Section 70 of the Contract Act provides a remedy against unjust enrichment in the absence of a formal contract, provided that the service rendered and the benefit enjoyed are proven. It cannot be used to bypass the burden of proving actual work performed or damages sustained when evidence is deficient.

JUDGMENT :

ROBIN PHUKAN, J.

Heard Mr. B.K. Bhagawati, learned counsel for the appellant and Mr. S.P. Choudhury, learned counsel for the respondent.

2. In this appeal, under Order 41 Rules 1 & 2 of the CPC, the appellant has put to challenge the correctness or otherwise of the Judgment and Decree dated 30.03.2017, passed by the learned Civil Judge No. 2, Kamrup (M) at Guwahati (trial court hereinafter), in Title Suit No. 229/2010.

3. For the sake of convenience and to avoid confusion, the name of the parties appeared in the said title suit is adopted herein also.

4. It is to be noted here that vide impugned Judgment and Decree dated 30.03.2017, the learned trial court had dismissed the suit of the plaintiff, wherein the plaintiff had prayed for the outstanding amount of Rs.57,56,699/- along with interest @ 15% per annum.

Background Facts:-

5. The background facts, leading to filing of the present appeal, are adumbrated herein below:-

“The plaintiff is a Class I(A) contractor and the defendant is a government contractor running a proprietorship concern. On 16.05.2005, the defendant obtained a work order from the PWD (Border Roads), Government of Assam in respect of construction of IBB bund-cum-road including security fencing along the Surma river bank from Kinnerkhel to Harinagar, in Cachar and the bid price was Rs. 2,48,33,396/- and the Executive Engineer, Badarpur, BRC Division, vide letter dated 02.03.2006, directed the defendant to commence the work so as to complete the same by December, 2006. Since the defendant could not execute the work properly due to resistance from local people, against acquisition proceedings, the work could not be executed. Thereafter, on 25.03.2008, the Government of Assam notified the acquisition of land for construction of the said road.

Since the year 2005-2006, the defendant requested the plaintiff to provide his services in executing the aforesaid work against the work order. Then, the plaintiff and the defendant mutually agreed that the plaintiff would take entire responsibilities for execution of the aforesaid work as per the terms of the agreement. However, no written contract was executed between them but, it was agreed that the plaintiff would raise bills and he would be compensated for the work. Thereafter, the plaintiff had completed the work and he received various payments for the period 2006 - 2008. But, after 2008, the defendant did not clear any of the bills for work done and the plaintiff has alleged that the work done worth of Rs. 1,07,76,699/-, he has received only Rs.50,20,000/- and despite repeated request, the defendant failed to pay the outstanding amount of Rs. 57,56,699/- along with an interest @ 15% per annum.

Being aggrieved, the plaintiff had instituted the suit before the learned trial court. But, the same came to be dismissed vide impugned judgment and decree dated 30.03.2017.

The defendant had contested the suit by filing his written statement, wherein a stand had been taken that there is no cause of action, there is no privity of contract between him and the plaintiff and the suit is not maintainable and barred by limitation and is bad for non- joinder of parties. It is also stated that though there was initial problem in commencing the work due to non- acquisition of land but, the land was acquisitioned and thereafter, he started the work as awarded to him. It is also stated that the