TMI Blog1961 (1) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... avern was housed. As the agreement is important, we would extract below its relevant parts. X X X (1) The Foreign Liquor Tavern, Ernakulam, auctioned for the year 1124, by Mr, Krishna Menon, for ₹ 9100/-, and situated in Mr. Kopramban's buildings, Jews Street, Ernakulam, is to be, from this date, conducted by Mr. Lakshmana Iyer. (2) The license standing in the name of the former is to be transferred to the name of the latter. (3) Mr. M. Krishna Menon is to be paid rupees eleven thousand, six hundred and fifty-five, annas thirteen and pies two (Rs. 11,655-13-2) by Messrs. L. Narayana Iyer, N. Lakshmana Iyer, N, Neelakanta Iyer and N. Kalyana Rama Iyer, in daily instalments equivalent to half the amount of the day's total sales in the tavern, and the whole amount of ₹ 11,655-13-2 to, be completely paid by the end of Medom 1124. X X X (5) All the four persons, viz., Mr, L. Narayana Iyer, N. Lakshmana Iyer, N. Neelakanta Iyer and N, Kalyana Rama Iyer, are jointly and separately liable for the amounts due to Mr. Krishna Menon. S X X X (8) The trade is to be conducted properly by the aforesaid four persons. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the first issue in the case being decided early, which was done after the appellant had been examined. That issue is whether the agreement was illegal for the grounds mentioned in the defence of the suit and the suit was not maintainable; and the trial court has held that the contract transferring the plaintiff's interests in the Foreign Liquor Tavern being without the Commissioner's sanction, was illegal and void, and the suit based on the same was not maintainable. The issue having been thus decided, in favour of the defendants, the suit was dismissed. There against, the appeal before us has been filed, and because the question of law in another case similar to the one arising in the appeal had been already referred to a Full Bench, this appeal was also referred. The case, in which the aforesaid point had: been raised, has been earlier disposed of on other grounds, with the result that this Bench has to adjudicate the legal issue arising in this appeal. 5. The appellant's learned advocate has urged that having regard to Section 22 of the Cochin Abkari Act, the transfer of the licence would not he illegal, and the benefit under such an agreement would be claimabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and control of the shop, so that a contract allowing another the benefit of the licence of the shop was contrary to the policy of the law, was illegal, and could not be enforced. The next case Boistub Churn Naun v. Wooma Churn Sen ILR 16 Cal 436 where the plaintiff had; not taken out a licence for the sale of fermented liquors under Bengal Act VII of 1878, had sold certain quantity to the defendant, and has sued for the price. It was held that the Act was not framed for the protection of the revenue alone, but embraced other important objects of public policy, the agreement entered into was void, and the money under it could not be recovered. The same view has been taken in Marudamuthu Filial v. Rangasami Moopan SLR 24 Mad. 401 where the plaintiff had entered into an agreement with the defendant that they should be partners in the business of vending arrack and toddy, the plaintiff having a licence for arrack. At the time the contract was entered into, there existed a rule by the State Government under the Abkari Act that no person having a toddy licence should be interested in the sale of arrack and vice versa. In such circumstances, the court held the contract to be void f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of no avail to the liquor contractor, because both the parties to the contract were in pan delicto in procuring the illegality, and hence the plaintiff would not be entitled to claim refund of the advance licence fee and price of the stock. Reference may also be made to Fakirohand v. Bansilal AIR 1955 Hyd 28 where provisions in the Hyderabad Abkari Act and the Rules framed thereunder had restricted transfer of business of liquor shops or entering into a partnership without the previous permission of the Government, and these provisions were held, not merely for the protection of the State revenue but to be in the interests of the general public, so that the failure to observe them could not be condoned, and contracts made in contravention of these provisions were invalid. 7. Having regard to the aforesaid decisions, it is clear that courts do not decree money claimed as due under agreements which have permitted persons to do business in contravention of the Abkari Rules. The appellant's learned advocate has, however, urged that the provisions of the then Cochin Abkari Act were different, inasmuch as Section 22 of the Act did not make the partnership in contravention expr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovember 28, 1948, which has been curried out and part of the promise to pay the consideration been fulfilled, there is no collateral bargain, on which all the defendants can be made liable. Ext. A is by the 2nd defendant alone and the promise given by one defendant, assuming the promise to be actionable, can only give rise to damages against that defendant. Even then to support such a claim, different averments would be necessary, and permission to amend the plaint cannot now be given because the claim has now become barred. In any case, there is no sufficient evidence to show Ext. A having been proved in the lower court, and to fill lacuna at this late stage would not be a proper exercise of the appellate power. Nor can the agreement of November 28, 1948, be treated as of agency, because the respondents under it were not doing any business for the appellant. Nor the agreement can be of service, because it contains no provision for their carrying the business under the direction and control of the appellant. It is true that he had been given the right to enter and inspect; but such a right is conferred only when the amount due to the appellant be outstanding and, therefore, clar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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