MANUEL DCRUZ Vs. JAMES NETTO

JUDGEMENT

(1.) Heard both sides. The defendant is the revision petitioner. The plaintiff stated that he had paid the defendant a sum of Rs. 50 on the definite understanding that the latter was to secure the former a motor driver's place in Assam and that the money would be returned if the plaintiff did not get the place. The place was not secured as promised and so this suit is for the return of the said amount. The defendant denied this agreement and the receipt of the money. He also contended that the agreement even if true was illegal, invalid and unenforceable. The lower court found that the plaintiff had paid the defendant Rs. 50 under the circumstances mentioned by the plaintiff and that there was nothing illegal in the arrangement. The suit was therefore decreed. It was ably argued by the learned advocate for the defendant that this agreement was void as the consideration or object of the agreement was unlawful. Illustration (f) to S. 24 of the Contract Act X of 1115 was relied on for the purpose. The illustration refers to a promise to obtain an employment in the public service; in other words, the consideration or the object of the agreement is not to be in the opinion of the court opposed to public policy. A driver's place in Assam which is outside the territorial limits of the State where the agreement was come to could not be regarded as an employment in public service. The consideration could not therefore be held to be unlawful as contemplated in S. 24. The ruling in Ledu v. Hiralal ILR 34 Cal. 115 relied on by the petitioner could have no application. Following the ruling in Perherperumal Chetty v. Muniandi Servai ILR 35 Cal. 558 this Court in Sankaran v. Kesavan 2 TLJ 366 had held that though money or jewels had been paid for an illegal purpose, the suit to get back the same was maintainable as the illegal purpose had not been carried out. This was followed in a later ruling Enakulamuthu Nadar v. Subramania Nadar 9 TLJ 186. This latter case had quoted with approval Srinivasa Iyer v. Sesha Iyer ILR 41 Mad. 197 . In this latter case it was held that a marriage brokerage agreement was unlawful and void ab initio and that brokerage paid thereunder was recoverable if the agreement or a substantial part of it was not performed. Following the above rulings I hold that the plaintiff in this case is entitled to claim the return of the money. The lower court's finding on fact that money had really been paid by the plaintiif to the defendant is correct and hence confirmed. There is no ground made out in this revision petition which is dismissed with costs.