CHANDRA KANTA DAS Vs. PARASULLAH MULLICK

JUDGEMENT

(1.) The question in this appeal arises in a suit by which it was sought to have decided that the plaintiff, who is the appellant, was entitled to recover a sum of Rs. 5400, with interest amounting to Rs. 67-8, as due to him under certain agreements. The defence was a charge of fraud in obtaining the agreements, and as a separate defence, that the main agreement was invalid as being in restraint of trade. The learned Additional Subordinate Judge of Khulna in Bengal, who tried the case, decided it in favour of the appellant for the modified amount of Rs. 5280, the difference being given on the footing that the respondent (being the defendant) was entitled to a small amount for compensation, on the ground of partial failure of consideration. As to this difference, no substantial controversy has been raised, and their Lordships do not think that any question is before them for decision in relation to it.

(2.) When the case went on appeal to the High Court at Fort William, the decree of the Subordinate Judge was reversed. Chatterjee J. held that the parties were never ad idem, the respondent having been misled by the appellant, and further that there was no real goodwill to assign, such as was the basis of the agreement on the part of the appellant. But he thought that as the respondent had entered into possession on the footing of the agreement, although inoperative, he ought to make compensation to the appellant to the extent of Rs. 1000. Walmsley J., the other member of the appellate Court, was of opinion that there was nothing fraudulent to render the agreement inoperative on that ground. But he held that it was void as contravening Section 27 of the Indian Contract Act, which makes every agreement by which any one is restrained from exercising a lawful profession, trade or business, void. The trial judge had been of opinion that the case came within the exception to the section which provides that it is not to apply where there is a sale of the goodwill, but Walmsley J. held otherwise, on the ground that there was no real goodwill.

(3.) The appeal comes before their Lordships ex parte, and they have scanned the case presented for the appellant with some closeness. But, particularly having regard to the fact that the learned judge who tried the suit found that there was nothing to establish fraud on the part of the appellant in obtaining the agreement, and that thin opinion met with the concurrence of Walmsley J., and also because of the character of the evidence itself, they are of opinion that the agreement was, apart from the point of law arising under the Indian Contract Act, a valid agreement.