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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
M.R.A. Ansari,I.K. Kotwal, JJ.
State Of J&K - Appellant
Versus
Vasant Rai Amresh Parekh - Respondent
CIA No. 1/1972
Decided On : 25 April, 1977
CONSTITUTION OF JAMMU AND KASHMIR - SECTION 122 - CONTRACT ACT - SECTION 65 AND 70 - Held, that the provisions of Section 122 of the Constitution of Jammu and Kashmir are mandatory and any agreement which does not comply with its terms is void. Held, that Section 65 of the Contract Act is limited only to two cases namely: (i) where an agreement is discovered to be void; or (ii) where a contract becomes void. Held, that Section 70 of the Contract Act applies where the following three elements are present namely: (i) that a person has lawfully done something for another person or delivered something to him; (ii) that he does not intend doing so gratuitously; and (iii) that the other person has enjoyed the benefit thereof.
Fact of the Case:
The plaintiff, who is respondent in the Letters Patent Appeal before us filed a suit for recovery of Rs. 34,950/-against the defendant, the State of Jammu & Kashmir, who is appellant before us in the Letters Patent Appeal on the allegations that he was the sole proprietor of Messrs United Forwarding Clearing and Transport Service, 102 Chakla Street, Bombay, that the defendant, who owned a woollen mills entitled Government Woollen Mills, Srinagar, wanted transportation of 174 packages of textile machinery lying in a Bombay port to the premises of the Government Woollen Mills at Srinagar, that the defendant through its agents Messrs Machinnoon Mackanzie and Co: Private Ltd., Bombay approached almost all the transport services in Bombay for the said service but no one was prepared to accept the work of transporting the aforesaid packages to Srinagar as the packages were not only heavy but also unweildy, that ultimately, the aforesaid agents of the defendant-appellant approached the plaintiff in July 1960 and after a prolonged correspondence an agreement was arrived at between the plaintiff and the defendant that the plaintiff would be paid Rs. 2,900/- for each transport vehicle carrying a load of 250 maunds, that the plaintiff transported the entire goods lying at Bombay port and delivered the same to the Manager Government Woollen Mills, at Srinagar that this was done in 21 trips out of which in 20 trips the full quantity was carried from Bombay to Srinagar whereas in the last trip i. e. 21st trip only three packages were loaded and transported to Srinagar, that the plaintiff was entitled under the agreement to charge Rs. 2,900/- per trip for the twenty trips in which every time full quantity was transported and Rs. 1,450/- for the last trip in which only three packages were loaded and delivered, that calculated at this rate the total sum due to the plaintiff from the defendant was Rs. 59,450/- that the plaintiff having received part payment to the tune of Rs. 24,500/- was entitled to the balance of Rs. 34,950/- and that the defendant had failed to pay this amount to the plaintiff inspite of the fact that he had served a notice u/s 80 of the Code of Civil Procedure also. In the end it was averred that the suit was within time as the last payment was made by the defendant to the plaintiff on 4-9-1963.
Finding of the Court:
Held, that the provisions of Section 122 of the Constitution of Jammu and Kashmir are mandatory and any agreement which does not comply with its terms is void. Held, that Section 65 of the Contract Act is limited only to two cases namely: (i) where an agreement is discovered to be void; or (ii) where a contract becomes void. Held, that Section 70 of the Contract Act applies where the following three elements are present namely: (i) that a person has lawfully done something for another person or delivered something to him; (ii) that he does not intend doing so gratuitously; and (iii) that the other person has enjoyed the benefit thereof.
Issues: None
Ratio Decidendi: The provisions of Section 122 of the Constitution of Jammu and Kashmir are mandatory and any agreement which does not comply with its terms is void. Section 65 of the Contract Act is limited only to two cases namely: (i) where an agreement is discovered to be void; or (ii) where a contract becomes void. Section 70 of the Contract Act applies where the following three elements are present namely: (i) that a person has lawfully done something for another person or delivered something to him; (ii) that he does not intend doing so gratuitously; and (iii) that the other person has enjoyed the benefit thereof.
Final Decision: Appeal and cross-objections dismissed.
1. This judgment shall dispose of Letters Patent Appeal No. 1 of 1972 and Cross-Objection Petition No. 14 of 1972 arising out of a common judgment of a learned Single Judge of this court, J. N. Bhat J.
2. A brief resume of the facts culminating into the aforesaid appeal and cross-objections may be given as below:
3. The plaintiff, who is respondent in the Letters Patent Appeal before us filed a suit for recovery of Rs. 34,950/-against the defendant, the State of Jammu & Kashmir, who is appellant before us in the Letters Patent Appeal on the allegations that he was the sole proprietor of Messrs United Forwarding Clearing and Transport Service, 102 Chakla Street, Bombay, that the defendant, who owned a woollen mills entitled Government Woollen Mills, Srinagar, wanted transportation of 174 packages of textile machinery lying in a Bombay port to the premises of the Government Woollen Mills at Srinagar, that the defendant through its agents Messrs Machinnoon Mackanzie and Co: Private Ltd., Bombay approached almost all the transport services in Bombay for the said service but no one was prepared to accept the work of transporting the aforesaid packages to Srinagar as the packages were not only heavy but also unweildy, that ultimately, the aforesaid agents of the defendant-appellant approached the plaintiff in July 1960 and after a prolonged correspondence an agreement was arrived at between the plaintiff and the defendant that the plaintiff would be paid Rs. 2,900/- for each transport vehicle carrying a load of 250 maunds, that the plaintiff transported the entire goods lying at Bombay port and delivered the same to the Manager Government Woollen Mills, at Srinagar that this was done in 21 trips out of which in 20 trips the full quantity was carried from Bombay to Srinagar whereas in the last trip i. e. 21st trip only three packages were loaded and transported to Srinagar, that the plaintiff was entitled under the agreement to charge Rs. 2,900/- per trip for the twenty trips in which every time full quantity was transported and Rs. 1,450/- for the last trip in which only three packages were loaded and delivered, that calculated at this rate the total sum due to the plaintiff from the defendant was Rs. 59,450/- that the plaintiff having received part payment to the tune of Rs. 24,500/- was entitled to the balance of Rs. 34,950/- and that the defendant had failed to pay this amount to the plaintiff inspite of the fact that he had served a notice u/s 80 of the Code of Civil Procedure also. In the end it was averred that the suit was within time as the last payment was made by the defendant to the plaintiff on 4-9-1963.
4. The defendant resisted the suit on the grounds ; that even though their agents Messrs Machinnoon Machenzie and Co: Pvt. Ltd., and their trade agent in Bombay had entered into an agreement with Messrs United Forwarding, Clearing and Transport Service, Bombay, for transportation of 174 cases of machinery from Bombay to Srinagar, yet this contract was sub-let by M/s Jullunder Ex-Servicemen Motor Transport Co-operative Society Ltd., that it was actually the Jullunder Ex-servicemen Motor Transport Co-operative Society Ltd., which transported goods from Bombay to Srinagar, that the challans which they produced before the defendant, revealed that M/s United Forwarding Clearing and Transport Service were to pay them Rs. 2,400/- per trip, that even the rate of Rs. 2,400/- per trip being excessive M/s Jullunder Ex-servicemen Motor Transport Co-operative Society Ltd., was prevailed upon by the General Manager Government Woollen Mills at Srinagar to bring down the rate which was ultimately brought down to Rs. 2,160/- per trip, that Rs. 24,500/- having been already paid by the defendant to the aforesaid transport Society an amount of Rs. 19,780/- was also paid to them on 13-6-1961 in full and final settlement of the total claim of transporting 174 packages from Bombay to Srinagar, that this full and final settlement w
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