KRISHNA MENON Vs. NARAYANA AYYAR

JUDGEMENT

(1.) This appeal by the plaintiff is against the decree, dismissing his claim to recover money from four persons. The appellant had on November 28, 1948, entered into an agreement with the father and his three sons, whereby the licence for the Foreign Liquor Tavern, Ernakulam which was held by the appellant, was agreed to be transferred in favour of the 2nd defendant in the case, who is one of three sons. The parties further agreed that the aforesaid four persons were to conduct the tavern from the date of the agreement, and in consideration pay Rs. 11,655-13-2 in daily instalments. There were also promises for payment by them of the kist to the Government and the rent of the building, in which the tavern was housed. As the agreement is important, we would extract below its relevant parts.

(2.) It is common ground that when the aforesaid agreement was entered into, the Cochin Abkari Act, No. 1 of 1077 (M.E. ) was operative, and S.15 of the said Act prohibited pale of liquor or intoxicating drugs without licence. Moreover, S.22 of the same enactment directed that the assignee should not exercise his rights until the grantee of the licence had applied to the Commissioner for a licence to be given to the assignee & such assignee should receive the same. Further, R.13 of the Rules framed by the Government provided:

(3.) It is also not disputed that the authority concerned had refused to sanction the alienation notwithstanding efforts to get the transfer sanctioned. The appellant later found that the bargain about the payment of the consideration was not being fully carried out, though the Tavern was being conducted by the defendants, and Rs. 7,334-10-1 was still due to him under the agreement. Consequently, he filed the suit to recover the arrears so due, and defendants 1, 3 and 4 pleaded the agreement to be contrary to the provisions of the Cochin Abkari Act, to be illegal, unenforceable, and the suit not maintainable because the licence was not transferred in the name of the 2nd defendant. The last mentioned person pleaded that he was only a paid servant under the appellant, the accounts of the business was still not settled and his letter referred to in the plaint was obtained through fraud and misrepresentation.