Patna High Court
Adhikanda Sahu And Ors. vs Jogi Sahu And Ors. on 2 December, 1921
Equivalent citations: 70IND. CAS.295, AIR 1922 PATNA 502
JUDGMENT Das, J.
1. I have arrived at the conclusion though not without some hesitation, that the judgment of the lower Appellate Court must be upheld. It was argued strenuously before us that the facts this case are different from the facts that were present in the case reported as Surhdeo Dass v. Mangal Chand 41 Ind. Cas. 81 : 2 P.L.J. 630 : 2 P.L.W. 140. In that case the defendant, Muni Lal, who was the gomasta of the defendants had misappropriated a certain sum of money. He happened to be a relation of the plaintiffs and the plaintiffs agreed to set off the sum of Rs. 600 due by Muni Lal to the defendants against the claim which the plaintiffs had against the defendants. Subsequently, the plaintiffs sued of enforce their claim against the defendants and the defendants claimed that they were entitled to have the sum of Rs. 600 set off against the claim of the plaintiffs. The plaintiffs maintained that the set off could not be allowed, as the consideration for the agreement was not to prosecute Muni Lal for an offence which was not compoundable. This contention did not find favour with the learned Judges who decided the case Mr. Justice Chapman, delivering the judgment in the case, said as follows: "Where the consideration for an agreement is a promise not to prosecute for an offence, which is not compoundable, the agreement is not enforceable by law, but this limitation of freedom of contract, should only be enforced where it is quite clear that the consideration for the agreement was such an illegal promise. When on a mere threat to prosecute or on apprehension that prosecution would take place an agreement has been corns to, this threat or apprehension is not sufficient to vitiate the agreement. The distinction...between the motive for coming to an agreement and the actual consideration for the agreement itself must be kept carefully in view and this care must be particularly exercised in a case where: there is a civil liability already existing and which is discharged or remitted by the agreement." Now, even if we apply thee considerations to the present case, then how does the case stand? There was undoubtedly a civil liability due, not it is true, on the part of defendant No. 1, but certainly on the par., of defendant No. 2. In the case to which I have already referred, where was no liability on the part of the person who was sought to be made liable, and, in my opinion, no distinction can be drawn between the present case and the case of Sukhdeo Dass v. Mangal Chand 41 Ind. Cas. 812 : 2 P.L.J. 630 : 2 P.L.W. 140. The plaintiff was not primarily liable in the latter case and in the case before us Adhikanda was not primarily liable. Each of them made himself liable, because there was undoubtedly a liability on the part of some body else in whom they were interested. It may be that the motive for coming of the agreement was that prosecution may not be launched in the case but, as Mr. Justice Chapman says, "the distinction between the movie for coming to an agreement and the actual consideration for the agreement itself must be kept carefully in view."
2. On a careful, consideration of the matter I am unable to distinguish this Case, from the case upon which the respondents rely. I must dismiss this appeal with costs.
Adami, J.
3. I agree.