Judgment :- F.M. IBRAHIM KALIFULLA, J. The second defendant is the appellant. The first respondent filed a suit in O.S. No. 61 of 1985 on the file of the District judge, Nilgiris, Ootacamund, against the appellant and the second respondent herein. The brief facts are that, in a scheme called employment scheme for educated unemployed youth, the second respondent herein applied vide his application dated April 20, 1984, based on a recommendation of the District Industrial Centre, Uthagamandalam, for the sanction of a loan of Rs. 25, 000 to set up a tyre retreading industry. The second respondent obtained a proforma invoice from the appellant for supplying a tyre retreading machinery, that under exhibit A-4, the first respondent issued a pay order in favour of the appellant on April 30, 1984, for a sum of Rs. 26, 174.75 which sum included a sum of Rs. 1, 174.75 deposited by the second respondent with the first respondent, that the pay order specifically stated that the said payment was being made on account of supply of machinery as per the appellant's proforma invoice No. SRM/1/83-84, dated February 6, 1984, which has been marked as exhibit A-3 in the suit, that contrary to the understanding between the parties, the appellant failed to supply the machinery as per the proforma invoice though the appellant claimed to have supplied the same in its letter dated July 9, 1984, exhibit A-5, that subsequently the appellant admitted under exhibit A-6 that the machinery were not really supplied and the statement made under exhibit A-5 was a mistake, that the appellant issued a post-dated cheque dated August 16, 1984, for the entire sum of Rs. 26, 174.75 under exhibit A-7, in favour of the first respondent agreeing to arrange for necessary funds to honour the cheque, that subsequently the appellant failed to honour the said cheque by advising its bankers to stop payment under exhibit A-8, that the purpose for which the loan was sanctioned was defeated and that necessary complaint against the appellant and the second respondent was also preferred by the first respondent for cheating. In the above-stated circumstances, the first respondent claimed a sum of Rs. 27, 548.20 as the amount due as on April 30, 1985, against the appellant and the second respondent herein. In the above-stated circumstances, the first respondent claimed a sum of Rs. 27, 548.20 as the amount due as on April 30, 1985, against the appellant and the second respondent herein. In the said suit, the second respondent did not file any written statement.The appellant in its written statement contended that the appellant was neither a co-obligant, nor a guarantor nor a surety to the loan sanctioned in favour of the second respondent, that there was no contract between the appellant and the first respondent-bank, that the appellant did not have any transaction with the first respondent, that the proforma was issued at the instance of the second respondent agreeing to supply the machinery and that the manager of the first respondent-bank prevented the appellant from supplying the machinery. The appellant contended that he did not receive any amounts from the first respondent. The appellant threw the blame on the manager of the first respondent-bank. Here and now, I want to point out that no particular person was named as manager who is said to have attempted to make money from the appellant and prevented the appellant from supplying the machinery as per the proforma. It was also contended that subsequently the second respondent purchased the machinery and started the works as per the directions of the first respondent-bank and that the appellant was having a delivery note and a receipt for the payments made to the second respondent, at the instance of the then manager, of the respondent-bank. The appellant therefore, stated that he was not liable to pay any amount to the first respondent. On behalf of the first respondent, exhibits A-1 to A-9 were marked and exhibits B-1 to B-2 were marked at the instance of the appellant. The first respondent examined one, Thiru Swaminathan, assistant-and-cashier in the first respondent-bank as PW-1. On behalf of the appellant, one Thiru Sundar, the proprietor of the appellant was examined as DW-1. The learned trial judge, after framing issues as to whether the appellant was a necessary party to the suit and whether the appellant was liable for the suit claim held that there was privity of contract between the first respondent and the appellant by virtue of exhibit A-4 coupled with exhibit A-5, that the appellant received payment under exhibit A-4 to the tune of Rs. 26, 174.75, that having failed to comply with the implied condition attached with exhibit A-4, namely, the supply of the machinery as per the proforma invoice under exhibit A-3, a breach of the terms of the contract having been committed, the appellant was liable to make good the payment to the first respondent-bank and further held that for the very same reason it cannot be held that the appellant was an unnecessary party to the suit. So holding, the learned trial judge has decreed the suit as prayed for with costs.As against the said judgment and decree of the trial court, the appellant has come forward with this appeal. P. K. Muthukumar, learned counsel appearing for the appellant contended that the appellant was not a necessary party to the suit proceedings; that the appellant was neither a guarantor nor a surety nor a co-obligant to the second respondent; that there was no privity of contract between the appellant and the first respondent herein; that the non-supply of machinery was due to the wrongful attitude of the then branch manager of the first respondent-bank and, therefore, the trial court ought to have dismissed the suit for mis-joinder of parties and also on the ground of absence of privity of contract between the parties, namely, the appellant and the first respondent. Learned counsel further contended that though the plaint would refer to some understanding between the appellant and the first-respondent, there was no such understanding as could be ascertained from the evidence let in; that under exhibit A-9, a complaint preferred by the first respondent to the appellant has been categorically admitted; that the entire money received by the appellant under the pay order exhibit A-4 was paid back to the second respondent; that PW-1 admitted in his evidence that the said payment was made to the second respondent at the instance of the manager of the first respondent-bank. The original deposition of PW-1 recorded by the court below was verified and I find that there was a suggestion made to PW-1 to that effect along with another suggestion which were denied by him and in the selected documents prepared in this court, a comma was wrongly typed as a full stop which unfortunately gives an impression as though PW-1 admitted the above-said suggestion which is not really so.Learned counsel by relying upon Parbhawati Devi v. Mahendra Narain Singh, 1981 AIR(Patna) 133 and Haraballav Sarma v. Mohodar Sharma, 1975 AIR(Gauhati) 76, contended that in the absence of the pleadings pin-pointing the liability of the appellant, the claim of the first respondent ought not to have been countenanced by the trial court. As against the contentions of learned counsel for the appellant, S. Ramanarayanan, learned counsel appearing for the first respondent took me through the plaint averments and also various contradictions in the stand taken by the appellant before the lower court as well as in this appeal. Learned counsel, at the outset, submitted that exhibit A-4 coupled with exhibit A-3 were sufficient to establish the privity of contract between the first respondent and the appellant; that under such circumstances, sections 69 and 70 of the Indian Contract Act will come into operation and, therefore, the contentions of the appellant that the suit was bad for misjoinder of parties will not hold good. Learned counsel pointed out that in exhibit A-3 the appellant came forward to supply the machinery mentioned therein and the value was specified at a sum of Rs. 26, 174.75; that it was based on exhibit A-3, that exhibit A-4 pay order was issued to the appellant to the value of Rs. 26, 174.75 specifically stipulating that the payment of the said amount to the appellant was on the basis of the offer of supply of machinery as per the proforma invoice as contained in exhibit A-3; that in exhibit A-5, the appellant addressed a communication to the first respondent confirming the delivery of machinery to the second respondent as per delivery note No. 73, dated June 23, 1984; that subsequently under exhibit A-6, dated July 14, 1984, the appellant by yet another communication to the first respondent came forward with a stand and while once again confirming the receipt of the payment of Rs. 26, 174.75 from the first respondent in furtherance of its proforma invoice issued to the second respondent stated that the entire amount was handed over to the second respondent. In the said communication the appellant while regretting its conduct enclosed a cheque for Rs. 26, 174.75, and there was also a note stating that the contents of the letter dated July 9, 1984, to the effect that materials were supplied to the second respondent be treated as cancelled.Learned counsel also pointed out certain statements made by DW-1 in the deposition, which were to the effect : Learned counsel also contended that at every stage of the proceedings, the appellant was attempting to develop a new case and that the whole attempt of the appellant was only to defraud the first respondent-bank in collusion with the second respondent. Having heard learned counsel for the parties, I find that there is absolutely no bona fides or truth in any of the stand taken by the appellant either before the trial court or before this honourable court. At the outset, I want to steer clear of one fact that in exhibit A-4 coupled with A-3, and by virtue of the operation of sections 69 and 70 of the Indian Contracts Act, there are sufficient materials to establish privity of contract between the first respondent and the appellant. At the outset, I want to steer clear of one fact that in exhibit A-4 coupled with A-3, and by virtue of the operation of sections 69 and 70 of the Indian Contracts Act, there are sufficient materials to establish privity of contract between the first respondent and the appellant. Section 70 of the Contract Act reads thus : "Where 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 in respect of, or to restore, the thing so done or delivered." It is also useful to refer to section 69 which reads thus : " A person who is interested in the payment of money which another is bound by law to pay and who therefore pays is entitled to be reimbursed by the other." Applying the above provisions to the facts of this case, I find that the conduct of the first respondent in effecting the pay order, exhibit A-4 based on proforma invoice issued by the appellant under exhibit A-3, for and on behalf of the second respondent, the said payment being not gratuitous in nature, needless to say that the appellant having enjoyed the benefit thereof, was bound to perform as a party to the contract to supply the machinery to the second respondent. Therefore, what is left to be considered is whether the appellant has acted in conformity with the provisions of section 70 of the Indian Contract Act.From the pleadings, documents and the evidence available on record, I could say that the appellant received the sum of Rs. 26, 174.75 being the invoice value under exhibit A-3 from the first respondent on behalf of the second respondent. He also confirmed the encashment of the pay order, exhibit A-4 under exhibit A-6; that though it was stated by the appellant that machinery was delivered under delivery note No. 73, dated June 23, 1984, the same was subsequently retracted by saying that it was by mistake, meaning thereby, that the machinery was not supplied to the second respondent. As far as the return of the sum of Rs. As far as the return of the sum of Rs. 26, 174.75 was concerned, though the appellant initially issued a cheque in favour of the first respondent for the said amount under exhibit A-7, he subsequently allowed the said cheque to bounce by issuing directions to his bankers to stop payment. Under such circumstances when the oral evidence of the appellant, DW-1 is examined, I find that though initially he stated that the machinery was not supplied, he would admit that one machine was supplied; that the remaining sum was paid over to the second respondent; that in his account it is written as though both the machines were supplied to the second respondent and that in his written statement he did not refer to the supply of one machine alone to the second respondent. Though the appellant attempted to throw the entire blame on the then manager of the first respondent-bank, there is total lack of material evidence on this aspect. The said statement was only a self-serving statement and no credence can be attached to any of the statements made by DW-1, namely, that it was the then branch manager of the first respondent-bank who prevailed upon the appellant to return the money to the second respondent to issue a cheque in favour of the first respondent, etc. All the above statements in my opinion are all made only to cover up the lapses committed by it in the matter of supply of machinery to the second respondent. The fact remains that without supplying the machinery to the second respondent, the appellant appropriated the sum advanced by the first respondent. Thus the whole transaction is squarely covered by section 70 of the Contract Act.The trial court on a thorough analysis of the evidence has correctly found that the appellant was solely liable to pay back the money to the first respondent-bank. I do not find any legal infirmity in the judgment of the trial court in reaching the said conclusion. On the other hand, I find material and concrete evidence in support of the first respondent for launching the suit against the appellant and the second respondent and having regard to the various documents available on record and the admissions of DW-1, it was the appellant who was liable to meet the claim of the first respondent made in the suit. The whole transaction being one coming within the provisions of sections 69 and 70 of the Indian Contract Act, it cannot be held that the appellant was not a necessary party to the suit proceedings. The judgment and decree of the trial court is, therefore, confirmed. Having regard to the untenable stand taken by the appellant and the various contradictions in it, I feel it is a fit case where the appeal should be dismissed with costs. In the result, the appeal is dismissed with costs.