Ambrose J:

This was an action for money had and received by the defendant to the use of the plaintiff. The allegations in the amended statement of claim were these. The plaintiff gave the defendant $61,000 on 8 January 1960, shortly before the plaintiff left for India on the defendant's promise to send the whole of the money to the plaintiff in India. The plaintiff received only $21,466.56 from the defendant. He claimed the balance, namely, $39,533.44.

The allegation in the defence as finally amended were these. In or about the beginning of January 1960, the plaintiff handed $25,000 to the defendant, and later $6,000, upon a verbal agreement that the defendant should remit the said sums to India illegally in a manner contrary to the exchange control laws of the Republic of India. The sum of $28,500 was remitted by the defendant to the plaintiff in India. A further sum of $1,500 was paid by the defendant to one Mr. Menon at the request of or with the sanction of the plaintiff. Finally a further sum of $1,000 was retained by the defendant with the knowledge of the plaintiff, in repayment of a debt due from the plaintiff to the defendant. It was agreed between the plaintiff and the defendant that if the defendant should make a profit on the illegal transaction, the defendant should be entitled to retain it. The defendant made a profit of $4,135. The agreement being illegal by the laws of India, a friendly power, no action could be maintained thereon.

The first question I considered was whether the plaintiff handed the defendant $61,000 on 8 January 1960. The plaintiff's evidence was briefly this. He was formerly employed as manager and cashier of Oriental Supply Co. at 324 Telok Ayer Street, Singapore. That business belonged to his uncle, Haniffa. On 8 January 1960, at about 11 a.m. he handed the defendant $31,000 in front of Whiteaways' Building at Battery Road, Singapore. On the same day at about 9.30 p.m. he went with one Mohamed Sultan to the defendant's house at No. 152 Jalan Eunos, Singapore, and while Mohamed Sultan remained outside on the road, he went into the front room of the defendant's house and handed the defendant another $30,000. On the same day he left for India by plane at about 10 p.m.

The plaintiff's story as to how he came to have $61,000 was as follows. His father had done business in Singapore from the Japanese occupation and gave him $35,000 before his death. He kept the money in cash at 324 Telok Ayer Street, Singapore, and also at various other places during the Japanese occupation. After his father's death in 1945 or 1946 he kept the $35,000 in Haniffa's safe in the Hongkong and Shanghai Bank, Singapore. He went to India in 1947, leaving the $35,000 in the safe in the bank. He did not invest the $35,000 because he did not trust anyone. Haniffa gave him $25,000 for managing the business of Oriental Supply Co. from 1945 to 1959. He did not receive any salary but he had free board and lodging.

It seemed to me utterly incredible that the manager of a business would keep $35,000 lying idle in a safe in a bank for 13 or 14 years instead of earning interest on the money by depositing it in a fixed deposit account. Furthermore, I accepted the evidence of AB Pintu, a clerk employed in the Hongkong and Shanghai Bank, who was called by the defendant. His evidence was that the bank started deposit boxes only in 1948; that the plaintiff never had a safe deposit box at the bank; that Oriental Supply Co. never had a safe deposit box with the bank; and that KP Mohamed Haniffa started a safe deposit box with the bank only in 1957. It seemed quite clear to me that the plaintiff told a lie when he said he kept a sum of $35,000 given to him by his father from 1945 or 1946 to 1960 in Haniffa's safe at the Hongkong and Shanghai Bank. I rejected the plaintiff's story that he had on 8 January 1960, in Haniffa's safe at the bank, a sum of $35,000 which his father had given him before his death.

As regards the $25,