K.K.Krishna vs State Of Kerala
2021 Latest Caselaw 15486 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
               THE HONOURABLE MR.JUSTICE N.ANIL KUMAR
        FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                         RSA NO. 86 OF 2007
[AGAINST   THE    COMMON   DECREE    &JUDGMENT   DTD.30/8/2006 IN
A.S.NOS.8/2003, 36/2003 & 40/2003 ON THE FILE OF SUBORDINATE
JUDGE'S COURT, KASARAGOD AGAINST DECREE & JUDGMENT DTD.16.10.2002
IN OS NO.61/2000 OF PRINCIPAL MUNSIFF'S COURT, KASARAGOD]
APPELLANT/RESPONDENT NO.1/PLAINTIFF:

           K.K.KRISHNA,S/O.RAMA,
           RESIDING AT PADIYATHADKA, ADOOR VILLAGE, P.O. KUNTAR,
           KASARAGOD DISTRICT.
           BY ADVS.
           SRI.ATUL SOHAN
           SRI.K.V.SOHAN, SMT.SREEJA SOHAN & SMT.SANJANA R.NAIR

RESPONDENTS/APPELLANTS/DEFENDANTS:
     1     STATE OF KERALA
           REP. BY THE DISTRICT COLLECTOR, KASARAGOD.
    2      KARADKA GRAMA PANCHAYATH
           REP. BY ITS SECRETARY, P.O. MULLERIA,, KASARAGOD
           DISTRICT.
    3      THE PRESIDENT
           KARADKA GRAMA PANCHAYATH, P.O. MULLERIA, KASARAGOD
           DISTRICT.
    4      KADAGAM SERVICE CO-OPERATIVE BANK,
           MULLERIA, KASARAGOD DISTRICT.
    5      THE PRESIDENT,
           KARADKA SERVICE CO-OPERATIVE BANK,
           P.O.MULLERIA,KASARAGOD DISTRICT.
           BY GOVT.PLEADER SRI.P.N.SATHISH FOR R1
           BY ADVS. SRI.K.JAYESH MOHANKUMAR, SRI.PUSHPARAJAN
           KODOTH & SRI.T.SETHUMADHAVAN FOR R4 & R5
           SRI.P.SHRIHARI & SMT.P.VANI FOR R2 & R3


     THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
15.07.2021, THE COURT ON 23.07.2021 DELIVERED THE FOLLOWING:
 R.S.A.NO.86 OF 2007



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                          JUDGMENT

This R.S.A. is directed against the common

judgment and decree dtd.30.8.2006 in

A.S.Nos.8/2003,36/2003 and 40/2003 of the Sub

Court, Kasaragod (hereinafter referred to as 'the first

appellate court') arising from the judgment and decree

dtd.16.10.2002 in O.S.No.61 of 2000 of the Principal

Munsiff's Court, Kasaragod(hereinafter referred to as

'the trial court'). The appellant was the first

respondent in all the three appeals referred to and was

the plaintiff in the suit. The respondents were the

defendants. The parties are hereinafter referred to as

'the plaintiff' and 'the defendants' according to their

rank in the trial court unless otherwise stated.

2. The suit was for recovery of an amount of

Rs.36750/- with future interest at the rate of 18% on R.S.A.NO.86 OF 2007

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the principal sum of Rs.25,000/-. The case of the

plaintiff is that the first defendant sanctioned three

open dug wells as part of the Drought Relief Measure

1997 by Ext.B1 sanction order dated 24.4.1997. One

such was near Mulleria Service Co-operative Bank at

Kasaragod. Pursuant to an oral direction issued to the

plaintiff by defendants 2 to 5, the plaintiff dug the well

near the Co-operative Bank, Mulleria. Rupees thirty

thousand was the amount so sanctioned. On digging

25 koles from the ground level, water was found in

abundance and the well was successfully completed on

the assurance that the amount will be paid in three

instalments during the progress of the work. However,

it was not done even after completion. On 1.10.1999,

the plaintiff issued a registered notice under Section

249 of the Kerala Panchayath Raj Act,1994 and under R.S.A.NO.86 OF 2007

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Section 80 of the Code of Civil Procedure,1908. The

first defendant sent a reply acknowledging the receipt.

The second defendant sent a reply stating evasive

answers. When no payment was received by the

plaintiff, the suit was filed on 18.1.2000.

3. The first defendant filed a written

statement stating that as per proceedings No.M5-

15306/97 dated 24.4.1997 of the first defendant, three

O.D.wells were sanctioned in the Karadka Grama

Panchayath (1)near Mulleria Service Co-operative

Bank, (2)Manhampara (C.H. Nagar) Charothotti and

(3)Arapathipad. Completion certificate and expenditure

statement in respect of OD wells in respect of items

Nos.2 and 3 were received and payment made as per

proceedings No.M5-15306/97 dated 20.8.1997 and

25.3.1999 respectively. Completion certificate in R.S.A.NO.86 OF 2007

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respect of OD wells sanctioned to Mulleria Service Co-

operative Bank has not been received and as such, no

payment effected so far. The amount will be

sanctioned as per the procedure as and when

certificate is received.

4. Defendants 2 and 3 filed written statement

denying the alleged work done by the plaintiff in the

premises of Kadagam Service Co-operative Bank.

According to them, Karadka Grama Panchayat has not

authorised anybody to dig any well in the property of

the fourth defendant or anywhere else as alleged in the

plaint. There was no tender submitted by the plaintiff

and no tender was accepted by the plaintiff.

5. The fourth and fifth defendants filed

written statement contending that the suit is opposed

under Section 100 of the Kerala Co-operative Societies R.S.A.NO.86 OF 2007

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Act and the rules framed thereunder. They also denied

the alleged transaction as stated in the plaint.

6. By judgment dated 16.10.2002, the trial

court granted a decree for recovery of money directing

the defendants to pay the plaintiff a sum of

Rs.36,750/- with future interest at 9% per annum on

the principal sum of Rs.25,000/- from the date of

plaint till date of payment.

7. Challenging the judgment and decree,

defendants No.2 and 3 preferred first appeals as,

A.S.No.8/2003, first defendant preferred

A.S.No.36/2003 and defendants No.4 and 5 preferred

A.S.No. 40/2003 before the first appellate court. By

common judgment dated 30.8.2006, the judgment and

decree passed by the trial court was reversed and the

suit was dismissed with cost. Challenging the common R.S.A.NO.86 OF 2007

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judgment, the plaintiff has preferred this second

appeal.

8. When the appeal came up for admission on

29.11.2007, this Court framed the following substantial

questions of law for consideration.

"1. When it is the admitted case that plaintiff had executed the work and the work was sanctioned by the State Government and the work was not executed gratuitously, is not the plaintiff entitled to get the amount for the work as provided under Section 70 of Indian Contract Act.

2. Whether defendants are justified in refusing to pay the amount due to the appellant on the sole ground that completion certificate was not obtained when it is for the defendants to issued the completion certificate."

9. Assailing the judgment and decree of the

first appellate court, the learned counsel for the

appellant would submit that the first appellate court

reversed the judgment and decree for the reason that R.S.A.NO.86 OF 2007

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there was no written contract for undertaking the work

by the plaintiff. According to the learned counsel,

there was an admission on the part of the first

defendant that sanction was accorded for digging a

well as part of the Drought Relief Measures 1997 and

one such was near Mulleria Service Co-operative Bank.

It is the specific case of the plaintiff that as entrusted

by the defendants, he had dug the well and when 25

koles were dug, water was found and the well was

perfectly usable. The only contention taken by the first

defendant was that the completion certificate in

respect of O.D. Well sanctioned to Mulleria Service Co-

operative Bank was not received for payment of

money. The learned counsel for the appellant further

submitted that when the well was actually dug, it was

not a gratuitous act on the part of the plaintiff. Hence, R.S.A.NO.86 OF 2007

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the defendants are bound to restore the benefit they

derived from the plaintiff to the plaintiff.

10. On the other hand, the learned

Government Pleader for the first defendant submits

that no reliable evidence was produced by the plaintiff

to prove that he submitted valid tender before the local

authority and the local authority accepted the tender

for digging the well. The learned Government Pleader

further submitted that no evidence was adduced to

prove that actually the work was done by the plaintiff

for the benefit of the public concerned. The learned

Government Pleader further submitted that public

money cannot be given to the plaintiff, as a matter of

right, unless some positive evidence is adduced to

prove that actually the plaintiff expended the money

and the State in fact benefited out of it. The learned R.S.A.NO.86 OF 2007

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counsel for respondents 2 to 5 supported the

submission of the learned Government Pleader.

11. Heard Sri.Atul Sohan, the learned counsel

for the appellant, Sri.P.M.Sathish, the learned

Government Pleader for the first respondent,

Sri.P.Srihari, the learned counsel for respondents 2 and

3 and Sri.Pushparajan Kodoth, the learned counsel

appearing for respondents 4 and 5.

12. Article 299 of the Constitution of India,

which is mandatory in character, requires that the

contract made in the exercise of the executive power of

the Union or of a State must satisfy three conditions.

Firstly, it must be expressed to be made by the

President or by the Governor of the State, as the case

may be. Secondly, it must be executed on behalf of

the President or the Governor of the State as the case R.S.A.NO.86 OF 2007

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may be. Thirdly, its execution must be by such person

and in such manner as the President or Governor may

direct or authorise. First of all, there is no case for the

plaintiff that any contract was entered into between the

plaintiff and the first defendant in accordance with law.

It is true that the fields covered under Article 299 of

the Constitution of India and Section 70 of the Indian

Contract Act,1872 (hereinafter referred to for short

'the Contract Act') are distinct and separate. The

former deals with the formation of contracts and the

latter deals with cases where there is no valid contract

and provides for compensation, if the three conditions

specified there, are fulfilled. Even if the contract is

found to be invalid under Article 299(1) of the

Constitution of India, Section 70 of the Contract Act is

applicable. The performance of the contract and the R.S.A.NO.86 OF 2007

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benefits accepted by the defendant entitles the plaintiff

to relief under Section 70. Section 70 prevents unjust

enrichment and it applies to the Government, statutory

Corporations and local authorities as well.

13. Under Section 70 of the Contract Act,

three situations are contemplated: doing anything,

delivering anything and enjoyment of the benefit

thereof by the other party are the main ingredients to

attract Section 70 of the Contract Act. In the case on

hand, no document was produced to prove contract

between the plaintiff and the defendants. The case of

the plaintiff is mainly based on Ext.A1 copy of the

Advocate notice issued to the defendants. It is true

that sanction order was issued by the first defendant to

dig three O.D. wells including the one near the co-

operative society. No evidence was forthcoming to R.S.A.NO.86 OF 2007

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show that the well was in existence on the date of

institution of the suit and that the well was dug at the

instance of the defendants. There was no

communication between the plaintiff and the

defendants in this regard. No certificate was received

by the first defendant stating that the well was dug as

per the requirements. Unless and until positive

evidence was adduced to prove the fact that the

defendants entrusted the work to the plaintiff,

Government money cannot be reimbursed to the

plaintiff applying the principles of restitution under

Section 70 of the Contract Act. The defendants denied

that they had entrusted the work to the plaintiff. No

evidence was adduced before the trial court to prove

the transaction. The only evidence adduced was oral

evidence of PWs.1 to 3 and Ext.A1 Advocate Notice. R.S.A.NO.86 OF 2007

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Voluntary acceptance of the benefit of the work done

or the thing delivered is the foundation of the claim

under Section 70. The person on whom the benefit is

conferred enjoys the benefit voluntarily. Two

conditions are essential for establishing a liability to

contribution under Section 70 of the Contract Act.

Firstly, the work must have been done in part at least

for the benefit of the defendants. Secondly, it is not

enough that it has in fact resulted in benefit to the

defendants; the defendants should have had after the

execution of the work an opportunity of accepting or

rejecting the benefit. Going by the evidence of PWs.1

to 3, the above ingredients are not established. Mere

oral evidence adduced by the plaintiff and witnesses is

not sufficient to establish that the work was done in

part at least for the benefit of the defendants and the R.S.A.NO.86 OF 2007

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defendants obtained benefit thereof. The Government

money is owned by the people. It is not possible to

prove a Government contract based on oral assurances

alleged to have been made by the defendants 2 to 5.

When there is a denial on the part of the defendants,

the burden is on the plaintiff to prove the oral

assurances alleged to have been made. No such

evidence was adduced. Sympathetic factor is not a

ground to grant a decree for money against the State

and its instrumentalities without sufficient proof.

14. In view of the above legal principles, this

Court is of the view that there was no privity of

contract between the plaintiff and the defendants as

alleged by the plaintiff. First of all, there was no

reliable evidence to prove that the plaintiff was

entrusted with the work by way of written contract. R.S.A.NO.86 OF 2007

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Secondly there was no evidence to show that the work

was completed by the plaintiff and thereupon, the

newly constructed well was handed over to the

defendants for the use of the public at large.

15. The condition precedent for deciding a

second appeal is the existence of substantial questions

of law. There is no admission in the written statement

that the plaintiff had executed the work and the work

was sanctioned by the State Government. Hence,

Section 70 of the Contract Act cannot be pressed into

service in this case. The first defendant was fully

justified in refusing the payment to the plaintiff without

proof regarding the alleged transaction between the

parties and certificate evidencing completion of the

work. The substantial questions of law formulated by R.S.A.NO.86 OF 2007

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this Court are answered as above. This Regular

Second Appeal is liable to be dismissed.

In the result, this Regular Second Appeal is

dismissed. There will be no order as to costs. Pending

applications, if any, shall stand disposed of.

sd/-

N.ANIL KUMAR, JUDGE

MBS/