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TMI Blog1978 (2) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... he also executed Ex. A-1 agreement undertaking to repay the money on or before 31-3-1971. Since he failed to make the repayment, the suit had to be filed by her for the refund of the money. 3. The appellant in his written statement totally denied the averments in the plaint. He never received any money from the respondent as loan. He did not make any promise to the respondent that he would secure a seat for her son in the Medical College. He denied having executed any agreement as alleged in the plaint. He further stated that the respondent was introduced to him by one Dr. Susai. Dr. Susai and the respondent had told him that one Subramaniam of Chintadripet has undertaken to procure a seat for the respondent's son in the Medical College and had received a large sum of money. However, he could not be traced and hence they wanted the help of the appellant in tracing the whereabouts of the said Subramaniam. They could not tract Subramaniam. They therefore began to falsely implicate the appellant and finally took a promissory note executed by him by force with the help of a police officer just on the eve of his son's wedding. Within a few days of the execution of the promiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion with the help of a high police official. The burden is on him to prove this fact. There is absolutely no evidence. Even his own evidence as D. W. 1 does not help him. There is not even a proper suggestion to the respondent in her cross examination regarding the circumstances under which Ex. A-1 was got executed. No doubt, learned counsel would state that what he executed was a promissory note and not Ex. A-1 agreement and that even in Ex. A-6 dated 26-11-1972 issued on behalf of the respondent by her counsel what is stated is that the appellant had executed a promissory note on 2-1-1971. It is the case of neither party that the appellant executed two documents Ex. A-1 and another promissory note. In view of the fact that the appellant admits that he executed any one document whether it is called a promissory note or otherwise and in view of the further fact that he admits his signature in Ex. A-1 it could safely be taken that what the appellant executed was only Ex. A-1 and nothing else. I, therefore hold in agreement with the trial court that the appellant received ₹ 15,000/- from the respondent and executed Ex. A-1 agreement. 6. But the question for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law, to be determined like any other by the proper application of prior decisions. It has been indicated that new heads of public policy will not be invented by the courts for the following reasons: 1. Judges are more to be trusted as interpreters of the law than as expounders of public policy; and 2. It is important that the doctrine should only be invoked in clear cases in which the harm to the public is substantially incontestable. However, the application of any particular ground of public policy may well vary from time to time and the courts will not shrink from properly applying the principle of an existing ground to any new case that may arise. Conversely, many transactions are now upheld what in former times would have been considered against the policy of the law. The rule remains, but its application varies with the principles which for the time being guide public opinion. In fact, the adaptability of the rules of public policy derives in large part from the generality and even ambiguity, with which those rules are expressed. 8. Anson in his 'Principles of the English Law of Contract, 22nd Edition, has arranged the contracts which the courts will not enforce b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y fictions and come down on the side of justice as was done in Nagle v. Fielden, (1966) 2 WIR 1027. As I have already stated, the present case comes under the head 'agreement tending to injure the public service' mentioned in Anson's Law of Contract. Even if it is considered to be a new head of public policy, the Court should not feel shy to sponsor it. In Ratanchand v. Askar AIR 1976 AP 112 Chinnappa Reddy, J. has quoted the following passage from an article by Dr. F. A. Mann in 59 Law Quarterly, Review at page 298 : Public policy may be an unruly horse. But this does not mean that on the proper occasion a Judge must not take his courage in his hands and mount the steed. Lord Chief Baron Pollock succinctly put the law as early as 1853 in Egerton v. Earl Brownlow (1853) 4 H. L. C. 1 thus : the conclusions to which I have arrived, from the decided cases and the principles they involve, are that all matters relating to the public welfare all acts of the legislature or the executive must be decided and determined upon their own merits only; and that it is against the public interest (and therefore not lawful) for any one officiously, wantonly and capriciously. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be entitled to maintain an action to refund of the money. The learned trial Judge has granted a decree for refund of the money in favour of the respondent on the ground that she was a less guilty party. There is absolutely no evidence at all available in the case for this finding of the lower court. There is no evidence except the ipse dixit of P. W. 1 that the appellant volunteered to procure a seat for the respondent's son in the Madras Medical College provided the latter would pay him ₹ 15,000/-. It is the specific case of the respondent that she was trying for a seat for her son in the Madras Medical College and that it was in that connection that she paid ₹ 15,000/- to the appellant on the latter promising to get a seat. In the circumstances, it could only be concluded that only the respondent must have approached the appellant for necessary help in the matter of securing the seat for her son in the Medical College. Therefore, both the appellant and the respondent must be considered to be in pari delicto. Where each party is equally in fault the law favours him who is actually in possession. The maxim in pari delicto potior est conditio possidentis is founded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession of the leased property along with mesne profits or in the alternative for refund of the sum of ₹ 80,000/- and certain other sums. After the institution of the suit the relief in respect of possession of the mines became unenforceable in view of the Bihar Land Reforms Act. Therefore, the only relief which was pressed by the plaintiff was his claim for the refund of ₹ 80,000/- Alagiriswami, J., on behalf of the court held that the lease in favour of the plaintiff was contrary to the provisions of the Mines and Minerals (Regulation and Development) Act, 1948 and the Mineral Concession Rules, 1949 and as such void from its inception. Consequently, payment of the sum of ₹ 80,000/- was not made lawfully, nor was it done under a mistake or under coercion and it could not be recovered. An attempt was made before the Supreme Court to bring the case within Section 65, 70, or 72 of the Contract Act. In dealing with this contention it was observed that S. 65 makes a distinction between an agreement and a contract. According to S. 2 of the Contract Act an agreement which is enforceable by law is a contract and an agreement which is not enforceable by law is said to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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