PILOO DHUNJISHAW SIDHWA versus MUNICIPAL CORPORATION OF THE CITY OF POONA

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PILOO DHUNJISHAW SIDHWA v. MUNICIPAL CORPORATION OF THE CITY OF POONA January 15, 1970 [J. C. SHAH AND K. S, HEGDE, JJ.]

Con~ract-Formalities-Bornbay Provincial Municipal Corporation Act (59 of 1949), s. 74(2)-Contract requiring seal, and affixture of seal to be attesttZd by two me1nb.ers of Transport Committee-Members of Trans. port Committee not elecred--Contract entered into without seal-Enforce• ability.

Indian Contract Act (9 of 1872), s. 70-Invoice value as compensa

tion-When allowed.

The appellant was the sole selling agent of motor spare parts for the manufacturers in the State of Bombay. The respondent-Corporation was constituted under the Bombay Provincial Municipal Corporations Act, 1949. Under s. 74 of Act and the Rules relating to contracts made under the Act, a contract relating to the purchase of goods exceeding Rupees five hundred is to be made in the name of the Corporation by the Trans· port Manager, and, the contract has to be in writing and sealed in the presence of two members of the Transport Committee who should sign in token of the seal being affixed in their presence. Under s. 74(2), a· contract not made in accordance with the provisions of .the Act and the rules is not binding on the Corporation. The Transport Manager of the respondent-Corporation called upon the appellant to supply certain spare parts worth more than Rupees two lakhs. A formal contract incorporat 4 ing the agreed terms w_as not and could not be executed and sealed as required by the Act. because, at the. time when the contract was entered into election of councillors to the Corporation had not been held and no Transport Committee was constituted and the powers of the C.Orpora~ tion and the Transport Committee were being exercised by the .Commis 4 sioner pursuant to the, transitory provisions of the Act.. The appellant supplied goods from time to time and the Corporation made payments according to the invoices. One of the invoices was. for about Rs. 49,000-00. The invoice price consisted of an additional 12!% on the listed price by reason of the iricrease in the price made by the manufacturers. With respect to that invoice, the Transport Manager was satisfied that the rates quoted were 'proper rates' and he accepted the goods delivered on behalf of the respondent, and appropriated them. But the respondent failed to pay the amount and terminated the contract.

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The appellant filed a suit for a decree for the invoice amount and for dam·ages. The respondent contended that the contract was not enforce 4 able, because, it was not executed in tne manner prescribed by the Act.

-On the question of the amount to which the, appellant was entitled,

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the Act, for,

, , HELD : (I) The contr~ct was not made in accordance with the pro vts.ions of therefore, under s. 74(2) of the Act, the contract was not binding upon the Corporation, There is nothing in the transitory provisions which excludes the operation of s. 74(2). Hence. even if it was not possible to comply with the rules until the elections were held there was no warrant _for holding that the·

it Was not seated, and

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-sub-section did not apply and that the Commissioner or the Transp0rt Manager could enter into contracts without the seal of the Corperation. ·The appellant was accordingly not entitled to maintain a suit for the price the of the goods relying upon any contractual obligation, nor maintain claim for damages on the footing that the respondent committed a breach ·Of contract. [420 E, 421 B-DJ

(2) But the appellant was entitled to maintain bis claim for compensation under s. 70 of the Contract Act. Under the section compensation would normally be the market price of the goods.

In the circumstanf<S of the present case, the invoice value was the .Prevailing market value of the goods and the appellant was entitled to it. The appellant was also entitled to interest at 6% till date of pa'Yment. "[422 E, FJ

Secretary of State v. G. T. Sarin and Co. l.L.R.

.approved.

II Lah. 375,

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 19 ·of

1967.

Appeal from the judgment and decree dated July 23, 24, and in Appeal

September 26, 1963 of the Bombay High Court No. 801 of 1957 from Original Decree.

J. C. Bhatt, R. A. Gagrat and B. R. Agarwala,

for

the

appellant.

R. B. Kotwal and Naunit Lal, for the respo,n.tlent.

The Judgment of the Court was delivered by

'the Shah, J, Piloo Dhunjishaw Sidhwa-hereinafter called _plaintiff'-carries on business in the name and style of Hind Motor Corporation at Bombay. By a letter dated February 1, 1952 the Transport Manager of the Municipal Corporation of Poona called upon the .Plaintiff to supply "motor spare parts" described therein of the total value of Rs. 2,71,808'12-3. The plaintiff by letter dated February 22, 1952 agreed to supply the goods. The plaintiff supplied the goods from time to time and the Corporation made payments according to the invoices. Oii July 3, 1953 the plaintiff delivered certain goods required by the Corporation and submitted an inyoice for Rs. 49, 743-6-2. The Municipal Corporation failed to pay the amount of the invoice and terminated the contract.

the value of "motor spare parts"

the The plaintiff then instituted an actiOl!l .in the Court of Civil Judge, Senior Division, Poona for a decree for Rs. 49, 743-6-2 for being Rs. 39,755-2-4 being damages for breach of contract. The suit was resisted by the Corporation principally on the ground !hat the contriict on which the plaintiff relied was not executed in the manner prescribed by the Bombay Provincial Municipal ,Corpora tions Act 59 of 1949 and on that ground the contract was not

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PILOO SIDHWA V. MUNICIPAL CORP. (Shah, J.)

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enforceable. The Trial Court decreed the plaintiff's suit for Rs. 49, 743-6-2 being the invoice value of the goods supplied with interest at 4% from the date of the suit and dismissed the claim for damages.

The Municipal Corporation appealed to the High Court of Bombay against the decree of the Civil Judge, Senior Division. The plaintiff filed cross objections to the decree appealed from. The High Court rejected the plaintiff's claim for damages for breach of contract and held that the plaintiff was entitled only to the "fair price" of the goods supplied to the Corporation. In the view of the High Court the fair price of the goods was the "landed cost and 40% thereo_n" beside freight, insurance, packing and forwarding charges from Bombay to Poona. To determine the amount due to the plaintiff the Court appointed a Commissioner. The Commissioner reported that an amount of Rs. 38,010-59 was due to the plaintiff. The High Court disallowed Rs. 2,407-83 and Rs. 6,058/- being items respectively of commission paid to the financier of the plaintiff and the customs duty for determining the landed cost. The High Court accordingly decreed in favour of the plaintiff Rs. 32,121-11 nP with interest, "at the rate of 6% from ·one month after the furnishing of the bill by the plaintiff to the Corporation after the date- of the notice", at the rate of 93 from the date of the notice upto the date of the suit, and at the rate of 7t % from the date of the suit till the date of realization. The plaintiff has appealed to this Court with certificate granted by the High Court.

The Municipal Corporation of Poona was constituted on Febru ary 15, 1950 under the Bombay Provincial Municipal Corpora tions Act 59 of 1949. The provision.s of the Act relating to the making of contracts are contained in ss. 73, 74 & 75 in Ch. VII of the Act insofar as they are relevant they provide :

s. 73-"With respect

to the making of contracts under or for_ any pu!J)Ose of this Act, including contracts relat.ing to the acquisition and disposal of immovable property or any interest therein, the following provisions shall have effect, namely : -

(a) every such contl:act shall be made on behalf of

the corporation by the Commissioner;

(b) no such contractfor any purpose which, in accor dance with any provision of this Act, the Commissioner may not carry ou~ Without the approval or sanction of some other municiP.al authority, shall be made by him until or unless such approval or sanction has first been duly given;

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( c) no contract which will involve an expenditure exceeding five thousand rupees or such higher amount as the Corporation may, with the approval of the Pro vincial Government, from time to time prescribe, shall be made by the Commissioner unless the same is pre viously approved by the Standing Committee ..

(d) ( e) the foregoing provisions of this section shall, as far as may be, apply to every contract which the Com missioner shall have occasion to make in the execution of this Act;

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s. 74--"(1) The mode of executing contracts under

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this Act shall be as prescribed by rules.

(2) No contract which is not made in accordance the provisions of this Act and the rules shall be binding an the Corporation."

s: · 75-"For the purpose .of contracts relating exclu sively to the Transport Undertaking the provisions of section 73 and thos_e of Chapter V of the Schedule shall apply as if for the word 'Commissioner' wherever it occurs the words 'Transport Manager' and for the words the words 'Standing Committee' wherever they occur 'Transport Committee' had been substituted."

By the terms of s. 74(1) contracts with the Corporation had to be in the manner prescribed by rules. By Ch. V of the Schedule rules relating to contracts are prescribed. By r. I, it is provided, insofar as it is relevant :

" (I) Every contract entered into by the Commis sioner on behalf of the Corporation shall be entered into in such maniier and form as would bind the Commis sioner if such contract were on his own behalf, and may in the like manner and form be varied or discharged :

Provided that- (a) any such contract which would require to "be under seal if it were entered into by the Commissioner shall be sealed with the common seal of the Corpora tion; and

(b) every contract for the execution of any work or the supply of any materials or goods which will involve an expenditure exceeding live handred rupees or such higher amolJllit . . . shall be in writing and be sealed with the common seal of the Corporation in the man- ner presi;ribed in sub-rule ( 2) .

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P!LOO SIDHWA V. MUNICIPAL CORP. (Shah, J.)

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( 2) The common seal of the Corporation .

. shall be affixed in the presence of two members of the Standing Committee to every contract or other instru ment required to be under seal and such contract or in strument shall be signed by the said two members of the Standing Commi\tee in token that the same was sealed in . their presence.

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Rule 4 of Ch. V, insofar as it is relevant, provides :

"The provisions of this Chapter shall, so far as may be, apply to contracts relating to the Transport Under taking:

Provided that the functions to be performed there- under by the Standing Committee or the members thereof and the Commissioner shall be performed by the Trans port Committee or the members thereof and the Trans port Manager, as the case may be."

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Transitory provisions were made in the Act for the administration of the affairs .of the Corporation, till elections of the Councillors were held. By s. 15 of Appendix IV to the Act, it was provided :

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"Notwithstanding anything contained in this Act, the Commissioner sha_ll exercise the powers and perform the duties of the Coryoration and the Standing Committee under this Act and under any other law for the time being in force until general ward elections shall have been held in accordance with the provisions of this Act and the first meeting of the Corporation shall have been held."

By s. 23 Appendix IV the State Government was given the power to make orders for removing difficulties.

It provided :

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"If any difficulty arises in giving effect to the pro visions of this Act or, by reason of anything contained in this Act, to any other enactment for the time being in force, the State Gi;>vernm~nt may, as occasion requires, by order do anything which appears to it necessary for the purpose of removing the difficulty : ..

Jn exercise of this power the State Government issued an order on May 6, .1950, authorising the Municipal Commissione(' of the City of Poona-(1) to exercise all the powers and perform all the duties, which are exercisable and to be performed by the Trans port Committee under the said Act, until the first meeting of the Transport Committee as. constituted under the Act shall have been held; and (2) to exercise all the powers and perform all the duties,

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which are exercisable or to be performed by the Corporation in respect of a Transport Committee under the said Act, until the general ward elections shall have been held in accordance with r. stile provisions of the Act and the first meeting of the Corporation

shall have been held.

:~511 A contract relating to the purchase of "goods" exceeding rupees five hundred in value is to be made in the name of the Corpora tion by the-Transport Manager. It has to be in writing and has to be sealed in the presence of two members of the Transport Com mittee who sign in token of the seal being affixed in their presence.

A formal contract incorporating the agreed terms between the plaintiff and the Corporation was not and could not be executed and sealed as required by the Act, for, at the relevant time elec tions of councillors to the Corporation had not been held, and no Transport Committee was constitu'ted as required by s. 25 of the Act and the powers of the Corporation were being exercised by to the· transitory provisions. The the Commissioner pursuant Commissioner was, it is true, competent to exercise all the powers and perform all the duties of the Transport Committee. But under the rules in Ch, V the seal of the Corporation must be affix ed in the presence of two members of the· Transpori Committee who signed in token of the seal having been affixed to the contract. The Act clearly provided bys. 74(2) that the contract which was not made in accordance with the provisions of the Act and the rules shall not be binding on the Corporation. The contract was not made in accordance with the provisions of the Act, for, it was not sealed, and was by virtue of s. 74(2) of the Act not binding upon the Corporation.

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Mr. :\!hat! urged that the formalities relating to execution of the contract with the Corporation could not be complied with until a Transport Committee was constituted after election of Council lors of the Corporation l!Jld on that account the provisions relating to the form and manner of execution of the contract had no ap plication to the contract in dispute. Any other view, counsel con tended, rendercld. the Corporation incompetent to make contracts essential for the administration of the Corporation. Counsel also contended that the Corporation had not even a seal which could be affixed, because the form of the seal had not been approved by the Councillors. Counsel again said that even if the functions of the Transport {:ommittee could be exercised by the Ccimmissioner, a seal affixed in the preyence of the Commissioner and attested by In view of him would not amount to compliance with the rules. these provisions it was contended that the provisions of the Act relating to the form an_\l manner of execution of contracts could only apply after the elections are held and the Corporation could comply with the provisions.

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PIIOO SIOHWA v. MUNICIPAL CORP. (S::.iil,

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By s. 5 of the Act the Corporation is a body corporate having a perpetua! succession and a common seul. Our attention has not been invited to any provision which even by impiicacion suggests that the Corporation may have a seal only after elections are held and the form of the seal is approved by the members of the Cor- poration. But the argument whether the Corporation had at the date of the contract a seal is not relevant. We are unable to hold that the provisions of ss. 73 and 74 and the relevant rule• in Ch. V did not apply before the elections were held anu the statutory Committees were constituted. There is nothing in the transitory provisions which excludeS the operation of s. 7 4(2) of the Act. Granting, that it is not possible to comply with the rules, until the elections are held, there is no warrant for holding that the provi sions of s. 7 4(2) '111'.ill n.:it apply and the Commissioner or the Trans port Manager may enter into contracis without seal which are en forcea'ille at law, Jll)!Witbstanding the absolute terms. of the Act. In our judgment there was no enforceable contract between the · r,laintiff and the Corporation. The claim for damages on the •.ooting that the Corporation committed a breach of contract was, 'therefore, rightly rejected by the Trial Court and the High Court.

_The plaintiff is not entitled to maintain a suit for price of the goods relying upon any contractual obligation of the Corporation. But theflaintiff may still maintain hjs claim for compensation under s. 70 o the Contract Act which provides :

"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."

That is not disputed by the Corporation. The Trial Court awarded to the plaintiff the invoice value. of the goods delivered by him. '.fhe learned !.udge was of the view that the plaintiff as the sole sell mg agent of motor spare parts" for the manufacturers in the Bom bay State, was entitled to the listed price with 12!% thereon be- cause of the increase notified by the manufacturer. In the view of !he ~earned ~udge the price for which the plaintiff made out an mv01ce was 'reasonable and prOJ:!er". The High Court held that the plaintiff may recover compensation equal to the "fair price" of the goods.

In our view the High Court was in error in holding that the plaintiff is entitled not to the invoice value of the goods but only to "the fair price" of the goods. Under s. 70 of the ccro'.tract Act, a person lawfully delivering goods to another, and not intending to do so gratuitously, is entitled to demand that the goods delivered

L7 S.1p. CI (NP)70-12

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shall be returned, or that compensation for the goods shall be made. Compensation would normally b~ the market price of the goods. By refusing to return the goods, the person to whom the goods have been delivered cannot improve his position and seek to pay less than the market value of the goods. The High Court of Lahore in Secretary of State and Another v. G. T. Sarin & Company(') held that a person without an enforceable contract in his favour supply ing goods to a Government Department is· entitled to a money equivalent of the· goods delivered assessed at the market rate pre vailing on the date on whch the supplies were made.

The plaintiff had made out an invoice in respect of the goods delivered. The Transport Manager accepted the goods 'on behalf of the Corporation and appropriated them. He had satisfied him self that the rates quoted. were "proper rates". The plaintiff was paid in respect of other goods supplied at the rates quotd in the price-list together with incidental charges. The plaintiff was tile sole selling agent in the Bombay State and the additional 12t% which the plaintiff claimed on the listed price wa~ by reason of the increase in the price made by the manufacturers. There is no rea ·son to hold that the invoice price was more than the market value of the goods. If it was the contention of the Corporation that the market rate was Jess than the invoice pricq it was open to the Cor poration to lead evidence about the ruling rates at which the spare parts were sold in India by otlier agents of the manUfacturers. But no such attempt was made. The plaintiff, in our judgment, was entitled to the market value of the goods at the date of supply, and, in our judgment, the invoice value was the prevailing market value of the goods.

The plaintiff is also entitled to interest at the rate of 6% per annum from "the date one month after the date of supply" till the date of institution of the suit, and at 6 % on judgment from the date of the suit till payment.

We accordingly set aside the decree passed· by the High Court and restore the decree passed by the Trial Court with the modifica tion in the rate of interest set out earlier. In view of the partial success of the parties, . there will be no order as to costs in this In the Trial Court the plaintiff Court and in the High Court. will be entitled to proportionate costs for the amount decreed and the Corporation will bear its own costs.

R.K.P.S.

Appeal dismissed.

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(I) I.L.R. 11 Lah. J7'.