# 'rROJAN & CO. LTD v. RM. N. N. NAGAPPA CHETTIAR - **Citation:** [1953] 1 S.C.R. 789 - **Court:** Supreme Court of India - **Decided:** 1950-03-17 - **Bench:** Mehr Chand Maha.Tan, Das - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rrojan-co-ltd-v-rm-n-n-nagappa-chettiar-201 - **Pages:** 21 ## Headnote Contract-Damages-Sale of shares-Sale induced by fra11dJleas11re of damages-Di(ference between price paid and market price on date of sale-Fluctuations of market and sudden closure of Stock Exchange, effect of-Interest on damaues-Practice-Gonflict between pleadings and proof-Decree on alternative claim not set itp in plaint-Legality. Where a person is induced to l)Urchase shares at a certain price by fraud the measure of damages which he is entitled to re· cover from the seller is the difference between the price which he paid for the shares and the real price of the shares on the date on which the shares were purchased. Ordinarily the m"rket rate of the shares on the elate when the fraud was practised would represent their real price in tbe absence of any other circumstance. If, however, the market was vitiated or was in a state of !lux or 1953 1953 Trojan tf; Co. Ltd. V, Rm.N.N. Nagrtppa Chettiar. 790 SUPREME COURT REl'ORTS [1953] p•nic in consequence of the very fact tha.t wa~ fraudulently concealed, then the real value of the share~ has to be determined on a consideration of a variety of circumstances, disclosed by the evidence led by the parties. A firm of sharebrokers sold 3,000 shares to the plaintiff who was a constituent of the firm, on the 5th AJ(ril, 1937, at Rs. 77 and Rs. 77-4as. per sb'"e without disclosing to the plaintiff the fact that the shares were owned by one of the partners of the firm and also the fact that they had received telephonic information on that day from a member of the Stock Exchange that there was going to be a sharp decline in the price of the shares. On the 6th April the Stock Exchange Association passed a resolution for closing the Exchange on the 8th and 9th April. The plaintiff had to sell 2,000 shares through the defendants on the 20th April at Rs. 47 to Rs. 42 per share, and 1,000 shares on the 22nd April at Rs. 42Sas. The High Court awarded f.he difference between the price paid by the plaintiff and the prices fetched on resale as damages. On appeal, · Held, that the prices received at the resale on the 20th and 22nd April coul 0d not represent the true value of the shares on the 5th April. The real question for determination was what the market value would have been on the 5th April of these shares if all the buyers and sellers knew that the Stock Exchange was to be closed on the 8th and 9th April. Held also that the plaintiff was entitled to get interest on the amount awarded as damages from the 5th April till the date of suit on the principle that where money is obtained or retained by fraud a court of equity will order it to be returned with · interest. Johnson v. Rex {[1904] A.O. 817) referred to. It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and that it is the case pleaded that has to be found. Where the plaintiff based his claim for a certain sum of money on the ground that the defer:dants had sold certain shares belonging to him '>vithout his instructions, but he was not able to prove that the sale was not authorised by him: Held, reversing the deci,,ion of the High Court, that ohe plaintiff could not be given a decree for the SU)Il claimed on the ground of failure of consideration, as he had not set up any such alternative claim in the plaint or even at a later stage when he sought to amend the plaint. OrvIL APPELLATE JunISDICTION: Orvil Appeal No. 139 of 1952. Appeal from the Judgment and Decree dated the 17th March, 1950, of the High Court of Judicature at Madras (Horwill and Balakrishna Ayyar JJ.) in 0.8.A. No. 34 of 1947, arising out of .. S.C.R. SUPREME COURT REPORTS 791 the Judgment' and Decree dated the 18th April, 1'947, of the said High Court (Clark J.) in the exercise of tbe Ordinary Original Civil Jurisdiction of the High Court in C. S. No. 208 of 1940. V. Rangachari (K. Mangachary, with him) for the appellant. K. Krishnaswami Iyengar (K. Pa:rasuram, with him) for the respondent. 1953. March 20. l'he ## Text _Characters 0–39,886 of 45,425. This is a partial read: ask again with offset=39886 for what follows._ S.C.R. SUPREME COURT REPORTS 789 determining substantial questions of law involved in 1958 the appeal, it nevertheless observed that even on the Atl t-w t , f . ier on es °' :octs the conclus10ns of the Board were perfectly 00. Ltd. justified and there was no substance in the appeal on v. merits as well. The appellants were not heard at all suti Mill on merits and it was hardly legitimate for the Labour M•zdoor Union Appellate Tribunal sito motu to consider the merits of •nd Others. the appeal and arrive at a finding in regard to the Bhagwati J. same. If at all the Labour Appellate Tribunal had any jurisdiction in regard to the merits it was incum- •. beut upon it to have heard the appellants in regard to the merits before arriving at a conclusion in regard to the same. The resuH is that this appeal fails and must be dismissed with costs. Appeal dismissed . • Agent for the appellant : S. S. Shukla .. 'rROJAN & CO. LTD. v. RM. N. N. NAGAPPA CHETTIAR. [MEHR CHAND MAHA.TAN and DAS JJ.] Contract-Damages-Sale of shares-Sale induced by fra11dJleas11re of damages-Di(ference between price paid and market price on date of sale-Fluctuations of market and sudden closure of Stock Exchange, effect of-Interest on damaues-Practice-Gonflict between pleadings and proof-Decree on alternative claim not set itp in plaint-Legality. Where a person is induced to l)Urchase shares at a certain price by fraud the measure of damages which he is entitled to re· cover from the seller is the difference between the price which he paid for the shares and the real price of the shares on the date on which the shares were purchased. Ordinarily the m"rket rate of the shares on the elate when the fraud was practised would represent their real price in tbe absence of any other circumstance. If, however, the market was vitiated or was in a state of !lux or 1953 1953 Trojan tf; Co. Ltd. V, Rm.N.N. Nagrtppa Chettiar. 790 SUPREME COURT REl'ORTS [1953] p•nic in consequence of the very fact tha.t wa~ fraudulently concealed, then the real value of the share~ has to be determined on a consideration of a variety of circumstances, disclosed by the evidence led by the parties. A firm of sharebrokers sold 3,000 shares to the plaintiff who was a constituent of the firm, on the 5th AJ(ril, 1937, at Rs. 77 and Rs. 77-4as. per sb'"e without disclosing to the plaintiff the fact that the shares were owned by one of the partners of the firm and also the fact that they had received telephonic information on that day from a member of the Stock Exchange that there was going to be a sharp decline in the price of the shares. On the 6th April the Stock Exchange Association passed a resolution for closing the Exchange on the 8th and 9th April. The plaintiff had to sell 2,000 shares through the defendants on the 20th April at Rs. 47 to Rs. 42 per share, and 1,000 shares on the 22nd April at Rs. 42Sas. The High Court awarded f.he difference between the price paid by the plaintiff and the prices fetched on resale as damages. On appeal, · Held, that the prices received at the resale on the 20th and 22nd April coul 0d not represent the true value of the shares on the 5th April. The real question for determination was what the market value would have been on the 5th April of these shares if all the buyers and sellers knew that the Stock Exchange was to be closed on the 8th and 9th April. Held also that the plaintiff was entitled to get interest on the amount awarded as damages from the 5th April till the date of suit on the principle that where money is obtained or retained by fraud a court of equity will order it to be returned with · interest. Johnson v. Rex {[1904] A.O. 817) referred to. It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and that it is the case pleaded that has to be found. Where the plaintiff based his claim for a certain sum of money on the ground that the defer:dants had sold certain shares belonging to him '>vithout his instructions, but he was not able to prove that the sale was not authorised by him: Held, reversing the deci,,ion of the High Court, that ohe plaintiff could not be given a decree for the SU)Il claimed on the ground of failure of consideration, as he had not set up any such alternative claim in the plaint or even at a later stage when he sought to amend the plaint. OrvIL APPELLATE JunISDICTION: Orvil Appeal No. 139 of 1952. Appeal from the Judgment and Decree dated the 17th March, 1950, of the High Court of Judicature at Madras (Horwill and Balakrishna Ayyar JJ.) in 0.8.A. No. 34 of 1947, arising out of .. S.C.R. SUPREME COURT REPORTS 791 the Judgment' and Decree dated the 18th April, 1'947, of the said High Court (Clark J.) in the exercise of tbe Ordinary Original Civil Jurisdiction of the High Court in C. S. No. 208 of 1940. V. Rangachari (K. Mangachary, with him) for the appellant. K. Krishnaswami Iyengar (K. Pa:rasuram, with him) for the respondent. 1953. March 20. l'he Judgment of the Court was delivered. by . MAHAJAN J.-The dispute in this appeal is between a constituent and a firm of stock-brokers. Some time before April, 1936, the plaintiff, then a young man, came into possession of property worth about 2 lakhs of rupees on a partition between him and bis brothers. In the hope of getting rich by obtaining quick dividends by speculating on the stock-exchange he, through tbe defendant firm and certain other stockholders, entered into a series .of speculative transactions and it seems he did not fare badly in the beginning. But subsequent events tell a different tale. In 1937, two iron and steel companies in North India, viz., Indian Iron & Steel Co. Ltd., and the Bengal Iron & Steel Co. Ltd., merged into one concern and a new issue of shares was made. 'rhe scheme was that for every five shares which a person held in the Indian Iron Co. Ltd. on 22nd April, 1937, one fully paid up share would be given to him at a price of Rs. 25. 'rhe market price at the time this scheme was announced was about Rs. 55 per share. A wave of speculation followed this announcement and there was a boom iu the market. Prices of Indian Iron shares were going up to unreal heights. To stabilize the situation thus created by heavy speculation, three members of the Committee of the Calcutta Stock Exchange presented a petition to the Committee on 5th April, 1937, to close the Calcutta. Stock Exchange 1953 Trojan & Co. Ltd. v, R1n. N.N. Nagap11a Chettiar. 792 SUPREME COURT REPORTS [1953] woa for a while. On the same evening plaintiff's stockbroker Annamalai Chettiar, who was carrying on Trojan rJ; Co. business in firm name •rroJ·au & Co., had ~elephonic Ltd. v conversation with one Ramdev Chokani, a member oi Rm. N. N. the Calcutta Stock Exchange, on this subject and from Nagappa this conversation he gathered that a sharp fall in the Ch•ttiar. prices of Indian Irons was likely. At that time Mahajan J. Annamalai Chettiar had on bis hands some 5,000 of these shares. Shortly after this conversation and after business hours the same night, between the hours of 7-30 and 8-30, Annamalai Chettiar rang up the plaintiff and suggested to him that it would be a good thing for him to buy these shares. The youthful plaintiff in his anxiety to get rich quickly accepted the suggestion and purchased these shares, some at Rs. 77 and others at Rs. 77-4-0. Another firm of brokers, Ramlal & Co., had also in their hands another 4,000 of these shares. They too found in the plaintiff a ready buyer. They also contacted him on the phone after Annamalai had done so, and sold him 4,000 shares that they held. Out of the lot which the plaintiff purchased from the defendants he sold 1,300 shares to Ramanathan Chetti at cost price. Ou the 6th April tbQ Committee of the Calcutta Stock Exchange Association passed a resolution closing the Siock Exchange on the 8th and 9th April. From the 6th April onwards the market sagged and the prices came down, at first gradually and then literally at a ruu. The result of it was that the plaintiff had to sell at a very heavy loss. The defendants made demands on the plaintiff for the price of those shares. Between 5th April and 20th April, 19.37, he made payments to defendants of various amounts totalling Hs. 60,000. A lot of 700 shares was sold by the plaintiff to Pilani & Co. and on 19th April, 1937, be instructed the deiendants for sale of the remaining 3,000 shares at the best price obtainable. 'fhe defend1wts sold 2,000 shares on 20th April, 1937, for prices ranging between Rs. 47-4-0 to > S.C.R. SUPREME COURT REPORTS 793 Rs. 44-12-0 per share. The remaining 1,000 shares were sold by him through Messrs. Hamlal & Co. at Rs. 42-8-0 per share on 22nd April, 1937. The result of it was that on 22nd May, 1937, when the :i.ccounts between the plaintiff and the defendants were. settled it was found that plaintiff was heavily indebted to them in the sum of Hs. 51,712-7-0 and the credit balance of Hs. 64,000 that he had with the defendants at the end of March, 1907, had been wiped off. For the amount found due he passed a promissory note in favour of defendants, Exhibit P-33. After giving credit for payments received on the promissory note the defendants filed a suit against him (O.S. 150 of 1937) on the Original Side of the Madras High Court and obtained an ex parte interim order for attachment before judgment and attached plaintiff's movable and immovable properties at Madras, and also at Kottaiyur in Hamnad district. Owing to the attachment proceedings the firm of Ramlal & Co. filed a petition for adjudication of the plaintiff as an insolvent. On 22nd September, 1937, Trojan & Co. also filed a petition for the same relief. An order adjudicating the plaintiff an insolvent was made by the High Court on 5th October, 1937, on the petition of Hamlal & Co. In the course of the insolvency proceedings defendants tendered proof of their claim ou the promissory note, Exhibit P-33. The Official Assignee having acquired knowledge about the telephonic conversation that had passed between Annamalai Chettiar and Hamdev Chokani on the evening of the 5th April, 1937, came to the conclusion that the. insolvent had been a victim of a fraud perpetrated by the defendants and dismissed their claim. Defendants-firm was guilty of fraud both in respect of the failure to disclose the fact that the Indian Iron shares or most of them belonged to one of its partners, Annamalai Chettiar, and also on account of the failure ou its part to disclose its knowledge of the likelihood of a slump in the market because of the notice given by its members ~Q close the Stock Exchange. 1953 Trojan & Go. ltd. v. Rm.N. N. Nagappa Chettiar. Mahajan. J. 794 SUPREME OOUR'r REPORTS [19531 1953 Tro}an,,f; Co. On an application made to the High ·Court against the order of the Official Assignee it was set aside by Mockett J. and he directed that the claim of the defendants be disposed of on a court motion, the claim being heard as if it were a suit. In pursuance of this direction Trojan and Co. on 2Uth September, 1938, filed an application in the High Court, No. 313 of 1938. I'he Official Assignee representing the estate of the plaintiff denied its liability on the promissory note on the ground of fraud. On 15th March, 1940, Somayya J. dismissed the claim of the defendants. He held the defendants-firm guilty of fraud in both respects. From this there was an appeal which was dismissed on 12th August, 1942. The defendants applied for leave to appeal to His Majesty in Council but leave was refused. Defendants then applied to the Privy Council for special leave and that application was also dismissed some time in October, 1943. Ltd. v. Rm. N. N. Nagappa Chettiar. Mahajan J. On the 28th September, 1940, when the appea.l from the decision of Somayya J. was still pending, the Official Assignee as representing the estate of the plaintiff filed the suit out of which this appeal arises against Trojan & Co. for an account of the transactions between himself as principal a,nd the defendants as agents and claiming damages for loss sustained by him and for various other reliefs. The suit embraced in particular claims in respect of four transactions. The first related to the 5,000 Indian Iron shares. 'fhe second referred to a trans:;,ction of As.sociated Cements. On 22nd March, 1937, the plaintiff bad sold through the defendants 50 shares in Associated Cements at Hs. 180-8-0 per share. On 30th March, 1937, he h:1d similarly sold a further 200 shares in Associated Cement> at Rs. 183 per share. The plaintiff did not have on hand even a single share in Associated Cements. It became necessary for him therefore to "cover the sales". On 21st July, 1937, defendants purchased on plaintiff's account 100 shares at Rs. 161-12-0 per share. On 1st September, 1937, they purchased a further 150 shares a,t ' ' ' > ' • S.C.R. SUPREME COURT REPORTS 795 Rs. 151 a sha,re. The difference between the prices at which these shares had been sold and bought amounted to Rs. 6, 762 8-0 and for this amount the defendants gave the plaintiff credit by adjusting it towards the promissory note account. In respect of this transaction the case of the Official Assignee was that the purchase which had been made by the defendants was not only unauthorized, but contrary to instructions and was not valid and binding on' the plaintiff as it had been made after the commencement of the insolvency. No claim was made in the alternative that if this contention failed, the plaintiff was entitled to recover the amount credited towards the promissory note on the ground of failure of consideration. The third transaction related to 300 shares in Tatas, and the fourth one was in respect of shares in Ayer Mani Rubber Co. The last claim was abandoned at the trial and the claim on the third transaction was decreed in favour of the plaintiff and the· correctness of the order of the trial judge was not canvassed in the appeal before the High Court. The amount decreed as regards these 300 shares was in the sum of Rs. 1,050. The defendants denied liability for the entire claim and pleaded that they were not guilty of any fraud and that in any case the plaintiff was not entitled to claim any damage, as he could have easily sold away all his shares soon after his purchase without incurring any loss, and that he retained them in order to make profit. The suit was first heard by Bell J. who decreed the claim of the plaintiff on 9th March, 1943. The defendants appealed. The appellate court set aside the decision of Bell J. and remanded the suit for fresh disposal on 25th August, 1944. Meantime, that is to say, on 21st February, 1944, the adjudication of the plaintiff was annulled and on his applieation he was brought on the record in the place of the Official Assignee and he continued the suit. Clark J. who tried the suit after remand gave a decree in f;tvour of lO~ 1958 Trajan .t Co. Ltd. v. Rm.N.N. Nagappa Oh~ttiar. Mahajan J,' 1959 Trojan £t Co. Ltd. v. Rm.N.N. Nagappa Ohettiar. Mahajan J, I 796 SUPREME COURT REPORTS [1953) the plaintiff for the sum of Rs. 61,787:9-0 with interest at the court rate of six per cent. per annum from 1st September, 1937, until payment or realization with costs. Against this decree the defendants preferred an appeal. The appellate Bench modified the decree of Clark J., and reduced the amount of the decree by a sum of Rs. 9,100. 'Each party was made to pay proportionate costs throughout. Leave to app'eal to this court against the decree was granted and the appeal is now before us under the certificate so granted. As above stated, the claim in respect of Ayer-Mani Rubber shares was abandoned at the trial and the claim on the third transaction relating to 300 shares in 'l'atas was decreed for the sum of Rs. 1,050 and the correctness of this order was not canvassed in the appeal before the High Court. The two claims discnsse\l in that court were in respect of the transaction of 5,000 Indian Iron shares and in respect of the transaction made in Associated Cements. The dispute before us so far as the Indian Iron shares are concerned has narrowed down to the question of quantum of damages in respect of 3,000 out of the 5,000 shares that were transferred by the defendants to the plaintiff on the nigbt of the 5th April, 1937, 1,300 out of these shares having been sold at cost price by the plaintiff the day after the purchase, and 700 having been sold to Pilani & Co., and regarding which the plaintiff's claim was rejected in the High Court and plaintiff preferred no further appeal. 'fhe finding of Somayya J., that the defendants firm was guilty of fraud both in respect of the failure to disclose the fact that the Indian Iron shares or most of them belonged to one of its partners, Annamalai Chettiar, and also on account of its failure to disclose its knowledge of the probable slump in the market by reason of the notice given by three members of the Stock Exchange to temporarily close it, was not contested before Clark J., and it was conceded that that finding had become final. The main question canvassed at this trial wa,s whether the plaintiff • s.C.R. SUPREME COURT REPORTS 797 had suffered. any damage as a consequence of this fraud and if so, how were the damages to be measured. In the plaint plaintiff claimed that he was entitled to be recompensed for all loss and dama,ge which he had suffered. A sum of Rs. 45,042-9-0 was credi'ted in his account in respect of the sale of 3,000 shares made on 20th and 22nd April, 1937. He claimed the whole of this amount as damages on this count; in other words, according to the plaintiff, the damage suffered by him was to be measured according to the difference between the purchase price of the shares and the price for which they were ultimately sold. The shares were bought on 5th April at Hs. 77 and Rs. 77-4-0 and sold at prices ranging between Rs. 42-8-0 and Rs. 47-4-0 on the 20th and 22nd April, 1937. This method of measuring damages was successfully challenged by the defendants before the trial judge. Clark J., in spite of holding that the measure of damages in a case like this could not be as suggested by the plain tiff, estimated the damage suffered by him at the difference between the rate at which the plaintiff purchased the shares and the rate at which he actually sold them, on the ground that the price at which he sold them was more than the fair value of these shares realizable on the 5th April, 1937, between bona fide purchasers and sellers having knowledge of the real state of affairs. Before the appeal Bench of the High Court it was contended that the trial judge was ill errot in bis assessment of the real value of these shares on 5th April, 193 7, and that in any case they could not be valued at four different rates. It was urged that damages had been over-estimated. This contention was negatived and it was held that in the circumstances of this case it could not be said that the plainbiff acted unreasonably in holding on to the shares for the time that he did and that the defendants had by their own double dealings placed the plaintiff in a difficult position. The learned counsel for the appellant reiterated before us the contentions raised by him in the High 1958 Trojan ~ Co. Ltd. v. Rm. N.N. N•g•ppa GhettU.r. M•haj•n J. l958 Tro;'an i:t Co-. Ltd. v. Bm.N.N. Nogappa Chettiar. Mahajan J. 798 'SUPREME COURT REPORTS [1953j Court and urged that the true measure of damages in actions like this is the difference between the price paid and the real value of the shares at the time of the tnnsaction, and that any loss caused to the plaintiff by his retaining the shares after that date could not be decreed. It was strenuously contended that had the plaintiff sold the remaining shares like the 1,300 he sold, be would not have suffered any damage whatsoever, as the market price of these shares on the 6th and 7th was not below the cost price. ·It was said that the loss that the pla.intiff suffered was merely due to the circumstance that he retained the shares for a fortnight, and was not as a consequence of the fraud. Lastly, it was contended that even if it could be held that the market on the 6th and 7th was affeuted by the very fact concealed from the plaintiff, its effect disappeared by tbe 10th April, when the fact became fully known and damage should have been assessed on the differenc~ between the market price of these shares which ruled at Rs. 62 per share on 10th April, 1937, and their cost price .. Now the rule is well settled that damages due either for breach of contr:i.ct or for tort are damages which, so far as money can compensate, will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act. Difficulty however arises in measuring the amount of this money compensation. A general principle cannot be laid down for measuring it, and every case must to some extent depend upon its own circumstance. It is, however, clear that in the absence of any special circumstances the measure of damages cannot be the amount of the loss ultimately sustained by the representee. It can only be the difference between the price which he paid and the price which he would have received if he had resold them in the market forthwith after the purcb.ase provided of cburse that there was a fair market then. '£he question to be decided in such a. case is what could the plaintiff have obtained if he hi;d resold forohwith that; which he had been induced to purchase by the fraud . . s.c.R. SUPREME COURT REPORTS 799 of the defend11nts. In other words, the mode of 1958 dealing with damages in such a case is to see what it Trojan ct Go." would have cost him to get out of the situation, i.e .. Ltd. how much worse off was his estate owing to the barv. gain in which he entered into. The law on this subRm. N N. ject has been very appositely stated in McConnel v. Nagappa Wright(') by Lord Collins in these terms:- Oh.ttiar. "As to the principle upon which damages are Mahajan 1. assessed in this case, there is no doubt about it now. It bas been laid down by several judges, and particularly by Cotton L.J. in Peek v. Derry('), but the common sense and principle of the thing is this. It is not an action for breach of contract, and, therefore, no damages in respect of prospective gains which the person contracting was entitled by his contract to expect to come in, but it is an action of tort-it is an action for a wrong done whereby the plaintiff was tricked out of certain money in his pocket ; and therefore, prima facie, the highest limit of his damages is the whole extent of bis loss, and that loss is measured by the money which was in bis pocket and is now in the pocket of the company. That is the ultimate, final, highest standard of his loss. But, in so far as be has got an equivalent for that money, that loss is .diminished; and I think, in assessing the damages, prima f acie the assets as represented are taken to be an equivalent and no more for the money which was paid. So far as the assets are an equivalent, he is not damaged; so far as they fall short of being an equivalent, in that proportion he is damaged." The sole point for determination therefore in the case is whether the shares handed over to the plaintiff were an equivalent for the money paid or whether they fell short of being the equivalent and if so, to what extent. Ordinarily the market rate of the shares on the date when the fraud was practised would represent their real price in the absence of any other circumstance. If, however, the market was vitiated or was in a state of flux or panic in consequence of the very fact that was fraudulently concealed, (z) 37 Ch. D. 541 • 800 SUPREME COURT REPORTS [1953j then the real value of the shares has to be determined on a consideration of a variety of Trojan & 00• circumstances disclosed by the evidence led by the Ltd. 1968 v. B1n. N. N. Nagappa Chettiar. Mahajan J, parties. Thus though ordinarily the market rate ·on the earliest date when the real facts became known may be taken as the real value of the shares, nevertheless, if there is no market or there·is no satisfactory evidence of a market rate for some time which may safely be taken as the real value, then if the representee sold the shares, although not bound to do so, and if the resale has taken place within a reasonable time and on reasonable terms and has not been unnecessarily delayed, then the price fetched at the re· sale may well be taken into consideration in determining retrospectively the true market value of the shares on the crucial date. If there is no market at all or if the market rate cannot, for reasons re £erred to above, be taken as the real or fair value of the thing and the rep resentee has not sold the things, then in ascertaining the real or fair value of the thing on the date when deceit was practised subsequent events may be taken into account, provided such subsequent events a.re not attributable to extraneous circumstances which supervened on account of the retaining of tha thing. '£hese, we apprehend, are the well settled rules for ascertaining the loss and damage suffered by a party in such circumstances. If damages had been measured on the rules above stated by the courts below, this court would have then respected the concurrent finding on this point as the question of assessment of damages primarily is a question of fa.ct and the concurrent findings of the courts below on such points except in very exceptional circumstances a.re nob reviewed by this court. We however find that in spite of the circumstance that the courts below correctly enunciated the rule of measuring damages in such cases, they estimated them on the difference between the cost price and the price realized at the sale on the 20th and 22nd at four different rates. These four rates could obviously not represent the true value of the shares on the 5th. S.C.R. SUPREME COURT REPORTS 801 Moreover the ·finding that the true value of these shares was lower than what was actually realized on their resale on the 20th and 22nd is not based on any evidence whatsoever. Such a finding could only be arrived at on the basis of evidence on the record and by reference to that evidence, and this has not been done. The High Court did not make an attempt to find out to what extent the value of the shares fell short of being an equivalent for the money taken from the plaintiff. Withollt determining this crucial issue we think it was not right to estimate the damage on the vague finding that the true value of the shares was lower than the value which they fetched at the resale on the 20th and 22nd. In this situation, we have no alternative but to arrive at our owu finding on this question in spite of the concurrent finding and we have to find as to what could be said to have been the true value of these shares on the relevant date. In other words, the question for our determination is what the market value would have been on 5th April of these shares if all b~yers and sellers had information that the market was to be closed on 8th and 9th April to enablfl settlement of outsta.nding transactions to be effected, and had appreciated the effect of that decision. In the words of Buckley J. in Broome v. Speak('), it is indeed a difficult question to answer but that difficulty is no ground for refusing to answer it as has been done by the court below. In order to determine the real price of these 3,000 shares sold to plaintiff by concealment of certain facts, the first question that needs decision is whether the market for these shares, the rate prevailing wherein would prima faoie be a true index of their value, had been affected by the very fact concealed of which the plaintiff complains. In this case from the proved facts it is clear that the market rate of these shares was seriously affected by reason of the impending decision of the Stock Exchange for closing it to stop the wave of speculation that had taken the frenzy of the market by reason of the merger of the two steel (I) (1903J I Ch. S86. 1958 Trojan. 4 Co. Ltd. v. Rm. N.N. Nagappa Ohettiar. Mahajan J. 802 SUPREME COUR'l' REPORTS [1953] 1968 Trojan