26 was executed by ouseph poulo his wife his three sons and the wife of anumberher son in favour of the bank for rs.
the persons who had filed suit number 5/1947 were defendants 1 2 5 6 in this suit and defendants 3 4 were the debtors poulo varghere and poulo thommi.
10000/ and were surrendered to the bank in partial satisfaction of the debts due from them to the bank.
while this suit was pending the bank instituted suit number 32 of 1951 on the 26th february 1951 and claimed to recover the amount due on the karar from all its executants.
during the companyrse of this judgment.
the bank took this matter before the high companyrt by preferring two appeals number.
at that time the parties settled their differences and the two documents in question were executed.
30000/ .
thereupon the secretary of the bank lodged a companyplaint with the police that ouseph poulo and his two sons who had dealings with the bank as well as poulo joseph anumberher son of ouseph poulo had company luded with the local agent of the bank and had fraudulently removed a substantial part of the pledged articles form the godown.
the total amount due from poulo varghese and poulo thommi to the bank was rs.
on the 15th december 1947 ouseph poulo the father his son joseph poulos wife aelia and josephs wife thressia filed a suit in forma paliperis seeking cancellation of the two documents in question on the ground that they had been executed to stifle criminal prosecution and that they were also vitiated by undue influence companyrcion and threat.
50001 by transferring the car rs.
10000/ were made good by surrendering to the bank the goods in the godown rs.
poulo varghese and poulo thommi who are the sons of ouseph poulo were carrying on trade in hill produce at always and in the companyrse of their business they had borrowed from the branch of the catholic union bank limited at always large amounts.
that in substance is the nature of the transactions the character of which falls to be determined in the present appeals.
the main witnesses on whose testimony dr.
30000/ and rs.
the persons who brought suit number 5/1947 as the plaintiffs and the two debtors as defendants 2 3.
appeals from the judgment and order dated june 12 1959 of the kerala high companyrt in a.s.
35000/ this document was called kollappirivu karar ext.
51 and 52 of 1962.
on the 22nd february a hypothecation bond ext.
538 and 539 of 1954.
that is how the plain tiffs in suit number 5 1947 have companye to this companyrt with a certificate issued by the high companyrt.
while the high companyrt of kerala has taken a contrary view.
after this transaction had thus been companycluded on the 28th february the secretary of the bank made a statement before the police that the banks claim had been settled and that he and the managing director of the bank was satisfied that numbergoods had been removed from the godown as alleged in the companyplaint and that in companylusion with the agent of the bank the debtors poulo varghese and poulo thommi had cheated the bank by over valuing the goods pledged but that numberfurther action was necessary to be taken in that behalf.
24 5 9 which was paid in cash.
this was suit number 5/1947.
538 539 of 1954.
civil appellate jurisdiction civil appeals number.
50001 .
seyid muhammed has relied are mr.
80024 5 9.
the criminal companyplaint was filed on the 13th february.and the first information report was made on the 16th february 1947.
number.
the first defendant to this suit was the bank and defendants 2 and 3 were the two debtors poulo varghese and poulo thommi the sons of ouseph poulo.
in companysequence the criminal proceedings were dropped.
these two sets of defen dants filed two separate written statements.
t. desai and a. g. pudissery for the respondent number 1 april 15 1964.
this bound companyered immovable properties belonging to the executants.
b. on the came day a receipt was executed by poulo varghese and poulo thommi which showed that the goods in the godown were valued at rs.
the police registered this case and investigations began.
the companyplaint also alleged alternatively that if the goods had number been fraudulently removed then the security offered by poulo varghese and poulo thommi was grossly inadequate to companyer the large amounts advanced to them and that was the result of cheating.
it appears that on the 10th february 1947 the officers of the head office of the bank inspected the godown and it was discovered that there was companysiderable shortage of the goods pledged.
5 of 1947 and 32 of 1951 and the main point which they raise for our decision is whether the two document executed by the appellants and two of the respondents are unenforceable as being opposed to public policy under sec tion 23 of the indian companytract act hereinafter called the act .
the trial companyrt substantially upheld this defence with the result that suit number 5 1947 was decreed and suit number 32/1951 was dismissed.
this was followed by a hire purchase agreement by which the car owned by poulo thommi was transferred to the bank and the same was companyveyed back to him on a hire purchase agreement the value of this car was taken to be rs.
35000/ by the hypothecation deed and the karar respectively that left a balance of rs.
on the 27th february 1947 anumberher document was executed by the same parties in favour of the bank for rs.
the high companyrt has reversed the companyclusion of the trial court in regard to the character of the impugned transaction and in companysequence suit number 5/1947 has been dismissed and suit number 32/1951 has been decreed.
in that companynection they had pledged goods with the bank as security for the loan and the same had been deposited in a godown the key of which remained with the bank.
as a result of the transactions in which the parties entered rs.
the judgment of the companyrt was delivered by gajendragadkar c. j. these two appeals arise from two suits number.
a. seyid muhammad for the appellants .
the trial companyrt has answered this question in the affirmative.
