G.K. Misra, J.
1. Defendant 1 is the petitioner. Plaintiff's case is that the defendants were the joint proprietors of the Grand Hotel, Puri, that they had taken water connection to the said hotel and are liable to pay water rates to the plaintiff. The defendants did not pay the arrear water rate of Rs. 335.86nP. from October 1952 to March 1960. Due to default the water connection was cut off on 31-3-1960. The suit is for recovery of the arrear water rate of Rs. 335-86nP.
2. Defendant-2 was ex parte. Defendant-1 alone filed written statement and contested the suit. He admits that he and defendant-2 were joint proprietors of the hotel, but asserts that he is not liable to pay the arrears as the plaintiff did not recognise him as a tenant in respect of the water rate and that he did not take the water connection. The maintainability of the suit was also questioned.
3. The learned S. C. C. Judge held that the defendants were joint proprietors of the Grand Hotel to which water connection had been taken by both, that the suit was maintainable and that though defendant-2 alone stood in the records of the plaintiff as a tenant for water connection in respect of hotel, defendant-1 was also liable under Section 70 of the Contract Act.
4. Mr. Ram urged two grounds:
(i) The suit is not maintainable at the instance of the plaintiff, the Chairman, Puri Joint Water Works Committee, as necessary authorisation has not been given by the Puri Municipality tinder the Municipal Act; and
(ii) There is no privity of contract between the plaintiff and defendant-1, and he is not liable under Section 70 of the Contract Act.
5. The first contention involves a question of fact and the plea was not taken in the written statement. It cannot be raised in revision.
6. In order to appreciate the second contention, certain facts need be mentioned. The partnership deed (Ex. 2) dated 9-4-1958 shows that initially the Grand Hotel was being managed by Madhusudhan Sahu (defendant No. 2) and one Harekrishna Swain under a partnership. Due to difference of opinion between the two partners, there was dissolution of that partnership. During that time, water connexion had been taken to the Grand Hotel in the name oi defendant-2. Admittedly, defendant-2 is the recorded tenant under the plaintiff. When the new partnership of the defendants was constituted on 9-4-1958, a condition was incorporated in paragraph 3 of Ex. 2 that the hotel would continue to run in the same house, that all taxes, such as municipal tax, sales-tax and water-tax etc. would stand in the joint names of the defendants and that both would be liable to pay.
On 21-3-1959, defendant No. 1 made an application to the plaintiff that his name should be recorded as a tenant jointly with defendant-2 in respect of water-tax payable by the Grand Hotel. The Chairman passed an order on 1-6-1959 asking defendant No. 1 to produce the municipal valuation certificate and other documents regarding partnership and issued notice to the defendant-2 inviting objection, if any, on 31-7-1959, the plaintiff passed the following order (Ex. 8):
'Application of one Jaigopal Patnaik, Managing partner Grand Hotel, Puri dated 21-3-1959 is considered. He has claimed to enter his name in the consumption register as a consumer in place of Sri Madhu Sudhan Sahu the previous sole proprietor.
Notice has been sent on 9-7-1959 to said Madhu Sudhan Sahu inviting his objection to the addition of the name of the petitioner if he has any by 27-7-1959, but till now no objection has been received, which shows that he has no objection.
The petitioner produces the original agreement with previous consumer and furnishes a copy thereof wherein it has been stated that in office of the Municipality, Joint Water Works Committee etc. the name of both the partners shall be entered. The P. L. I. on enquiry has reported that the petitioner is in physical possession and management of the hotel.
Hence I think it is proper to record the name of the petitioner along with the previous consumer provided he gives a written undertaking to pay the excess consumption charges both outstanding at present and as will accrue in future and that he shall abide by the rules and conditions as applicable to other consumers.
Inform the parties accordingly.'
Defendant-1 signed this order on the very day (Ex. 8/a). Defendant-1 did not give the undertaking as directed. On the other hand, he filed an application (Ex-A) on 31-3-1960 stating:
'I tried to pay up the amount of tax in instalments which has been rather refused but I being one of the highest payers in all equitable considerations ought to have been granted such instalments. However the instalments having been refused I am compelled to seek your permission for an extension of some time to pay up the whole of the Tax.'
This clearly shows that defendant No. 1 did not give the undertaking and could not pay the arrear taxes at a time and wanted to pay by instalments, but the prayer was refused. The plaintiff rejected the prayer as made in the application (Ex. A) by the following order (Ex. A/1) dated 31-3-1960 -
'In view of the fact that no payment made and the applicant not being our recorded consumer this cannot be considered.'
It is sparkle clear that as defendant-1 did not give the undertaking and did not pay the entire arrears at a time, the plaintiff did not recognise him as a tenant and was not prepared to accept arrear taxes in instalments. Subsequent to this, the demand notices, as per Ex. 4 series were issued against defendant-2 as he alone was the recorded tenant.
7. Admittedly, there was no privity of contract between the plaintiff and defendant No. 1 for payment of water rate by the Grand Hotel, though the hotel was run by a partnership consisting of the defendants. The plaintiff fixes the liability of defendant-1 on the basis of Section 70 of the Contract Act, which runs thus
'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 former in respect of, or to restore, the thing so done or delivered.'
In State of West Bengal v. B.K. Mondal and Sons, AIR 1962 SC 779 their Lordships have fully discussed the scope of the Section. Their Lordships observed:
'It is unnecessary to repeat that in cases falling under Section 70 there is no scope for claims for specific performance or for damages for breach of contract. In the very nature of things claims for compensation are based on the footing that there has been no contract and that the conduct of the parties in relation to what is delivered or done creates a relationship resembling that arising out of contract.'
Their Lordships further observed:
'There is no doubt that the thing delivered ordone must not be delivered or done fraudulently ordishonestly nor must it be delivered or done gratuitously. Section 70 is not intended to entertain claims for compensation made by persons who officiously interfere with the affairs of another or who impose on others services not desired by them. Section 70 deals with cases where a person does a thing foranother not intending to act gratuitously and the other enjoys it. It is thus clear that when a thing is delivered or done by one person it must be open to the other person to reject it. Therefore, the acceptance and enjoyment of the thing delivered or done which is the basis for the claim for compensation under Section 70 must be voluntary. It would thus be noticed that this requirement affords sufficient and effective safeguard against spurious claims based on unauthorised acts. If the act done by the respondent was unauthorised and spurious the appellant could have easily refused to accept the said act and then the respondent would not have been able to make a claim for compensation.'
8. The facts of this case make it abundantly clear that defendant-1 was all along willing to pay the water rate jointly with defendant-2 for the Grand Hotel provided he was recognised as the recorded tenant by the plaintiff. The plaintiff all through imposed conditions before recognition was granted, and as defendant-1 did not give the undertaking on fulfilling the conditions, the plaintiff refused to re cognise defendant-1 as a tenant. Not only there was no privity of contract between the plaintiff and defendant-1, but the plaintiff also refused to recognise defendant-1 as having a legal status as the beneficiary of the water connexion supplied by the plaintiff to the Grand Hotel in the name of defendant-2. It is true that both the defendants were proprietors of the Grand Hotel and the benefit conferred by the supply of water connexion was to the benefit of the Grand Hotel. That by itself would not, however, make the defendant-1 liable to pay compensation under Section 70 on the principle enunciated by their Lordships. Further conditions are to be satisfied. In Ram Tuhul Singh v. Bisweswar Lal Sahoo, 2 Ind App 131 (PC) their Lordships of the Judicial Committee succinctly put the position as follows:
'But even if this were true, it is not in every case in which a man has benefited by the money of another, that an obligation to repay that money arises. The question is not to be determined by nice considerations of what may be fair or proper according to the highest morality. To support such a suit there must be an obligation, express or implied, to repay. It is well settled that there is no such obligation in the case of a voluntary payment by A. of B's debt. Still less will the action lie when the money has been paid, as here, 'against the will of the party for whose use it is supposed to have been paid'.
The underlined (here in ' ') sentence gives the gist of the charge. Defendant-1 not only inserted a condition in Ex. 2 that he would be jointly recorded with defendant-2 in respect of water rate, but he made persistent application to the plaintiff for his recognition as a joint proprietor showing his willingness to pay the dues jointly if the recognition was conferred. After the plaintiff refused to give the recognition unless certain conditions were fulfilled, it is not open to the plaintiff to charge defendant-1 with an obligation to pay the compensation as the beneficiary under Section 70 of the Contract Act. The plaintiffs suit against defendant No. 1 must fail. The inter se liability between the defendants is altogether a different matter. It is open to defendant No. 2 to realise the amount paid on behalf of defendant No. 1 by way of contribution.
9. In the result, the Civil Revision is allowed; but the parties to bear their own costs throughout.