MUTHUVEERAPPA CHETTI ALIAS NELLAYAPPA CHETTI; RAMASWAMI CHETTI (DECEASED) Vs. RAMASWAMI CHETTI (DECEASED); MSMUTHUVEERAPPA CHETTI ALIAS NELLAYAPPA CHETTI

JUDGEMENT

(1.) The Subordinate Judge has found in this case--and we see no reason to differ from his finding on the evidence--that the plaintiff was induced to pay Rs. 7,000 to the defendants in order that a criminal prosecution instituted by the defendants against the plaintiff for an offence which was not compoundable should not be proceeded with. The agreement to stifle the criminal prosecution was illegal and it is said that money paid in pursuance of an illegal agreement cannot be recovered back. No doubt that is generally so according to the maxim in pari delicto potior est conditio defendeniis, but it appears to bewell established that when a payment of money is obtained by means of such an agreement the parties are not to be con- sidered in pari delicto and that the money may be recovered back. In Bullen and Leake s Precedents of Pleadings, 2nd Edn. page 51, the law is stated as follows:--" But where the plaintiff having paid the money in execution of an illegal contract or for an illegal purpose is not in pari delicto he may in some cases recover it : as when the money was paid under oppression as the money paid by a bankrupt to obtain his certificate (Smith v. Bromley (1760) 2 Doug 696 n ; 99 E.R. 441), money paid by the defendant in a penal action to compound the action (Williams v. Hedley (1807) 8 East 378 Unwin v. Leaper) (1810) 1 M. & G. 747. In Williams v. Hedley (1807) 8 East 378 an action for penalties had been brought by the defendant against the plaintiff in respect of certain usurious transactions entered into by the latter and to escape the penal action the plaintiff had been induced to pay the persons who put forward Hedley the amount of a debt due to them by a third party; and it was held the money could be recovered back. Similarly in Unwin v. Leaper (1810) 1 M. & G. 747 the jury were directed that the money could be recovered if it had not been paid voluntarily but by coercion of the threatened penal actions. The Subordinate Judge held that the evidence did not show coercion within the meaning of the Contract Act but it is now settled that that is not the test, Kanhaya Lal v. National Bank of India (1913) I.L.R. 40 C. 598 : 25 M.L.J. 104. It makes no difference in my opinion here that money was found payable by the arbitrators, as the plaintiff s consent to the arbitration was obtained by means of the Criminal prosecution, or that it may have been really due, as in either case the plaintiff is entitled to get back what was obtained from him by coercion.

(2.) The appeal must be allowed with interest at 6% from the date of plaint. No order as to costs. As regards the connected appeals I agree with the Judgment of my learned brother. Seshagiri Aiyar, J.

(3.) After stating the facts as extracted above and discussing the evidence, his Lordship allowed A.S. No. 178 of 1911 and dismissed A.S. No.177 of 1911, on the ground that the defendants had reasonable and probable cause forinstituting the complaint for criminal breach of trust and proceeded as follows.