Mohideen V. Saibo

Present: Ennis J. and De Sampayo A.J.

MOHIDEEN v. SAIBO.

372-D.C. Kandy, 21,854,.

Sale of mutton-Agreement to take over the business of a stall holder and to pay Rs. 100 per mensem-Is agreement illegal?-By-laws of Municipal Council, Kandy-Ordinance No. 6 of 1910.

The plaintiff, who was the occupant of two (stalls for the sale of mutton in the Kandy public market, entered into an agreement with the defendant, whereby it was agreed that the defendant should take over plaintiff's wholesale and retail trade in the said stalls, and should carry on such trade under the license issued to plaintiff; that he should pay the rent for the said stalls and obtain receipt in the plaintiff's name, and that he should carry. on such trade under the license issued to the plaintiff; that he should pay the rent for the stalls and obtain receipt in the plaintiff's name, and that he should pay as plaintiff's profit Rs. 100 a month to plaintiff or his agent and obtain receipts; and that after two years, if the defendant no longer required the stalls, the plaintiff should take over the stalls together with the defendant's own business.

Plaintiff brought this action to recover, inter alia, the instalments due under the agreement.

Held, that plaintiff was not entitled to succeed, as the agreement sued upon was illegal, being in contravention of the by-laws of the-Municipal Council of Kandy.

THE facts are set out in the headnote. The agreement was in P1. these terms: -

January 31, 1910.

The agreement executed by Sena Mohamado Kany Saibo of Kandy in favour of Muna Kuna Gulamohidin Marikar of Colombo.

I have taken over from you from February 1, the wholesale and retail trade you have been carrying on in goats (and sheep) in stalls Nos. 75-77 of the Municipal Market, Kandy, and I will carry on the trade in the said stalls of the goats (and sheep) passed and slaughtered on the license which is in your name. As profit therefor I will pay to you or to your agent at the rate of Rs. 100 per month on or before the 30th of the ensuing month and obtain receipts. In failure of so paying the instalments (within the period agreed upon), I will pay at the rate of Rs. 150 for the said Rs. 100, In default, too, of this, the said sum of Rs. 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 happen to require the said stalls 76-77, you shall either on notice or within a month's time take them over from me, together with the trade bearing my mark.

That in continuation of our agreement that I shall continue to pay you 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 and establish the trade in rivalry. We have agreed and consented to the above. I shall pay rent for the stalls Nos. 75-77 and obtain receipts in your name and keep same. That in the event of your failure to come on service of notice as aforesaid, my agreement to pay you Rs. 100 a month as aforesaid shall become null and void (i.e., my liability to do so shall stand cancelled). I shall consider this as a valid and binding receipt, and you are giving me a written agreement.

Sena Mohamado Kany Saibo.

H. J. C. Pereira, for plaintiff, appellant.

Bawa, K.C., for defendant, respondent.

Cur. adv. vult.

December 3, 1913. Ennis J.-

The point for determination in this appeal is whether the agreement filed is contrary to public policy. Following the rule laid down in Meyappa Chetty v. Ramanathan 1 and Fernando v. Ramanathan 2 the agreement will be unenforceable, if it is in contravention of an expressed provision of law or a prohibition implied 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 a public market without the permission

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