Decided on February 04,1969

M.S.DEVORAJ Appellant

Cited Judgements :-

Mangalore Catholic Co-operative Bank Ltd. VS. M. Sundara Shetty [LAWS(KAR)-1987-12-33] [REFERRED TO]


- (1.)The salient facts in this case are not disputed. The plaintiff was the holder of a power of attorney from defendant, and it is marked Ex. P-2 and dated 12-2-1951. This power of attorney was cancelled on 24-3-1955. The plaintiff in exercise of the powers vested in him by virtue of the power of attorney arranged for the addition, alteration and repairs of a building bearing No. 861, Narayana Sastry Road, Mysore. This work was entrusted to one Veerabhadra Pillay. The licence for this work was obtained on 31-8-1953. While accepting the estimate for the work, the plaintiff paid a sum of Rs. 1,000/-. The estimate Ex. P-6 mention that the work is entrusted to Veerabhadra Pillai by the plaintiff in his capacity as power-of-attorney holder of the defendant. The total estimate was Rs. 5027.3-0. The amount due in respect of the work to be carried out was Rs. 4027-3.0 on 5-7-1954. Pillay, the contractor, wrote a letter marked Ex. P. 9 stating that the work entrusted to him has been completed, that arrangement may be made early for payment. The amount mentioned therein is Rs. 4027/-. As per Ex. P. 9(a) dated 5-6-1955, the contractor sent a reminder in regard to the settlement of the bill stating that if the amount is not paid within a month from the date of the letter, legal steps will be taken. Another reminder was sent by the contractor to the plaintiff asking him to pay the amount due. On 26-8-1955, the plaintiff sent a reply as per Ex. P-10 stating that the defendant who happens to be the brother-in-law of the plaintiff has cancelled the power-of-attorney executed in his favour. In view necessary action against the defendant. He also refers to a suit filed by the defendant against the plaintiff. On 1-9-1955, the contractor sent a lawyer's notice to the defendant stating that the defendant's house bearing Municipal No. 861, Narayana Sastry Road, Mysore, was repaired under instructions from his power-of-attorney holder M. S. Devaraj, that is, the plaintiff in this proceedings. He called upon the defendant to pay a sum of Rs. 4027/- and informs him that if the amount is not paid within a week, legal action will be taken against him for the recovery of the amount. The defendant sent a reply to this letter on 5th September 1955. In this letter, he denies many of the allegations made in Ex. P-15, and also states that the plaintiff and he are on inimical terms and that the entire expense incurred in connection with the repairs, has been paid to the plaintiff who had incurred expenses and that the defendant is not due to pay any amount to the contractor. The plaintiff appears to have paid a sum of Rs. 4027/- on 20-9-1956 to the contractor, as seen from the receipt marked Ex. P-1(a). After this payment, the plaintiff issued a notice Ex. P-14 on 22nd December 1956 calling upon the defendant to pay a sum of Rs. 4027/- which he had paid on 20-9-1956 to the contractor. The plaintiff calls upon the defendant to pay the sum of Rs. 4027/- with interest by way of damages at 12 per cent per annum and also stating that failing compliance with this demand a suit would be instituted. The suit was filed by the plaintiff on 14-6-1957.
(2.)The allegation in the plaint is that during the period of agency, the defendant wanted certain repairs, improvements and alterations to be effected to his house, and accordingly, the plaintiff, as the agent of the defendant, arranged for the work being done. On demand by the contractor, for the payment of a sum of Rs. 4027-3-0 due to him, the plaintiff paid the same on 20-9-1956. He pleaded that the Contractor was about to sue the plaintiff for the sum due, and, therefore, the plaintiff was obliged to pay for the contractor Rs. 4027/-. The plaintiff now claims that the defendant is now liable to pay the same to the plaintiff. Further, it is alleged that the defendant having benefited by the improvements to his property and having enjoyed the benefits accruing form the improvements thus effected, he is liable in law and equity to repay the amount to the plaintiff. In view of the fact that the defendant repudiated his liability and failed to pay the amount demanded, the plaintiff filed the suit for the recovery of the sum of Rs. 4027-3-0 together with interest and notice charges together aggregating to Rs. 4092-7-0. The defendant repudiated the liability and stated that he is unaware of the work executed by the Contractor, referred to in the plaint. He denies that he ever consented or approved of the said work. He alleges that the claim of the plaintiff is exaggerated and that the work does not cost Rs. 5027-3-0, as alleged. Further, he pleaded that he has paid off the plaintiff whatever was demanded in this behalf. He confirms that the power of attorney executed on 12-2-1951 has been cancelled on 24-3-1955. He says that this cancellation was on account of the fact that he suspected the defendant (plaintiff?) to be dishonest. He further pleads that the plaintiff was not interested in the defendant and he was not liable to pay any amount to the contractor. Further, the defendant denied any such payment. He said that the doctrine of benefit is not applicable to this case. He also denied that the payment by the plaintiff to the contractor on 20-9-1956 would give rise to any cause of action and the suit founded on such cause of action is untenable.
(3.)The lower courts have found that the plaintiff was a power of attorney holder, and that the plaintiff was acting under the power of attorney executed by the plaintiff (defendant?) on 12-2-1951 as per Exhibit P-2 and it is as agent of the defendant that the plaintiff entrusted the work in question to the contractor and paid him Rs. 1,000/-, it is also found by the lower courts that the work was got done by the plaintiff as agent of the defendant and its cost was Rs. 5027/-. The lower courts also held that the plaintiff paid a sum of Rs. 4027-3-0 to the contractor. The lower courts also held that the payment of Rs. 4027/- by the plaintiff to the contractor was on 20-9-1956, long after the cancellation of the power of attorney executed by the defendant in favour of the plaintiff. The trial court held that the payment made by the plaintiff to the contractor is not a voluntary payment and that it was a lawful payment non-gratuitous and that the plaintiff (defendant?) had enjoyed the benefit of such payment, and therefore, decreed the suit. On appeal by the defendant, the appellate court confirmed the findings of fact, but held that the payment of Rs. 4027/- by the defendant (plaintiff ?) was not lawful but voluntary and the plaintiff cannot have the benefit of the provisions of Section 70 of the Contract Act. The learned District Judge found that the payment made by the plaintiff though it enures to the benefit of the defendant, is no more than an officious payment made only for the purpose of causing further trouble to the defendant rather than helping him in any manner. He, therefore, held that the plaintiff is was not obliged to pay off the contractor, and that the plaintiff is not entitled to seek the reimbursement of the amount paid by him on any ground as the payment is a voluntary payment for which the plaintiff was not liable to pay. In the result, the District Judge dismissed the plaintiff's suit with costs throughout. As against this judgment and decree, the plaintiff has come up in appeal to this Court.

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