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Jadavendra Narayan Choudhury Vs. State of West Bengal and ors. - Court Judgment

LegalCrystal Citation
SubjectContract;Limitation
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 425 of 1976
Judge
Reported inAIR1985Cal215
ActsContract Act, 1872 - Section 70; ;Limitation Act, 1963 - Schedule - Articles 14 and 113; ;Constitution of India - Article 299
AppellantJadavendra Narayan Choudhury
RespondentState of West Bengal and ors.
Appellant AdvocateRanajit Ghose and ;Rama Bhattacharyya, Advs.
Respondent AdvocateA.N. Banerjee and ;Sankar Mukherjee, Advs.
DispositionAppeal allowed
Cases Referred(Union of India v. Kamal Kumar Goswami).
Excerpt:
- .....under section 70 of the contract act. there is preponderance of judicial decisions that suits for compensation claimed under section 70 of the contract act are governed by the residuary article 120 of lim. act, 1908 corresponding to present article 113 of the lim. act, 1963 vide 25 cal wn 813 : (air 1921 cal 93} upendra krishna mondal v. naba krishna mondal, : air1971cal150 (great eastern shipping co. ltd. v. union of india) and : air1974cal231 (union of india v. kamal kumar goswami).4. learned sub-ordinate judge has dismissed the suit on the ground of limitation because according to him the cause of action in the instant suit had accrued on the date of delivery of the truck to the principal of the institute on 14th oct, 1968 whereas the plaintiff filed the instant suit on.....
Judgment:
ORDER

Mookerjee, J.

1. This appeal is at the instance of the plaintiff and it is directed against the judgment and decree of the learned Subordinate Judge dismissing his suit against the State and other defendants for recovery of a sum of Rs. 15000/- (fifteen thousand only) and interest in respect of the price of a diesel motor truck. It is no longer disputed that on 14th Oct, 1968 the plaintiff had delivered to the then Principal, Industrial Training Institute of the State Government situated at Malda the aforesaid diesel truck No. WGR 553 for the purpose of use of the same for imparting training at the Institute. The price was fixed at Rs. 15000/- (fifteen thousand only). It is also undisputed that no valid contract in accordance with Article 299 of the Constitution was made by and between the plaintiff on the one hand and the defendant-State on the other. Therefore the plaintiff-appellant was not entitled to sue the defendant-State and other on the basis of any contractual obligation to pay the price of the said truck. We may record that at the trial of the suit defendant's witnesses did not deny that the said truck was lying in the Motor Mechanism Section of the Institute and that the price for the same was not paid to the plaintiff in spite of repeated demands.

2. Learned Subordinate Judge, in our view, has rightly held that the defendants were liable to pay the compensation for the said truck to the plaintiff because the plaintiff never intended to deliver the same gratuitously and as such obligation on the part of the defendants to make restitution arose because the Industrial Training Institute had enjoyed the benefit of the truck and had used the same for the purpose of imparting training to the trainees of the Institute. We accordingly uphold the finding of the learned Subordinate Judge that the provision of Section 70 of the Contract Act will be applicable to the facts and circumstances of the case. We are however unable to agree with the learned Sub-ordinate Judge that the instant suit was governed by Article 14 of the Lim. Act, 1963 and therefore the same was barred by limitation.

3. Mr. Ghosh appearing on behalf of the appellant has rightly submitted that the suit in question was not for the price of a moveable property sold by the plaintiff to the defendant but was one for compensation on account of unjust enrichment of the defendants as contemplated under Section 70 of the Contract Act. There is preponderance of judicial decisions that suits for compensation claimed under Section 70 of the Contract Act are governed by the residuary Article 120 of Lim. Act, 1908 corresponding to present Article 113 of the Lim. Act, 1963 vide 25 Cal WN 813 : (AIR 1921 Cal 93} Upendra Krishna Mondal v. Naba Krishna Mondal, : AIR1971Cal150 (Great Eastern Shipping Co. Ltd. v. Union of India) and : AIR1974Cal231 (Union of India v. Kamal Kumar Goswami).

4. Learned Sub-ordinate Judge has dismissed the suit on the ground of limitation because according to him the cause of action in the instant suit had accrued on the date of delivery of the truck to the Principal of the Institute on 14th Oct, 1968 whereas the plaintiff filed the instant suit on 22nd Mar. 1972. Mr. Ghosh appearing for the plaintiff has rightly submitted that the plaintiff's cause of action for claiming compensation did not synchronize with the date of delivery of the truck to the Principal of the Institute on 14th Oct, 1968 but The plaintiff's right to sue accrued when the defendants refused to pay the price and/or compensation for the truck retained by them. The receipt (Ex.4) granted for the delivery of the truck itself stipulated that the payment would be made after obtaining the approval of the Additional Director of Industries, Calcutta-1. The plaintiff wrote a series of letters vide Exts-7 and 7A demanding payment. The defendants did not send any reply and did not ever repudiate their liability to compensate the plaintiff by them. The present Principal of the Institute who had assumed charge as early as Jan, 1969 referred to the correspondences he had made with his higher authorities but the defendants did not produce the said correspondences inspite of prayer made by the plaintiff in the Court velow for production of the same. In our view, only after the defendant had impliedly refused to accede to the plaintiff's request contained in the letter dt. 21st Aug, 1970 to make immediate payment the plaintiff's right to recover compensation accrued. We are not inclined to bind the plaintiff to his statements made in para 8 of the plaint. The plaintiff had averred therein that the cause of action arose on and from 14th Oct, 1968. In our view, the materials on record clearly establish that only in or about Aug, 1970 there was implied repudiation of the defendants liability by reason of not sending any reply to the plaintiffs letter (Ext. 7). The Court below has found that the -price of the truck was Rs. 15000/- and the plaintiff was entitled to receive compensation of the said amount. There is no contrary evidence and the D. W. 1 did not produce any evidence in support of his testimony that the value of the truck was less.

5. For the foregoing reasons we allow the appeal, set aside the judgment and decree of the learned Sub-ordinate Judge and decree the plaintiffs suit for recovery of Rs. 15000/-(fifteen thousand) we dismiss the plaintiffs claim for interest upon the said amount. Having regard to the conduct of the plaintiff in entering into an agreement with the Principal of the Institute without complying Article 299 of the Constitution we hold that the plaintiff is not entitled to cost of the suit or of this appeal. Under the circumstances, both parties will bear respective cost throughout.

Mukul Gopal Mukherji, J.

6. I agree.


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