Muthukaruppa Mudali and Others vs Pi. Mu. Kathappudayan and Others

Napier, J.—Three points are argued in this second appeal. The first is that under the remand order of the High Court the District Judge

should have returned findings on the other issues of fact in the case. We are clear that the order was only on the question whether the contract of

guarantee was supported by consideration on which he has returned a finding. The second, that the District Judge should have passed a decree in

the terms of the supposed compromise. We accept his decision that no compromise binding on all the parties was effected, The third is, that the

District Judge has erred in law in holding that there was no consideration. It is argued that the advances made to other persons on the

recommendation of the 1st defendant were good past consideration for the contract. Section 127 of the Indian Contract Act says that anything

done, for the benefit of the principal debtor may be a sufficient consideration to the surety. Consideration is defined in Section 2. "" When at the

desire of the promisor, the promisee...has done...something, such act...is called a consideration."" I extract only that part of the definition relied on

by the appellants. In our opinion, the facts of this case do not go so far as these words require. We are not referred to any words expressing the

desire of the 1st defendant that advances should be given. In Sindha Shri Ganpatsing v. Abraham alias Vajir ILR (1895) B 755 the words are

interpreted to mean "" Express or implied request or desire"". The learned vakil for the appellants was unable to refer us to any case in which a

recommendation was held to be within the words of the section nor is any support for the proposition to be found in the commentaries of Sir F.

Pollock or Sir H. H. Shephard."" In a case reported in Juggot Indur Narain Roy Choudhry v. Nistarinee Dassee (1876) 24 W.R. 445 decided

subsequent to the passing of the Indian Contract Act, but, it may be arising before that date, there is a dictum that a mere recommendation by one

party to another to lend money to a third party does not render the first party liable to repay the loan. This of course goes no further than that there

is no promise but it is an indication of the light in which recommendations are regarded.

We may add that there can be no doubt that according to English law a recommendation alone cannot be valuable consideration. Vide

Halsbury''s Laws of England, Volume 7, paragraphs 793 and 794--consideration where is "" the promise does some act (in India it would include

''has done some act'') from which a third person benefits and which he would not have done but for the promise."" There is nothing in this, case

which comes within this definition.

The result will be that the second appeal is dismissed. There will be no order as to costs.

Sadasiva Aiyar, J.

Entirely concur in the judgment just now pronounced by my learned brother, and if I add a few words of my own, it is put of respect for the

strenuous arguments of Mr. T. Ranga Chariar on the question of law which he has argued.

The question as to what kind of. past request on behalf of the promisor followed by what kind of act on the part of the promisee forms good

consideration for the subsequent agreement by the promisor is oftentimes a very difficult question. Loose expressions in the wilderness pf English

cases are likely to be of very little use in deciding this question in any particular case arising in an Indian Court. Section 2, Clause (d) of the Indian

Contract Act says ""when, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains

from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promises

The above definition is couched in the widest possible words, but it has been always held that the ""something"" which the promisee has done cannot

be a merely illusory thing. For instance, if B asks his friend A to take Rs. 5 from A''s left-hand pocket and put it into A''s right-hand pocket and A

accordingly transfers the money from his left-hand pocket into his right-hand pocket, A suffers no detriment at all by complying with that request of

B. It would be against common sense to hold that A''s above act at B''s request will be good consideration for B''s signing a promissory note in

favour of A for Rs. 1000.

Under the English common law, the consideration "" must always be present at the time of making the promise and there is no such thing as past

consideration."" A mere past request by the promisor to the promisee to do an act even to the promisee''s detriment without a simultaneous

understanding that it is to be recompensed in the future cannot make the promisee''s act good consideration for a subsequent promise to

recompense. But the Indian Act does not seem to require any such understanding. See Sindha Shri Ganpatsingji v. Abraham alias Vajir ILR

(1895) B. 755.

As I said already it is not every kind of act on the part of the promisee, though done at the promisor''s request, which could support a

subsequent promise and the act done by the promisee must be "" good "" or "" valuable "" consideration in the sense in which those terms appear in

English Law though these words ""good"" and ""valuable"" do not appear in the Indian Contract Act which speaks only of lawful and unlawful

considerations. The "" mere doing of a thing which a person is already legally bound to do "" is, of course, no consideration for a new promise in his

favour See Manna Lal v. Bank of Bengal ILR (1876) 1.A. 309.

There is very little in the circumstances of the case to show that when on the recommendation of the 1st defendant the plaintiff dealt with other

persons, the plaintiff intended to do any service to the first defendant, intended the recommendation to have the character of a request on which he

wished the plaintiff to act to the detriment of the plaintiff.

The distinction between the recommendation by A of B to C for a certain favour to be shown to B and a request by A to G to do a service to B

may no doubt become in many conceivable cases a very thin distinction but, when we know the circumstances under which a particular

recommendation or a particular request is made, it is not usually difficult in most cases to recognise the distinction. A desire or request shows much

more earnestness and personal anxiety than a mere recommendation. In the present case, the finding that there was merely a recommendation of

the principal debtors by the 1st defendant to the plaintiff is a finding of fact which cannot be interfered with in second appeal. I therefore agree that

the second appeal should be dismissed.