Bombay High Court
The Collector vs Shri Preamraj S/O Chandrabhan Gupta on 11 June, 2010
Author: P. R. Borkar
Bench: P. R. Borkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
FIRST APPEAL NO. 446 OF 1996
1 The Collector,
Aurangabad.
2 The Executive Engineer,
Jayakwadi Project Construction Division no. 1
Aurangabad.
.. APPELLANTS.
VERSUS
1 Shri Preamraj s/o Chandrabhan Gupta
age 37 years, occ. business,
r/o Paithan,
Prop. of M/s Gupta Industries
Survey no. 14, Telwadi, Tq. Paithan
Dist. Aurangabad.
2 M/s Ambewadikar & Co
Engineering & Contractors, 212,
Samarthnagar, Aurnagabad. .. RESPONDENTS
Mr. B.V. Wagh, AGP for the appellants.
Mr. S.M. Godsay, Advocate for respondent no. 1.
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CORAM : P. R. BORKAR, J.
DATE : 11 JUNE, 2010.
th
ORAL JUDGMENT :
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2
1 This appeal is filed by original defendant nos. 1 and 2 being nd aggrieved by the decree of Rs.1,32,000/- passed by the 2 Jt. Civil Judge, Sr.Dn., Aurangabad in Special Civil Suit no. 225/1991 decided on 8-1-1996 whereby the appellants and respondent no. 2 were directed to pay the decreetal amount to respondent no. 1 / plaintiff.
2 Briefly stated, it is no more disputed that respondent no. 1 had taken contract from the appellants for supply of P.C.C. slabs for construction of canals of Jayakwadi project. It was contract mainly between the appellants and respondent no. 2. Respondent no. 1 owned a factory under the name and Style 'M/s Gupta Industries' situate at survey no. 14, Telwadi, Tq. Paithan.
It is a small scale industry manufacturing cement channels. It is also not disputed any more that respondent no. 2 entered into contract with respondent no. 1 on 23-12-1986 and took over the factory of respondent no.
1 alongwith machinery and open space etc. on monthly rent of Rs.6,000/-. It is also not disputed that no contract was entered into between the appellants and respondent no. 1. For certain reasons, the contract entered into by appellants with respondent no. 2 to supply P.C.C. Slabs was cancelled. It is also not disputed that the agreement between respondent no. 1 and 2 which was for a period of two years came to an end on ::: Downloaded on - 09/06/2013 16:00:18 ::: 3 20-9-1989 and inspite of termination of contract between respondent no. 1 and 2, two lac pieces of P.C.C. slabs manufactured by respondent no. 2 continued to remain on the factory premises owned by respondent no. 1.
Correspondence was made by respondent no. 1 both with respondent no. 2 and appellant No. 2 regarding removal of P.C.C. slabs and also for getting rent for storing P.C.C. slabs on his premises after 20-9-1989. Ultimately, respondent no. 1 filed suit for recovery of rent from 20-9-1989 till 20-7-1991 so also for damages. Total claim was for Rs.2,42,500/-. Trial court passed decree in respect of Rs.1,32,000/- as against respondent no. 2 and appellants. Being aggrieved thereby the appellants have filed the instant appeal.
3 it is the case of the appellants that there was no contract between the appellants and respondent no. 1 and as such, there is no liability to pay any rent. The contract was between respondent nos. 1 and 2 and, therefore, only respondent no. 2 is liable to pay the rent. On the other hand, trial court has taken a view that in view of correspondent produced on record between the parties to the suit, it is clear that inspite of termination of agreement between the respondents, the appellants did not take away 2 lac pieces of P.C.C. slabs and thereby utilised the premises. Not only that, ::: Downloaded on - 09/06/2013 16:00:18 ::: 4 the officers of the appellant even made correspondence with their superiors and made proposal for making payment of the rent. So, in the facts and circumstances of the case, the decree was passed.
4 The point that arises for consideration in this appeal is :
. Whether in these circumstances the appellants are liable to pay rent for a period between 21-9-1989 till 20-7-1991 ?
5 At exh. 40 there is letter written by Sub-Divisional Engineer of appellant no.2 informing the respondent no. 1/ original plaintiff that respondent no. 1 has given his factory premises to respondent no. 2 on rent. The work order issued by appellants to respondent no. 2 was being withdrawn and the P.C.C. slabs which were manufactured by respondent no. 2 were lying in the premises of the appellants. In connection therewith, certain information was required and therefore, respondent no. 1 was called to provide two copies of contract between respondent nos. 1 and 2, valuation of the land, valuation of the platform and construction. It is mentioned that after receiving said documents, it would be easier to take further action. Subject of the letter is "giving private property on rent". So this letter dt. 4-1-1990 ::: Downloaded on - 09/06/2013 16:00:18 ::: 5 clearly indicates offer by the appellants to take the premises on rent. It also shows that the appellants were aware that their property i.e. P.C.C. slabs were lying in the factory premises.
6 At exh. 41 we find another letter issued by respondent no. 1 to the appellant no. 2 and therein it is stated that the contract of rent between respondents had come to an end on 19-9-1989 and he had received rent upto 19-9-1989. No rent was received from respondent no. 2 after 20-9-1989.
Respondent no. 1 made it clear that he did not want to give his premises on rent any more but he wanted that the P.C.C. slabs which were lying in the premises may be either removed or till they are removed, he wanted rent of Rs.6,000/- per month. Said letter appears to be in response to the letter dt. 29-3-1990 issued by appellant no. 2 in which respondent no. 1 was called upon to furnish copies of contract between respondent nos. 1 and 2 and to inform how much rent was agreed and upto what date rent was paid. It is also stated specifically that the premises were required for Government use.
We find similar letter at exh. 43 dt. 11-3-1990.
7 At exh. 44 we find copy of letter dt. 23-8-1990 written by appellant no.
2 to respondent no. 2. It is stated therein that the proposal regarding ::: Downloaded on - 09/06/2013 16:00:18 ::: 6 payment of rent by appellants to respondent no. 1 was under consideration and it would be finalised as per clause no. 46 of the tender and said amount would be recoverable from respondent no. 2. We find copy of clause no. 46 of the tender produced on record and amongst other things, said clause lays down that after notice of termination of contract the contractor shall not remove from the site any plant equipment and material, the Government shall have lien on all such plant, equipment and material from the date of such notice of termination till deficiencies were corrected. It is also provided that the Engineer -in-charge may take possession of whole or part of the work, site, plant equipment and material brought thereon and cause the whole or part of the work to be completed by utilising them through the other agencies. It is no more disputed that the appellants have subsequently removed the P.C.C. slabs from the factory premises and utilised them for the Jayakwadi project. Section 70 of the Indian Contract Act is as follows :
70 Obligation of person enjoying benefit of non-
gratutious act -
. Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the ::: Downloaded on - 09/06/2013 16:00:18 ::: 7 former in respect of, or to restore, the thing so done or delivered.
8 From the abovesaid correspondence it is absolutely clear that respondent no. 1 was not ready to allow his premises to be used by the appellants gratuitously. Appellants have taken benefit of enjoyment of premises by allowing 2 lac P.C.C. slabs to be stored in the factory premises and, under the circumstances, the appellants are bound to make compensation for such enjoyment of the premises of respondent no. 1.
9 Shri Godsay, learned advocate for respondent no. 1 relies upon the ratio laid down in the State of West Bengal vs. B.K. Mondal and Sons reported in AIR 1962 Supreme Court 779 wherein section 70 of the Indian Contract Act is considered and it is observed that what section 70 provides is that compensation is to be paid in respect of goods delivered or the work done. The alternative to the compensation thus provides is the restoration of the thing so delivered or done. It is also made clear that compensation contemplated in section 70 is not same thing as claim for damages for breach of contract. Section 70 prevents unjust enrichment and it applies as much to individuals as to corporations and Government. Learned AGP Shri Wagh refers to section 40 and 55 of the Indian Cotract Act, but they are not ::: Downloaded on - 09/06/2013 16:00:18 ::: 8 applicable to the facts of the case. In view of the aforesaid position of law and the facts of the case, in my opinion, the judgment and decree passed by the trial court is legal, proper and needs no interference. In these circumstances appeal is dismissed.
( P. R. BORKAR, J.) dyb/office/fa446.96.odt ::: Downloaded on - 09/06/2013 16:00:18 :::