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Kandaswami Mudali and anr. and Vs. Guruswami Pillai - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1923Mad184; 71Ind.Cas.61
AppellantKandaswami Mudali and anr. And; Parthasarathi Muddali
RespondentGuruswami Pillai
Cases ReferredBhau Abaji v. Rama Maruti
Excerpt:
workman's. breach of contract act (xiii of 1859), as amended by act xii of 1930, scope of - joint contractors. - .....certain specified consequences shall follow. there is nothing explicit in this section to. exclude joint contracts. no doubt the singular is used. but the first question is, whether there is before the court any artificer who has received an advance.3. it is quite possible that, even where a joint contract is in question, proof may be forthcoming that of the contracting persons both or either have actually or constructively received all or part of the advance, for which it provides. we cannot see any reason in section 92 of the evidence act why this should not be, proved, singe, the fact that one of two joint contracting parties actually receives the consideration; does not necessarily involve that he does not receive it, as regards part or whole, as the agent of the other, and a finding.....
Judgment:
ORDER

1. These cases come before us on application for revision of the order of the District Magistrate of Chittoor, directing further enquiry into a complaint under the Workman's Breach of Contract Act, XIII of 1859, as amended by Act XII of 1920. The whole proceedings having been brought before us in order that their propriety may be considered, it will serve no useful purpose to consider whether the District Magistrate had the power to make such an order in proceedings under the Act.

2. We, therefore, turn at once to the merits of the question raised. That question is, whether the contract on which the respondent, the employer relies, being a contract made with the two petitioners, the artificers jointly can, be the subject of proceedings under the Act at all. The Sub--Magistrate who originally dealt with the case, held, with reference to Bhau Abaji v. Rama Maruii 2 Bom. L.R. 545, that the Act deals only with cases of advances to individuals and not with cases of advances to more, persons than one jointly. We think that this statement of the purview of the Act is too wide and cannot be sustained, it regard is had to the wording employed. Section 1 of the Act XIII of 1859 provides, to quote the material portion, that 'when any artificer shall have received from any employer or from any person acting on, behalf of such employer an advance of money, if such artificer shall wilfully and, without lawful or reasonable excuse, neglect or refuse to perform such work according to the terms of his contract' certain specified consequences shall follow. There is nothing explicit in this section to. exclude joint contracts. No doubt the singular is used. But the first question is, whether there is before the Court any artificer who has received an advance.

3. It is quite possible that, even where a joint contract is in question, proof may be forthcoming that of the contracting persons both or either have actually or constructively received all or part of the advance, for which it provides. We cannot see any reason in Section 92 of the Evidence Act why this should not be, proved, singe, the fact that one of two joint contracting parties actually receives the consideration; does not necessarily involve that he does not receive it, as regards part or whole, as the agent of the other, and a finding to that effect will not necessarily involve any variation of the terms of the contract. That joint contracts, which are not expressly excluded by the wording of Section 1, maybe contemplated in it, results further from Section 5 of the Amending Act XII of 1920 which provides that the word 'contract' in the original Act shall extend to all contracts within the meaning of the Indian Contract Act, It seems to us that what the lower Court has to do in dealing with cases under the Act is to see whether as a matter of, evidence and as a matter of fact the artificer or any of the artificers before it has received an advance of money.

4. The question so far is one of fact, with which the Sub-Magistrate in his order has not dealt, because rule adopted (no doubt quite properly) the general rule sanctioned by the authority of Bhau Abaji v. Rama Maruti 2 Bom. L.R. 545. Turning to that decision, we observe first that it was given before the amendment of the Act by Act XII of of 1920. The material portion of the judgment is short and the main ground of decision is contained in the sentence: 'It cannot be said that any one of the joint recipients of the money has received an advance of money.' With all deference, it is impossible to be certain whether that can be said or not, until evidence on the point has been taken and the materials for a decision whether any one of the joint contractors did receive an advance in the particular case are available. It is said then:

It would be impossible for the Court, under Section 2, if the complainant exercised the option of requiring re-payment, to order the defendant to re-pay the money advanced to him, for it is impossible to say how much each received.

5. That again will be a matter of evidence. We are, with all respect, unable to follow this authority.

6. It has then been urged that the intention of the Legislature cannot have been to render a joint contractor liable to imprisonment when, as often may be the case, it is by the default of his joint contractor that the work is not done. Such cases are, however, sufficiently provided for by the requirement of proof of wilful default and by the provision introduced in Section 2(1), Act XII of 1920, for the exercise of the allowance in Magistrate's discretion as to the nature of the penalty to be imposed.

7. Taking this view, we decline to interfere with the District Magistrate's order, our reasons for so deciding being, to put them shortly, that the general principle enunciated by the Sub-Magistrate as the ground of his decision is not sustainable, and that each case must be dealt with en a consideration of the evidence available in it and of the applicability of the actual Wording of the Act to the cases of the individuals before the Court.


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