BALACHANDRAN Vs. SUNDARA GOUNDER

JUDGEMENT

(1.) Plaintiff is the appellant. This appeal arises out of the judgment in AS 120 of 1981 of this Court. Learned single Judge reversed the judgment and decree, in OS. 1155/78 whereby plaintiff - appellant's suit was dismissed. Suit was for recovery of an amount of Rs. 22,080/- from the defendant with interest at the rate of 6% per annum from 1-3-1977 till realisation. Plaintiff and defendant were abkari contractors. Plaintiff was the licensee of toddy shops in Chittur Range in the abkari auctions conducted from 1973 onwards. Plaintiff during the abkari year 1977-78 wanted to bid various shops including shop No. 17, 19 and 20. Plaintiff could not participate in the auction since certain amounts were due from him to the Toddy Workers' Welfare Fund. Defendant is a close friend of the plaintiff and the plaintiff wanted to continue the functioning of the three toddy shops. Consequently he requested the defendant to bid in auction on behalf of the plaintiff as well. Plaintiff agreed to pay the amount remitted by defendant for those shops. Defendant and his brother bid in auction 28 shops including the three shops mentioned above. Since auction was over plaintiff paid Rs. 22,080/- to the defendant on 1-3-1977 at the Town Hall, Palghat were the abkari auction was conducted. Defendant received the amount and undertook to entrust the shops to the plaintiff with the approval of the authorities. Defendant however, failed to entrust those shops and also refused to pay back the amount received from the plaintiff. Lawyer notice was issued by the plaintiff to the defendant. Since there was no response he initiated proceedings for recovery of the amount.

(2.) Defendant resisted the suit. According to the defendant there was no agreement to entrust those shops to plaintiff nor has a sum of Rs. 22,080/-been paid to the defendant by the plaintiff being the security amount for shop Nos. 17, 19 and 20. In any view defendant contended plaintiff cannot enforce illegal contract. In order to establish his case plaintiff got himself examined as PW - 1. PWs. 2 to 7 were also examined on the side of the plaintiff. Exts. A1 to A4 documents were also produced. On the side of the defendant B1 to B4 documents were produced by witnesses. Trial Court after considering the oral and documentary evidence came to the conclusion that the plaintiff has succeeded in establishing that there was payment of the amount claimed by the plaintiff and declared that the plaintiff is entitled to get a decree for realisation of the said amount. Court below also found that the defendant has not permitted the plaintiff to run shop Nos. 17, 19 and 20 for financial year 1977-98 and as such the defendant cannot be permitted to retain any sum received by him from the plaintiff by way of security amounts deposited by the defendant on the date of auction. In appeal learned single Judge of this Court found there is no evidence to show that money has been paid to the defendant. Further it was also found that the agreement cannot be enforced since the alleged amount was paid in order to enforce an illegal contract. Such agreement cannot be enforced by a court of law. Judgment and decree of the Trial Court was accordingly reversed. Aggrieved by the same this appeal has been preferred.

(3.) We heard counsel on either side at length and have also gone through the oral and documentary evidence adduced by the parties. Entrustment of money with the defendant was proved by the plaintiff relying on Ext. A11 original slip supported by oral evidence of PW 1, PW 2 and PW 3 on the hand and PWs. 4 to 6 on the other. Since defendant had denied the transaction, we have to first examine whether plaintiff has succeeded in establishing that he had paid an amount of Rs. 22,080/- to the defendant on the basis of A1. PW 1's case is that he had entrusted the amount to PW 2 for paying to the defendant. PW 2 stated that a bag containing a sum of Rs. 30,000/- was entrusted to him by PW 1 and at that time PWs. 3 and 6 were present. PWl has also stated that the amount was received by the defendant after counting and Ext. Al is the document which was handed over by the defendant to PW 2. Figures and letters in Al were all written by the defendant in the presence of PW 2. PWs. 2 and 3 were also present in the auction hall and payment of amount by PW 1 to defendant was witnessed by PWs. 2 and 3. Presence of PWs. 2 and 3 in the auction hall was not denied by the defendant who was also in the auction hall. PW 4 is one of the persons admitted to have been present on the date of auction. Version of PW 4 is to the effect that in the abkari auction for 1977-78 the defendant was the successful bidder for all the toddy shops in the Chittur Range and that the defendant had been authorised to do so for an on behalf of the plaintiff and some others such as Pillai. Regarding the actual payment of the amount to the defendant PW 4 stated that plaintiff entrusted a bag to PW 2 stating that it contains a sum of Rs. 80,000/- and whatever amount is necessary may be paid to the defendant. PW 4 also deposed that he had seen PW 2 paying the amount to the defendant. PW 4 has also deposed that he saw some scribbling being made in A1 and money was received from PW 2. PW 6 is the Preventive Officer of the Excise Department. PW 6 also stated that he had seen the plaintiff paying the amount to PW 2 and later handing over the amount to defendant. Evidence of PW 5 also support the case of plaintiff. Considering the entire oral and documentary evidence we are in agreement with the reasoning of the Trial Court that the plaintiff had entrusted the amount to plaintiff. In our view learned single Judge was not justified in disturbing that finding of fact.