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Pannichand and ors. Vs. T. Nanoo Sanker Tawker - Court Judgment

LegalCrystal Citation
SubjectContract
CourtChennai
Decided On
Reported in(1908)18MLJ456
AppellantPannichand and ors.
RespondentT. Nanoo Sanker Tawker
Cases ReferredGannan v. Bryce
Excerpt:
.....is a grandson of rauganath tawker who is said to be the founder of the firm. he knew the dancing girl, krishnaveni, and thangavelu, her father, he tells us, was a very good friend of his. on the other hand, if i find that this story is false and that the 2nd plaintiff, instead of waiting for the defendant to come and borrow the money in the ordinary course, went to the dancing girl's house at night, accompanied by her fathers good friend, vinayaka, taking the money with him, and then got the defendant to execute the note and handed over the money to him in the presence of the dancing girl and her friends, such an out-of-the-way proceeding certainly goes to show that he knew the loan was being arranged by krishnaveni's friends for her benefit, and as there is no suggestion that the..........be the founder of the firm. according to his own evidence he is now 23 and began to keep a dancing girl, krishnaveni, five or six years ago, which would be about the date of his attaining majority. he was, therefore, between 20 and 21 at the date of the suit promissory-note. in his examination-in-chief he denied that he had ever borrowed any money before, but in cross-examination he was obliged to admit that he had already borrowed from one chandick. the two other witnesses who support him are ragunath and thangavelu who describe themselves as the brother and the father of the girl, krishnaveni. the defendant states that he has recently quarrelled with krishnaveni, but the fact of her father and brother coming to his assistance would seem to show that the quarrel is not a very serious.....
Judgment:

Wallis, J.

1. This is a suit on a promissory note dated 18th day of September 1905 for Rs. 7,500 with interest at 48 per cent. The note was executed in favor of Koosalji Goolab Chand and the suit is brought in the name of three plaintiffs trading under that name. The defendant put the plaintiffs to the proof of their title to sue but there is evidence which is uncontradicted that they trade in partnership under that name and have previously sued under it, and the first issue which deals with this point must be found in the plaintiffs' favour. The defendant also pleads that the consideration for the plaint note was immoral, that there was a partial failure of consideration as he received only Rs. 5,000 and not Rs. 7,500, and that having regard to the rate of interest and the defendant's youth and inexperience the transaction was a hard and unconscionable bargain from which the defendant is entitled to be relieved. The burden of proving these issues is, of course, on the defendant. The defendant is a member of the well-known family who carry on business as jewellers in the Mount Road under the style of Tawker and Sons and is a grandson of Rauganath Tawker who is said to be the founder of the firm. According to his own evidence he is now 23 and began to keep a dancing girl, Krishnaveni, five or six years ago, which would be about the date of his attaining majority. He was, therefore, between 20 and 21 at the date of the suit promissory-note. In his examination-in-chief he denied that he had ever borrowed any money before, but in cross-examination he was obliged to admit that he had already borrowed from one Chandick. The two other witnesses who support him are Ragunath and Thangavelu who describe themselves as the brother and the father of the girl, Krishnaveni. The defendant states that he has recently quarrelled with Krishnaveni, but the fact of her father and brother coming to his assistance would seem to show that the quarrel is not a very serious one. This quarrel is put forward to explain why she has not been called. The material witnesses for the plaintiffs are Himmat Mull, the 2nd plaintiff, one Ghulab Chand, a so wear, living near the 2nd plaintiff, who says he was present when the suit note was executed in the 2nd plaintiff's house in Govindappa Naick Street, and Vinayaga Mudali. This witness is gumastah to Mr. Lakshmana Chetti, a Vakil, who does business for sowcars including the plaintiff and Ghulab Chand, and besides attending to his master's business he acts as a sort of broker introducing clients to sowcars and arranging loans for people he knows if they wanted them. He knew the dancing girl, Krishnaveni, and Thangavelu, her father, he tells us, was a very good friend of his. The defendant stated that he only became acquainted with Vinayaga on the day the promissory note was executed, but on this point I prefer the evidence of Vinayaga who states that he knew the defendant for five or six years. Practically ever since, he lived with Krishnaveni and certainly showed a remarkable acquaintance with the defendant's movements and manner of life while he was living with Krishnaveni. He also states that 7 or 8 months before the date of the note he arranged a loan for the defendant, but that the defendant did not want it, whether; as the witness suggests, the defendant had got the money elsewhere or Krishnaveui and her friends had arranged a loan for him which he did not want to reject.

2. The chief issue in the present case is whether the contract sued on was immoral, and it is quite clear that if the money was advanced by the plaintiffs to the defendant to be applied for an immoral purpose, the contract would be opposed to morality and public policy and the suit will not lie Gannan v. Bryce (1819) 3 B. & Ald. 179. It is also clear to my mind, though it was disputed by the plaintiffs' Vakil at a very late stage of the case, that it is immoral for a Hindu to cohabit with a dancing girl, and that payment made to a dancing girl with a view to the continuation of the cohabitation are immoral and opposed to public policy, and that loans made to the defendant to enable him to make such payment would be advances for an immoral purpose and could not be recovered back. If the second plaintiff's story that the loan was arranged in the first instance at his ordinary place of business and the money was paid and the note executed there is true, this would go far to prove that he was not sufficiently acquainted with the immoral use to be made of the money to disable him from recovering, especially as he took the precaution to take a receipt from the 1st defendant in which it is stated that the money was borrowed to pay debts and for expenses. On the other hand, if I find that this story is false and that the 2nd plaintiff, instead of waiting for the defendant to come and borrow the money in the ordinary course, went to the dancing girl's house at night, accompanied by her fathers good friend, Vinayaka, taking the money with him, and then got the defendant to execute the note and handed over the money to him in the presence of the dancing girl and her friends, such an out-of-the-way proceeding certainly goes to show that he knew the loan was being arranged by Krishnaveni's friends for her benefit, and as there is no suggestion that the defendant was separating from Krishnaveni and giving her money in consideration of past as distinct from future cohabitation, it would also, in my opinion, follow that lie knew the money was to be used for an immoral purpose. This is what happened according to the defendant and his two witnesses, Thangavelu and Ragunathan, who go further and speak to the money being handed over to Krishnaveni by the defendant in the presence of the 2nd plaintiff. The conclusion which I have come to upon the evidence is that the 2nd plaintiff did go with Vinayaga to Krishnaveni's house and that the note was there executed and the money handed over to the defendant in the presence of Krishnaveni and her friends, a receipt, Exhibit A, giving numbers of the notes being also taken from the defendant by the 2nd plaintiff. With the exception of a few words in the handwriting of Vinayagam, this list is admittedly in the handwriting of Ragunathan, Krishnaveni's brother, and if the list had been written out at the plaintiff's house it appears exceedingly unlikely that Ragunathan would have been employed rather than one of the plaintiff's own people to write it out. With the exception of the 2nd plaintiff none of the plaintiff's own people are called to speak to the execution of the note at his house, and it is extremely unlikely that if such an important transaction had taken place at the plaintiff's house, the 2nd plaintiff should alone of his people have been present at it. In addition to the 2nd plaintiff's evidence we have only the evidence of Ghulab Chand and Vinayagam. Ghulab. Chand's evidence is very meagre and unsatisfactory, and he did not impress me favourably. He merely happened to be at the plaintiff's house when the note was executed and he does not recollect anything about the numbers of the note being copied out in Ex. B which must have taken a considerable time, whereas he says the whole thing was over in about a quarter of an hour. I do not think his evidence can be relied on. Vinayagam's evidence is even, more unsatisfactory on this point. Although he says the note was signed in the plaintiff's house, he adds in cross-examination that the counting and such other things took place in Krishuaveni's house, which is inconsistent with the 2nd plaintiff's case which is that neither he nor any one on his behalf went to Krishnaveni's house. In re-examination he said there were two countings, one at the plaintiff's house and the other at Krishnaveni's house, and that on the latter occasion the defendant ticked off the numbers. To tick off the numbers they must have had only the list of numbers, Ex. B, which, according to the plaintiffs had been left at the plaintiff's house. Realizing his blunder he then said that the defendant noted down the numbers on a piece of paper and did not tick. This was the first suggestion that any such further list had been made, and I do not believe it. On the whole, I have no hesitation in coming to the conclusion that the plaintiff's story as to the place where the note was executed is false, and that the defendant's evidence on this part of the case is true, and further that in view of this finding taken with the rest of the evidence I am warranted in coming to the conclusion that the 2nd plaintiff knew that the money he advanced was to be used for an immoral purpose and that, consequently, the plaintiffs are not entitled to recover. In coming to this conclusion, I rely very much more on the unsatisfactory nature of the evidence for the plaintiffs than on the positive evidence for the defendant, because I am unable to accept the evidence of the defendant and his witnesses on the other part of the case, viz., that after the numbers of the notes for Rs. 7,500 had been taken down in Ex. B and it had been signed by the defendant and after the defendant had paid the 2nd plaintiff Rs. 900 in advance for interest and got a receipt for it (Ex. 3) he handed back Rs. 2,500 to the 2nd plaintiff at the 2nd plaintiff's suggestion to keep for him without taking any receipt or acknowledgment. This story is the more absurd as the defendant belongs to a well-known business family and, according to the evidence, has been brought up to take part in the business and would not have been at all likely to behave in so foolish or unbusiness-like a way. I, therefore, find, on the second issue, for the plaintiffs. I also find for the plaintiffs on the fourth issue as to whether the plaint transaction constituted au unconscionable bargain. The rate of interest, 4 per cent per mensem, is no doubt high; but Having regard to the suggestions thrown out by the defence in the course of the case that Ragunath Tawker was the founder and proprietor of the firm and that it was not owned by the joint family of which the defendant is a member, I think that if the plaintiffs had obtained judgment they would have been by no means sure of recovering their money and that the transaction was one of considerable risk. In the result, I find for the defendant on the third issue and dismiss the suit but without costs, having regard to the other defences set up.


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