(1) The petitioners are a partnership firm carrying on the business of building contractors the in Nagpur. They entered in to a contract with the Municipal Corporation of the City of Nagpur for Constructing 100 quarters They Constructed 50 quarters. There after disputes arose between the parties. On account of which the petitioners did not complete the work of the construction of the remaining 50 quarters. The corporation therefore carried out the remaining part of the work departmentally. On 28-8-1962 the corporation issued a notice to the petitioners under S. 374 of the city of Nagpur Corporation Act. 1948, informing the petitioners that the corporation proposed to recover to Rs. 8,225 from the petitioners on account of the non - fulfillment of the contract work of the construction of 100 quarters and that they proposed to do so by issue of a distress warrant as provided by the S. 374 read with t he S. 154 of the Nagpur Corporation Act. The petitioners made certain representations against the this notices, but these were of the no avail. Subsequently a distress warrant was also issued on 7-2-1963. The petitioners then filed the present special civil application in which they have prayed that the distress warrant dated 7-2-1963 should be quashed.
(2) The question, which arises for determination of in this application, is whether S. 374 of the city of Nagpur corporation of Ac empowers of the corporation to recover damages or any other sum which according to the corporation is due to the it on account of a breach of a contract entered into by the a corporation for carrying out a work on behalf of he corporation from whom such sum is alleged to be due, section 374 of the Act provides:
'In any case not expressly provided for in this Act or in any rule or bylaw made there under, any sum of due to the corporation on the account of any charge, cost or costs expresses fees, rates or rent or any other account under this Act or under distress and sale of the movable property of the person from whom such sum is due in the manner provided by Chapter XII'.
This section, therefore, authorizes the Corporation to recover in the manner specified any ration sum due to the corporation on account of any charge, cost or costs, expenses, fees, rates or rent or any other account under this Act or under any rule or bylaw made under the Act. The sum which the corporation claims on accounts of the breach of the contract cannot be said to be of the nature of the charge, cost or costs expresses, fees rate or rent. It can only fall under the words 'any other account under this Act or under the any such rule or bylaw.' The corporation of has no dub the authority of the enter into the contracts for the purpose of carrying out certain works, but it will b e difficult to hole that a sum ascertained or unascertained which the corporation claims or account of the breach of contract would fall under the words 'any other account under this act or under any such rule or bylaw' When a breach of contort is alleged, several question of fact and law arise for consideration, such as who broke the contract, went breach took place, whether as a result to the breach any loss has been sustained and if so how much. In the present case for instances the petitioners have alleged which petition that it was in guilty of breach of the contract. They have also alleged in paragraph 14 of the petitioner that on account of the corporation failing to perform its part of the contract, they have suffered a loss of a bout Rs. 68,000. The corporation had sent along with the notice issued to the petitioner as statement showing how the figure of Rs. 8,225 has been arrived at. Many of the items in this statement are not admitted by the petitioner. Disputed question of fact and law will, therefore have to be decided is before it can be said that any particular sum is due to the corporation. We do no think that it could possibly have been intended by the legislature that in the absence of the any express agreement between the parties the corporation of should be the judge in the own causes and determine who had broken the contract and corporation itself or the contractor, and also how much amount it should receiver on account of damages of from the contractor. In our opinion, therefore S. 374 does not empower the corporation to recover any amount such as to one it proposes to recover in the present cases.
(3) On behalf of the corporation, Mr. Dharmadhikari has relied upon Gajanan Marotrao v. Municipal commr. City of Nagpur corporation 1962, Nag LJ 535. In the case ,the corporation had given to block in a chawl the corporation had given a block in the belonging to the corporation to the petitioners, who had executed an agreement of license in the favour of the corporation of period from 3-2-1960 to 31-3-1961 The petitioner vacated the block before the expire of the period of the licenses and hands it over to the corporation. The corporation the put the block to auction, subsequently the corporation claimed from the petitioners the amount of loss which it had sustained, the amount on account of the petitioners vacating the block before the expire of the period of then licenses part of the claim relating to the amount payable to the corporation fort he period block remained unoccupied while the rest of the claim was made as and by way of the compensation being the differences between the amount which the petitioner was liable to pay for the remaining period and the amount actually recovered from the new occupant. It was held that the amount claimed by the corporation fell with in the purview of the S. 374 as being as the 'any other account under this Act' with in the meaning of S. 374. This case is clearly distinguishable from the one before us. In that case the amount was claimed in respect of property of the corporation, which had been given for use and occupation for accretion amount each month. The sum which the corporation, claimed was also an ascertained sum being the difference between what the corporation claimed was also corporation would have realized under the agreement from the petitioners if he had continued in occupation for the whole actually of it realized upon the support of amount which aurally contention that even is case in breach of buildings contracts, such as the one of the present case the committed the breach of the contract and also assess the amount of damages which might be due to it.
(4) We, therefore allow the petition and quash the distress warrant dated 7-2-1963, which the corporation had issued in order to recover Rs. 8,225 from the petitioners. The petitioners should get their costs from the respondents.
(5) Petition allowed.