At, High Court of Andhra Pradesh
By, THE HONOURABLE MR. JUSTICE RAMACHANDRA RAO
For the Appellant: Challa Sitaramayya, P. Anjaneya Sarma, Advocates. For the Respondent: P. Sitarama Raju, Advocate.
Ramachandra Rao, J.
1. The defendant in O.S. No. 176/1964 on the file of the Court of the District Munsif, Amalapuram, is the appellant herein. The suit was filed by the plaintiff the respondent herein, the Konaseema Co-operative Central Bank Limited, Amalapuram, represented by its president P. Satyanarayana Raju, against the defendant for recovery of a sum of Rs. 3806-49 P. comprising of Rs. 2,000/- towards damages and of Rs. 1806-49 towards the amount said to have been unlawfully drawn by the defendant from the plaintiff-bank.
2. The facts giving rise to this appeal are as follows: The defendant was an employee of the plaintiff-bank and he had to retire on completion of his 5th year. The plaintiff required the defendant to furnish authentic record about is correct date of birth and the said particulars were not available with the plaintiff-bank. The defendant submitted a memo stating that he had a already furnished his date of birth in 1934, that the then Honorary secretary made all the entries in the Service register, that the date of birth was entered as 11-2-1909 and he called upon the plaintiff to cause search for his service register. The plaintiff alleged that the defendant had clandestinely removed the service register from the bank premises and that the search made by the bank employees was of no avail. The plaintiff found on the material available that the correct date of birth of the defendant was 11-2-1907. The Board of Management passed a resolution on 19-12-1962 to the effect that the defendant should retire from service with effect from 31-12-1962, unless he was able to satisfy the plaintiff before that date by production of authentic record that he had not completed his 55th year by then. A copy of the said resolution was sought to be served on the defendant, but he evaded service, and filed a suit O.S. 201/62 on the file of the District Munsif's court. Amalapuram, against the plaintiff for a declaration that the said resolution dated 19-12-1962 retiring the defendant from service with effect from 31-12-1962 was illegal, null and void and that he was
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entitled to continue in service till 11-2-1964, and for a perpetual injunction restraining the plaintiff from interfering with his continuance in service till the said date. An ex-parte order of interim injunction was obtained by the defendant on 24-12-1962 and it was vacated on 27-4-1963. The plaintiff issued proceedings on 29-4-1963 informing the defendant that his term of office expired by 31-12-1962 and that he would be considered to have ceased to hold the office from that date. These proceedings were sought to be served on the defendant but he evaded service. After reopening of the Subordinate Judge's Court after summer recess, the defendant filed an appeal, C.M.A. No. 8/1963 against the order of the lower court vacating the interim injunction, and along with the said appeal, he filed a petition for the issue of an interim injunction restraining the plaintiff from enforcing the resolution dated 19-12-1962. An interim injunction was issued by the said Court and the defendant continued in office under the said order. The plaintiff filed an application for vacating the injunction but it was not disposed of. The defendant then moved the District Court for transfer of the suit but that petition for transfer was dismissed. Later, when the suit came up for trial the defendant withdrew the same on 10-2-1964. He did not press the appeal. M.A. 8/63 filed against the order vacating the interim injunction. The plaintiff contended that the suit as well as the order of injunction were all filed by the defendant maliciously and without reasonable and probable cause, that he knew that his correct date of birth was only 11-2-1907 and that he had to retire on completion of his 55th year, and that by reason of the Board's resolution dated 19-1-1972, he had to vacate the office by 31-12-1962. It was alleged that the defendant should be deemed to have drawn the amounts from the bank from 1-1-1963 to 10-2-1963 unlawfully, and that he was liable to repay the same. This amount is stated to be a sum of Rs. 1806.49 P. paid towards salary, dearness allowance, special, allowance, house rent allowance and Provident Fund contribution, by the task. In addition, the plaintiff claimed a sum of Rs. 2000/- towards damages for loss of reputation and credit.3. The defendant filed a written statement traversing the several material allegations in the plaint. He contended that his correct date of birth is 11-2-1909, that it was so entered in the service register by the then Honorary Secretary, that the resolution dated 19-12-1962 passed by the Board of the plaintiff bank was not communicated to him, that the bank was not justified in retiring the defendant with effect from 31-12-1952 as he was entitled to continue in service till the completion of his 55th year on 11-2-1964 and that the entires in the service register must have been tampered with, As the bank was seeking to enforce the resolution dated 19-11-1962, he filed the suit O.S. 201/1962, and obtained injunction. When the injunction was vacated, he filed the appeal in the Sub Court and obtained an interim injunction restraining the bank from enforcing the resolution, that during the period the order of injunction was in force he continued to render service to the bank and that by reason of efflux of time, the date of his retirement 11-2-1964 had been reached, and the suit and the appeal bad become infructuous and therefore he withdrew the same, He contended that the proceedings taken by him were legal and valid and were not malicious or taken without reasonable and probable cause. He further stated that he was not paid salary for the period 27-4-1963 to 27-6-63. He also repudiated the claim of the plaintiff for recovery of damages.4. The trial Court framed as many as five issues-and one additional issue and held that the defendant was actuated by malice and acted without reasonable and probable cause in filing the suit O.S. 201/62 and in obtaining the orders of injunction both in the trial court and the appellate court, and that the correct date of birth of the defendant was 11-2-1907 and not 11-2-1909. With regard to the question whether the plaintiff is entitled to recover the amount paid to the defendant during the period of his service beyond 31-12-1962, it held that as the defendant had rendered service from 1-1-1963 to 10-2-1964 and as the sum of Rs. 1806 49 P. was paid to him towards his salary and other allowances for the work done by him during that period, the plaintiff was not entitled to recover the same and that even on grounds of justice, equity and good conscience, the plaintiff would not be entitled to recover the said amount. So far as the claim for damages is concerned, the trial court fixed a sum of Rs. 200/- On these findings the trial court decreed the suit for a sum of Rs. 200/- with proportionate costs, and dismissed the suit in other respects.5. The plaintiff took the matter in appeal to court of the Subordinate Judge, Amalapuram, and the defendant preferred Cross objections against the decree granting damages of Rs. 200/-. The lower appellate Court confirmed the finding of the trial court that the defendant was actuated by malice and acted without reasonable and probable cause in having instituted the suit O.S. 201/1962 and in obtaining the orders of injunction in the trial court and in the Appellate Court. The Appellate Court also confirmed the decree of the trial Court awarding Rs. 200/- towards damages. It however disagreed with the view taken by the trial court with regard to the claim of the plaintiff for recovery of a sum of Rs. 1806.49 P. which was paid to the defendant towards salary and allowances, and held that the plaintiff was under no obligation to pay for the services rendered by the defendant which the plaintiff did not with to be rendered, and relying on the decisions on Nuli Kanka Rao and others v. Titali Sri Ranga Venkata Ramalinga Reddi, A.I.R. 1966 A.P. 297, and Shyam Lal v. State of Uttar Pradesh Lucknow & others, A.I.R. 1968 All 139, held that the plaintiff was (SIC) to recover the said sum of Rs. 1806-49 P., and accordingly modified decree directing the defendant to pay Rs. 1806-49 P., and Rs. 20 /- with proportionate costs throughout. In other respects, it confirmed the decree of the trial Court. The Cross-objections were dismissed with costs. The defendant has now come up in appeal to this court.6. In both the Courts, a contention was raised that the civil court had no jurisdiction to entertain the suit on the ground that such a suit is barred under the provisions of Section 61 of the Andhra Pradesh Co-operative Societies Act and it was negatived. This point has not been contested before me. The finding that the defendant was actuated by malice and that he acted without reasonable and probable cause in filing the suit O.S. 201/1962 and obtaining orders of injunction, and the award of damages of Rs. 200/- could not also be successfully assailed in this second appeal. I do not find any grounds for interfering with the said finding as it is reached by both the Courts below on a proper consideration of the relevant evidence on record.7. So far as the question of damages is concerned both the Courts concurrently held that a sum of Rs. 200/- would be a reasonable amount to be awarded. The learned Counsel for the appellant did not rightly challenge the decree with regard to damages.8. The only substantial point which has been urged and which arises for consideration in this second appeal is, whether the plaintiff is entitled to recover the amount of Rs. 1896-49 P. paid to the defendant towards his salary and allowances for the period 1-1-1963 to 10-2-1964. The finding that the correct date of birth of the defendant is 11-2-1907, is not challenged before me. If so, it must be held that the defendant should be taken to have retired from service with effect from 31-12-1962 in accordance with the resolution passed by the Board of Management on 19-12-1962. It is however pertinent to note that the said resolution retiring the defendant with effect from 31-12-1962, could not be enforced by reason of the orders of injunction obtained by the defendant in the suit O.S. 201/62 on the file of the Court of the District Munsif Amalapuram, and in appeal in C.M.A. 8/63 on the file of the Court of the Subordinate Judge, Amalapuram. It is not disputed that during the period the order of injunction were in force, the defendant was rendering service to the plaintiff from 1-1-1963 to 10-2-1964 except for the period (SIC) 27-4-1963 to 27-6-1963 and that he was paid salary for the he did except for the two months and odd during which period he did when the defendant had actually render service, there is no reason why he should be deprived of the which he would be entitled to for the period for which he rendered service to the plaintiff. The defendant never intended to reive: service gratuitously to the plaintiff No doubt the plaintiff was constrained to allow the defendant to render service under orders of injunction obtained from the Court. It cannot be said that the rendering of such services is not lawful, so I was the orders of injunction were in force. The plaintiff was enjoined to continue the defendant in service and the plaintiff did enjoy the benefit of such service. In so the plaintiff was bound to make compensation to the defendant for the services so rendered. As contended by the learned Counsel for the appellate, the provisions of Section 70 of the Indian Contract Act are clear-attracted to the facts of the present case.9. Section 70 of the Contract Act reads as follows"Where a person lawfully does anything for another person, or delivers anything to him not intending to do so gratuitously, and such other person enjoy the benefit thereof, the latter, is bound to make compensation in respect of, or to restore the thing so done or delivered,10. The principle underlying Section 70 of the Indian Contract Act (herein-after called the Act) has been stated thus by. Their Lordships of the Supreme Court in Mulamchand v. State of M.P., A.I.R. 1968 S.C. 1218, as follows-"But if money is deposited and goods are supplied or if services are rendered in terms of the void contract, the provisions of Section 70 of the Indian Contract Act may be applicable. In other words if the conditions imposed by Section 70 of the Indian Contract Act are satisfied then the provisions of that section can be invoked by the aggrieved party to the void contract. The first condition is that a person should lawfully do something for another person or deliver something to him the second conditions is that in doing the said thing or delivering the said thing he mean not intend to act gratuitously, and the third condition is that the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof. If these conditions are satisfied, Section 70 imposes upon the latter person the liability to make compensation to the former in respect of, or to restore, the thing so done or delivered. The important point to notice is that in a case failing under Section 70 the person doing something for another or delivering something to another cannot sue for the specific performance of the contract, nor ask for damages for the breach of the contract, for the simple reason that there is no contract between him and the other person for whom he does something or to whom he delivers something. So where a claim for compensation is made by one person against another under Section 70 it is not on the basis of any subsisting contract between the parties but on a different kind of obligation. The jurisdiction basis of the obligation in such a case is no founded upon any contract or tort but upon a third category of law, namely, quasi-contract or restitution".11. In Jangareddi, Gudem Panchayat v. Narasayya, A.I.R. 1965 I An.W.R. 176. Their Lordships Chandra Reddy, C.J. and Narasimham, J., (as he then was), observed at page 176 as follows :"By this section (Section 70) three conditions are required to establish a right of action at the suit of a person who does anything for another : (1) the thing must be done lawfully; (2) it must be done by a person not intending to act gratuitously; and (3) the person for whom the act is done must enjoy the benefit of it".12. In the instant case it could not be disputed that the defendant did render service to the plaintiff, that he did not intend to do so gratuitously and that plaintiff did enjoy the benefit of the services rendered by the defendant.13. Sri C. Sitaramayya, the learned Counsel tor the appellant has invited my attention to a passage from Bishop on Contracts (enlarged edition) at page 100, paragraph 272 which reads as follows :"272. Recovering Back Money : Though, in the ordinary case of money paid under compulsion while not legally due, it can be recovered back by suit, it cannot be when the compulsion was by process of law. Then the remedy is to procure a reversion of the record; and if this cannot be done, the injury is without remedy".14. This passage clearly supports the contention of the learned counsel for the appellant-defendant, that though the rendering of service by him to the plaintiff and the payment of salary and allowances made by the plaintiff to the defendant for the period for which such service was rendered, were done by reason of the orders of injunction of the civil court still the plaintiff would be unable to claim recovery of the money.15. The learned Counsel for the respondent relies upon State of West Bengal v. M/s. B.K. Mondal, 1962(1) S.C.R (Supplement) P. 876, and submits that as the service was not voluntarily accepted by the plaintiff but under compulsion i.e., by reason of the order of injunction of the civil court, the plaintiff was not liable to compensate the defendant for the work rendered by him. The learned Counsel relies upon the following observations of Their Lordships at page 891 and 892."It is plain that three conditions must be satisfied before this section (Sec. 70) can be invoked. The first condition is that a person should lawfully to something for another person or deliver something to him. The second condition is that in doing the said thing or delivering the said thing he must not intend to act gratuitously, and the third is that the other person for whom something is done or to whom something is delivered must enjoy the benefit thereof. When these conditions are satisfied Section 70 impores upon the latter person, the liability to make compensation to the former in respect of or to restore, the thing so done or delivered. In appreciating the scope and effect of the provisions of this section it would be useful to illustrate how this section would operate. If a person delivers something to another it would be open to the latter person to refuse to accept the thing or to return it; in that case section 70 would not come info operation. Similarly, if a person does something for another it would be open to the latter person not to accept what has been done by the former; in that case again Section 70 would not apply. In other words, the person said to be made liable under Section 70 always has the option not to accept the thing or to return it. It is only where he voluntarily accepts the thing or enjoys the work done that the liability under Section 70 arises".16. It is this last sentence (underlined by me) which the learned counsel for the appellant strongly relies upon in support of his submission, that unless the services is voluntarily accepted, the provisions of Section 70 of the Act would not be attracted. The aforesaid observation does give some support to the contention of the learned counsel for the applicant. But I find it difficult to agree with the learned counsel that acceptance of a service under order of injection cannot be said to be a voluntary acceptance of the service. Further in Mulam chand v. State of M.P., A.I.R. 1968 S.C. 1218, where State of West Bengal v. B.K. Mondal and sons, 1962 (1) S.C.R. (Supp) 876, was referred to, it was not held that for the application of the third condition imposed by Section 70 of the Act, it was necessary that the acceptance should be a voluntatry one.17. It was also not so construed by this court in Jangareddi Gudem Panchayat v. Narasayya, 1965 (1) An.W.R. 176, already referred to, I therefore find myself unable to accept the contention of the learned counsel for the respondent that acceptance of the service by the plaintiff in Section 708, the Act are not applicable.18. The learned counsel for the respondent then relies upon Section 72 or the Contract Act and contends that the money in the instant case was paid by the plaintiff to the defendant under coercion i.e, by reason of the order of injunction of the Civil Court and therefore the defendant was bound to return the same, but I do not think the word "coercion" Section 72 would cover an order of Court. No doubt the parties to the said order are bound to obey it but cannot be said that it amounts to coersion within the meaning of section 72 of the Act. The present case is really governed by the provisions of Section 70 of the Act and as I have come to the conclusion that the conditions laid down by the said section are satisfied, the plaintiff would not be entitled to claim refund of the money paid to the defendant towards salary and other allowances for the period for which he had rendered Service.19. The learned Counsel for the respondent further sought to contend that the order of injunction was only of an interlocutory character and not a final order and as ultimately the suit and the appeal were withdrawn, the defendant is not entitled to retain any benefit received by him under the aforesaid orders, but this submission is devoid of any force. Even though the order of injunction was of interlocutory character, so long as the said order was in force, it was binding on the parties. The rendering of the services and the payment for the services to rendered having been done under the aforesaid order of injunction and the plaintiff having received the benefit of service, he is not entitled to claim any restitution of the amount paid to the defendant. If such an argument is to be countenanced, it is difficult for the Court to give any relief by way of restitution to the defendant for the service rendered by him: There is no principle of law or equity which requires the Court to direct restitution to one party when it cannot give similar relief to the other party who had rendered service.20. For the foregoing reasons, the appeal is partly allowed to the eatent of Rs. 1806-49 P. The decree and judgment of the lower appellate Court are set aside to that extent, and the judgment and decree of the trial Court are restored. Each party will pay and receive proportionate costs throughout. No leave.Appeals is partly allowed.
"1973 (2) ALT 206,"