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Hazarimal Kochnaji Vs. Khemchand Maggaji - Court Judgment

LegalCrystal Citation
SubjectContract
CourtRajasthan High Court
Decided On
Case NumberSpecial Appeal No. 2 of 1959
Judge
Reported inAIR1962Raj86
ActsContract Act, 1872 - Sections 70, 145 and 222
AppellantHazarimal Kochnaji
RespondentKhemchand Maggaji
Appellant Advocate M.M. Singhvi, Adv.
Respondent Advocate Than Chand Mehta, Adv.
DispositionAppeal dismissed
Cases ReferredThunki v. Baji Rao
Excerpt:
.....callous and indifferent to the discharge of the obligations which rest on him under the surety bond and the whole object of demanding such bond would be defeated. ' 10. therefore in the absence of any case being established by the defendant that the money paid was wrongfully paid by the plaintiff or that the latter was himself a party to any such wrong, the claim of the plaintiff could not be defeated even if it fell within section 145 of the act......supplied by c to b. c supplies to b rice to a less amount than 2,000 rupees, but obtains from a payment of the sum of 2,000 rupees in respect of the rice supplied. a cannot recover from b more than the price of the rice actually supplied.'10. therefore in the absence of any case being established by the defendant that the money paid was wrongfully paid by the plaintiff or that the latter was himself a party to any such wrong, the claim of the plaintiff could not be defeated even if it fell within section 145 of the act.11. in the result we must uphold the decision of the learned judge of this court decreeingthe suit of the plaintiff and dismiss the appealwith costs.
Judgment:

Sarjoo Prosad, C.J.

1. This appeal is directed against the judgment of Modi J. dated 1st December, 1958.

2. It arises out of a suit for recovery of a sum of money instituted by the plaintiff-respondent in this appeal. The parties belong to the Porwal caste and they happen to be relations inasmuch as the plaintiff's daughter is married to the brother of the defendant Hazarimal. It is the common case of both the parties that Hazarimal had been out-casted by his caste-men, which is known as the Porwal Sangh, some six years ago. Hazarimal was, therefore, anxious to be restored to his caste and to have the ban removed. He accordingly collected the Panchas who came from 48 different villages and consisted of nearly 150 persons at Umaidpur for the purpose of having a meeting of the Panchayat in order to remove the ban which had been imposed upon him. This was in the month of Migsar Vadi 15, Samwat 2008, which corresponds to 17th November, 1952 (and not 11th November, 1952, as noted in the judgment of Modi J.).

The case of the plaintiff is that after a discussion for about three days, the members of the Panchayat agreed to remove the ban and to restore the defendant to the Porwal caste, on condition that the defendant paid a sum of Rs. 10,225/- to the Panchayat. This money, according to the plaintiff, was to be spent on certain charitable objects connected with temples and other institutions of the community. The plaintiff's case further is that the Panchas had earlier asked Hazarimal before giving their decision to agree in writing to abide by the decision of the Panchayat, which the defendant had willingly done; and then a small committee of 23 persons selected out of the Panchas was appointed to consider the matter and it gave the decision which was adopted by the general body of the Panchayat and the ban was ordered by the Panchayat to be removed, subject to the payment of the money aforesaid. As Hazarimal had not the money in hand he asked the plaintiff to pay the above amount to the Panchayat and thereupon the plaintiff executed that very day a Hundi for a sum of Rs. 10,225/- bearing the post date of Missar Sudi 15, Samwat 2009, corresponding to 1st December, 1952 (and not 26th November, 1952).

The Hundi was drawn on the firm of Lakhaji Daulaji of Bombay and was handed over to the President of the Panchayat, Poonam Chand, immediately. This Hundi was endorsed by Poonam Chand, the President, in favour of one Sardar Mal who encashed the same on 2nd December, 1952. The defendant had agreed to reimburse the plaintiff in respect of the amount of the Hundi issued by him and to pay back the amount as soon as he reached Madras. It may be added here that both the plaintiff and the defendant carry on business at Madias, though they are residents of Rajasthan, the plaintiff being a resident of Umaidpur and the defendant of Dayalpura at a distance of about 5 miles from each other. The defendant in payment of the amount according to the case of the plaintiff sent a bank draft to Lakhaji Daulaji for a sum of Rs. 5,000/- on Poh Vadi 1st, Samwat 2009, which corresponds to 2nd December, 1952, and wrote a letter to the firm asking the money to be credited in the account of the plaintiff. The money was credited accordingly on the 3rd of December, 1952. Thereafter, the plaintiff says, the defendant did not pay the balance of the amount in spite of repeated demands and, therefore, the present suit had to be instituted on 13th of May, 1953. He claimed to recover in the suit a sum of Rs. 5,225/-by way of principal and further a sum of Rs. 235/2/-by way of interest, from 11th November, 1952, upto the date of the suit as also Rs. 119/14/-, as incidental expenses, which were said to have been incurred by the plaintiff in demanding the recovery of his dues.

3. The defendant admitted that he had been out-casted by the Panchayat and also that he had requested the Panchas at Calehatgarh, which is the headquarters of the Porwal Sabha, to collect the Panchayat for removal of the disqualification imposed upon him. It was also admitted by the defendant that as a result of convening the meeting of the Panchayat, the disqualification had been removed. He, however, denied that the removal of the disqualification or the ban imposed on him was made conditional on his paying the sum of Rs. 10,225/- as alleged by the plaintiff; or that he had ever agreed to pay the same; or that he had asked the plaintiff to pay the amount on his behalf. His case is that the Panchas had merely asked him to deposit an advance sum of Rs. 1,500/- to meet the expenses of the Panchas, so that a meeting of the Panchayat could be called and the amount spent over incidental costs of calling the meeting; and after the ban had been removed, a sum of Rs. 620/7/- was in fact returned to the defendant, after meeting the costs of the Panchas who had assembled on the occasion.

In the alternative, the plea of the defendant was that if the court accepted the case of the plaintiff that in fact a sum of Rs. 10,225/- had been paid by the plaintiff on behalf of the defendant, inasmuch as the said payment was for an unlawful purpose and contrary to public policy, the defendant could not in law be held liable for reimbursing the plaintiff in respect of the amount paid. The defendant also contended that he had no need to ask the plaintiff to execute any Hundi on his behalf and, therefore, the case of the plaintiff that any such Hundi had been given by him on account of the defendant was clearly false. The defendant further pleaded that some time in 1952, the plaintiff had been in a difficult financial situation and there was also a marriage in his family at about the same time, in connection with which the plaintiff required money and, therefore, the defendant arranged to advance a loan to the plaintiff; and the draft for Rs. 5,000/- in question which had been sent by the defendant to Lakhaji Daulaji for being paid to the plaintiff was merely by way of a loan and not for the payment of any dues of the plaintiff. The defendant also averred that he had instituted a suit for recovery of the loan advanced in the civil court at Madras and that suit was pending decision.

4. One of the main questions, therefore, which arose for determination in the case was whether the plaintiff had paid the sum of Rs. 10,225/- to the Porwal Sangh Sabha for the defendant and at the instance of the defendant; and whether the sum of Rs. 5,225/- was recoverable by the plaintiff on account of that payment as alleged. The trial court dismissed the suit. It held that the plaintiff had failed to establish that the Hundi was written by the plaintiff at the request of the defendant Hazarimal in favour of the Sabha. The court also disbelieved the plaintiffs case that Rs. 5,000/- had been paid to the plaintiff in satisfaction of the payment made on behalf of the defendant to the Sabha. Modi J. in this Court on appeal has reversed that decision and after a comprehensive examination of the evidence and the circumstances of the case has come to a definite finding in favour of the plaintiff on the material points involved. In the appeal before us, the learned counsel has challenged this decision on various grounds.

5. The decision of the trial court depending as it did mainly on an appreciation of the evidence on record would not ordinarily call for interference by this Court; but the judgment of Modi J. shows that the trial Judge was in error in his appreciation of that evidence. (Their Lordships after discussing the evidence (Paras 5, 6 and 7) concluded :) We have had the advantage of examining the decision of the learned Judge of this Court in the light of the evidence discussed before us and we entirely agree with him in the conclusion at which he has arrived and for the reasons which have been given by him.

8. The only other question which remains is about the applicability of Section 145 of the Contract Act. The learned Judge has rightly held that it was not a case in which Section 145 of the Contract Act applied, though at the same time he has been at pains to go into an elaborate discussion of the legal aspect of the matter. In our opinion it is a simple case where the plaintiff has advanced money on account and at the instance of the defendant to certain persons and claims reimbursement of the amount from the defendant. It is not a case of surety at all. In fact the plaintiff acted as an agent of the defendant in paying the amount to the Sabha; and irrespective of any question whether the Sabha had or had not any valid right to take this money from the defendant, the plaintiff would be entitled to recover the amount from the defendant which he has actually paid and of which the benefit has been taken by the defendant. If any authority is required, reference may be made to the decision of the Supreme Court in Kishanlal v. Bhanwarlal, AIR 1954 SC 500.

9. The learned counsel for the appellant has referred us two decisions on the point. One is a decision in Bhana Mal v. Bhartu Mal, AIR 1932 Lah 23. This was a case where a surety bond was forfeited on account of the surety being unable to surrender the accused for whom he stood surety. The surety then sought to recover the amount so forfeited from the person for whom he stood surety. He was held not entitled to recover on the facts of that case. The learned Judge observed that when a man stands surety for the appearance of another he should take every precaution to insure the carrying out of his undertaking and he cannot be allowed to recover any sum forfeited under the bond either from the actual person for whom he stood surety or from any other person who induced him to stand as such, for in case he is allowed to do so it would only tend to render the surety callous and indifferent to the discharge of the obligations which rest on him under the surety bond and the whole object of demanding such bond would be defeated. In the above case the surety himself was a party to the wrongful act.

The next case is a decision in Thunki v. Baji Rao, AIR 1956 Nag 160 where the plaintiff had paid a sum of money to the defendant, his cousin's husband, to obtain divorce and sued on the 'farkat' which was executed by the defendant on that account. It was held that he was not entitled to recover the amount from the cousin as it was money spent on an illegal or immoral purpose. All these eases, in our opinion, have no application to the case in hand; in the above cases the plaintiff himself was in pari delicto. Section 145 of the Contract Act is as follows:

'In every contract of guarantee there is an implied promise by, the principal debtor to indemnify the surety; and the surety is entitled to recover from the principal debtor whatever sum he has rightfully paid under the guarantee, but no sums which he has paid wrongfully'.

There is nothing to show that the plaintiff in this case had wrongfully paid any amount or was any party to any wrong of which he intended to take advantage in recovering the amount from the defendant. The illustration to the section makes the principle underlying clear:

'A guarantees to C, to the extent of 2,000 rupees, payment for rice to be supplied by C to B. C supplies to B rice to a less amount than 2,000 rupees, but obtains from A payment of the sum of 2,000 rupees in respect of the rice supplied. A cannot recover from B more than the price of the rice actually supplied.'

10. Therefore in the absence of any case being established by the defendant that the money paid was wrongfully paid by the plaintiff or that the latter was himself a party to any such wrong, the claim of the plaintiff could not be defeated even if it fell within Section 145 of the Act.

11. In the result we must uphold the decision of the learned Judge of this Court decreeingthe suit of the plaintiff and dismiss the appealwith costs.


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