HAZARIMAL JAGANNATH MARWADI AND ANOTHER Vs. EMPEROR

JUDGEMENT

(1.) THIS is a reference made to a Division Bench for the solution of two questions arising out of criminal revision 105 of 1939. The two applicants in that revision, Hazarimal and Matagulam, who are members of the Municipal Committee, Morsi, were convicted by a Magistrate, First Class, Morsi, for an offence punishable under Section 168, I.P.C, read with Section 45(1), C.P. Municipalities Act, and sentenced to payment of fines. In appeal to the Sessions Judge, Amraoti, the convictions were upheld although the fines were reduced. Section 45(1), C.P. Municipalities Act, reads as follows: If any member, officer or servant of a committee, is without the written permission of the Deputy Commissioner, directly or indirectly interested in any contract with such committee, he shall be deemed to have committed an offence under Section 168, I.P.C.

(2.) THE facts were that on 4th day of February 1938 the night soil manure collected by the Municipality was auctioned publicly, and the highest bid, that of one Motisa (Rs. 625) was accepted. Motisa being unable to pay Rs. 325 out of this amount borrowed that sum from Narayandas, who is a cousin of accused 1 Hazarimal. Narayandas paid the amount on behalf of Motisa, and Motisa being unable to repay him sold the manure itself on the same day to Narayandas. Narayandas engaged sweepers to dig out the manure and other labourers to remove it to a field held jointly by himself and his cousins Narayandas and Hemraj. He supervised the work himself while Matagulam who is his friend also engaged labourers for this work and employed sweepers of the Committee to dig out the trenches. Amongst other defences it was contended that Section 45(1) was in terms inapplicable to these facts, and the two questions now before us are framed as below: (i) Whether the transaction can be characterized as a "contract" even after the property in the manure had passed to Motisa, the highest bidder, and whether, by the purchase of the manure from Motisa after he became owner of it, applicant 1 can be regarded as having become interested in a contract with the Municipal Committee ? (ii) Whether applicant 2 who simply assisted in the removal of the stuff can be regarded as a person interested in the contract with the Municipal Committee ?

(3.) IF a suit arose out of a breach of these conditions then, in our opinion, it would undoubtedly be one under the contract which remained alive until the conditions were fulfilled. At p. 10 of his work on the Law of Contracts, Edn. 2, Venkatesa Iyer points out five ways in which they may be discharged. The first is by performance: Where a party performs his obligation according to the tenor of the contract and at the time stipulated, then the vinculum juris or the tie binding the parties is dissolved.