JUDGMENT :

STANLEY, C.J.:— The question for determination in this appeal is whether a suit can be maintained for materials over the value of Rs. 20 supplied to a Municipal Board which is subject to the provisions of the North-Western Provinces and Oudh Municipalities Act, of 1883 (sic), in the absence of a contract in writing, signed by the Chairman or a Vice-Chairman and Secretary of the Municipality. The Municipal Board of Benares invited tenders for road ballast, whereupon the plaintiffs made a tender which was approved of by the Resident-Engineer, and was subsequently accepted by a resolution of the Board. The plaintiff acting on the resolution of the Board supplied some ballast for which payment was made. A further instalment of ballast was supplied, a part of which the Municipality refused to accept as being of inferior quality. The plaintiffs then brought the suit out of which this appeal has arisen, claiming the value of this ballast. The defendant Board set up the defence that the contract was not binding on them inasmuch as the requirement of section 47 of the North-Western Provinces and Oudh Municipalities Act, No. 1 of 1900, were not complied with. This section 47 corresponds with section 47 of the Act of 1883. In the written statement the Board expressed its willingness to pay to the plaintiffs Rs. 1,094-8-8, the price of the ballast actually used after deducting the cost of picking and sorting. This sum the Board subsequently deposited in court, and it was withdrawn by the plaintiffs. The court below dismissed the suit as not maintainable, and hence the present appeal.

2. Mr. Ryves, counsel on behalf of the Municipality, based the defence of the Board mainly on the ruling of the House of Lords in the case of H. Young & Co. v. The Mayor and Corporation of Royal Leamington Spa, [1883] 6 App. Cas., 517, affirming the judgments of the Court of Appeal and a Bench of the Queen's Bench Division.

3. The appellants rely upon sections 69, 70 and 72 of the Indian Contract Act as taking the case out of the ruling of the House of Lords. Section 47 of the Municipalities Act of 1883, directs that—

(1) ”Every contract made by or on behalf of Municipal Board whereof the value or amount exceeds Rs. 20, shall be in writing;

(2) “every such contract shall be signed by the Chairman or a Vice-Chairman, and the Secretary; and

(3) “if a contract to which this section applies is executed otherwise than in conformity therewith, it shall not be binding on the Board.”

4. The case of Young and Co. v. The Corporation of Leamington had reference to section 174 of the Public Health Act of 1875 which imperatively requires that every contract made by Urban Authority, whereof the value or amount exceeds £ 50 must be in writing and sealed with the common seal of such authority. In that case the Corporation being an urban sanitary authority, by contract under seal employed a party to construct waterworks— one of the terms of the contract being that if the party employed should make default, the Engineer of the corporation might employ persons “to finish it and charge the party employed with the expense. Default was made in the completion of the contract and thereupon the defendant's Engineer by contract in writing employed the plaintiffs not only to finish the contract but to execute certain additional works not specified therein. The plaintiffs executed the work, and the defendants had the benefit of them. The contract of the Engineer with the plaintiffs was approved of by the defendants, but the provisions of section 174 of the Public Health Act were not complied with. A Bench of the Queen's Bench Division consisting of MATHEW and

WILLIAMS, JJ., on a special case stated by an arbitrator, held that the contract was not binding on the defendants. On appeal from this decision, LINDLEY, COTTON and BRETT, L. JJ., upheld the decision of the Court below, [1883] 8 App. Cas. 517. Upon the point pressed in argument on behalf of the plaintiffs that as the contract h