SUNDARA GOWNDER Vs. BALACHANDRAN

JUDGEMENT

(1.) Defendant is the appellant. Plaintiff filed the suit for realisation of Rs.22,080/- and interest thereon on the strength of Ext.Al. The case of the plaintiff is that he an Abkari Contractor from 1973-74 onwards was not in a position to participate in the auction for 1977-78 on account of the statutory bar that a defaulter to the Toddy Welfare Fund is not eligible to participate in the auction and to circumvent it he reached an agreement with defendant that Shop Nos. 17,19 and. 20 out of the 28 shops bid by the defendant will be transferred to him with the permission of the authorities and that he paid Rs.22,080/- to the defendant on 1-3-1977 immediately after the auction and the defendant failed to perform his part of the agreement. Defence was total denial of the agreement. The learned Sub Judge decreed the suit finding that the plaintiff is entitled to the suit claim.

(2.) Learned counsel for the appellant defendant submitted that the Sub Judge was not justified in decreeing the suit having found that Ext. A1 has not been proved to have been made by the defendant and in view of the several inconsistencies and improbabilities in the evidence of the witnesses. He also contended that even if the entire plaintiffs case is assumed to be true still the plaintiff cannot succeed in the suit as the agreement is opposed to public policy and Abkari Shops (Disposal in Auction) Rules.

(3.) Though P.W.6 stated that he saw P.W.2 giving the defendant the amount, he did not say anything about the defendant handing over Ext.A1 slip to P.W.2. P.W.2 stated that defendant gave him Ext.A1 when he handed over the amount as directed by the plaintiff. Evidence of P.W.2 and 3 is attacked mainly on the ground that they were not present when the auction was held in the Town Hall. The names of P.W.2 and 3 do not find a place in the list of persons in Ext.X14. As Ext.X14 does not show the names of P.W. 2 and 3, it is a positive circumstance to be reckoned with and hold that their presence in the Town Hall is open to serious doubt.