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Present: Lascelles A.C.J. and Middleton J.
WILLS v. HIGGINS.
10—D. C. Kandy, 20,524.
“ Tundu ”—Coolies not registered in estate register—No discharge tickets—
Action to recover amount due on “ tundu ”—Illegal agreement—
Ordinance No. 9 of 1909, as. 22 and 23.
Plaintiff’s agent issued a “ tundu ” to the effect that a gang ofcoolies would be paid off from plaintiff’s estate on receipt ofRs. 1,313*00. The “ tundu ’’ was accepted by the defendant. Alarge proportion of the coolies were not on the estate register ofthe transferring estate, other coolies were without dischargetickets, and others with discharge tickets which were worthless,as they were issued, not by the superintendent of the transferringestate, but by a previous employer.
Held, that, inasmuch as plaintiff had failed to comply with theprovisions of sections 22 and 23 of Ordinance No. 9 of 1909, theplaintiff could not recover from the defendant the amount due fromthe coolies.
Lascelles A.C.J.—The Court will not lend its assistance toenforce an agreement which constitutes such a flagrant violationof the Statute Law of the Colony.
'J'HE facts appear in the judgment of Lascelles A.C.J.
Elliott, for the plaintiff, appellant.
Bawa, for the defendant, respondent.
Cur. adv. vult.
March 14, 1911. Lascelles A.C.J.—
On March 13, 1910, the plaintiff’s agent, Mr. Frampton, issued a“ tundu ” to the effect that Caderuwel Kangany and 37 coolieswould be paid off from Herisagalla estate on receipt of Rs. 1,313.06.The “ tundu ” was accepted by the defendant, who gave a post-datedcheque for the amount payable on April 15. Before that date thedefendant stopped payment of the cheque, and, in answer to theplaintiff’s claim for the amount, seeks to have the contract rescinded,on the ground that the defendant was induced to enter into thecontract by misrepresentation and by concealment of material factson the part of the plaintiff in various particulars which are set outin the answer. The answer also avers that the plaintiff had violatedthe provisions of the Indian Coolies’ Ordinance, 1909. The claimis now reduced to one for Rs. 549.91, representing the indebtednesspf the coolies known as Marikan’s gang, as the defendant has
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himself given a “ tundu ” for the rest of the gang and has receivedthe amount of their indebtedness, which he has placed at the *plaintiff’s disposal. The District Judge has dismissed the claim,partly, as I understand the judgment, on the ground of misrepre-sentation and concealment by the plaintiff, and partly on accountof the violation of the Ordinance.
In the view which I have taken it is not necessary to consider theparticulars in which misrepresentation and concealment have beenalleged. It is well-settled law that no one can be permitted to sueon an agreement where the whole subject is in direct violation ofa statutory enactment. If any authority be required for thisproposition, I would cite Bensley v. Bignold1 and Fergusson v.Norman2.
I now proceed to inquire whether the transaction is an infringe-ment of the Ordinance. Among the different parties of coolies whichmade up the total of 37 named in the “ tundu ” was the gang ofWeerapper consisting of the kangany aqd 13 coolies. This gang wasengaged by the plaintiff only twodays before the dateof the ” tundu,”and the plaintiff admits that he never entered these coolieson his estate register. This was a direct violation of section 22 ofthe Ordinance, and the plaintiff, by taking these men into hisemployment without entering their names on the register, was guiltyof a punishable offence. But the illegality does not- stop here.With regard to four of these men the plaintiff received no dischargetickets ; their previous employer, Mr. Holmes, the Superintendentof the Experimental Station at Peradeniya, had been unable toissue discharge tickets, for the sufficient reason that he could nottrace their antecedents. Here, again, the plaintiff committed adirect violation of section 23, and was guilty of a punishable offence.The defendant, of course, by receiving these men into his employ-v ment without discharge tickets was equally involved in the illegality.The extent to which the arrangement was tainted with illegalityplainly appears from the defendant’s evidence, “ only 35 coolies,”he states, “ were sent to me and not 37 ; and of these, 19 only haddischarge tickets, 6 had no tickets at all, and the balance hadtickets issued by another employer.” According to this evidence,which is uncontradicted, .the transaction, besides involving thetransfer of six coolies without any discharge ticket at all, providedfor the transfer, of ten others on. discharge tickets issued, not byMr. Frampton, but by a previous employer. Mr. Elliott contendedthat the matter now in dispute is merely Rs. 549.91, representingthe debt of Marikan Kangany’s gang, and that no illegality has beenproved in relation to these coolies. This is true ; but the agreementmust be regarded as a whole ; it is most improbable that thedefendant would have accepted the “ tundu ” if it had related onlyto Marikan Kangany’s gang, which consisted of an old woman as
1 $C, 76,
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kangany and three elderly coolies, with a debt of Rs. 549.91.Weerapper's men with their light indebtedness were an essentialpart of the agreement.
It is clear to me that the transaction in respect of which theagreement .was entered is in its essence a direct violation of theOrdinance. It provided for the transfer from one estate to anotherof a body of coolies, of whom a large proportion were not on theestate register of the transferring estate ; for the transfer of otherswithout discharge tickets ; and of others, again, with dischargetickets which were worthless, as they were issued, not by thesuperintendent of the transferring estate, but by a previous employer.
The Court will not lend its assistance to enforce an agreementwhich constitutes such a flagrant violation of the Statute Law ofthe Colony. I would affirm the judgment of the District Courtwith costs, the plaintiff being at liberty to draw the sum which thedefendant has placed at the disposal of the plaintiff.
I agree. The policy of sections 22 and 23 of the Indian Coolies’Ordinance of 1909 is to strengthen the security of contracts of serviceand to prevent the illicit employment of coolies known as deserters,and the object of the Ordinance would be imperfectly attained if theCourts gave effect to a contract concerned with the transfer ofcoolies where the party seeking relief has deliberately infringed thepenal clauses of the enactment.
Mar. Id, 1911
WILLS v. HIGGINS