JUDGMENT
Subhash Samvatsar, J.
1. This appeal is filed by the defendants challenging judgment and decree dated 9-4-1999 passed by First Additional District Judge, Morena in Civil Suit No. 26-B/96 whereby the Court below has passed a decree for recovery of Rs. 91,571.00 with interest at the rate of 15% per annum from 10-8-1996 till the date of passing of the decree and 6% from 9-4-99 till realisation of the said amount.
2. The brief facts of the case are that the plaintiff – respondent filed the present suit for recovery of an amount of Rs. 91,571.00 against the defendant which is a Municipality constituted under the provisions of M.P. Municipalities Act, 1961. The plaintiff carries on business of tent house in the name and style Gupta Tent House as a proprietor. In the year 1994 an advertisement dated 22-10-1994 was issued calling tenders for erecting a tent and supply of chairs, tables, cushions, stage-covers etc. The plaintiff submitted his offer in pursuance of the said tender notice. His tender was accepted by letter No. 5/94 dated 20-11-94 and a work order was placed with the plaintiff at the consideration of Rs. 65,000/-. There is no dispute that the plaintiff carried out the work order as per the tender notice.
3. Another tender notice for supply of Bamboos and wooden poles was issued for which Yadav Tent House has also submitted his tender which was accepted. However, Yadav Tent House at the eleventh hour refused to perform his part of contract and therefore, the present plaintiff agreed to supply the said materials on the same rates on which the tender of Yadav Tent House was accepted. On the assurance given by the officers of the Municipalities the plaintiff carried out the said work and demanded an amount of Rs. 24,971.00 for the work order carried out by him in pursuance to the work order issued to Yadav Tent House and Rs. 1600.00 towards refund of security amount was also claimed.
4. The defendants filed their written statement denying the allegations made in the plaint. The Trial Court on the basis of the pleadings framed as many as nine issues and decreed the plaintiff’s suit with 15% interest, hence this appeal.
5. The first contention raised by the Counsel for the appellant is that the Trial Court has erred in passing a decree for Rs. 91,571.00. As regards the amount of Rs. 65,000/- claimed by the plaintiff towards the work order issued in his name is concerned, it is an admitted fact that a work order for Rs. 65,000/- was issued in favour of the plaintiff for installation of tent, supply of chairs, bed-sheets, table-covers etc. for Mela Pashupatinath Mahadev, Morena. From the perusal of the written statement and the statements of the witnesses it appears that there is no serious dispute about the work done by the petitioner in pursuance of the work order issued to him. The plaintiff has supplied the materials as per the work order and there is no justification on record to disallow this part of the claim of the plaintiff.
6. As regards, the claim for the amount of Rs. 24,971/- is concerned, the contention raised by Shri K.N. Gupta, learned Senior Advocate appearing for the Municipality is that in absence of any written contract this amount could not be awarded to the plaintiff. For this purpose he relied upon the provisions of Section 110 of the M.P. Municipalities Act and a judgment passed by this Court in the case of Shajuddin v. Nagar Palika Parishad Sheopurkalan, 1985 JLJ 486. Section 110 of the Act provides that all the contracts on behalf of the Municipality shall be expressed to be made by the Chief Municipal Officer in accordance with the procedure prescribed under the said section. According to this section, however, contract shall be made on behalf of the Municipality by the Chief Municipal Officer and no such contract for any purpose shall be carried out without the approval or sanction of some other Municipal Authority unless and until such approval or sanction is obtained. However, contract made by the Chief Municipal Officer involving an expenditure exceeding one thousand rupees, shall be reported by him within fifteen days to the Standing Committee. In such circumstances, the Counsel for the appellant submits that oral contract alleged to have been executed between the plaintiff and the defendant is void and, therefore, no decree can be passed for the said amount in favour of the appellant.
7. In response to this argument, learned Counsel for the respondents has relied upon the provisions of Sections 65 and 70 of the Contract Act. According to the plaintiff even assuming that the contract in question is void, the defendant Municipality has received this advantage under the said agreement or contract hence, now it is bound to compensate it. Section 70 of the Act provides that when a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former i n respect of, or to restore, the thing so done or delivered. Relying on this section learned Counsel for the plaintiff submitted that even assuming that the contract is void as the Municipality has received the benefit under the contract and the plaintiff has supplied the material on the assurance that he will get the amount agreed to be paid to Yadav Tent House shows that he has supplied the material to the Municipality and, therefore, the Municipality is bound to compensate him.
8. As regards the judgment relied upon by the Counsel for the appellant – defendant in the case of Shajuddin (supra) the said case is quite distinguishable. In that case it was pleaded that the Municipality had orally agreed to give Pacca shops to the plaintiff. Thus, in that case there was no allegation that the Municipality had enjoyed any benefits under the oral agreement, which is not the situation in the present case. In the present case the plaintiff has supplied the materials which was enjoyed by the defendant. The defendant had taken benefit of the said materials knowingly that they will have to pay the amount as agreed between the Municipality and Yadav Tent House and, therefore, in view of Sections 65 and 70 of the Contract Act the Municipality is liable to pay the said amount.
9. The next contention raised by the learned Counsel for the appellant is that no notice under Section 319 of the M.P. Municipality Act was served by the plaintiff before institution of the suit. Section 319 of the Act provides that no suit shall be instituted against the Council or its officers until expiration of two months after the notice in writing stating the cause of action, the name and place of intending plaintiff and the relief which he claims.
10. After perusing the said section I find that the arguments advanced by the learned Counsel for the appellant has no force. Section 319 of the Act bars a suit against the Council and its officers or any person for anything done or purported to have been done under the provisions of the Act. In the present case, the officers or the Council, while asking the plaintiff to supply the materials was not doing anything under the provisions of the Municipalities Act but have simply entered into a contract to supply materials for the purpose of ‘Mela Pashupatinath Mahadev, Morena’ and therefore, they were not acted or purported to have been acting under the provisions of the Act and in such circumstances Section 319 of the Act will not be attracted.
11. The next contention raised by the Counsel for the appellant is that the suit was filed by the plaintiff against the President of Municipal Council and Chief Municipal Officer of the Municipality and, therefore, the suit is not maintainable. For this purpose Counsel for the appellant has relied upon a decision of the Apex Court in the case of Chief Conservator of Forests v. Collector and Ors., , wherein the Apex Court has held that a suit against a Government Officer can not be maintained in the name of his post. The State Government has to be a party in such cases. Relying on this judgment Counsel for the appellant urged that the Municipal Council was not made a party and the officers of the Municipal Council were sued in the name of their posts, therefore, the suit is not maintainable. This argument is also without any substance, firstly because this objection is not raised by the defendant in the written statement. Moreover, Section 99 of the Code of Civil Procedure provides that no decree shall be reversed or modified merely on the ground of nonjoinder or mis-joinder of the parties, if the judgment or decree is correct on merits. Moreover, in the present case plaintiff has filed an application, I.A. No. 978/03 for correction in the cause title. The appeal is filed by the appellant, Nagar Palika, Morena. The cause title in the Trial Court naming officers with reference to their respective posts which is of some misdescription of the parties and as has been laid down by the Apex Court in the case of Kurapati Venkata Mallayya and Anr. v. Thondepu Ramswami and Co. and Anr., , that where a suit is so instituted in misdescription of parties the plaint can be amended at any time for the purpose of showing the correct description of the defendant and in such a case the question of limitation does not arise.
12. Considering these facts I find that this argument advanced by the Counsel for the appellant also has no force. From the perusal of the evidence on record I find that the witnesses of the defendant have admitted the fact that the plaintiff has carried out the work order for the Municipality at the rate agreed between him and the Municipality and the rates agreed between Yadav Tent House and the Municipality and the amount for the work done is not paid to the plaintiff.
13. Considering the statement of the defendants, i.e., statements of D.W. 1, Mahendra Kumar Rai and D.W. 2 Rakesh Sharma and in Para 6 of the statement Rakesh Sharma D.W. 2,I find that the Court below has not committed any error in passing a decree for a sum of Rs. 91,571.00 in favour of the plaintiff. However, I find that the Court below has erred in passing a decree for payment of interest at the rate of 15% per annum from 10-8-96 till the date of judgment. In the present days when the Banks are paying interest at the rate of 5 to 6 per cent per annum on the fixed deposits then allowing an interest at the rate of 15% per annum seems to the exceeding and, therefore, the rate of interest is reduced from 15% to 6% per annum from 10-8-1996 till the date of judgment. The other remaining parts of the impugned judgment and decree are maintained.
14. In the result, the appeal is partly allowed with the aforesaid provision with no orders as to costs.