MUTHUKARUPPA MUDALI Vs. PIMUKATHAPPUDAYAN

JUDGEMENT

(1.) Three points are argued in this second appeal. The first is that under the remand order of the High Court the District Judge should have returned findings on the other issues of fact in the case. We are clear that the order was only on the question whether the contract of guarantee was supported by consideration on which he has returned a finding. The second, that the District Judge should have passed a decree in the terms of the supposed compromise. We accept his decision that no compromise binding on all the parties was effected, The third is, that the District Judge has erred in law in holding that there was no consideration. It is argued that the advances made to other persons on the recommendation of the 1st defendant were good past consideration for the contract. Section 127 of the Indian Contract Act says that anything done, for the benefit of the principal debtor may be a sufficient consideration to the surety. Consideration is defined in Section 2. " When at the desire of the promisor, the promisee...has done...something, such act...is called a consideration." I extract only that part of the definition relied on by the appellants. In our opinion, the facts of this case do not go so far as these words require. We are not referred to any words expressing the desire of the 1st defendant that advances should be given. In Sindha Shri Ganpatsing v. Abraham alias Vajir (1895) I.L.R. 20 B 755 the words are interpreted to mean " Express or implied request or desire". The learned vakil for the appellants was unable to refer us to any case in which a recommendation was held to be within the words of the section nor is any support for the proposition to be found in the commentaries of Sir F. Pollock or Sir H. H. Shephard." In a case reported in Juggot Indur Narain Roy Choudhry v. Nistarinee Dassee (1876) 24 W.R. (Civil Rulings) 445 decided subsequent to the passing of the Indian Contract Act, but, it may be arising before that date, there is a dictum that a mere recommendation by one party to another to lend money to a third party does not render the first party liable to repay the loan. This of course goes no further than that there is no promise but it is an indication of the light in which recommendations are regarded.

(2.) We may add that there can be no doubt that according to English law a recommendation alone cannot be valuable consideration. Vide Halsbury s Laws of England, Volume 7, paragraphs 793 and 794--consideration where is " the promise does some act (in India it would include has done some act ) from which a third person benefits and which he would not have done but for the promise." There is nothing in this, case which comes within this definition.

(3.) The result will be that the second appeal is dismissed. There will be no order as to costs. Sadasiva Aiyar, J.