008-NLR-NLR-V-17-MOHIDEEN-v.-SAIBO.pdf
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Present : Ennis J. ‘and De Sampayo A.J.
MOSIl>EEN v. SAIBO
372—&.C. Kandy,
Sale of mutton—Agreement to take over the business of a stall holder andto pay Us, 100 per mensem—Is agreement illegalt—By-laws ofMunicipal Council, Kandy—Ordinance No. 6 oj 1910.
The plaintiff, who was the occupant of two stalls for the sale ofmntton in the Sandy public market, entered into an agreementwith the defendant, whereby it was agreed that the defendantshould take over plaintiff’s wholesale and retail trade in the saidstalls, and should carry on such trade' under the license issued toplaintiff ; that he should pay the rent for the said stalls and obtainreceipt in the plaintiff’s name, and that he should carry – on suchtrade under the license issued to the plaintiff ; that he shquld paythe rent for the stalls and obtain receipt in the plaintiff’s name,and that he should pay as plaintiff’s profit Bs. 100 a month toplaintiff or his agent and obtain receipts ; and that after two years,if the defendant no longer required the stalls, the plaintiff shouldtake over the stalls together with the defendant’s own business.
Plaintiff brought this action to recover, inter alia, the instalments,due under the agreement.
Heidi that plaintiff was not entitled to succeed, as the agreementsued upon was illegal, being in contravention of the by-laws of the-Municipal Council of Kandy.
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HE facts are set out in the headnote. The agreement was mPI. these terms: —
January 31, 1910.
Theagreement, executedbySena Mohamado Kany SaiboofKandy'
in favonr of Mima Knna Gulamohidin Marikar of Colombo.
I havetaken over from yonfromFebruary1, the. wholesale and
retail trade yon have beencarrying on in'goats(andsheep) in stalls.
Nos. 75-77 of the Municipal Market, Kandy, and 1 will carry on thetrade in the said stalls ofthegoats (andsheep)passedand slaughtered
on the license which is inyourname. AsprofitthereforI will pay to*
you or toyour agent at the rateof Bs.100 permonth onor before the
.30th ofthe ensuing monthandobtain receipts. In failure ofsopaying
the instalments (within the period agreed npon), I will pay at the rateof Bs. 150 for the said Bs.100.In default,too, of this,the said sum of
Bs. 150 shall 'be recoverable at law. Such "profits shall be continued to-be paid only so long as I trade in Kandy in my name (vilasam).
That after the expiry of two years from date hereof, if I do not happento requirethe said stalls 75-77,you shall eitheron noticeor within a
month’s time take them over from me,togetherwith thetrade bearing:
my mark.
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IMS.
Mohideen
Saibo
That in continuation of our agreement that I shall continue to payydu as I did, if, in. the meantime, any big traders chance to come and’• open business, both of us shall without regard to profits join andestablish the trade in riYalry. We have agreed and consented to theabove. I shall pay rent for the stalls Nos. 75-77 and obtain receiptsin your name and keep same. That in the event of your failure to comeon service of notice as aforesaid, my agreement to pay you Be. 100 amonth* as aforesaid shall become null and void (t.e., my liabUity to do soshall stand cancelled). I shall consider this as a – valid and .bindingreceipt, and you are giving me a written -agreement.
Sena Mohamado Xany Saibo.
H. J. C. Pereira, for plaintiff, appellant.
Bcuwa, K.-C., for defendant, respondent.
Cur. ado. tult.
December 3, 1913. Ennis J.—
The point for determination in this appeal is whether the agree-ment filed is contrary to public policy. Following the rule laiddown in Meyappa' Chetty v. Ramanathan1 and Fernando v.Ramanatkan2 the agreement will be unenforceable, * if it is incontravention of an expressed provision of law or a prohibitionimplied by the imposition of a penalty.
Section 202, of the Municipal Councils Ordinance, No. 6 of 1910,imposes a penalty on a person who exposes articles for sale in apublic market without the permission of the Chairman. By-laws65, 68, 69, and 70, made under the repealed Ordinance, continuedby section 2 of the Ordinance No. 6 of 1910, and by section 109.made as effectual if enacted in the Ordinance, expressly prohibitthe Occupation of a stall in the market by any person who does nothold a license, or by any agent of the licensee whose name is notendorsed on the license.
The agreement in the case was that the defendant should occupycertain stalls in the Kandy market for which the plaintiff hadlicenses. It was'urged that the defendant was the agent of- theplaintiff for this purpose, and that the failure to get' his nameendorsed on the license was an irregularity.which would not renderthe contract illegal, as the Chairman was bound to endorse theagent’s name if so-requested. I am quite unable to construe theagreement as constituting an agency. It is virtually a transfer ofthe license to occupy the stalls, and-the consideration was to be paidby the defendant to the plaintiff “ or his agent, ” which itself seemsto negative the proposition that the' defendant was the plaintiff’sagent. Not only, is it illegal for a person to. convey a stall withouta license, but the transfer of the license is also illegal, as it is expresslyprohibited by the by-laws. The agreement was therefore illegal,and the present action cannot be maintained.
I would affirm the decree and dismiss, the appeal with costs.
> {1913) 16 N. L. K. 33.* (1913) 16 N. L. R. 337.
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Db Sampayo A.J.—
The plaintiff, who was the occupant of two stalls for the sale ofmutton in the Kandy public market under a license issued to himby the Municipal Council of Kandy, entered into an agreementdated January 31, 1910, with the defendant, who appears to havebeen also engaged in the meat trade in Kandy, whereby; it wasagreed that the defendant, should take over from February 1, 1910,the plaintiff’s wholesale and retail trade in the said stalls, and shouldcany on such trade under the license issued to plaintiff; that heshould pay the rent for the said stalls and obtain receipts in theplaintiff’s name ; that he should pay as plaintiff’s profit a sum oiRs. 100 a month to plaintiff or his agent and obtain receipts; andthat after the expiration of two' years, if the defendant no longerrequired the said stalls, the plaintiff should take over .the said stallstogether with the defendant’s own business. These in substanceare the terms of the agreement which are relevant to this action.It appears that the license for the following year was also issued inthe plaintiff’s name, and the defendant occupied the said stalls andcarried on business under .the plaintiff’s license for both years. Theplaintiff brings this action alleging that the defendant failed to paythe instalments due under the agreement since June, 1911, and alsofailed to give over the said stalls and ki6 own business at the expira-tion of the two years though duly noticed, and he claims the amountof the instalments and also damages calculated on the same basis.The defendant has raised the defence that the agreement was illegal,and that therefore the plaintiff is not entitled to recover thereon.The point of the objection is that the agreement is in effect a transfertp defendant for the period of two years of the license held by theplaintiff and his right of occupation of the stalls and of sellingmutton therein in contravention of the Municipal Councils Ordi-nance, No. 6 of 1910, and the by-laws of the Municipal Council ofKandy. The by-laws in operation are those published in theGovernment Gazette No. 6,165 of January 11, 1907, and under theprovisions of the Municipal Councils Ordinance they are “ as legal,valid, effectual, and binding -as if the same had been enacted in theOrdinance. ” Now, section 202 of the Ordinance makes it an offencefor any person to sell or expose for sale any article within a publicmarket without the permission of the Chairman. By-law No. 65prohibits a person from holding, using, or occupying a stall in anypublic market without a license. By-law No. 68 prohibits a stallbolder from transferring his license to any other person. By-lawNo. 69 provides that no person other than the licensee shall use oroccupy any stall, unless such person shall be named in the license asa person authorized to sell on behalf of the licensee. By-law No. 70further prohibits a licensee from permitting any other person (excepta person authorized as in the preceding by-law provided) to use oroccupy his stall, or to sell or expose for sale any goods, without the '
1918.
Mohideen v.SaSbo
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1913. authority of the Council. The observance of these by-laws i6, of3>b smpivn course, enforced by the imposition of penalties. It is clear that theA.J. agreement between the plaintiff and the defendant contravenes notJdohidem v. on^ ^3e P°ttcy hut the express, provisions of the Ordinance and theSaibo by-laws above referred to. The argument that .the defendant maybe regarded as the agent of the plaintiff, with an Interest in thebusiness which he was to manage, cannot, I think* be maintained.The effect of the agreement is not to create an agency, but to assignthe entire business and the right of occupation of the stalls for thespace of two years in consideration of a monthly sum of Rs. 100 tobe paid, by defendant to plaintiff. Moreover, I think the absenceof the defendant’s name in the license issued* to plaintiff, as requiredby by-laws Nos. 69 and 70 in the case of an agent, is not a mereirregularity which can be overlooked. Even if such an arrangementhad been contemplated by the parties, which clearly was not, theCouncil would not be bound to insert the defendant’s name in thelicense'as a matter of course; and considering the policy of theseby-laws, the Council would probably have refused to Be a party tothe contravention in that indirect way of their own by-laws. Thequestion in this case is covered by the authority of the decisionin Fernando v. Ramanathanl. The plaintiff’s action cannot bemaintained, and has been rightly dismissed.
Appeal dismissed.
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