JUDGMENT : S.A. No. 404 of 1952 is filed by the plaintiff and S.A. No. 424 of 1952 by the defendant in O.S. No. 590 of 1123 of the Cochin Munsiff’s Court. The suit is for money due as per accounts. Plaintiff is a concern known as the United Industries (Cochin) Limited, engaged in the business of exporting and selling prawns. The defendant is a trader in prawns. The defendant entered into a contract with the plaintiff for exporting prawns to Rangoon and selling them there. Plaintiff used to advance money to the defendant and the latter supplied prawns for being exported to Rangoon and sold there. From out of the sale proceeds plaintiff used to appropriate the amounts advanced to the defendant, the expenses of export and sale besides their commission. Plaintiff advanced Rs. 2,500 to the defendant on 16.11.1122 as per Ext. A letter. On a settlement of accounts Rs. 1292-11-1 was found due to the plaintiff on 13.12.1947 and the suit is for this amount and interest thereon at 12 per cent per annum. 2. The defendant admitted the dealings with the plaintiff but contended that the plaintiff’s accounts were not correct and that the amount claimed in the plaint was not due from him. After the plaintiff was examined in part the defendant filed an additional written statement with the leave of the court in which he contended that the prawns that were entrusted by him with the plaintiff for sale at Rangoon were exported under permits obtained from the Travancore Government, that such export was in violation of the law and that the contract relating to the export and sale was, therefore, void. 3. The trial court repelled these contentions and gave the plaintiff a decree in terms of the plaint. In appeal filed by the defendant the District Court held that the agreement relating to export of prawns was not illegal but that the plaintiff was not entitled to get the amount claimed towards payment of procurement commission to the holder of the export licence. S.A. No. 404 of 1952 is filed by the plaintiff from the portion of the decree of the District Court that is against him. In S.A. No. 424 of 1952 the defendant impeaches the finding of the lower appellate court that the contract relating to the export and sale of prawns is not illegal. 4. S.A. No. 404 of 1952 is filed by the plaintiff from the portion of the decree of the District Court that is against him. In S.A. No. 424 of 1952 the defendant impeaches the finding of the lower appellate court that the contract relating to the export and sale of prawns is not illegal. 4. S.A. No. 424 of 1952 may be considered first. The argument advanced on behalf of the defendant is that the contract which is the basis of the suit offends S. 23 of the Indian Contract Act in that the object of the contract was to export prawns from Cochin in violation of the Rules then force in Cochin. This contention was not raised by the defendant in the original written statement. In the additional written statement also it was not contended that the object of the contract was to export prawns in violation of the Rules and Regulations that were in force in Cochin at the time. This is what is stated in the additional written statement:- XXX The contention of the defendant was not that the object of the contract was to export prawns in violation of law but that the plaintiff exported prawns in violation of the Rules and Regulations then in force. But even if the contention regarding the illegality of the contract is not raised by the defendant, if the illegality appears from the evidence adduced in the case or is otherwise brought to the notice of the court, the court will not grant the plaintiff relief on the basis of the illegal contract. 5. In Scott v. Brown, Doreing, Monab & Co. (1892 (2) Q.B. 724) Lindley, L.J. observed: “Ex turpi causa non oritur actio. This old and well known legal maxim is founded in good sense, and expresses a clear and well recognised legal principle, which is not confined to indictable offences. No Court ought to enforce and illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himsel implicated in the illegality. It matters not whether the defendant gas pleaded the illegality or whether he has not. It matters not whether the defendant gas pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves illegality the court ought not to assist him”. The same view was expressed by Kennedy, J., in George v. Royal Exchange Assurance Corporation (1900 (2) QB 214). In Connolly v. Consumers’ Cordage (1904 (89) L.T. 347), Lord Halsbury laid down the law thus:- “It is the right and duty of the court at any stage of the cause to consider, and, if it is sufficiently proved, to act upon, an illegality which may turn upon to be fatal to the claims of either of the parties to the litigation”. His Lordship further observed:- “Their Lordships, however, do not doubt that the learned Judges had a right and that it was their duty, if they thought the facts were established, to take care that the processes of the court should not be used for the purpose of establishing claim that ought not to be permitted to be enforced in a court of justice”. This principle was followed by Mukherjee, J. in Atikulla v. Abibulla (1920 Cal. 704) Mitter, J. in Kali Kumari v. Mano Mohini (1935 Cal. 748) and Madhavan Nayar, J. in Narayana Murthi v. Ramalingom (1933 Mad. 187). 6. The question, therefore, for consideration is whether the evidence in the case discloses that the contract which is the basis of the suit comes within the ambit of S.23 of the Indian Contract Act. S.23 provides:- “The consideration or object of an agreement is lawful, unless it is forbidden by law; or is of such a nature that, if permitted, it will defeat the provisions of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the court regards it as immoral, or opposed to public policy. In each of these cases the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void”. It is argued for the defendant that the object of the agreement entered into between him and the plaintiff was to export prawns from Cochin without a licence issued by the Government of Cochin and that it was, therefore, unlawful within the meaning of S. 23 of the Contract Act. It is argued for the defendant that the object of the agreement entered into between him and the plaintiff was to export prawns from Cochin without a licence issued by the Government of Cochin and that it was, therefore, unlawful within the meaning of S. 23 of the Contract Act. Reference was made to the Notification of the Government of Cochin dated 27th March 1943 (14th Meenom 1118) which is to following effect: “In exercise of the powers conferred on them by Sub-r. (2) of R. 81 of the Defence of India Rules as made applicable to Cochin by Proclamation VIII of 1115, Government are pleased to prohibit the export of fish of all varieties including raw, dry, salted, or unsalted fish and prawns from Cochin State to any place outside the State except under and in accordance with the terms and conditions of a permit issued by the Director of Food Supplies or by any officer duly authorised by him in this behalf: Provided that the above prohibition shall not apply to the export of fish from Cochin State to British Cochin”. 7. The Defence of Indian Act, XXXV of 1939 was made applicable to Cochin by Proclamation VIII of 1115. Cl. 1(i) of the Proclamation reads: “The Defence of India Act, XXXV of 1939, hereinafter referred to as the Act, and the Rules with all the amendments to the Act and the Rules, hitherto made or hereafter to be made, shall be in force mutatis and mutandis in Cochin State”. Clause 1(ii) reads: “The Act and the aforesaid Rules shall continue in force until such time as Government may by notification in the Cochin Government Gazette, determine”. R. 81(2) of the Defence of India Rules under which the Notification purports to have been issued relates to transport of particular articles or things. According to learned counsel for the plaintiff the term ‘transport’ referred to in R. 81(2) relates to movement of articles from one place to another within the State and not to export of articles from the State to any place outside the State, and it is R. 84(3) that relates to export of articles from the State to any place outside the State. R. 84(3) specifically refers to import and export. R. 84(3) specifically refers to import and export. It was, therefore, contended that the Notification dated 27th March 1943 which purports to have been issued under R. 81(2) is ultra vires of the powers of the Government. 8. It was also contended on behalf of the plaintiff that in any case this Notification was not in force at the time when the contract in question was entered into and that it was replaced by another Notification dated 21st October 1943 (4.3.1119) which was to the following effect:- “In exercise of the powers conferred by Sub-r. (3) of the R. 84 of the Defence of India Rules as made applicable to Cochin by Proclamation VIII of 1115, and in super session of the Public and Political Department Notification No. 474 dated 8th June 1943, Government are pleaded to prohibit the export to any place outside India of any goods of the description specified in the schedule annexed to the Government of India, Department of Commerce, Notification No. 91/CW/1/43 dated 6th March 1943, as may be amended from time to time, other than those falling under the exceptions mentioned in the said Notification of the Government of India”. Notification No. 91/CW/1/43 of the Government of India referred to in the above Notification prohibited the export of prawns from India to any place outside India without a licence from the Export Trade Controller. Plaintiff’s case is that Abdul Latiff Sait who exported the prawns supplied by the defendant to Rangoon had a licence from the Export Trade Controller, Madras, for exporting prawns to Rangoon. This is what plaintiff swears as Pw. 1: "Prawns Export Trade Controller’s licence am. Government of India bpsS licence BWv. Cochin Madras Export Trade Controller BWv licence issue Madras Export Trade Controller The defendant does not swear that Abdul Latiff Sait had no licence from the Export Trade Controller for exporting prawns to Rangoon. It may, therefore, be taken that Abdul Latiiff Sait had licence from the Export Trade Controller, Madras, for exporting prawns from India to Rangoon. 9. According to learned counsel for the defendant, over and above the licence of the Export Trade Controller, a licence from the Director of Food Supplies, Cochin State, or of any officer authorised by him was also necessary for exporting prawns from Cochin as required by the Notification dated 27th March 1943. 9. According to learned counsel for the defendant, over and above the licence of the Export Trade Controller, a licence from the Director of Food Supplies, Cochin State, or of any officer authorised by him was also necessary for exporting prawns from Cochin as required by the Notification dated 27th March 1943. The Notification dated 21st October 1943 which was in force when the prawns supplied by the defendant were exported to Rangoon does not say that over and above the licence required under the Notification of Government of India, No. 91/CW/1/43 a licence from the Director of Food Supplies, Cochin State or any officer authorised by him was also necessary for exporting prawns from Cochin. As stated already, according to learned counsel for the plaintiff the Notification dated 27th March 1943, even if valid, must be deemed to have been superseded by the Notification dated 21st October 1943 under which prawns could be exported from India to any place outside India by means of a licence issued by the Export Trade Controller. 10. So far as this case is concerned, I do not think that it is necessary to decide the question whether over and above the licence of the Export Trade Controller, Madras, a licence from the Director of Food Supplies, Cochin State, or any officer authorised by him was also necessary for exporting prawns from Cochin. The only question for decision in this case is whether the object of the contract entered into between the plaintiff and the defendant was to export prawns from Cochin in violation of any law relating to export of prawns. As stated already, the defendant has no case even in his additional written statement that that was the object of the contract. This is what the defendant says in paragraph 5 of his petition dated 7.2.1125 for accepting additional written statement:- XXX This shows that when the defendant entered into the contract with the plaintiff it was not his intention to have prawns exported to Rangoon in contravention of any provision of law. According to the plaintiff, he thought that the prawns could be exported to Rangoon through a person who had obtained licence from the Export Trade Controller for the purpose; and in fact the prawns were exported by such a licence-holder. According to the plaintiff, he thought that the prawns could be exported to Rangoon through a person who had obtained licence from the Export Trade Controller for the purpose; and in fact the prawns were exported by such a licence-holder. Under the circumstances, it cannot be said that the object of the contract was to export prawns in contravention of any provision of law. Even if, on a correct interpretation of the Notifications dated 27.3.1943 and 21.10.1943, two licences were required for exporting prawns from Cochin to Rangoon, one from the Export Trade Controller and the other from the Director of Food Supplies, Cochin, or any officer authorised by him, I do not think that the contract in this case is hit by S. 23 of the Contract Act. If the contract is hit by the section, the learned Additional District Judge has clearly gone wrong in giving the plaintiff a decree for a portion of the plaint claim. I am unable to agree with the finding of the learned Judge that the object of the parties in entering into the contract in question was to export prawns from Cochin in contravention of any provision of law. Second Appeal No. 424 of 1952 is, therefore, dismissed with costs. 11. In S.A. No. 404 of 1952 the question for decision is whether the plaintiff is entitled to recover from the defendant the amount paid by him to the licence-holder as procurement commission. It cannot be seriously disputed that the plaintiff actually paid this amount to Abdul Latiff Sait for enabling the plaintiff to export prawns with the help of a licence. The accounts of the plaintiff show that this amount was paid by the plaintiff. The plaintiff also issued bills to the defendant relating to all items of expenditure including the procurement commission. The defendant accepted those bills and did not make any protest. The lower appellate court also finds that the plaintiff paid Abdul Latiff Sait a sum of Rs. 545 as procurement commission. The question is whether the plaintiff is entitled to get this amount from the defendant. So long as there was nothing illegal in exporting prawns with the help of a valid licence issued by the Export Trade Controller it cannot be said that this amount was paid for any illegal purpose. 545 as procurement commission. The question is whether the plaintiff is entitled to get this amount from the defendant. So long as there was nothing illegal in exporting prawns with the help of a valid licence issued by the Export Trade Controller it cannot be said that this amount was paid for any illegal purpose. It was a necessary item of expenditure since prawns could not be exported to Rangoon except through a person who had obtained a licence for the export. I, therefore, hold that the plaintiff is entitled to get this amount also from the defendant. The judgment and decree of the lower appellate court refusing to give the plaintiff a decree for Rs. 586-6-5 out of the plaint claim are, therefore, set aside and the judgment and decree of the trial court are restored. Second Appeal No. 404 of 1952 is thus allowed. The plaintiff will get his costs from the defendant in all the three courts.