PARASULLA MALLICK Vs. CHANDRA KANTA DASS

JUDGEMENT

(1.) I am not quite satisfied that the parties were quite ad idem in respect of the kistbandi agreement. The learned Subordinate Judge says the defendant was in a destitute condition and I find it impossible to believe that he agreed to pay Rs. 1,200 within a fortnight, knowing that if he failed to do so the plaintiff would not only be entitled to realise the whole consideration at once but to resume the working of the gahana boat line. The learned Vakil for the respondent wanted to show that about two years after the contract he had a deposit of Rs. 1,500 in the Bank. Even if this could be shown at this stage of the case from a document put- side the record, I do not think it would throw much light on the situation at the time of the kistbandi. On the other hand, this might be due to savings thereafter made from the boat business. I cannot, therefore, believe that the contents of the document were fully explained to or understood by him. The evidence is that the plaintiff read the document audibly. That is quite consistent with the defendant not following the intricacies introduced into the document. I think the defendant placed too much confidence in the Mooktear Ramlal, who played, him false. If he was so friendly as he is said to have been, it was his duty to safeguard his interest as well as that of the plaintiff, his rich client. The document shows he did nothing of the kind. It is probable that the real truth has been concealed by both parties and evidence has been adduced by each, to prove the case that he made in the pleadings; but taking the facts as they appear on the evidence 1 am not satisfied that the defendant fully understood the import and effect of the agreement that he placed his signature on. As regards the good-will, I agree with my learned colleague that there was none and the main part of the consideration was a myth. As to the abstention of the plaintiff from carrying on the particular business, that could not form a legal consideration.

(2.) The next matter that must be considered is that the defendant has derived some advantage under this void agreement and under Section 65 of the Contract Act he ought to make compensation for the same. This advantage is the use of the leases taken by the plaintiff, and the defendant should in equity pay to the plaintiff the amounts he paid in respect of the ghats. Now what did the plaintiff pay for the ghat? It is difficult on the evidence to make out the exact amount, but on the whole I think a thousand rupees will fully serve the ends of justice. The decree will be for Rs. 1,000 in favour of the plaintiff, with proportionate costs to the parties according to their success and failure in both Courts. The decree is modified accordingly. Walmsey, J.

(3.) This appeal is preferred by Parashulla Mullick, the defendant. He used to carry on business as a carrier of passengers by gahana beats between Bagharhat and Khulna, calling en route at Panighat, Jatrapur, Fakirhat, Mausha and Alaipur. In the autumn of 1316, there was a cyclone which caused him considerable loss, and shortly afterwards the plaintiff, Chandra Kanta Das, set up a rival business. The competition interfered very seriously with Parashulla s profits, and the two rivals quarrelled about the boat business and about other subjects, until in Jaishta 1317 B.S. an arrangement was made between them. By this arrangement Parashulla agreed to buy off the plaintiff for a sum of Rs. 5,400, and the plaintiff agreed to give up to Parashulla such settlements as he had obtained in regard to ghats used for embarking and disembarking passengers. The arrangement also embraced all, or most, of the other disputes between the parties, but it is not necessary to go into further details. It is common ground that the rivalry in the boat business was adjusted in this way. Lawyers advised the execution of several documents, two of which relate to the boat business. One of them is a kabala executed by the plaintiff in favour of the defendant, and other is a kistbandi bond executed by the defendant, by which he promised to pay the plaintiff a sum of Rs. 5,400 by instalments. These two documents were executed on Jaishta 13, 1317 (May 27th, 1910), and registered on the following day. The instalments set out in the kistbandi bond are Rs. 1,000 on Jaishta 25, 1317 and Rs. 200 on Joishta 31, 1317, and then an instalment every month until Kartik 1320. The defendant did not pay any instalmoent, and on June 22, 1910, the plaintiff instituted the present suit for the recovery of the whole sum due under the bond, in accordance with the stipulation that in default of payment of any one kist the whole sum outstanding should become due.