G.K. Mitter, J.
1. This is a suit for specific performance of an agreement in writing dated 22-7-1953 executed by the defendant, for possession of a shop room, for compensation in addition to specific performance and for other reliefs. .
2. The defendant is a monthly tenant of a shop room in premises No. 2 Lal Bazar Street, Calcutta paying rent of Rs. 110/- per month. He sublet a portion of this shop room to a firm known as National Marble Company at Rs. 60/- per month. By the agreement in suit, the defendant agreed to sublet the whole of the shop room to the plaintiff including the portion occupied by National Marble Company in consideration of Rs. 7,000/- to be paid by the plaintiff to him besides a sum of Rs. 110/-by way of monthly rent. The document provides that the plaintiff is to have no liability for taxes or any charges in respect of the holding. The important clauses of the document wherein the plaintiff is described as the first party and the defendant as the second party are as follows:
1. The second party has already sublet a portion of his tenanted room to Trilok Nath Vaish C/o. National Marble Company and shall sublet the entire room including the said portion to the first party and the said Messrs. National Marble Co. has agreed to remain as a sub-tenant under the First party on the same terms and conditions as it enjoys under the second party,
2. The rent to be paid by the first party shall Rs. 110/- per month in respect of the sublease including the portion occupied by National Marble Company.
3. The first party shall pay seven thousand rupees only as consideration to the second party for accommodating the first party in the above way and out of that sum of seven thousand rupees a sum of Rs. 101/- has already been paid as earnest money.
4. The second party shall give vacant possession of the shop room in his occupation within seven days from the date of the agreement to the first party.
5. The second party shall execute all necessary documents and deeds for enabling the first party to defend himself against the superior landlord within the said period of seven days and the transaction shall be completed within that time on payment of the balance of the said consideration.
6. On either party's failure to carry out the terms, the other party is to be entitled to compensation.'
3. The plaintiff alleges in his plaint that after the execution of the above and payment of Rs. 101/- by way of earnest, the defendant made over certain documents relating to his tenancy rights to the plaintiff's lawyer. It is, further, alleged that the plaintiff applied to the defendant on several occasions to perform specifically the agreement on his part but the defendant failed and neglected to do so. In paragraph 6 of the plaint, there is the usual averment of readiness and willingness on the part of the plaintiff to perform the agreement by paying the balance of consideration to the defendant. In paragraph 8, the plaintiff charges the defendant with negotiating with other parties to let out the said shop room on higher premium.
The plaintiff claims not only specific performance of the agreement but also damages alleged to have been suffered by reason of the defendant's wrongful refusal to act in terms of the agreement. Particulars of such damages are given at the foot of para. 9, as loss suffered by placing orders with different tea companies and being unable to deliver goods for want of the shop room and, secondly, loss suffered in respect of the profits which could not be earned for want of the shop room. In para. 10 of the plaint, the plaintiff claims refund of the sum of Rs. 101/- paid as earnest in case the Court does not direct specific performance and claims a further sum of Rs. 5,448/- as damages, full details whereof are given at the foot of the said paragraph, the most important item thereof being an alleged loss of trade amounting to Rs. 5,000/-.
4. The defendant by his written statement admits the execution of the agreement but states that he has since discovered that the agreement is void, illegal and contrary to law and as such unenforceable. His defence on the facts is that the plaintiff was never ready and willing to perform the agreement on his part and failed to pay the balance of the consideration money stipulated for in the agreement. The defendant also denies the plaintiff's claims to damages under various heads mentioned in the plaint.
5. The main legal defence urged on behalf of the defendant was that the agreement provided for to payment of Selami and as such was hit by the West Bengal Premises Rent Control Act of 1950. It was argued that the stipulation for reception of Selami was one which the law could not enforce and as such the agreement should be adjudged to be void.
6. The following issues were settled for determination:
1. Does the contract provide for payment of Selami? If so, is the contract valid?
2. Has the plaintiff been ready and willing to perform his part of the agreement?
3. Is the plaintiff entitled to specific performance of the contract mentioned in the plaint?
4. Is the plaintiff entitled to any damages in addition to and/or in lieu of specific performance?
7. Various documents have been disclosed by the parties to this suit and a brief marked as Ex. A was put in by consent of parties. I propose to deal with only such of them, as, I think, are relevant for the purpose of this suit. The first document is the memorandum of agreement which has already been dealt with. The next document is a receipt bearing date 22-7-1953 signed by the defendant acknowledging payment by the plaintiff of Rs. 101/-as advance for one room at No. 2, Lal Bazar Street, Calcutta. The third document is an affidavit affirmed by the defendant before the Presidency Magistrate. Calcutta to the effect that he was the sole proprietor of Messrs. N. Chongdar & Co. and that he has no partner or sharer in the said business.
8. Under the terms of the agreement, the parties had to perform their respective parts within seven days from the 22nd of July. The documents which I have already mentioned do not show what was done within that period but on 10-8-1953, the defendant wrote a letter to the plaintiff in the following terms:
'I am sorry to inform you that you have failed to comply with the terms of the agreement on your part within the specified time and as such the agreement is cancelled and the sum of Rs. 101/-given by you as advance is hereby forfeited and you shall be held responsible for damages and loss suffered and to be suffered by me.
Further, please send back immediately the following documents which were handed over to you for your inspection.'
9. This was replied to by the defendant's (plaintiff's) lawyer, Durges Prosad Das, on 12-8-1953. The relevant portion thereof is as follows:
'My client has been harassed and given bluff by you day after day and there are documents to show how you prolonged the matter. You havetaken Rs. 101/- as earnest money from my client and subsequently my client paid to you and incurred the following expenses in fulfilling his part of the contract:
Paid toyou for dealing the rents of June and July and for paying trade license
Paid toyou for removal costRs.
Eightempty boxes for packingRs.
Taxihire and cooly chargesRs.
Typeand expenses for affidavitRs.
Costsincurred for JocksRs.
You promised to hand over to me the up-to-date rent receipts and other papers for making possible the establishment of direct relation with superior landlord for which you agreed to arrange. But up to this date you are avoiding my client with the intention now expressed in your said letter. I hereby demand of you the specific performance of the contract within 2 days from the date of receipt of this letter.'
10. On receipt of this letter the defendant caused an answer to be sent through one M. P. Agarwalla a lawyer on 22-8-1953 stating that the defendant had vacated the shop in question but the plaintiff had failed to pay the amount and keep to the other terms of the agreement. The receipt of earnest money amounting to Rs. 101/- was admitted but the payment of the other sums by the plaintiff was denied. It was further mentioned that there never had been any talk or arrangement for making the plaintiff a direct tenant of the superior landlord. No further correspondence followed and the suit was instituted on 19-8-1953 and an injunction was obtained restraining the defendant from transferring his interest in the property pending the hearing of the suit.
(His Lordship discussed the evidence adduced by both the parties and proceeded):
11-17. On the merits of the case, therefore, there can be no doubt that the plaintiff was never ready and willing to perform his part of the agreement and as such is not entitled to specific performance thereof. It is my belief that the plaintiff wanted to get possession of the shop room by hook or crook and then probably to take his stand on the plea that the payment of Rs. 7,000/- would amount to payment of Selami and as such in contravention of the West Bengal Premises Rent Control Act.
18. The above finding would be sufficient to dispose of the suit hut in deference to the arguments advanced before me I propose to deal with the question as to whether the agreement envisaged payment of Selami and as such was one which the law would not enforce. There is no definition of the words 'premium' or 'selami' in the West Bengal Premises Rent Control Act but the word 'premium' has been defined in the Transfer of Property Act, and in the absence of any definition of that word in the West Bengal Premises Rent Control Act, I think the definition in the Transfer of Property Actshould govern this case. Section 105, T. P. Act provides as follows:
'A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in, consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.' The rent in this case fixed by the agreement is Rs. 110/- per month and the sum of Rs. 7,000/- payable by the plaintiff to the defendant is described in the agreement 'as consideration to the second party for accommodating the first party in the above way.' What has gone before in the agreement merely shows that the second party, i.e., the defendant had agreed to let out his room at 2 Lall Bazar Street by way of sublease to the first party on the terms and conditions mentioned in the lease, that National Marble Co. was to remain as sub-tenant, that the plaintiff was to have the occupation of the shop room with the sub-tenant National Marble Company and that he would have no liability for taxes and charges in respect of the holding. The words 'for accommodating the first party in the above way' can therefore only mean the granting of the sublease to the plaintiff and putting him in possession of the shop room.
This is nothing more than what any landlord would have to do to his tenant. The landlord, i.e., the defendant was not called upon to do anything unusual, i.e., he was not to render any special service to which the payment of Rs. 7,000/- could be ascribed, and the consideration for the lease is clearly premium in terms of Section 105, Transfer of Property Act.
19. Inasmuch as the document dated 22-7-1953 provides for the payment of selami, the agreement contained therein was contended to be unlawful. To consider this aspect of the case it is necessary to look into a few provisions of the West Bengal Premises Rent Control Act, 1950. Those to which my attention was drawn, are as follows:
Section 4: 'No person shall, in consideration of the grant, renewal or continuance of a tenancy of any premises,
(a) claim, receive, or invite offers or ask for the payment of any premium, selami, fine or any other like imposition in addition to the rent, or
(b) except with the previous written consent of the Controller, claim or receive the payment of any sum exceeding one month's rent of such premises as rent in Advance.' The relevant words of Section 7 are as follows:
Section 7: (1) Where any sum has been paid or deposited on or after the date of the commencement of this Act in respect of the occupation of any premises,
** ** **
(b) as premium, selami, fine or other like imposition in addition to the rent or as rent in advance, the claiming or the receiving of which is
prohibited under the Act.
** ** **
the Controller may, on application made to him in this behalf at any tune within a period of six months from the date of such payment or deposit by the tenant by whom such payment or deposit was made, order the landlord by whom such payment was received or to whose credit such deposit was made, to refund such sum to such tenant or, at the option of such tenant, order the adjustment of any sum so paid or deposited in any other manner.'
'Section 33(1): Whoever knowingly--** ** **
(b) receives, whether directly or indirectly, or invites offers or asks for, any premium, selami, fine or any other like imposition in addition to the standard rent, except as provided in Section 5 shall, on the complaint of the party aggrieved or of the Provincial Government, be liable --
(i) in the case referred to in Clause (b) on the first occasion, to a fine which may extend to Rs. 2000/-and on a second or subsequent occasion in regard to the same or any other premises, to a fine which may extend to Rs. 5000/-.' Section 40 provides as follows:
'(1) Whoever knowingly accepts or obtains or attempts to accept or obtain, whether directly or indirectly, any sum or valuable thing or any pecuniary advantage on account of any premium, selami or fine in addition to the standard rent, except as provided in Section 5, shall also, on conviction in a Criminal Court, be punished with imprisonment for a term which- may extend to two years or with fine or with both and, without prejudice to any other method of recovery, the Court may order the amount paid to the value of the consideration given to be repaid to the person by whom the payment was made or the consideration given,' It is not necessary for the purpose of this suit to look into the provisions of Section 5 of the Act. The question before me is whether in view of the above provisions contained in the West Bengal Premises Rent Control Act the agreement in suit is unlawful and void within the meaning of Section 23, Contract Act. Section 23 provides as follows;
'23. The consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.'
It is also necessary to bear in mind the wording of Section 10, Contract Act and several definitions given in Section 2. The relevant portion of Section 10 is as follows:
'10. All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object and are not hereby expressly declared to be void,' and by Section 2(g) 'An agreement not enforceable by law is said to be void', and by Sub-section (h) 'an agreement enforceable by law is a contract'; the definition of' 'consideration' for the purpose of the IndianContract Act is given in Sub-section (d) of Section 2 which reads as follows:
'(d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing or does or abstains from doing, or promises to do or to abstain from doing, something, such act of abstinence or promise is called a consideration for the promise.'
In my view there can be no doubt that the West Bengal Premises Rent Control Act by Section 7 prohibits the claiming or receiving of any premium or selami in addition to the rent, for the grant, renewal or continuance of a tenancy, and in the present case the payment of Rs. 7000/- is a part of the consideration for the grant of the sublease envisaged by the agreement. There can be no doubt that if this agreement was allowed to be put through or enforced it would defeat the provisions of the West Bengal Premises Rent Control Act.
20. The law reports are full of cases where it has been held that no agreement which would defeat the provisions of any law, would be enforced by the Court but I propose to take note of a few only of such decisions relating to dealings between landlords and tenants for showing the wide variety of cases where the principle has been applied. In the case of -- 'Kamala Kanta v. Kalu Mohammad', 3 Beng L. R., (A.C.) 44 at P. 45 (A), it was held that an agreement which provided for the lessee collecting an illegal cess from raiyats and paying the same over to the zamindar was ab initio void as being in contravention of Section 10 of Bengal Rent Act 10 of 1859. The impugned document provided
'we have been getting parobi (festival cess) paid from the village at Rs. 175/-. The durizardar has nothing to do with the said Parobi. We shall pay you the same year after year.'
It was held by a Bench of this Court (Norton and Jackson JJ.) that the object of the contract was to provide for the collection and payment of an illegal cess prohibited by Section 10 of Act 10 of 1859. The said section provided as follows:
'Every under-tenant or raiyat from whom any sum is exacted in excess of the rent, specified in his pattah, or payable under the provisions of this Act whether as abwab or under any other pretext, and every under-tenant, raiyat or cultivator from whom a receipt is withheld for any sum of money paid by him as rent shall be entitled to recover from the person receiving such rent damages not exceeding double the amount so exacted or paid.'
The section, in express terms, did not forbid the payment of any abwab or anything in excess of the rents specified in the puttah but any such payment called for the levy of a penalty on the recipient. A similar case arose in -- 'Kristodhone Ghose v. Brojo Gobinda', 24 Cal 895 (B). In this case by the kabuliyat executed the rayat undertook to pay an enhancement which exceeded more than two annas in the rupee, which was forbidden by Section 29, Bengal Tenancy Act 8 of 1885. It was contended before their Lordships Maclean C. J. and Banerjee J. that the contract was severable and that the good part could be severed from the bad and a decree given for the good part. This contention was negatived by the learned Judges who held that
'the object of the Bengal Tenancy Act was to protect the raiyat. If the appellant's condition besound, the landlord could enter into an agreement for an enhanced rent far beyond the statutory limit, run the risk of the raiyat subsequently disputing it, and if he did then ask the Court to give him an enhancement within the statutory limit. To adopt this view would be very injurious to the raiyat. Here the contract is to pay the enhanced rent; the contract, qua the payment of the enhanced rent does not consist of two parts. How is the Court in this case to sever the illegal from the legal part of the contract? If it cannot do so the contract is void. If the appellant's argument be well founded, it would have the consequence I have indicated; he, in fact, is asking us to make a new contract for the purpose.'
Their Lordships upheld the contention that the agreement contravened the provisions of the Bengal Tenancy Act and having regard to Sections 23 and 24, Contract Act the agreement was declared to be void. In the case -- 'Saleh Abraham v. Manekji Cowasji : AIR1924Cal57 a suit to recover vacant possession of the upper flat in No. 11 Bow Street, Calcutta was thrown out on the ground that the agreement in suit was entered into with the sole object of defeating the provisions of the Rent Act which was then in force. One Mr. Cohen, who was the owner of the property wanted a rent higher than that allowable by the Rent Act from the defendant Manekji Cowasji. He could not obtain possession of the premises himself. So he granted a lease to the plaintiff Saleh Abraham, who it was thought, might be able to obtain possession of the premises inasmuch as he wanted to occupy them and who would pay Mr. Cohen the higher rent. The Court found that the plaintiff was a party to this arrangement and was willing to pay a rent higher than what could be lawfully recovered by Mr. Cohen by reason of Rent Act. Delivering judgment Sanderson C. J. at p. 59 observed:
'The plaintiff also in my judgment must have known that the result of his taking the lease from Mr. Cohen would be to eject the defendant from the premises, if effect could be given to his lease. He must have known further that the rent which he agreed to pay was in excess of that which Mr. Cohen could lawfully demand from the defendant by reason of the provisions of the Rent Act. The question is whether under these circumstances the lease granted by Mr. Cohen to the plaintiff could be enforced.'
On the finding which I have already mentioned his Lordship held that the object of the lease was unlawful and as such the lease was void. Richardson J. who delivered a separate judgment concurred with the learned Chief Justice. The case of --'Shavakshaw Dinshah v. Motor Union Insurance Co.,' AIR 1924 Bom 295 (D), is also in point. In this case the insurance company was in need of accommodation for their office, being under an obligation to leave the premises then occupied by them in the year 1920. They obtained a lease of certain premises in Tamarind Lane in 1920 which was executed in August 1920. Subsequently the defendant appellant agreed to take up this premises from them. Owing to certain differences between the parties in respect of the agreement of the lease of the premises in Tamarind Lane the plaintiffs filed the present suit against the defendant claiming various reliefs.
The plaintiffs were not satisfied with the premises in Tamarind Lane and the defendant was in a position to secure to them suitable premises in the Nawab building on Hornby Road. There was correspondence between the parties and as a result of that correspondence there was an agreement between them by which the defendant was to procure to the plaintiff a lease for occupation of the premises in the Nawab building at the time occupied by the Central Bank of India Ltd. In substance the defendant agreed to get those premises vacated by the Bank and to secure the same for 10 years to the plaintiffs in consideration of their paying the standard rent of Rs. 225/- per month and their agreeing to pay Rs. 2275/- per month for a period of 10 years, making a total of Rs. 2,73,000/- to the defendant for his trouble in securing the premises to the plaintiff.
The defendant contested the plaintiff's claim and made a counter claim in respect of the agreement with them in respect of the Nawab building. Their Lordships held that the agreement was open to the objection based on the provisions of Section 8, Bombay Rent (War Restrictions) Act (2 of 1918) which provided:
'It shall not be lawful for any person in consideration of the grant, renewal or continuance of a tenancy or any premises to require the payment of any fine, premium or any other like sum in addition to the rent.' Their Lordships observed,
'In the present case it is clear that the rent to be paid for the premises was Rs. 225/-. The further sum to be paid to him is stated to be in consideration of the defendant's obligation as indicated in the letter of April 8. That sum was Rs. 2,73,000/-. It is clear that if this payment is over and above rent in consideration of the grant, renewal or continuance of a tenancy the agreement would be unlawful. It is urged on behalf of the defendant that Section 8 has no application to this case because the defendant has nothing to do with the premises, that he was a third party who undertook to take certain trouble for the plaintiff in the way of securing a tenancy of certain premises and that therefore the agreement is outside the scope of Section 8.' It was further held that
'it was only a device to get a rent of Rs. 2275/-per month for the premises of which the defendant was at that time a sub-lessee and of which he expected to get a lease for a further period so as to make up a total period of ten years, in addition to the standard rent.'
In the result their Lordships held that the provision for monthly payment of Rs. 2275/- extending over a period of 10 years was unlawful.
21. I myself never entertained any doubt about the soundness of the contention urged on behalf of the defendant. But it was pointed out to me that there was a judgment to the contrary given by my learned brother P.B. Mukharji J. in the case -- 'Surendra Chandra v. Sm. Panchee Bibi', 83 Cal L J. 328 (E).
22. This was a case under the Calcutta Rent Ordinance of 1946. The suit had been filed for a declaration that the plaintiff was a monthly tenant in respect of premises No. 21.0/2 Cornwallis Street,and that he was entitled to remain in possession thereof as such tenant. The only issue which was raised before his Lordship was whether there was an agreement between the plaintiff and the defendant whereby the defendant became a monthly tenant of the premises at a rent of Rs. 35/- per month in the circumstances alleged in paras. 3 and 4 of the plaint. It appears that Rs. 500/- had been paid as selami by the plaintiff to the defendant, and it further appears that
'on a request from the Court the plaintiff argued the question whether the contract as pleaded in para. 3 of the plaint was illegal on the ground that Rs. 500/- was paid as selami which was not permissible under the Calcutta Rent Ordinance, 1946 which was operative at the time when the suit was filed, and if that was so whether relief could be granted on the basis of such illegal agreement.'
Sections 6 and 9 of the Ordinance to which his Lordship's attention was drawn were similar in terms to Sections 4 and 7, West Bengal Premises Rent Control Act of 1950. Section 6 of the Ordinance provided;
'No person shall claim or receive, in consideration of the grant, renewal or continuance of a tenancy of any premises, the payment of any premium, selami, fine or any other like sum in addition to the rent, or the payment of any sum exceeding one month's rent of such premises as rent in advance.'
The material portion of Section 9 reads as follows:
'9(1) Where any sum has whether before or after the commencement of this Ordinance, been paid in respect of occupation of any premises after the commencement of this ordinance --* * *
(b) as premium, selami, fine or other like imposition or as rent in advance, the claiming or the receiving of which is prohibited under this Ordinance,
* * *
The Controller, may, on application made to him in this behalf at any time within a period of six months from the date of commencement of this Ordinance or from the date of such payment, whichever is later, by the tenant by whom such payment was made, order the landlord by whom such payment was received to refund such sum to such tenant, or at the option of such tenant, order the adjustment of any sum so paid in any other manner.'
Clause 19 of the Ordinance was similar to Section 33 of the present Act. The material portion of Clause 19 reads as follows:
'19(1) Whoever knowingly receives, whether directly or indirectly, any sum on account of the rent of any premises in excess of the standard rent, or any premium, selami, fine, or any other like sum in addition to the standard rent, except as provided in Section 7, or any sum as rent in advance in excess of one month's rent * * * shall, on the complaint of the party aggrieved, be liable, on the first occasion, to a fine which may extend to two thousand rupees, and on a second or subsequent occasion, in regard to the same, or any other premises, to a fine which may extend to five thousand rupees, to be imposed after summary inquiry by the Controller.' delivering judgment, his Lordship observed at p. 337 the report:
'I accept the argument that Sections 6 and 9 of the Ordinance do not make the contract of tenancyillegal but provide that the Selami shall not betaken, and if taken, would be refundable when claimed within six months, and these provisions therefore indicate that while Selami, if taken will be refunded, the contract of tenancy will continue. As more than six months as contemplated in Section 9 of the Ordinance have elapsed no question arises of that Selami of Rs. 500/-, which the plaintiff says he had paid to the defendant being refunded.'
It is true that Sections 6 and 9 of the Ordinance did not in express terms make the contract of tenancy illegal but it does not appear whether the argument was advanced, as it was before me, on the basis of Section 23, Contract Act that the receipt of Selami in such a case was forbidden by law. I have no-doubt that if the contract was still in its executory stage the performance thereof which would direct the payment of a Selami would defeat the provisions of the West Bengal Premises Rent Control Act of 1950.
23. Moreover, in my view, Section 6(h), Transfer of Property Act expressly forbids such a transfer being made. Section 6(h) runs as follows--'No transfer can be made (1) in so far as it is-opposed to the nature of the interest affected, thereby, or (2) for a unlawful object or consideration within the meaning of Section 23, Indian Contract Act, 1872' or (3) to a person legally disqualified to be transferee.'
24. If the receipt of a Selami forms a part of the consideration for the transfer and if such payment is forbidden by law, or if permitted, it would defeat the provisions of any law, Section 23, Contract Act would be attracted and it seems to me, that the Court would give no assistance to the parties to such transfer. No transfer of property has taken place in this case and I would certainly refuse to grant specific performance of an agreement which would run counter to the provision of law contained in Section 6(h), Transfer of Property Act,
25. Mr. Dutt arguing the case on behalf of the plaintiff raised several contentions which, to my mind, are of no substance. He contended on the basis of the judgment of P. B. Mukharji J. in the case just referred to that the contract providing for payment of premium was not an illegal one, that Section 4, West Bengal Premises Rent Control Act of 1950 only prohibited the receipt of premium by the lessor and that there was no absolute bar on the part of the lessee paying the premium and therefore, the provisions of Section 23, Contract Act were not attracted. He further contended that before a person could be prosecuted for having received Selami, directly or indirectly, it must be shown that he had done so knowingly.
This too, in my view, has no substance. Sections 33 and 40 merely show that there must be mens rea on the part of the transgressor of law, that he was flouting the provisions of law and unless that could be brought home to him he might escape punishment under these sections but whether he did so or not, clearly the law forbids the receipt of selami and any contract which provided for the receipt of selami would come within the mischief of Section 23, Contract Act.
26. Mr. Dutt also contended that the Legislature did not forbid the receipt of selami by a person inthe position of the defendant in this case, who was not himself the owner or the landlord of the premises but was a lessee, and according to Mr. Dutt there was no bar to a person receiving selami by granting sublease of the property. This argument is clearly fallacious. In my view, the law does not make any distinction between the case of a lessee and a sub-lessee and Section 4 prohibits the receipt of selami by any person as a condition of the grant, continuance or renewal of a tenancy. If the agreement in this case was to be given effect to, the plaintiff would become a tenant under the defendant and I can see no valid reason for excluding such a tenancy from the operation of Section 4 of the Act, In 'Shavakshaw Dinshaw Daver's case' (D), a similar argument was rejected by the Bombay High Court.
27. Mr. Dutt contended that payment of premium or selami was a question of fact and that no evidence had been adduced in this case to show that the payment of Rs. 7000/- was to be treated as selami by the parties and that in the absence of such evidence I could not come to the conclusion that the payment of the said sum would be by way of selami. It is true that there is no oral testimony on this point before me, but construing the document there can be no doubt that Rs. 7000/- agreed to be paid, could be nothing else than a part of the consideration for the grant of the sublease. The agreement provides for the payment of rent and Rs. 7000/- in addition thereto. The payment of this sum, in my opinion, can only be treated as payment of premium or selami. I have no doubt that the plaintiff himself thought so as he complains in his plaint that the defendant was negotiating with other parties to let out the said shop room on a higher premium. The plaintiff might have been cross-examined about it but the absence of such cross-examination, makes no difference.
28. My answer to the issues raised in this case are as follows:
Issue No. 1: The agreement does provide for payment of selami. As such it is void as being in infringement of Section 23, Contract Act.
Issue No. 2: The plaintiff has not been ready and willing to perform his part of the agreement.
Issue No. 3: The plaintiff is not entitled to specific performance of the contract mentioned in the plaint.
Issue No. 4: In the view I have taken of the case the plaintiff is not entitled to any damages either in addition to or in lieu of specific performance.
29. The suit must, therefore, be dismissed withcosts.