JUDGMENT : 1. Mr. M.V.V. Prasada Rao, the unsuccessful defendant in O.S. No. 205 of 1986 on the file of the I Additional Subordinate Judge, Kakinada, had preferred the present appeal aggrieved by the judgment and decree made in the aforesaid suit, dated 22-9-1994. The Municipal Council, Kakinada, is the respondent-plaintiff. 2. The respondent herein-plaintiff in the aforesaid suit filed the suit for recovery of Rs. 1,64,126-50ps due towards arrears of lease and penal interest with subsequent interest and for costs. The learned I Additional Subordinate Judge, Kakinada, recorded the evidence of P.W. 1 and D.W. 1, and marked Exs. A-1 to A-5 and Exs. B-1 to B-14, and ultimately decreed the suit in part after deducting Rs. 43,000/-, as D.W. 1 admitted that the account shown in Ex. A-4 was correct, with proportionate costs and with subsequent interest at 6% p.a., from the date of decree till realization. Hence, the appeal. Sri M. Ram Mohan, the learned Counsel representing the appellant-defendant would contend that there is no written agreement for the period-in-question and unless there is a written agreement, the contract cannot be enforced as the same being void. On the strength of the same, no relief can be claimed by the respondent-plaintiff, the Municipal Council, Kakinada. The learned Counsel placed strong reliance on Section 45 of the Andhra Pradesh Municipalities Act, 1965 (hereinafter, in short, referred to as ‘the Act’ for the purpose of convenience), which deals with the mode of executing contracts. The learned Counsel also would submit that apart from the deduction which had already been given in the light of the peculiar facts and circumstances, the appellant-defendant is entitled to certain further deductions. At any rate, the Counsel would maintain that in the absence of a written agreement as contemplated by Section 45 of the Act, the respondent-plaintiff is not entitled for any relief at all. 3. Per contra, Sri S. Nageswara Reddy, the learned Standing Counsel representing the Municipal Council, Kakinada, had taken this Court through the findings recorded by the Trial Court, the evidence of P.W. 1 and D.W. 1, and would maintain that the fact that the appellant-defendant had derived benefit or advantage during the period is not in controversy. 3. Per contra, Sri S. Nageswara Reddy, the learned Standing Counsel representing the Municipal Council, Kakinada, had taken this Court through the findings recorded by the Trial Court, the evidence of P.W. 1 and D.W. 1, and would maintain that the fact that the appellant-defendant had derived benefit or advantage during the period is not in controversy. The learned Counsel also had drawn the attention of this Court to Section 65 and also Section 70 of the Indian Contract Act, 1872, and would maintain that Section 45 of the Act would not operate as a bar to maintain the claim. The learned Counsel also placed reliance on certain decisions apart from bringing to the notice of this Court certain other provisions of the Indian Contract Act, 1872 as well. 4. Heard both the learned Counsel. 5. The parties hereinafter are referred to as plaintiff and defendant as shown in O.S. No. 205 of 1986 on the file of I Additional Subordinate Judge, Kakinada. 6. The suit was filed for recovery of Rs. 1,64,126-50ps due towards arrears of lease and penal interest with subsequent interest and for costs and the suit was partly decreed. 7. The plaintiff pleaded in the plaint as hereunder: “The defendant was the successful bidder for the lease of the right of collection of fees in the four markets of the Kakinada Municipality and road margin under Section 289 of the Andhra Pradesh Municipalities Act for the year 1984-1985. The period of lease is from 1-4-1984 to 31-3-1985 and the bid amount is Rs. 5,20,000/- besides the establishment charges. As per the terms and conditions of the lease, the defendant is not entitled to ask for any remission from the bid amount. The terms and conditions as published in the Gazette notification dated 10-2-1984 were read over and explained to all the bidders who participated in the auction, held on 7-3-1984. The said sale was confirmed by the plaintiff in its resolution No. 1250 dated 27-3-1984 in favour of the defendant. As per the terms and conditions, the defendant has to pay a monthly instalment of Rs. 54,910/- before 10th day of each month and in default, the defendant has to pay the penal interest at Rs. 2.50ps% p.m. i.e. 30%. The said sale was confirmed by the plaintiff in its resolution No. 1250 dated 27-3-1984 in favour of the defendant. As per the terms and conditions, the defendant has to pay a monthly instalment of Rs. 54,910/- before 10th day of each month and in default, the defendant has to pay the penal interest at Rs. 2.50ps% p.m. i.e. 30%. If the defendant do not adhere to the repayment schedule promptly, the plaintiff has a right to cancel the lease and conduct re-auction for the remaining period and loss if any dug to that will be recovered from the defendant. It is further alleged in the plaint that the defendant paid the instalment amounts up to September, 1984 but not before 10th of each month. Therefore as per contract he is liable to pay the penalty. The defendant paid only Rs. 30,000/- for October, 1984 and failed to pay November and December, 1984 instalments. The plaintiff adjusted the instalments of January, February and March, 1985 from the deposit that was made by the Contractor. The defendant was not paying before the due date as such he is liable to the monthly instalments along with penal interest. The defendant was always being demanded by the plaintiff but was sending letters with untenable contentions and false allegations. Hence the suit. Act 4/38 and Act 7/77 have no application to the suit transaction.” 8. The written statement originally filed was amended and the allegations were denied. It was also pleaded as hereunder: “The alleged Gazette notification dated 10-2-1984 does not create any liability on the defendant. As there is no agreement and as there is no written document obtained, the plaintiff cannot enforce any claim against the defendant. It is true that the defendant became highest bidder and the bid amount is Rs. 5,20,000/- besides establishment charges. As per the Gazette notification itself the defendant is entitled to claim remission of the market fees if the defendant is not above to collect the market fees. There is no need to pay any interest for the instalments. The claim of penal interest at Rs. 2.50ps p.m., is unsurious, penal and unconscionable under law. There was no contract to pay any interest to the plaintiff. On 18-3-1985, an application was submitted to the Kakinada Municipality claiming remission out of the total bid amount. There is no need to pay any interest for the instalments. The claim of penal interest at Rs. 2.50ps p.m., is unsurious, penal and unconscionable under law. There was no contract to pay any interest to the plaintiff. On 18-3-1985, an application was submitted to the Kakinada Municipality claiming remission out of the total bid amount. The rice millers have not paid the fees payable by them as they obtained orders from the Court stating that they are not liable to pay any fees to the Municipality as they are not doing any business on road margins and they are not selling any rice or paddy by hawking. This defendant incurred a loss of Rs. 1,00,000/- due to the acts of the Rice Millers Association. So far as the grapes, apples merchants association is concerned, this defendant could not collect any amount due to the attitude of the merchants and due to stay orders from the Court and the defendant incurred Rs. 25,000/- loss on the said account. As per the directions of the Municipality the defendant could not collect the fees at Rs. 0.70 ps per cycle from the milk vendors. The Municipality gave notice dated 24-12-1984 railing upon him not to collect any amount from the milk vendors. Due to not making any collection from the milk vendors from 25-12-1984 to 31-3-1985 the defendant incurred a loss of Rs. 40,000/. The persons who are carrying on business in the road margins refused to pay the fees payable by them and in spite of several representations the Municipality did not take any action and the defendant incurred loss of Rs. 3,000/- on the said account. Thus for the year 1984-1985 this defendant suffered a loss of Rs. 1,60,000/-. In view of the said fact the defendant is not liable to pay any amount to the plaintiff.” 9. On the strength of the respective pleadings of the parties, the following issues were settled before the Trial Court: “1. Whether the plaintiff is entitled for recovery of Rs. 1,64,126-50ps as prayed for?” 2. Whether the interest claimed in the suit is penal and usurious? 3. Whether the plaintiff is entitled to claim any interest as prayed for in the suit? 4. Whether the defendant is entitled to claim any remission as prayed for? 5. Whether the valuation of the suit is incorrect? 6. To what relief?” 10. 1,64,126-50ps as prayed for?” 2. Whether the interest claimed in the suit is penal and usurious? 3. Whether the plaintiff is entitled to claim any interest as prayed for in the suit? 4. Whether the defendant is entitled to claim any remission as prayed for? 5. Whether the valuation of the suit is incorrect? 6. To what relief?” 10. The learned Judge, on appreciation of the evidence of P.W. 1, D.W. 1 and also Exs. A-1 to A-5 and Exs. B-1 to B-14, arrived at the conclusion that the defendant is entitled for a deduction of Rs. 43,000/- in the light of the admission made by D.W. 1 that account shown in Ex. A-4 was correct and accordingly decreed the suit. 11. The following points arise for Consideration in this appeal: 1. Whether the respondent-plaintiff, the Municipal Council, Kakinada, is entitled to enforce the suit claim in the light of Section 45 of the Act? 2. If so, to what relief the parties are entitled to? 12. Point No. 1: The suit is for recovery of the amount due towards arrears of lease and penal interest from the defendant. The fact that the defendant was the successful bidder for the lease of the right of collection of fee in four markets of Kakinada Municipality for the year 1984-1985 is not in serious controversy. The period of lease was from 1-4-1984 to 31-3-1985 and the bid amount was Rs. 5,20,000/- besides the establishment charges. It is the stand taken by the plaintiff that as per the terms and conditions of the lease, the defendant is not entitled to ask for any remission from the bid amount. The terms and conditions were published in the Gazette Notification, dated 10-2-1984, which were read over to all the bidders who had participated in the auction held on 7-3-1984. Ex. A-1 is the East Godavari District Gazette notification, Ex. A-2 is the true copy of the notice, Ex. A-3 is the copy of the auction list, and Ex. A-4 is the statement of account for the year 1984-1985. The sale was confirmed by a Resolution, dated 27-3-1984, in favour of the defendant since the defendant became the successful bidder and as per the terms and conditions, the defendant has to pay a monthly instalment of Rs. A-3 is the copy of the auction list, and Ex. A-4 is the statement of account for the year 1984-1985. The sale was confirmed by a Resolution, dated 27-3-1984, in favour of the defendant since the defendant became the successful bidder and as per the terms and conditions, the defendant has to pay a monthly instalment of Rs. 54,910/- by the tenth of every month and in default, the defendant has to pay the penal interest at Rs. 2.50ps% p.m., i.e., 30%. If the defendant does not adhere to the repayment schedule promptly, the plaintiff has a right to cancel the lease and conduct re-auction for the remaining period. Several other conditions also had been specified and there is no serious controversy relating to the terms and conditions. The stand taken by the defendant is that the alleged notification does not create any liability in the absence of an agreement. Evidently, this stand was taken in the light of Section 45 of the Act. Ex. A-5 is the true copy of the notice issued to the defendant by the plaintiff. P.W. 1 who was working as Revenue Inspector in the plaintiff-Municipality, at the relevant point of time, had narrated all the details, and from the evidence available on record, it is clear that the defendant had derived the benefit out of the said auction in which he was successful bidder. The evidence of D.W. 1 also had been discussed at length. The statement of account for the year 1984-1985 was marked as Ex. A-4. On the strength of Ex. A-4 only the due deduction had been given. Though Exs. B-1 to B-14 were marked and certain submissions were advanced that the defendant is entitled for some more deductions, on appreciation of evidence, this Court is of the considered opinion that the said stand is not a just and reasonable stand in the facts of the case. Be that as it may, the only question which was argued in elaboration by both the Counsel is the right of the Municipality to enforce the claim as against the defendant in the absence of a written agreement, in view of the bar imposed by Section 45 of the Act. 13. Be that as it may, the only question which was argued in elaboration by both the Counsel is the right of the Municipality to enforce the claim as against the defendant in the absence of a written agreement, in view of the bar imposed by Section 45 of the Act. 13. Section 45 of the Act reads as hereunder: “Mode of executing contracts.— (1) Every contract made by or on behalf of, a Council where of the value of amount exceeds one thousand rupees shall be in writing and, except in the case of contracts made under the provisions of sub-section (3) of Section 43, shall be signed by the Commissioner. (2) A contract executed or made otherwise than, in conformity with the provisions of this section or of Section 43 and of the rules referred to in Section 44 shall not be binding on the Council.” 14. Sri S. Nageswara Reddy, the learned Standing Counsel made certain submissions relating to the aspect whether this would amount to a concluded contract or not and would maintain that the duty is on the part of the defendant to execute the agreement and having failed to do so, he cannot take advantage of his own wrong having not executed such agreement. 15. It is pertinent to note that when the statute contemplates that a particular thing to be done in a particular mode or manner, the same may have to be followed. The local body is not expected to take such a stand. It is the duty on the part of the concerned authorities of the local body to see that the agreement is entered into and in the event of the other party being not a willing party, the local body should have taken steps and should not have permitted him to continue to derive advantage out of such auction. That was not done in the present case. 16. The learned Standing Counsel placed strong reliance on the following decisions: (1) In J.K. Industries Ltd. v. Mohan Investments and Properties Pvt. Ltd., AIR 1992 Del. 305 , it was held as hereunder: “There is no dispute about the principles enunciated in the aforesaid judgment. That was not done in the present case. 16. The learned Standing Counsel placed strong reliance on the following decisions: (1) In J.K. Industries Ltd. v. Mohan Investments and Properties Pvt. Ltd., AIR 1992 Del. 305 , it was held as hereunder: “There is no dispute about the principles enunciated in the aforesaid judgment. It will depend on the peculiar facts of particular case whether parties have entered into a contract and the execution of a document was only a formality and was not a condition precedent for coming into existence the contract between the parties. He has then referred to Jainarain Ram Lundia v. Surajmull Sagarmull, AIR 1949 FC 211, which lays down that if after a contract is concluded and its terms settled, further negotiations are started with regard to the new matters, that would not prevent full effect being given to the contract already existing, unless it is established as a fact that the contract was rescinded or varied with the consent of both the parties or that both parties treated it as incomplete and inconclusive. There is no dispute that if Court is to come to the conclusion in the present case on perusing the aforesaid documents that a concluded contract has come into existence then any subsequent correspondence between the parties would not change the nature of the contract till there was mutual agreement to change the nature of the concluded contract. It was also contended by the learned Counsel for the defendant that entire negotiations and the correspondence need to be perused in deciding whether a concluded contract has come into existence between the parties and he referred to Dhulipudi Namayya v. Union of India, AIR 1958 AP 533 , in which it was laid down that it is also well settled that in order to decide these matters the entire negotiations and the correspondence on which the contract depends must be considered. Reference was then made to Kollipara Sriramulu v. T. Aswatha Narayana, AIR 1968 SC 1028 , wherein the Supreme has laid down that a mere reference to a future formal contract in an oral agreement will not prevent a binding bargain between the parties. Reference was then made to Kollipara Sriramulu v. T. Aswatha Narayana, AIR 1968 SC 1028 , wherein the Supreme has laid down that a mere reference to a future formal contract in an oral agreement will not prevent a binding bargain between the parties. Again, as far as the principle of law is concerned, there cannot be, indeed, any dispute that if the parties had settled all the vital terms of the contract and had mutually agreed to those terms then the contract comes into existence between the parties and if reference has been made by the parties for executing any formal contract in writing then mere fact that such formal contract in writing has not been executed would not result in already concluded contract being not binding on the parties. If the facts of a particular case show that execution of a written contact was a condition precedent for coming into force of the contract between the parties, then it cannot be said that any concluded contract in absence of any written contract being executed has come into force between the parties.” (2) In Rickmers Verwaltung Gimb H. v. Indian Oil Corpn. Ltd., (1999) 1 SCC 1 : AIR 1999 SC 504 , the Apex Court at Para 12 held as hereunder: “In this connection the cardinal principle to remember is that it is the duty of the Court to construe correspondence with a view to arrive at a conclusion whether there was any meeting of mind between the parties, which could create a binding contract between them but the Court is not empowered to create a contract for the parties by going outside the clear language used in the correspondence, except insofar as there are some appropriate implications of law to be drawn. Unless from the correspondence it can unequivocally and clearly emerge that the parties were ad idem to the terms, it cannot be said that an agreement had come into existence between them through correspondence. The Court is required to review what the parties wrote and how they acted and from that material to infer whether the intention as expressed in the correspondence was to bring into existence a mutually binding contract. The Court is required to review what the parties wrote and how they acted and from that material to infer whether the intention as expressed in the correspondence was to bring into existence a mutually binding contract. The intention of the parties is to be gathered only from the expressions used in the correspondence and the meaning it conveys and in case it shows that there had been meeting of mind between the parties and they had actually reached an agreement, upon all material terms, then and then alone can it be said that a binding contract was capable of being spelt out from the correspondence.” (3) In Venkataswami v. Narasayya, AIR 1965 AP 191 , a Division Bench of this Court held as hereunder: “The defendant-respondent was the highest bidder at the auction of the right to collect fees in weekly and daily markets and the cart stands in the Jangareddigudem Panchayat Board for the year 1951-1952. The auction was held by the President of the said Panchayat on 10-3-1951 and knocked down in favour of the respondent for Rs. 4,150/-. The auction sale was confirmed by the Panchayat Board by its resolution dated 21-3-1951. The respondent had also collected the market fees, obviously exercising his right for which he bid at the auction; but a registered lease deed representing the terms of the auction was not executed. That the bid at an auction was an offer and by the acceptance thereof an agreement came into being within the meaning of Section 2 of the Contract Act. But as a registered document of lease was not executed this was an agreement, the terms of which could not be enforced in law. An agreement discovered to be void is one discovered to be not enforceable by law, and, on the language of Section 65 would include an agreement that was void in that sense from its inception as distinct from a contract that becomes void. The respondent had collected the market fees in the purported exercise of his right under the agreement. The facts of the present case were covered by the provisions of Section 65 AIR 1922 PC 403 and Madura Municipality through Commissioner v. K Alagirisami Naidu, AIR 1939 Mad. 957, Relied on, Ram Nagina Singh v. Governor-General in Council, AIR 1952 Cal. 306 , distinguished”. 17. The facts of the present case were covered by the provisions of Section 65 AIR 1922 PC 403 and Madura Municipality through Commissioner v. K Alagirisami Naidu, AIR 1939 Mad. 957, Relied on, Ram Nagina Singh v. Governor-General in Council, AIR 1952 Cal. 306 , distinguished”. 17. This is a case decided in relation to a Panchayat, no doubt in the context of the provisions of the Indian Contract Act, 1872, in general and Sections 65 and 70 of the said Act, in particular. (4) In H.S. Rikhy, Dr. v. New Delhi Municipal Committee, AIR 1962 SC 554 , a three Judge Bench of the Apex Court while dealing with Sections 18 and 47 of the Punjab Municipal Act, 1911, held that a contract by Municipality, when provisions of Section 47 of the Act were not complied with, is void and observed as hereunder: “On the question of the validity of the transfer, it is necessary to consider the further argument raised on behalf of the appellants, namely, that the power of the Committee is contained in Section 18 and not in Section 47 of the Municipal Act, which only lays down the mode of executing contracts and transfer of property, as appears from the marginal note to the section i.e., the words “Mode of Executing Contract and Transfer of Property”. It is true that Section 18 contains the power to enter into a contract and to transfer any property held by the Committee, but Section 47 lays down the essential conditions of the exercise of the power and unless those conditions are fulfilled there could be no contract and no transfer of property. In this connection, it was further argued that sub-section (3) of Section 47 only says that a contract or transfer of property contemplated in the section executed otherwise than in accordance with the provisions of the section shall not be binding on the Committee. Therefore, the argument further is that the contract may not be binding on the Committee but it is not void. Now, what is the legal significance of the expression “shall not be binding on the Committee”? It simply means that it shall not be enforceable against the Committee, and it is clear beyond doubt that an agreement not enforceable in law is void. Now, what is the legal significance of the expression “shall not be binding on the Committee”? It simply means that it shall not be enforceable against the Committee, and it is clear beyond doubt that an agreement not enforceable in law is void. It must, therefore, be held that the provisions of Section 47 aforesaid are essential ingredients of the power contained in Section 18 of the Act. In this connection, it is also convenient here to notice the argument that the Committee is estopped by its conduct from challenging the enforceability of the contract. The answer to the argument is that where a statute makes a specific provision that a body corporate has to act in a particular manner, and in no other, that provision of law being mandatory and not directory, has to be strictly followed. The statement of the law in Paragraph 427 (@ page-SC 562) of the same volume of Halsbury's Laws of England to the following effect settles the controversy against the appellants: “Result must not be ultra vires-A party cannot by representation, any more than by other means, raise against himself an estoppel so as to create a state of things which he is legally disabled from creating. Thus, a corporate or statutory body cannot be estopped from denying that it has entered into a contract which it was ultra vires for it to make. No corporate body can be bound by estoppel to do something beyond its powers or to refrain from doing what it is its duty to do…..”” (5) In M.L. Council Tiruvarur v. Kannuswami, AIR 1930 Mad. 600, a Division Bench of the Madras High Court, while dealing with Section 69 of the Madras District Municipalities Act, 1920, held as hereunder: “Any contract made by a Municipal Council, which does not fulfil the requirements of Section 69 of the said Act is absolutely null and void and mutually unenforceable. This disability is not shaken off even if the contract had been wholly executed.” (6) In Madras Corporation v. Kothandapani Naidu, AIR 1955 Mad. This disability is not shaken off even if the contract had been wholly executed.” (6) In Madras Corporation v. Kothandapani Naidu, AIR 1955 Mad. 82 , a Full Bench of the Madras High Court, while dealing with the provisions of the Madras City Municipal Act, 1919 and also the Madras District Municipalities Act, 1920, and non-compliance of certain statutory provisions and enforceability of the contract held a hereunder: “On an independent analysis of the provisions, we have reached the same conclusion as in the several decisions referred to earlier and which, in our opinion, is the only possible interpretation of Section 81(3), City Municipal Act of 1919 and Section 69, District Municipalities Act of 1920, viz., that a contract which does not conform to the requirements of the sections is unenforceable as such by either party, the Municipality or the contractor. The decisions on the point have been uniform and the construction put by them on the statutory provisions is correct.” 18. However, the Full Bench at Para 6 made certain observations as hereunder: “That question raises for consideration whether a decree could be passed in favour of a party to a contract which does not conform to the requirements of Section 81, City Municipal Act, but who has supplied goods in pursuance thereof, for recovery of their value, not on the basis of a contract, but apart from it on the principle of ‘quantum meruit’ or ‘quantum valebat’ or the principle of compensation embodied in Section 65, Contract Act. In respect of this there is some conflict of authority, though this Court has almost uniformly taken a view favourable to the entertainability of such a claim.” 19. Reliance was placed on Markapur Municipality v. D. Ramireddy, 1972 APLJ 239 . 20. On a careful scrutiny of the findings recorded by the learned Judge, it is clear that the learned Judge had granted a decree on the strength of the terms and conditions of the bid, though no written contract as such for the relevant period had been entered into, in accordance with Section 45 of the Act. It is also true that the defendant had completed the period and had derived the total advantage without entering into any written agreement whatsoever with the plaintiff. 21. It is also true that the defendant had completed the period and had derived the total advantage without entering into any written agreement whatsoever with the plaintiff. 21. Section 65 of the Indian Contract Act, 1872, dealing with the obligation of person who had received advantage under void contract and contract that become void reads as hereunder: “Section 65: Obligation of person who has received advantage under void agreement or contract that becomes void—When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it, to the person from whom he received it.” 22. The illustrations further illustrate as under: a. A pays B 1,000/- rupees in consideration of B's promising to marry C, A's daughter. C is dead at the time of the promise. The agreement is void, but B must repay A the 1,000/- rupees. b. A contracts with B to deliver to him 250 maunds of rice before the first of May. A delivers 130 maunds only before that day, and none after. B retains the 130 maunds after the first of May. He is bound to pay A for them. c. A, a singer, contracts with B, the manager of a theatre, to sing at his theatre for two nights in every week during the next two months, and B engages to pay her a hundred rupees for each night's performance. On the sixth night, A wilfully absents herself from the theatre, and B, in consequences, rescinds the contract, B must pay A for the five nights on which she had sung. d. A contracts to sing for B at a concert for 1,000/- rupees, which are paid in advance. A is too ill to sing. A is not bound to make compensation to B for the loss of the profits which B would have made if A had been able to sing, but must refund to B the 1,000/- rupees paid in advance.” 23. A is too ill to sing. A is not bound to make compensation to B for the loss of the profits which B would have made if A had been able to sing, but must refund to B the 1,000/- rupees paid in advance.” 23. Likewise Section 70 of the said Act, dealing with the obligation of person enjoying the benefit of non-gratuitous act, reads as hereunder: “Section 70: Obligation of person enjoying benefit of non-gratuitous act— 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.” 24. The illustrations further illustrate as under: a. A, a tradesman, leaves goods at B's house by mistake, B treats the goods as his own. He is bound to pay A for them. b. A saves B's property from fire. A is not entitled to compensation from B, if the circumstances show that he intended to act gratuitously.” 25. On the ground of the principle of equity and also in the light of the provisions of the Indian Contract Act, 1872, a person who had derived the advantage of a contract, be it void, cannot escape the liability in toto, though the claim as such cannot be based on the strength of such a void transaction. It is no doubt true that the statute specified under Section 45 of the Act, about the entering into a written contract. However, to claim the amount on the ground that the other party had derived advantage in pursuance of such a transaction, the nature of evidence which may have to be let in and the considerations to be taken into consideration by the Court may vary and they stand on slightly different footing. Hence, in view of the same, if the concerned Municipality intends to recover damages or compensation in view of the unlawful advantage derived by the opposite party in pursuance of such transaction, it would be always desirable that proper pleadings and the requisite evidence may have to be let in to satisfy the Court on these relevant aspects. Hence, in view of the same, if the concerned Municipality intends to recover damages or compensation in view of the unlawful advantage derived by the opposite party in pursuance of such transaction, it would be always desirable that proper pleadings and the requisite evidence may have to be let in to satisfy the Court on these relevant aspects. Hence, in this view of the matter, this Court is of the considered opinion that this is a fit matter to be remanded to the Trial Court for the purpose of affording opportunity to both the parties to let in further evidence by permitting the parties to suitably amend the pleadings if they so require and decide such issues afresh. Point No. 2: In the light of the finding recorded above, the judgment and decree dated 22-9-1994 in O.S. No. 205 of 1986, made by the Trial Court are hereby set aside and the matter is remanded to the learned I Additional Subordinate Judge, Kakinada, for the purpose of affording opportunity to both the parties in the light of the findings recorded supra and decide the matter afresh. 26. The appeal is allowed to the extent indicated above. 27. No order as to costs.