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TMI Blog1913 (2) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... npaid under such decree. In his plaint the plaintiff states that he was the sole proprietor of such mills and of their contents. On thus being ousted from his property he took the course of paying under protest the sum claimed. Having thus freed his property from the attachment he at once brought the present action claiming a return of the money so paid and damages for the alleged illegal acts of the defendants. 3. In reply to the above plaint the respondent Bank filed certain preliminary pleas relating to the claim for the return of the money paid under protest, of which it is only necessary to cite the first, which was that " the suit as framed will not lie." It is admitted that this plea is in substance identical with the more usual form of plea, viz., that " the plaint discloses no cause of action." 4. The District Judge-no doubt with the laudable intention of shortening the proceedings and thereby lessening the costs- heard an argument on these preliminary pleas before requiring anything further to be done by the defendants, and on the 18th November 1902 he gave judgment to the effect that so far as the recovery of the money was concerned the plaint discl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng they reserve to themselves the right to show that these allegations are wholly or partially false in the further stages of the action should the preliminary point be overruled, but so far as the decision on the preliminary point is concerned everything contained in the plaint must be taken to be true as stated. 7. That being so it is only necessary to look at the plaint to see that according to English law the contention of the defendants is unsustainable. A wrongful interference with the plaintiff's lawful enjoyment of his own property is alleged. The plaintiff was clearly entitled to rid himself of that unlawful interference by any lawful means without thereby affecting his right to hold the defendants liable for that which they have thus caused him to do. It is true that paying under protest the sum demanded was not the only course open to him. He might have taken legal proceedings, by which sooner or later he might have rid himself of the interference. But to do so would have involved his submitting to the wrong for all the period necessary for those proceedings to be effective, and that might have been a serious aggravation of the wrong. To this he was in nowise bound ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... specially deals with the requisites of a valid contract. This chapter commences with Section of, which may be regarded as the fundamental section, and which reads as follows:- 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. 11. The sections immediately following proceed to define the terms used in this fundamental section. Sections 11 and 12 are devoted to the interpretation of the phrase " competent to contract." Section 13 deals with the term "consent." Sections 14 to 18 deal with the phrase " free consent," In so doings. 14 commences by defining when consent is said to be "free" and P. lays down that it is so when it is not caused by " coercion " as -, defined by Section 15, "or undue influence, fraud," &c. It will therefore be seen that Section 14 relates to "free consent" as an element Kai in the making of contracts. It is natural, therefore, that when "coercion" comes to be defined in Section 15 for the purposes of Section 14 it is defined as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ., under Sections 69 and 70, in order to recover from them the money paid, seeing that they would have had the benefit of the payments in the satisfaction of the decree obtained against them. It is not a matter of surprise that this contention was not pressed before their Lordships. It is obviously unsustainable. Those clauses do not refer in any way to remedies against the wrongdoer and are therefore wholly irrelevant to the question in this appeal. 16. Their Lordships have thought it proper to deal specifically with the arguments raised on the hearing on account of the importance of the questions raised. But they are also of opinion that the matter is covered by authority. In the case of Dooli Chand v. Ram Kishen Singh (1887) L.R. 8 I.A. 93 the circumstances were very similar to those in the present case, and on appeal to this Board their Lordships decided that money paid by the true owner to prevent the sale of his property under an execution could be recovered back. 17. In their judgment their Lordships say:- The objections taken to the action were that the payment was voluntary. It was made to prevent the sale which would otherwise inevitably have taken place of the mouzah ..... X X X X Extracts X X X X X X X X Extracts X X X X
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