, we direct parties to bear their
own costs of the appeal.
G.C. Appeal
dismissed.
731