Cantonment Board, Mhow v. Chhajumal and Sons Mhow — 1964 DIGILAW 16 (MP)

JUDGMENT V.R. NEWASKAR 1. This is an appeal by the Cantonment Board Mhow against the decree passed by the Additional District Judge, Indore for Rs. 10,344-8-0 in favour of the plaintiff M/s Chhajumul & Sons a joint Hindu Family firm of which the Manager and Karla is one Vedprakash S/o Mangatrai. 2. The claim of the plaintiff, consisting of the aforesaid amount of Rs. 10,344-8-0 and interest thereon by way of damages 2347-4-0, was based on the allegations that pursuant to a contract in writing Ex. P-27 entered into between the plaintiff and the Cantonment Board Mhow on 17th January 1946 the plaintiff was allotted the repair work of the Bombay-Agra Road within the limits of the Cantonment for the year 1945-46. The writing Ex. P-27 was signed by the then President of the Board Mr. Mountain and was also countersigned by the Executive Officer of the Board Mr. Anand. The plaintiff carried out the repairs work by 11.5.1946 and sent a bill for Rs. 42, 332-10-giving the necessary details. The plaintiff had taken aspha it weighing 44 tons worth Rs. 9649/- the rate whereof was Rs. 219-4-6 per ton, from the Board. Deducting this amount from the amount of the bill the plaintiff was entitled to receive from the defendant Rs. 32, 684-10-0. Towards this, the plaintiff was paid by the defendant Rs. 12,500 on 13.4.1946 and Rs. 9840-2-0 on 28.3.1947 leaving a balance of Rs. 10,344-8-0. The defendant withheld the payment of this amount under its resolution No. 128/262 dated 13.8.1947. The defendant while withholding this amount, it is said, had represented that it was entitled to do so because that much amount was due from the plaintiff to the Board in respect of a contract of the earlier year namely 1944-45. The plaintiff thereupon saved the defendant with a notice dated 24.2.1949 that the aforesaid amount in respect of the contract in question had remained unsatisfied and that its act in withholding the amount was improper. The plaintiff also called upon the Board by the same notice to pay his dues. The defendant did not comply and hence the suit was filed. 3. These allegations of the plaintiff were replied by the defendant in its written statement raising the following contentions. 4. The plaintiff also called upon the Board by the same notice to pay his dues. The defendant did not comply and hence the suit was filed. 3. These allegations of the plaintiff were replied by the defendant in its written statement raising the following contentions. 4. On 17.1.1946 or thereabout a contract in writing had been entered into between the parties whereby it was provided that the plaintiff should carry out the original as well as repairs work allotted to him upto the limit of Rs. 5000 each. The work which the plaintiff is said to have carried out, namely that of repairing Bombay-Agra Road was far beyond that limit. It was undertaken by the plaintiff as a result of agreement reached between the plaintiff and the Executive Officer of the Board Mr. Anand on 29.1.1946 as indicated in the writing Ex. D. 21 which provided no limit as to the value of the work to be carried out. The Executive Officer had no authority to authorise carrying out the work of such magnitude. Then was no sanction from the Board for this. The Board was therefore Dot bound to pay for this work which had not been duly unthorised. The Board itself moreover had no power to ratify such construction or repairs work in the absence of any budgetary provision, estimate, plan etc. Moreover any such contract between the Board and the plaintiff had to be drawn up as provided by section 114 of the Cantonment Act and if not done would not be binding upon the Board as provided in section 115 of the said Act. It was admitted that the plaintiff had carried out the work to the extent of Rs. 42,333-10-0 and that the plaintiff had submitted his final bill dated 25.4.1946. But it was denied that the Board had accepted the completion of the work on 11.5.1946 or any other date. As to the supply of asphalt it was admitted that 44 tons of asphalt bad been supplied to the plaintiff for the purpose of the work but this was done without the Board's permission price whereof was Rs 9649. Payment of Rs. 12,500 was admitted. The Board's demo and for the price of 57-7 tons of asphalt was, it was said, in accordance with the rules. Payment of Rs. 12,500 was admitted. The Board's demo and for the price of 57-7 tons of asphalt was, it was said, in accordance with the rules. Passing of resolution No. 24 dated 26.2.1947 and No.25 dated 13.8.1947 was admitted but it was contended that the said resolutions were ultra vires the power of the Board since it was not competent for the Board to ratify unauthorised work, though such ratification might have been done in the following year. It was admitted that the plaintiff was paid Rs. 9840-2-0 on 28.3.1947. This payment was made on the understanding that the plaintiff should allow adjustment of the amount of Rs. 10,344.8.0 for the price of asphalt (57-7 tons). The plaintiff, it was pointed out, marked time by seeking arbitration and when the claim for the price of asphalt had become barred by limitation filed the present suit. The claim of the plaintiff was barred by limitation both because of the general law of limitation and also because of the special provision under section 273 of the Cantonment Act which provides six months period for such a claim. It was also contended that the present suit was incompetent as no notice as required under section 273 of the Cantonment Act had been given. On these and other such grounds it was contended that his suit should be dismissed. 5. The trial Court framed 13 issues covering the afore-said contentions. It, after recording evidence, found that the plaintiff's suit was not and could not be based on the agreement dated Ex. P. 27 of 17th January, 1946. It was really based on the agreement which took place between the plaintiff and the Board's executive officer Mr. Anand on 29.1.1946 Ex. D.21. This latter agreement was not subject to any pecuniary limitation as to the value of the work meant to be carried out. There was no prior sanction of the Board for that agreement. It was consequently not binding upon the Board. It was also not binding upon the Board as Clause 19 of the Cantonment Accounts Code provided that no money could be paid from the fund of the Board unless the expenditure had been provided either in the original or revised bud get for the ear in question and had been sanctioned by the Command. It was also not binding upon the Board as Clause 19 of the Cantonment Accounts Code provided that no money could be paid from the fund of the Board unless the expenditure had been provided either in the original or revised bud get for the ear in question and had been sanctioned by the Command. It further held relying upon Irvine vs. Union Bank of Australia, 4 Indian Appeals 86, that there could, in law, be no ratification of an act done by an agent, which it was not competent for the principal to authorise before it was commenced. Since the Board itself, it was held, had no power to permit expenditure for which there was neither any budgetary provision nor sanction of the Command any ratification by it of the work would be legally invalid. With reference to the resolutions of the Board Nos. 24 and 25, it held, that the said resolutions contravened Clause 22 of the Cantonment Accounts Code which provided that 'in no circumstances shall a liability be allowed to stand over to be paid for from the budget grant of the following year.' As regards the alleged acceptance of the completion report dated 11.5.1946 it held that the Board had not accepted the said report and the document Ex. P.125 filed as a copy of the so caned completion report was a spurious document. The plaintiff was held to have not proved that Rs. 32,684-10-0 were due to him for the work carried out by him after allowing for the value of asphalt. As regards payment of Rs. 12,500 it was held to be irregular as it related to the work which was unauthorized. The resolutions of the Board, authorizing payment of the balance of the amount due for the work, being in respect of unauthorized work, were not binding upon the Board. There was also no agreement formally drawn up fulfilling the requirement of Section 114 of the Cantonment Act and in the absence of such an agreement, what had been agreed to between the plaintiff and Mr. Anand did not bind the Board as provided in Section 115 of the Cantonment Act. Claim for interest was held to be not competent. The claim of the plaintiff was held to be not barred as the defendant had admitted payment of Rs. Anand did not bind the Board as provided in Section 115 of the Cantonment Act. Claim for interest was held to be not competent. The claim of the plaintiff was held to be not barred as the defendant had admitted payment of Rs. 12,500 on 13.5.1946 and the resolution of the defendant Board dated 26.2.1947 had acknowledged its liability to pay Rs. 42,333. Section 273 of the Cantonment Act, which provided six months period for a claim to be made against the Board, was held applicable only to tortious acts of the Board or its agents or servants and not to contractual obligations. Reliance in this connection was placed upon the decisions reported in Municipality of Faizpur vs. Manak Dulab, ILR 22 Bom. 637, Cantonment Board vs. Hazarilal, AIR 1934 All. 436, Bhaiyalal vs. Municipal Committee, Murwara, 1958 JLJ 270=ILR 1957 MP 529=1958 MPC 260. Lastly it held that as the defendant has reaped benefit of the work carried out by the plaintiff of the value of Rs. 42,333-10-0, the defendant ought to pay for the benefit received by it although the agreement under which it was done was discovered to be void. The learned Judge relied upon the decision reported Arunachala vs. Srivilliputtur Municipal Council, AIR 1934 Mad 480 . He further held that since the defendant Board had admittedly paid Rs. 12,500/- the work was not gratuitously done and under section 70 of the Contract Act also the plaintiff was entitled to claim the amount in suit. Reliance in this connection was placed upon the decisions reported Gulam Hussain vs. Mir Jakirali, 24 MPLC 248=ILR 1940 Nag 553 and Alsidas Pannalal vs. Punamchand Hukumchand, 30 MPLC 124=AIR 1944 Nag 159. The trial Court on these findings decreed plaintiff's claim for the principal amount only Rs. 10,344-8-0. 6. This is an appeal against that decision. Three questions which need consideration in view of the arguments advanced on either side are:- (1) Whether the contract on which the suit is based is within the competence of the Board? (2) Whether the claim is within time? (3) Whether it was competent for the trial Court to award relief to the plaintiff on altered basis in the absence of any amendment in the pleadings with opportunity to the defendant to meet that case? 7. (2) Whether the claim is within time? (3) Whether it was competent for the trial Court to award relief to the plaintiff on altered basis in the absence of any amendment in the pleadings with opportunity to the defendant to meet that case? 7. The finding on the first of the above questions recorded by the trial Court is in favour of the defendant whereas his findings on the remaining two are in favour of the plaintiff. On behalf of the appellant finding on the point Nos.2 and 3 are assailed whereas on behalf of the respondent finding on point No.1 is challenged and the conclusions of the trial Court are sought to be supported by seeking reversal of that finding also. The respondent also sought to support the trial Court's findings on points Nos.2 and 3. 8. It will be convenient to deal with these three questions seriatim although the trial Court's finding on the first question is in favour of the appellant. 9. It is not disputed on either side that the agreement Ex. P.27 dated 17.1.1946 was duly executed as required by Section 114 of the Cantonment Act. It bears the signatures of the President of the Board Brigadier Mountain, Mr. H.K. Maheshwari, who was a member of the Board as also of the plaintiff Vedprakash. It is also countersigned by the Executive Officer of the Board, Mr. Anand. If, therefore it is this agreement which can properly apply for the work which the plaintiff had carried out during the years then there would be no objection to its validity on the ground that it contravened Section 114 of the Cantonment Act and consequently it was invalid under Section 115 of that Act. The agreement Ex. P.27 was admittedly entered into between M/s Chhajumul and Sons and the Mhow Cantonment Board for the year 1945-46, which commenced from the 1st of July 1945 and ended on the 30th of June 1946. The plaintiff's firm under it had agreed to provide, construct, execute, build or repair all public works original as well as repairs work of all types i.e. roads, building, drains etc. at Rs. 135/- % above the then prevailing Cantonment Board schedule of rates. The plaintiff's firm under it had agreed to provide, construct, execute, build or repair all public works original as well as repairs work of all types i.e. roads, building, drains etc. at Rs. 135/- % above the then prevailing Cantonment Board schedule of rates. It was agreed that the controlled material such as cement, which was available with the Board would be supplied to the contractor by the Board on payment of cost price inclusive of freightage, coolie charges, cartage etc. Term No.4, which is material in connection with the present controversy whether the work bad been carried out pursuant to the contract Ex. P.27, is as follows- "That the contractor shall under obligation to do or construct all Cantonment Board works as will be entrusted by the Executive Officer during the time specified for completion by the Board or the Executive Officer. The contractor shall be also bound to carry out or construct all original works of the value of Rs.5000. In case of any work not being completed within the prescribed time, the contractor shall be liable to pay to the Board a penalty not exceeding Rs. 5 per diem as may be fixed by the Board for each work." 10. Now the contention which the defendant Board had raised in connection with this term and which the trial Court had accepted was that the limit of Rs. 5000/- indicated in it applied as much to original work as to repairs works and that since the work in question far exceeded that limit being of the value of Rs. 42. 332-10-0 it was outside the scope of the above contract. The term all original woks of the value of Rs.5000/. in this contract clearly indicate that the limit of Rs. 5000/- was operative to original works only and not to repairs works. No limit was indicated in the contract for the repairs work. The rate at which the plaintiff agreed to carry out all original or repairs work which would be entrusted to him during 1945-46 was at Rs. 135/- % above the schedule of rates. The Board on examination of the condition of the roads to be repaired was of the view that the Bombay-Agra Road within its limits was in dire Deed of repair. It sought grant-in-aid from the G.O.C. in-Chief-Central Command for Rs. 11,500/-. 135/- % above the schedule of rates. The Board on examination of the condition of the roads to be repaired was of the view that the Bombay-Agra Road within its limits was in dire Deed of repair. It sought grant-in-aid from the G.O.C. in-Chief-Central Command for Rs. 11,500/-. To this the latter replied saying that that Board could commence work financing it from its own funds and recouping the same on the grant-in-aid being sanctioned. This letter is dated 26.1.1946 i.e. nine days after the agreement Ex. P.27 had been executed. The President of the Board thereupon wrote to the Chief Engineer expressing his doubt whether under the terms of Ex. P.27 the contractor is bound to carry out the proposed repairs work which was in excess of Rs. 5,000/- at the rates mentioned in that agreement and wanted the engineer to ascertain from him and secure his consent if possible. The plaintiff thereupon was asked and he gave his consent saying that his firm was willing to carry out that work of repair at the then contracted rates. The agreement, if at all it can be called an agreement, was intended to protect the Board from the possible claim by the contractor at the rates higher than those mentioned in Ex. P.27. It was either a .clarification of the terms contained in that agreement or a sort of concession by the contractor to charge the same rates even if the work was of greater value than the limit of Rs. 5,000/-. It was by no means any fresh agreement to carry out any work not covered by the agreement Ex. P.27. It was intended to secure his consent to the rates mentioned in Ex. P. 27. The reason for securing this consent seemed to be that the authorities of the Board were under the impression that the contractor was not bound to carry out works whether original or repairs beyond the limit of Rs. 5000 at the rates mentioned in Ex. P.27 but was entitled to claim higher rates. It is therefore not correct to say that the work for the repair of Bombay-Agra Road was not and could not be referable to the contract dated Ex. P.27 and the claims in respect of the same could be based only on a different and independent contract dated 29.1.1946 Ex. D.21. As explained above Ex. It is therefore not correct to say that the work for the repair of Bombay-Agra Road was not and could not be referable to the contract dated Ex. P.27 and the claims in respect of the same could be based only on a different and independent contract dated 29.1.1946 Ex. D.21. As explained above Ex. D.21 is not at all an independent contract but it is really meant to clarify the position with reference to the contract Ex. P.27 in view of the work in question being of higher value than Rs. 5,000. 11. Moreover it seems from the term No.4 of the contract Ex. P.27, which was applicable to all kinds of work original or repairs which would be entrusted to the contractor for the year 1945-46, that the limit of Rs.5000 is specifically applicable only to the original work and not the work of repairs. The work in connection with the Bombay-Agra Road was not an original work. It was for its repair. The learned Judge of the trial Court saw the force of this contention submitted to it on behalf of the plaintiff in para 11 of the judgment and it tried to meet it by holding that there was ambiguity in the contract regarding the limit of the value of repairs work and that therefore under proviso 6 of section 92 of the Evidence Act it was open to find what the parties meant by looking into surrounding circumstances. This is a total mis-application of the proviso 6 to the terms of the agreement. Term No.4 lays down that the limit of Rs. 5000 would apply to original work. We cannot import in it similar limit for repairs work on the ground that the term is ambiguous. Where the limit is specifically meant to apply to one kind of work, it will adding to its terms to say that it applies to every other kind of work. There was in that case no point in mentioning that the limit was applicable to original work. It will really involve contravention of section 92 of the Evidence Act if oral evidence or statement adding to the terms of a written contract were permitted. There was in that case no point in mentioning that the limit was applicable to original work. It will really involve contravention of section 92 of the Evidence Act if oral evidence or statement adding to the terms of a written contract were permitted. What proviso 6 to section 92 of the Evidence Act permits is to enable the Court to ascertain the nature and qualities of the subject mailer of the instrument or in other words to identify person or thing to which the instrument refers. 12. In Tsang Chuen vs. Li Po Kwai, 1932 Appeal Cases 715, it is held that where the words of a written instrument are free from ambiguity in themselves and where the external circumstances do not create any doubt or difficulty as to the proper application of words, such instrument is always to be construed according to the strict plain common meaning of the words themselves and evidence dehors the instrument for the purpose of explaining it according to the surmised or alleged intention of the parties to the instrument is totally inadmissible. 13. This principle should have been borne by the trial Judge while considering the question of admissibility of oral evidence to find the intention of the parties. This appears not to have been done. In fact even if the plaintiff bad not given his consent on 29.1.1946 as indicated in Ex. D.21 he would have been held bound by the terms of Ex. P.27 and it would not have been possible for him to contend that he was not bound to carry our repairs work of that magnitude (i.e., higher than Rs. 5000) at the rates indicated in Ex. P. 27. It is really surprising that even after securing consent from the plaintiff as shown in Ex. D.21 the defendant Board seeks to resile from the terms of Ex. P.27 by contending that it was inapplicable to repairs work. This is not permissible as it would involve contradiction of the specific terms of the agreement. When the contract is written prior conduct or negotiations could not have been used to add to its meaning expressed in a language which is perfectly understandable and can apply to existing facts. The trial Court was therefore not right in holding that the agreement Ex. P.27 was inapplicable to the work in question because the work was of value greater than Rs. The trial Court was therefore not right in holding that the agreement Ex. P.27 was inapplicable to the work in question because the work was of value greater than Rs. 5000 and the work was carried out pursuant to Ex. D.21. & Ex. D. 27 really cannot be called an independent agreement, having no reference to Ex. P.27 for the purpose of construction of repairs work of Bombay-Agra Road as it does not contain necessary terms for the purpose. 14. Another ground suggested by the trial Court for holding that the plaintiff cannot claim payment even under Ex. P.27 because no plans and estimates had been given to him. It cannot be disputed that plans and estimates had to be supplied to the contractor by the Board and if so supplied the contractor would be bound to carry out the work according to the same and that he would not be able to lay any claim for any work done outside it. This does not mean that if the contractor is required to carry out the repairs work to the satisfaction of the authorities he would not be paid for the work actually carried out in compliance with the terms of the contract. 15. The trial Court's finding, therefore, that the suit was not and could not be based on the agreement dated 17.1.1946 Ex. P.27 and that it was based only on Ex. D.21 dated 29.1.1946 is wholly erroneous. 16. One more ground taken by the trial Court for holding the contract in question invalid was that there had been no budget estimates and no plans as are required under Clause 19 of the Cantonment Accounts Code, 1924. It was competent it is said, to spend money from the Cantonment fund. Clause 19 of the Cantonment Accounts Code is as follows:- "No money shall be paid from the Cantonment fund unless the expenditure is either- (a) Provided for in the original or revised budget estimate as sanctioned; or (b) Sanctioned by the Officer Commanding-in-chief, the Command. Provided that in the case of revision of establishment or expenditure on original works, no expenditure shall be sanctioned unless detailed proposals or estimates have been prepared and sanctioned by the competent authority." 17. In the first place the provision for budget estimates etc. is a matter of internal management with which the third party is not concerned. Provided that in the case of revision of establishment or expenditure on original works, no expenditure shall be sanctioned unless detailed proposals or estimates have been prepared and sanctioned by the competent authority." 17. In the first place the provision for budget estimates etc. is a matter of internal management with which the third party is not concerned. It was open for the contractor to presume that necessary sanction held been taken by the authority concerned and then alone the contract had been entered into. The contractor cannot be made to suffer for irregularity in the official routine in complying with the requirements of Rule 19 of the Cantonment Accounts Code. In the second place it seems clear from Ex. D.21 that the G.O.C. in-Chief Central Command had sanctioned the work when the Board sought its grant in-aid. It was ordered that the Cantonment, if it so desired, could commence work financing it from its own funds and recouping the same on the grant-in-aid being sanctioned (vide Ex. D.21). After the receipt of the sanction the President of the Board required the Chief Engineer to secure consent of the Contractor to undertake the work in question at the same rate at which he was to execute other works below Rs 5000. This consent was given by the plaintiff and thereafter the work was carried out. The work thus undertaken was of repairing the road and not an original work and therefore proviso to Rule 19 of the Cantonment Accounts Code did not come in the way. 18. The second ground taken by the trial Court for holding the contract as invalid is therefore untenable. 19. It therefore follows that the plaintiff's claims is based really on the contract Ex. P.27 and the said contract is not invalid either because it exceeded the limit of Rs. 5000 mentioned in Clause 4 of the contract or it contravened clause 19 of the Cantonment Accounts Code. 20. This takes us to the second question regarding limitation. This question has to be examined from two angles. Firstly it has to be seen whether to such a suit the rule of limitation as contained in Section 273 of the Cantonment Act will apply and secondly whether the claim is barred under the relevant general provision contained Schedule I to Limitation Act. 21. This question has to be examined from two angles. Firstly it has to be seen whether to such a suit the rule of limitation as contained in Section 273 of the Cantonment Act will apply and secondly whether the claim is barred under the relevant general provision contained Schedule I to Limitation Act. 21. As regards the first it cannot be said that the plaintiff's suit is in respect of any act done or purporting to have been done in pursuance of the Act or of any rule or bye-law made thereunder. It is no doubt true that it is the duty of the Cantonment Board, as provided in Section 116 (h) of the Cantonment Act, so far as funds at its disposal permit, to construct alter and maintain streets etc. and it has power to utilize its funds for the purpose but because of the existence of such duty and power it cannot be said that entering into a contract with a third party in pursuance of such power for repairing a road or failure to pay for it becomes an act of the Board done or purported to have been done under the Act or rules made thereunder. There is a distinction between an act done under the Cantonment Act or rules made thereunder and that done in exercise of the power granted to the Board under the Act. In Cantonment Board vs. Hazarilal, AIR 1934 All. 436, it is held by the Allahabad High Court that Section 273 (1) does not contemplate suits on private contracts for which specific rules of limitation are prescribed under the Limitation Act This view is later affirmed by the same High Court in a case reported Dargahilal vs. Cawnpore Municipal Board, AIR 1952 All 385 . In Sharpington vs. Fulham Guardians, (1904) 2 Chaneery Division 449, it was pointed out that although the general duty of a Board makes it intra vires to secure a thing done there is no duty to enter into a particular contract and the mere fact that a contract was within its power does not render the breach of it any thing more than a breach of the private duty to the individual contractor arising out of the terms of the contract. The Contonments Act does provide for a duty to be performed in so far as its funds permit to get a street repaired but it does not insist that it ought to be done through a contractor. For these reasons Section 273 of the Contonments Act has no application and the suit is not barred because it is filed more than six months after the accrual of the cause of action. 22. As regards the bar of limitation under the Limitation Act the proper article of limitation applicable is Article 56, since this is a suit for price of work done by the plaintiff for the defendant at his request and no time had been fixed under the contract for payment. The period limitation has to be computed from the date when the work in question was done. In Mathura Prasad vs. Chairman, District Board, Sitapur, AIR 1928 Oudh 297, it was held that a suit by a contractor against a District Board for the price of work done namely of making certain construction would fall under Article 56 of the Limitation Act. 23. In order therefore to see whether the claim is within time or not we have to find when the work was done that is completed. 24. Since the Board has admittedly made payments to the contractor and there is no controversy that the plaintiff had carried out the work of repairing Bombay-Agra Road we can reasonably expect that the contractor must have submitted the completion report. The plaintiff had called the record-keeper of the Mhow Cantonment Board with this report. He says in his statement at page 20 of the paper-book that plaintiff's completion report regarding the repairing of Bombay-Agra Road was there in the records but he has searched for it and could not find the same. Daily Working diary of the Cantonment Board is produced at Ex. P.111. It shows that Steam Roller was actually in operation on the Bombay-Agra Road on 9.5.1946. Engineer in the employment of the Board Ganpatrao at page 65 of the paper- book said after referring to entries in Book No. 48 Ex. P. 9, that from the record he could say that the work was completed near about 11.5.1946. Ex. P.112 is the register for the account of Tar-sprayer of the Cantonment Board. It contains entries regarding the tar sprayer having been used on a particular road. P. 9, that from the record he could say that the work was completed near about 11.5.1946. Ex. P.112 is the register for the account of Tar-sprayer of the Cantonment Board. It contains entries regarding the tar sprayer having been used on a particular road. It discloses that it was used on the Bombay-Agra Road on 5.5.1946 and 6.5.1946 latest. Ex. P.125 is a copy taken down by the plaintiff Vedprakash from the Board's record when he received Rs. 12,500 towards the contract. It mentions the date of completion as 11.5.1946. In the absence of the original report, which according to the record-keeper of the Board was missing, the secondary evidence as to its contents are admissible. Plaintiff Vedprakash says on oath that he had copied the various dates from the Board's record. Letter dated 19.4.1946 Ex. D.20 by the Executive Officer to the plaintiff accepts the fact that some of the works were taken still in band with regard to the repairing of Bombay-Agra Road. The Executive Officer warned the plaintiff that he should complete the work and submit his bills within a week from the receipt of that letter. Answer to question arises under the signature of Cantonment Executive Officer Ex. P.65 also contains a statement amounting to admission that the renovation of this road was taken in hand in March 1946 and completed in May of the same year at the cost of Rs. 42,500. It is therefore clear from these materials that the work in question was completed on 11.5.1946 and not before. The suit filed on 25.4.1949 by the plaintiff for the recovery of the dues in respect of the work is within time being within three years from the time when the work was done. The trial Court's finding about it therefore needs no interference. 25. Since we hold that the claim has been and can properly be based on the contract Ex. P.27 and the plaintiff had admittedly carried out the work by 11th of May 1946 no further question arises and the plaintiff becomes entitled to claim the balance of money payable to him namely Rs.10,344-8-0. It is consequently really not necessary to consider the question as to whether a void contract can be ratified or whether the plaintiff, if not able to claim under Ex. P.27 can claim on the principle of section 65 or 70 of the Contract Act. It is consequently really not necessary to consider the question as to whether a void contract can be ratified or whether the plaintiff, if not able to claim under Ex. P.27 can claim on the principle of section 65 or 70 of the Contract Act. As regards find of these two questions the trial Court has relied upon the decision in Irvine vs. Union Bank of Australia, 4 Indian Appeals 86, which lays down that there can be ratification by a person who is competent to authorise an act. Where such a person is incompetent to authorise an act be cannot render it good by subsequent ratification. But as already observed since the initial contract itself gives rise to the liability of the defendant in this suit and that contract is good no further difficulty arises. The resolution of the Board Ex. P.87 dated 25.2.1947 only confirms the position that the contract was good and the Board merely wanted to obstruct payment simply on the ground that they had another supposed claim of theirs for the cost of Tar supplied for the execution of a earlier contract of the year 1944. It is not disputed that the controversy about the Tar supplied in that year had become the subject matter of a suit filed by the plaintiff and it has resulted in plaintiff's favour. Thus the withholding of balance of dues in respect of the present work was bad. 26. As regards the second of the two questions since the lower Court has granted relief to the plaintiff on the principle of section 65 or 70 of the Contract Act we shall briefly consider that question assuming that the plaintiff's claim could not be based on the contract Ex. P.27 and that as it was based on Ex. D.21 it is bad in law and invalid. 27. It is undisputed that the defendant under such a void contract has gained advantage. It has secured repairs of the Bombay-Agra Road from the plaintiff and has also charged price to him for the quantity of asphalt supplied to him. Section 65 of Contract Act provides that when a contract is discovered to be void or becomes void each party should restore to the other the advantage which he has gained under it. It has secured repairs of the Bombay-Agra Road from the plaintiff and has also charged price to him for the quantity of asphalt supplied to him. Section 65 of Contract Act provides that when a contract is discovered to be void or becomes void each party should restore to the other the advantage which he has gained under it. In this case the advantage cannot be gained by restoring the thing taken, it being the material supplied and the labour bestowed. The advantage gained, therefore, can only be refunded by compensating the plaintiff in terms of money. In such a case section 65 of the Contract Act is perhaps inapplicable. But there is another aspect to the question. The plaintiff made the repairs lawfully on being asked by the Executive Officer. The plaintiff did not intend to carry out the work gratuitously. This seems clear from the entire course of the transaction including execution of contract Ex. P.27, the agreement which was void Ex. D.21 as also by the payments which the Board had made amounting to Rs. 12,500 and Rs. 9,840-2-0. The thing done was accepted by the defendant who partly paid for it. The defendant, therefore, must under the principle of section 70 of the Contract Act pay for it. 28. The Supreme Court in State of West Bengal vs. B.K. Mondal & Sons, AIR 1962 SC 779 (786), considered the implications of section 70 of the Contract Act. According to them three conditions are implicit in the section. They are that to him, (2) in doing so he should not intend to act gratuitously and (3) the person for whom the thing is done or to whom something is delivered enjoys the benefit of it. When these conditions are satisfied the section imposes an obligation upon the person enjoying the benefit must either make compensation in respect of the thing done or if it be thing delivered must restore the thing. In that case a ware-house was constructed for the State of West Bengal at the instance of Civil Supplies Department of the State by the plaintiff Later the plaintiff was asked by the Additional Director of Civil Supplies who had visited the premises to proceed with making additional constructions of a Kutcha road, a guard room, office kitchen, a room for clerks. He was further asked to construct some storage sheds. He was further asked to construct some storage sheds. He did so and submitted his bills. They remained unpaid. In a suit filed by the plaintiff it was stated on behalf the State that the constructions in question were unauthorised and invalid and did not bind the defendant in view of section 175 (3) of the Government of India Act, 1935, which required that all contracts on behalf of the Government should be expressed in the name of the Governor and should be executed by such person and in such manner as the Governor may direct. Nothing of this sort was done with respect to the constructions in question. The Supreme Court agreed with the finding of Milter, J., that the contract was invalid as it failed to comply with the mandatory requirements of section 175 (3) of the Government of India Act. It then considered the further question whether section 70 of the Contract Act could save the plaintiff's case. After analysis of the section as indicated above their Lordships held:- "All that section 70 provides is that if the goods delivered are accepted or the work done is voluntarily enjoyed then the liability to pay compensation for the enjoyment of the said goods or the acceptance of the said work arises. Thus, where a claim for compensation is made by one person against another under section 70, it is not on the basis of any subsisting contract between the parties, it is on the basis of the fact that something was done by the party for another and the said work so done has been voluntarily accepted by the other party. That proadly stated is the effect of the conditions prescribed by section 70." This decision would fully apply to the case even if we proceed on the assumption that the work was not carried out by the plaintiff under Ex. P.27 but pursuant what the Executive Officer had directed and probably under Ex. D.21. Plaintiff's claim is, therefore, sustainable even on the basis. Their Lordships of the Supreme Court recently affirmed the view in A.I.R. 1962 Supreme Court 779 (Supra) in the decision reported New Marine Coal Co. vs. Union of India, AIR 1964 SC 152 . 29. P.27 but pursuant what the Executive Officer had directed and probably under Ex. D.21. Plaintiff's claim is, therefore, sustainable even on the basis. Their Lordships of the Supreme Court recently affirmed the view in A.I.R. 1962 Supreme Court 779 (Supra) in the decision reported New Marine Coal Co. vs. Union of India, AIR 1964 SC 152 . 29. We have only briefly dealt with the last question since in our view the necessity to the plaintiff for invoking the said of these provisions of the Contract Act really does not arise. The contention, therefore, put forward by the defendant regarding the un-justifiability of trial Court's action in granting relief to the plaintiff on the strength of section 65 or 70 of the Contract Act in the absence of amendment does not need consideration. But we may point out that it does not appear that the plaintiff in each of the aforesaid Supreme Court cases had made any specific claim under section 70. Yet he was granted relief on its basis without any formal amendment. Having regard to the above discussed considerations the decree granted by the trial Court in plaintiff's favour is proper although our reasons for so holding may be some what different. 30. As regards plaintiff's cross-objection regarding interest both past and pendente-lite, it seems that so far as the past interest is concerned the plaintiff does not rely upon any agreement to pay interest. The claim to interest seems to be by way of damages. Such a claim cannot be entertained in the absence of any specific provisions of law or usage pleaded and proved, B.N. Railway vs. Ruttanji Ramji, AIR 1938 PC 67. 31. As regards interest pendente lite, the trial Court has not granted interest from the date of the suit upto the dale of the decree. No reasons are assigned for thus withholding that interest from the plaintiff. The suit itself went on for more than 11 years and it would be a great hardship on the plaintiff if his genuine claim is allowed to go idle without yielding any profit to his in spite of defendant's incorrect attitude in resisting the claim. I would, therefore, modify the decree of the trial Court as to that and award to the plaintiff-respondent interest upon the amount decreed at 6 % per annum from that date of the suit till the date of the decree. I would, therefore, modify the decree of the trial Court as to that and award to the plaintiff-respondent interest upon the amount decreed at 6 % per annum from that date of the suit till the date of the decree. Interest after the date of the decree till realisation has already been given by the trial Court and that part of the decree is affirmed. 32. As regards the claim in the cross-objection regarding expenses of commission, the trial Court has already allowed commission fees. In the present cross-objection the plaintiff seeks to press for the expenses of plaintiff's pleader and of himself. It has been held in Rambux vs. Madanlal, 1958 MPLJ 506 , by Dixit, J., (as he then was) that:- "The words 'expenses of the commission' denote only the fees paid to the Commissioner and other expenses directly incidental to the issue and execution of a commission and do not include costs of opponent's pleader or expenses which the opponent himself may have to incur to go the place where the commission is to examine a witness." With his view I respectfully agree. I would, therefore, reject this part of the claim in the cross-objection. 33. As regards pleader's fee which the plaintiff claims to the full extent instead of to the extent of his success there is no reason to interfere with, what may be said to be a reasonable order of the trial Court. That part of the claim is also, therefore, disallowed. 34. The appeal, therefore, does not deserve to succeed. It is dismissed with costs. Cross-objections of the plaintiff-respondent are partly allowed with regard interest as above with proportionate costs.