Guha, J. - (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 Commissioners 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. 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 of authority is in favour of the view that if 'the facts of a case can be fairly brought within the terms of Section 70, Contract Act and the conditions expressly laid down therein are satisfied, the section should be given effect to and applied irrespective of the fact that there was in fact no contract between the 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.";