The plaintiff was entitled to recover the amount under Sections 65 and 70 of the Contract Act, 1872, even if the contract between the parties was void.

R.L. Khurana, J.—The defendant No. 1 Messrs Asia Resorts Ltd., is a public limited company duly incorporated under the provisions of the Companies Act, 1956. It is running a tourist resort/Hotel at Parwanoo under the name of "Timber Trail". It has installed a rope way from its Hotel premises at Parwanoo to a place known as Banasar for the purpose of its business for carrying tourists. It is charging Rs. 35 per passenger

2. On 13.10.1992 an accident took place on such ropeway. The haulage rope of the cable car got snapped as a result one cable car got strucked midway hanging on the track rope. There were twelve persons in the cable car. Two of such persons in panic had jumped out of the cable car. Others remained hanging in the cable car. Rescue efforts made by the defendant No.1 failed. On coming to know about the accident the district authorities rushed to the spot. Rescue operations were discussed with the Managing Director of the defendant No. 1, when it was decided to take the services of the Air Force. Defendant No. 1 gave an undertaking in writing to bear all the charges of the rescue operation to be conducted by the Air Force or any other authority. On such undertaking given by defendant No. 1, services of Air Force were requisitioned by the plaintiff to save the precious human lives. Helicopters of the Ministry of Defence were deployed and the passengers stranded in the cable car were saved after a great struggle. In such rescue operation, the plaintiff had to bear an expenditure of Rs. 7,98,353. The defendant No. 1 is liable to pay such amount to the plaintiff, as per the undertaking given by it on 13.10.1992. The defendant No. 1 was called upon to pay the amount. Since the amount was not paid, the present suit came to be filed for the recovery of Rs. 7,98,353.

3. The suit is being resisted and contested by the defendant No. 1. The accident was admitted. It was also admitted that out of the twelve passengers in the cable car, two had jumped out. It has been pleaded that the accident was not as a result of negligence on the part of the defendant No. 1. It was further pleaded that the track rope on which the cable car was stranded had sufficient strength to bear the load and there was no danger to the lives of the passengers. Various options and methods could be pressed into service to move the cable car and to rescue the passengers. The defendant No. 1 was not allowed to carry out its rescue operations. Deployment of helicopters was not denied. It was pleaded that deployment of helicopters was at the instance of the plaintiff itself. No request was made by the defendant No. 1 to the District Administration for carrying out the rescue operations Nor any undertaking was given. The undertaking was obtained under undue influence and as such the same is neither binding nor enforceable. That the alleged undertaking was got signed from the Managing Director of defendant No.1 under threat and force since a criminal case stood registered against the defendant No. 1 in respect of the cable car accident. It was also pleaded that there is no privity of contract between the parties and that the contract, if any, is void since the same has not been entered into in accordance with the provisions contained in Article 299 of the Constitution of India. The defendant No.1 further averred that the ropeway stood insured with the National Insurance Company, who is a necessary party. Since the plaintiff has failed to join such Insurance Company as a party to the suit, the same is bad for non-joinder of a necessary party Objections as to estoppel and want of notice under Section 80, Code of Civil Procedure insofar as defendant No.2 is concerned, were also raised.

4. Following issues were framed on 26.6.1997 on the basis of the pleadings of the parties:

1. Whether the defendant No. 1 undertook to bear the cost rescue operation, as alleged? OPP

2. If Issue No. 1 is proved in affirmative, to what amount the plaintiff is entitled and from wh