VENKATASUBRAMANIA AIYAR Vs. SYED USUFF

JUDGEMENT

(1.) This is a curious story and on the facts as I am about to find them gives rise to an interesting and difficult question of International Law.

(2.) After the outbreak of war, gold became exceedingly scarce in India and consequently enhanced in value. By a notification under Act XI of 1916, the Government of India made it illegal to import gold bullion or gold coins into British India and rendered gold so smuggled into the country liable to confiscation. This still further enhanced its value and offered additional temptation to smugglers. Many confiscations took place, some of which gave rise to suits tried before me.

(3.) In this case, the 1 defendant Syed Usuff delivered at Pondicherry through one P. Narayana Doss Mehta of Pondicherry a quantity of American Gold dollars, 378 in all to a man called Parameswara Iyer on the 22nd of January, 1920. They were to be taken to Madras and were to be delivered to Syed Usuff there. Parameswara Iyer was to be remunerated by some commission for his services. In point of fact, the dollars were seized by the Customs Officers at Chinnababu Samudram Railway Station and were confiscated to Government. The British authorities were willing to return the gold dollars on payment of a sum of Rs. 22,000 and odd, and it appears that Parameswara Iyer arranged with a Sowcar to raise the amount of the penalty, paid it to Government and got back the dollars. I have no doubt that he did so because he reckoned that the rate of exchange was going up and that he would make a small profit on the deal; and I have little doubt that he did make a profit and the parties though they have not any exact figures, seem to agree that the profit was probably somewhere about Rs. 4,000 or 5,000. It is alleged in the plaint that before he redeemed the dollars Parameswara Iyer gave Syed Usuff, the 1 defendant, the opportunity of redeeming the dollars for his own behalf through his agency and that Syed Usuff declined to find the money and relinquished the dollars. But no proof has been given of this and I am not prepared to believe it. It was somewhat half-heartedly contended for the plaintiffs that apart from this, as soon as the dollars were seized the fiduciary relation of Parameswara Iyer to Syed Usuff was ipso facto terminated and that Parameswara Iyer was at liberty to enter upon a transaction of redemption of the dollars without being in any way liable to account to Syed Usuff, his principal. I cannot accede to this contention. In my opinion so long as there was a possibility of redeeming the dollars with the chance of profit by so doing, Parameswara Iyer was bound to give his principal the option of redeeming them for the principal's benefit and was guilty of a breach of duty as agent if without taking that step he acquired the dollars for himself. Later on, Parameswara Iyer returned to Pondicherry where the plaintiffs who were his nephews were living and where he shared a house with them. On the 25 October, 1920 the 1st defendant served a process at Pondicherry upon Parameswara Iyer called a Sommation, a certified copy of which is before me. The effect of that document together with a petition to the Procureur de la Republique has been explained to me by Mr. M. David, an advocate practising at Pondicherry, and the document in the original is before me., I may add that there was also beford me a translation made by the English Judicial Interpreter of the Pondicherry Court which is so full of elementary blunders as to make its latter part meaningless. I have made myself a translation from the French which was accepted by the parties. What it - amounts to is an allegation of Abus de Confiance which may be taken roughly to correspond to an offence of criminal breach of trust under the Indian Penal Code, and the effect of it was that Parameswara Iyer could end the matter by meeting the demand or would be liable to criminal prosecution. The outcome of it was that after considerable discussion a promissory note for Rs. 4,000 payable at Madras was executed by the two plaintiffs the nephews of Parameswara, Iyer, in favour of Mir Hassan All, the 2nd defendant. The defendants story is that Mir Hassan Ali was merely an outsider who provided the plaintiffs with cash to satisfy the demand of Syed Usuff and that the promissory note was given to him as a consideration for paying Ks. 4,000 in cash to Syed Usuff. I do not believe that and my finding is that no money in cash passed and that the proceedings were stopped in consideration of the signing of the promissory note. The promissory note was not met and this suit was instituted in this Court to set it aside, and O.S. No. 42 was instituted to enforce it by the present defendant. One suit is a corrollary of the other and the result of one determines that of the other.