1. This appeal by the plaintiff appellant who is a contractor arises out of a suit for recovery of money and damages instituted against the Com-missioners of the Dhulian Municipality. The facts are briefly as follows: According to the plaintiff he 'constructed certain work according to the plan, estimate and rates sanctioned by the defendants in a meeting and he was entitled to get a sum of Rs. 2895-10-0 from the defendants for the work done by him.
The latter, however, declined to make any payment in spite of demand. He has, therefore, instituted the present suit for recovery of Rs. 2895-10-0 as the costs of the work done by him and Rs. 290/- as damages. The defence inter alia was that the suit was not maintainable as there was no contract in writing between the plaintiff and the defendants duly signed and sealed with the common seal of the defendants in connection with the alleged work.
It was also the case of the defendants that the suit was liable to be dismissed as no notice of the suit as provided by Section 533, Bengal Municipal Act, 1932, was served upon the defendants by the plaintiff before the institution of the suit.
2. So far as the facts are concerned there is not much controversy. It has been found by the Courts below that the plaintiff did execute the work in question and that the work was not unauthorised as had been alleged by the defendants. It has also been found that there was no contract in writing duly signed and Sealed as between the plaintiff and the defendants in terms of Section 103, Bengal Municipal Act,
So far as the question of notice is concerned it was held by the trial Court that the suit would not fail because of the absence of the service of notice under Section 535, Bengal Municipal Act. On that point, however, the lower appellate Court has differed from the view of the trial Court - and it has been held that the suit must fail for want of notice.
3. Against this decision the plaintiff has preferred this appeal. Before taking up the point urged before us on behalf of the appellant regarding the effect of the absence of notice under Section 535. Bengal Municipal Act, it is necessary to reier to the argument of Mr. Roy Chowdhury on behalf of the defendants regarding another aspect of the case.
It has been argued on behalf of the respondents that the suit was not maintainable in the absence of any contract in writing duly signed and sealed. So far as this point is concerned, both the Courts below have' decided against the defendants. However, as Mr. Roy Chowdhury appearing for the respondents questions the decision of the Courts below on the point, it is necessary to dispose of this point first. Under Section 103(2), Bengal Municipal Act, 1932,
'every contract made on behalf of the Commissioners .... ...... shall be in writing and signed ........... and shall be sealed with the common seal of the Commissioners and under Sub-section (3) unless so executed, such contract' shall not be binding on the Commissioners.'
This statutory requirement as laid down in Section 103 was not complied with in the present case and the question, therefore, is whether in these circumstances the plaintiff is entitled to claim any compensation for damages from the defendants Commissioners.
Mr. Roy Chowdhury has invited us 'to hold that the answer to this question should be in the negative and in support of his contention: he has referred inter alia to certain passages in the Commentary on the Indian Contract Act by Pollock and Mulla, pages 350 to 355, Edn. 7.
The opinion of the learned authors is clearly in favour of Mr. Roy Chowdhirry's contention. Mr, Roy Chowdhury has also referred to the case of - 'H. Young & Co. v Royal Leamington Spa. Corporation', (1883) 8 AC 517 (A).
So far as this specific point is concerned, there is a divergence of judicial opinion and the matter has been discussed elaborately in many cases amongst which reference may be made to the case of - 'Akshay Kiunar Banerjee v. Municipal Commissioners of Tollygunge Muncipality' 46 Cal WN 393 (B), where Roxburgh J. discussed various authorities and declined to follow the view contended for by Mr. Roy Chowdhury.
The matter was also discussed in very great detail by Sinha J. in the case of - 'Ram Nagina Singh v. Governor-General in Council' : AIR1952Cal306 . He waa of the opinion that S. 65. Contract Act' embodying the principle of restitution applied to a case of this nature where an agreement entered into between the parties is void by reason of non-compliance with a express statutory provision. Reference may be made to page 313 where this question is discussed.
Reference may also be made to page 315 of the report in that case. After discussing the various oases on the point Sinha J. made the following observations;
'It seems to me that the preponderance ofauthority is in favour of the view that if 'the factsof a case can be fairly brought within the termsof Section 70, Contract Act and the conditions expresslylaid down therein are satisfied, the section shouldbe given effect to and applied irrespective of thefact that there was in fact no contract betweenthe parties * *** *
There has been a large number of cases in India where the provisions of the section have been applied to cases where a statutory body has entered into a contract which is invalid by reason of non-compliance with the statutory requirements, and there is no reason, therefore, why the provisions of Section 70 should not be applied to the case of the defendant, which is a statutory, body capable of entering into a contract which is found to be not binding by reason of non-compliance with the statutory requirements.'
4. The matter has been discussed so elaborately in this decision that it is hardly necessary to deal with the various cases bearing upon the point. In my opinion, in view of the current decisions there is no sufficient reason for dissenting from the view expressed by Sinha J. in the above case.
In the judgments of the Courts below also reference has been made to various other cases winch to against the contention of Mr. Roy Chowdhury. So far as this point, therefore, is concerned, I am afraid the decision must go against Mr. Roy Chowdhury's contention.
5. This brings me to the main point canvassed before us in this appeal and this is the point which has been urged before us by Mr. Sen Gupta on behalf of the appellant. As has been pointed Out before, the Courts below have differed on the point as to whether the suit is bad by reason of non-service of notice upon the defendants under Section 535, Bengal Municipal Act.
The trial Court was of the opinion that the suit could not fail on the ground and the reason given by the trial Court in support of that view was as follows:
'But such a notice is necessary when the act complained of is a tortious act and not any act contractual or quasi-contractual. The present ac-tion is not an action in tort but an action arising out of an implied contract.'
So far as this proposition of law is concerned, it is no doubt true that there are oases in support of this view. Reference may in this connection be made to the case of - 'Ambika Chum v. Satish Chunder Sen' 2 Cal WN 689 (D). There are also a number of decisions of the Bombay High Court which have taken this view.
But as pointed out in the latest edition of Mulla's Commentary on the Code of Civil Procedure the Privy Council decision in the case of - 'Revati Mohan Das v. Jatindra Monan Ghosh' , has in effect overruled the series of cases in which the requirement of notice was limited to suits on tort. Reference may be made in this connection! to the following observations of their Lordships of the Judicial Committee at page 97 of the report -
'The learned Subordinate Judge held that the section had no application to suits in contract, and this dictum was rightly repelled by Mukerji J., who delivered the judgment of the 'High Court. Having regard to the decision of this Board in - 'Bhagchand Dagadusa v. Secretary of State' . their Lordships think that' no such distinction is possible'.
In this state of the law the question whether the present suit is bad or not cannot be decided on the distinction upon which the trial Court has chosen to found its decision. The lower, appellate Court sought to distinguish the case reported in 2 Cal WN 689 (D) On the ground that the law laid down in that ruling was enunciated on a construction of Section 363 of the old Act. In my opinion, that should not be held to be the real ground for not following the law as laid down in 2 Cal WN 689 (D).
6. The next question that falls for decision is, so far as the question of notice is concerned, whether the provision as to notice contained in Section 535, Bengal Municipal Act, 1932, applies to a suit in respect of omission as much to a suit in respect of an act.
Reference has in this connection been made to the case of - 'Jogendra Nath Banerjee v. Tolly-gun'go Municipality' : AIR1939Cal178 where in a suit brought by the plaintiff for damages against the Tollygunge Municipality for failure to provide and, maintain a sufficient system of drainage it was observed inter alia by one of the learned Judges in this Court -- while dealing with the point as to whether that suit was bad inasmuch as no notice under Section 535, Bengal Municipal Act, 1932, had been left with the Municipal Commissioners - that
'An illegal omission will come under it as much as any act done under the Act and the suit is bad for failure to serve notice'.
Here, again, there is unfortunately a divergence of judicial opinion. I shall refer to a few cases where a somewhat different view has been taken. In the case of the 'Corporation of Calcutta v. Asoke Kumar : AIR1928Cal743 , where the Corporation was sued for recovery of a sum of money belonging to an employee of the defendant Corporation by reason of the fact that he was a contributor to the Provident Fund.
It was observed by Rankin, C. J.. in dealing with the argument based on the question of limitation with reference- to the special provision of Section 538, Calcutta Municipal Act which corresponds to Section 535, Bengal Municipal Act, 1932.
'It says certain suits should be commenced within four months after the accrual of the causa of action. The learned Judge has rightly refused to entertain that argument because that section applies to suits against the Corporation in respect of any act purporting to be done under the Calcutta Municipal Act or under any rule or bye-law made thereunder. This is not a suit against the Corporation for any act which they justify or can justify under the powers conferred by the Calcutta Municipal Act of 1923.'
The principle laid down in the above passage receives somo support also from the observations of their Lordships of the Judicial Committee in the case of . Reference may also be made to the case of - 'Jatindra Nath Pal v. Corporation of Calcutta' : AIR1945Cal144 , where the question for paying the salary of an employee of the Calcutta Corporation was con-cerneci. It was observed by Gentle J.
'the failure by the Corporation to pay the salary was clecrfy not an act purported to be done under the Act.'
It was further observed:
'The Act does not empower the Corporation to refuse or to fail to pay salaries to their servants and officers.'
Similarly, even though there is provision in Section 108 (1), Bengal Municipal Act, 1932, which authorised the municipal fund to be utilised for the construction of streets etc., within the municipality, it can be said that 'that Act does not empower me Municipality to refuse or fail to pay the plaintiff's dues For work done on behalf of the Municipality and for which benefit has been derived by the Municipality.
Another case to which reference may be made - and it may be observed incidentally that the facts of this case are somewhat similar to those of the present case - is the case of - 'Bando & Co., Ltd. v. Corporation of Calcutta' : AIR1939Cal614 , where it was held by Lort-Williarns J. that notice under S. 538, Calcutta Municipal Act (which, as has been observed before, corresponds to Section 535 Bengal Municipal Act, 1932) was not required before the institution of a suit for money alleged to be due from the Corporation under several contracts for work done and materials supplied. That was a suit for work done and material supplied as in the present case.
In the case of - 'Commissioners of Hooghly-Chtnsura Municipality v. Ekkari Gnose' 58 Cal WN 755 (K), the same principle was followed. Reference to the above cases will show that the preponderance of judicial opinion is in favour of the view contended for by Mr. Sen Gupta on behalf of -the appellant.
Differing, therefore, from the view of the lower appellate Court and agreeing with that of (the trial Court, though on different grounds, I I would hold that the present suit cannot be thrown lout on the ground of absence of notice as required by Section 535, Bengal Municipal Act. 1932.
7. The plaintiff is therefore, entitled to a decree as passed by the trial Court with this modification, however that the defendants are directed to pay up the decretal amount within two months of the record reaching the trial Court. In default, the amount will be recoverable by execution.
8. In the result, therefore, the judgment and decree of the lower appellate Court are set aside and those of the trial Court restored subject to the modification mentioned above.
9. The appellant will be entitled to his costs throughout.
Guha Ray, J.
10. I agree.