Judgment :- 1. This first appeal is filed by the defendants 2 to 4 against the judgment and decree passed in O.S.No.62 of 1991, on the file of the Subordinate Judge, Pattukkottai. .2. The plaintiff is the owner of the mini lorry, purchased the same, by availing a bank loan from the 1st defendant and also executed an agreement of hypothecation in favour of the bank and hypothecating the mini lorry to the bank. The plaintiff committed default in the payment of dues and therefore, the first defendant filed a suit in O.S.No.36 of 1985, on the file of the Sub Court, Pattukkottai, and preliminary decree was passed on 011. 1985 against the plaintiff and his guarantor and final decree was passed on 20.11.1986. It is stated by the plaintiff that after the passing of the final decree, he paid various amounts towards the debt, totalling Rs.10,431.00. It is further stated that the plaintiffs vehicle was seized by the 2nd defendant for non-payment of Motor Vehicles tax on 25.05.1988 and the custody of the vehicle was entrusted to the 3rd defendant and the 3rd defendant being a Bailee kept the vehicle in open ground without taking proper care. When the plaintiff was taking steps to take possession of the vehicle, after paying necessary motor vehicle tax, the first defendant sent a letter to the 2nd defendant on 19.07.1988 requesting the 1st defendant not to release the said vehicle as decree has been obtained and the vehicle has been hypothecated to the bank. The 1st defendant obliged by refusing to release of the said vehicle and the vehicle was allowed to be in the custody of the 3rd defendant.According to the plaintiff seizure of the vehicle is illegal. 3. The 1st defendant filed E.P.No.55 of 1997 in O.S.No.36 of 1985 on the file of the Sub Judge,Pudukottai, for arrest of the plaintiff and his guarantor and also filed E.P.No.38 of 1988 in O.S.No.36 of 1985, for attachment of the vehicle and for sale in Court auction. To avoid the the sale in court auction, the plaintiff offered to pay substantial sum to the first defendant on the assurance that if the plaintiff makes such payment, the vehicle would be released. To avoid the the sale in court auction, the plaintiff offered to pay substantial sum to the first defendant on the assurance that if the plaintiff makes such payment, the vehicle would be released. The plaintiff paid a sum of Rs.40,000/- to the first defendant on 24.05.1989 towards decree and also handed-over the Registration Certificate (R.C) of the vehicle and also signed in the necessary forms to enable the first defendant to sell the vehicle to the 3rd parties and settle the decree amount. But the 1st defendant did not keep his promise and failed to take any steps to sell the vehicle and appropriating the sale proceeds towards decree amount. The 3rd defendant also failed to keep the vehicle in good condition and the 2nd defendant has not given any opportunity to the plaintiff to pay the motor vehicle tax and take possession of the vehicle and the first defendant also deliberately prevented the release the vehicle by the plaintiff. As a result of the willful act of negligence committed by the defendants 1 to 3, the plaintiffs vehicle has become a scrap. Though, summons were issued by the court in E.P.No.38 of 1988, for production of the vehicle into court, the first defendant did not take any effective steps to sell the vehicle and ultimately, the first defendant not-pressed the E.P.No.38 of 1988 and filed E.P.No.79 of 1990 to arrest the guarantor. The guarantor also paid Rs.5,000/-on 12.09.1990. According to the plaintiff, the first defendant deliberately prevented the plaintiff from taking the vehicle from the 2nd defendant and had the vehicle been sold in public auction immediately after seizure, it would have easily fetched more than Rs.50,000/- and the willful act of negligence committed by the defendants 1 to 3, the vehicle has become scrap and therefore, the defendants are liable to pay damages of Rs.50,000/-. .4. The first defendant in its statement stated that the averments made in the plaint that the plaintiff was making arrangements for taking possession of the plaintiff from the 2nd defendant is denied, but admitted the letter written by the 1st defendant to the 2nd defendant about the decree amount and the hypothecation agreement and maintained that the defendant has got the right to write to the 2nd defendant about the hypothecation agreement and passing of decree against the plaintiff. The first defendant further denied the assurance alleged to have been given to the plaintiff that the vehicle would be released, if the plaintiff pays substantial amount. The allegations that the plaintiff handed over the Registration Certificate (R.C) of the vehicle and offered the document to the first defendant to enable the first defendant to sell the vehicle was also denied. Though, the plaintiff did not give assurance to the plaintiff that the first defendant would pay motor vehicle tax arrears and sell the vehicle in public auction and set off the proceeds towards the decree amount, the first defendant denied the allegations that he has committed the willful act of negligence and the first defendant has in no way connected with the seizure of the vehicle by the 2nd defendant. According to the first defendant, the vehicle was not seized by the reason of the letter given by the first defendant, but for the non-payment of the Motor Vehicle Tax. The first defendant further stated that he is not liable to pay any damages as the first defendant has taken proceedings in accordance with law and the first defendant cannot be held responsible for the mistake of the plaintiff in not paying the Motor Vehicle tax in time and taking delivery of the vehicle from the 2nd defendant by paying the tax in time. 5. The 2nd defendant filed the written statement, which was adopted by the defendants 3 and 4 and the 2nd defendant admitted that the vehicle of the plaintiff was seized on 25. 1988 for non-payment of motor vehicle tax and the tax due at the time of seizure was only Rs.700/-, with 50% penalty for failure of payment on due date. After the seizure of the vehicle, it was entrusted to the 3rd defendant for safe custody and the plaintiff has not taken any steps to pay the vehicle tax with penalty and take possession of the vehicle. On 11.08.1988, a letter was written by the 2nd defendant informing about the seizure of the vehicle. The 2nd defendant had sent letters to the plaintiff, dated 30.12.1989, 09.03.1990 and 15.03.1990, but no steps have been taken by the plaintiff either to pay the tax or to send any reply. On 11.08.1988, a letter was written by the 2nd defendant informing about the seizure of the vehicle. The 2nd defendant had sent letters to the plaintiff, dated 30.12.1989, 09.03.1990 and 15.03.1990, but no steps have been taken by the plaintiff either to pay the tax or to send any reply. In the letter, dated 30.12.1989, the plaintiff was directed to get the lorry through the first defendant after payment of motor vehicle tax with 200% with penalty and that was returned with an endorsement that the addressee was not found. As the vehicle was sized in accordance with the provisions of the Motor Vehicle Act, the 2nd defendant is not liable to pay any damages. 6. The 2nd defendant admitted the receipt of letter dated 11. 88 sent by the first defendant requesting the 2nd defendant not to release the vehicle. But the 2nd defendant would have released the vehicle if the tax due had been paid by the plaintiff with penalty. The 2nd defendant had taken all possible and reasonable steps to find out the plaintiff, for the purpose of requesting him to pay the tax and take delivery of the vehicle and the plaintiff was not found in the address given in the R.C Book. After the seizure of the vehicle, the plaintiff never approached the 2nd defendant for getting delivery of the vehicle by paying tax arrears and the first defendant never restrained the 2nd defendant from releasing the vehicle to the plaintiff and had the tax due with penalty been paid, the vehicle would have been released to the plaintiff. The plaintiff having committed wrong in not paying the tax is attempting to fix the responsibility on the defendants and the defendants have acted as per the provisions of the Motor Vehicle Act, seized the vehicle and they are not liable to pay any damages. 7. Before the trial court, the plaintiff examined himself as P.W1 and the first defendant examined his Branch Manager as D.W.1 and the Superintendent, R.T.O. Office, Tanjavur, was examined as D.W.2 and on the side of the plaintiff, 18 documents were marked and on the side of the defendants 8 documents were marked and the commissioner report was marked as Ex.C1. 8. Onthe basis of the pleadings and evidence, the trial court framed the following issues: 1. Whether the plaintiff is entitled to claim damages of Rs.50,000/- from the defendants? 2. 8. Onthe basis of the pleadings and evidence, the trial court framed the following issues: 1. Whether the plaintiff is entitled to claim damages of Rs.50,000/- from the defendants? 2. Whether the value of the vehicle is diminished by the act of the 3rd defendant in not maintaining the vehicle in a prudent manner and due to the negligence and carelessness on the part of the 3rd defendant, the vehicle value was diminished? 3. Whether at the instance of the first defendants letter, dated 19.07.1988, the 2nd defendant refused to release the vehicle and as a result of that, the plaintiff sustained a loss of Rs.50,000/-? 4. Whether the defendants 2 to 4 are not liable to pay any damages to the plaintiff? 5. Whether the first defendant is not liable to pay any damages? 6. To what relief the plaintiff is entitled to? 9. The lower court tried issue Nos.2,3 and 4 together and held that the defendants 2 and 3 are liable to pay compensation for the damages caused to the vehicle. While answering the Issue No.5, the lower court has held that the first defendant is not liable to pay any damages to the plaintiff. The lower court, while answering issue No.1 that the defendants 1 and 4 are not liable to pay any damages and finally held that the defendants 2 and 3 are liable to pay damages of Rs,50,000/-to the plaintiff. Aggrieved by the same, the defendants 2 and 3 filed the appeal. 10. The point for consideration in this appeal are: 1. Whether the plaintiff is entitled to claim compensation from the defendants 2 and 3? 2. Whether the first defendant is not liable to pay any compensation as found by the lower court? 3. Whether the plaintiff is entitled to claim any damages from the defendants 2 and 3 when they only discharged official function ? 11. Whether the plaintiff is entitled to claim compensation from the defendants 2 and 3? 2. Whether the first defendant is not liable to pay any compensation as found by the lower court? 3. Whether the plaintiff is entitled to claim any damages from the defendants 2 and 3 when they only discharged official function ? 11. Mr.S.C.Herold Singh, the learned counsel appearing for the appellants/defendants 2 and 3 submitted that the plaintiff did not pay the motor vehicle tax in time and therefore, the 2nd defendant is entitled to seize the vehicle as per the provision of the Motor Vehicle Act and even after seizure of the vehicle the plaintiff, did not pay the motor vehicle tax with penalty and as a result of the nonpayment of the motor vehicle tax, the vehicle was entrusted to the 3rd defendant for safe custody and hence, the 2nd and 3rd defendants cannot be held responsible for the damages caused to the vehicle. 12. Further, Mr.S.C.Herold Singh, the learned counsel appearing for the appellants submitted that the defendants 2 and 3 were discharging their official duties and hence, even assuming that by reason of the act of the 2nd and 3rd defendant in not keeping the vehicle in good condition, the plaintiff is not entitled to claim any damages from the defendants 2 and 3. .13. It is further submitted by the learned counsel appearing for the defendants 2 and 3 that it is admitted by the plaintiff that at the instance of the first defendant, the vehicle was not released by the 2nd defendant and the plaintiff has not stated that he was prepared to pay the tax with penalty and despite his attempt to make the payment, the vehicle was not released by the 2nd defendant and therefore, in the absence of evidence to that effect, the plaintiff is not entitled to claim any damages from the defendants 2 and 3. 14. He further urged that the plaintiff has committed an offence in plying the vehicle without paying tax and for that act, the vehicle was seized by the 2nd defendant. 14. He further urged that the plaintiff has committed an offence in plying the vehicle without paying tax and for that act, the vehicle was seized by the 2nd defendant. Therefore, even assuming that there was some procedural violation as per the act, the plaintiff is not entitled to take advantage of the procedural violation, as he himself was guilty of mis-feasance and no one is entitled to take advantage of his own wrong and hence, the plaintiff is not entitled to relief as prayed for. 15. On the other-hand, Mr.V.K.Vijayaragavan, the learned counsel appearing for the 1st respondent/plaintiff submitted that as per the provision of section 18 A of the Tamil Nadu Motor Vehicles Taxation Act, any officer of the Transport Department not below the rank of Motor Vehicle Inspector, Grade II, is entitled to seize and detain the vehicle and make arrangements for the temporary safe custody of the vehicle in the event of non-payment of tax. But the provio to that section makes it clear that if the proof of payment of the tax due in respect of the motor vehicle seized and detained, under this section, is not produced within ninety days from the date of seizure and detention of the motor vehicle , any officer of the Transport Department authorized by the Government shall sell the motor vehicle in auction in such manner as may be prescribed and apply the sale proceedings towards recovery of the tax, penalty and the remainder shall be refunded to the registered owner or the vehicle. 16. Mr.V.K.Vijayaragavan, the learned counsel appearing for the respondents further contended that as per proviso to Section 18-A when the tax was not paid after the seizure, for a period of 90 days, the duty is cast upon the Officer of the Transport Department to sell the vehicle in auction and appropriate the sale proceeds towards tax and pay the balance to the owner of the vehicle and in this case, admittedly, the vehicle was seized by the 2nd respondent on 25.05.1988 and the 2nd defendant did not sell the vehicle as per the proviso 18-A of the said Act, after a period of 90 days and therefore, by reason of the non-compliance of the mandatory provision of Section 18-A, the vehicle got damaged and hence, the 2nd defendant is liable to pay damages. 17. 17. Mr.V.K.Vijayaraghavan, the learned counsel appearing for the respondents further submitted that when an Act prescribes something has to be done in a particular manner it must be done in the same manner and as the proceedings contemplated under Section 18-A of the Motor Vehicle Taxation Act, was not followed, the 2nd defendant is liable to pay compensation.The learned counsel appearing for the plaintiff also relied upon the judgment reported in 2006(1)L.W.409, AIR 1976 SC 789 . .18. Point No.1: In the plaint the plaintiff has stated that the first defendant filed a suit in O.S.No.36 of 1985 for the recovery of debt payable for the purchase of mini lorry and final decree was passed on 20.11.1986 and immediately, after the seizure of the vehicle, the plaintiff was making arrangements for taking possession of the vehicle, after paying necessary motor vehicle tax and the 2nd defendant refused to release the lorry on the basis of the letter issued by the first defendant, dated 19.07.1988 requesting the 2nd defendant not to release the vehicle in view of the decree amount and the hypothecation of the vehicle in favour of the first defendant. Therefore, according to the plaint allegations the plaintiff was willing to pay the tax arrears of Rs.700/-with 200% penalty and at the instance of the first defendant, the 2nd defendant refused to release the vehicle. 19. In evidence, PW1 would say that he went to the office of the 2nd defendant for payment of tax and he was informed that the first defendant sent a letter to the 2nd defendant not to release the vehicle and the xerox copy of the letter was given to him and that was marked as Ex.A1 and hence, he was not able to pay the tax immediately, and he also contacted the first defendant and the Branch Manager, asked him to pay substantial money towards the debt and assured that the vehicle would be released and the account can be settled and he also paid Rs.40,000/- in the year 1988 towards debt on such assurance. In the chief examination he would further state that he contacted the Branch Manager of the first defendant and he informed that if the plaintiff pays the substantial amount, he would release the vehicle from the 2nd defendant and sell the vehicle in the open market for good price and after appropriating the sale proceeds towards decree amount, the plaintiff would be paid the balance. 20. He further stated that thereafter, he paid a sum of Rs.40,000/-and also handed over the R.C. book and filled the forms for the sale of the vehicle and he also paid the tax payable to the first defendant. He further admitted that he was not residing in the address given in the R.C. book. Therefore, from the admission of the plaintiff in the chief examination, as stated above, it is made clear that the first defendant has under-taken the responsibility of releasing the vehicle from the 2nd defendant if the plaintiff pays the substantial amount and the plaintiff also paid Rs.40,000/-and the tax amount and the 1st defendant promised to sell the vehicle in the open market and pay the balance amount after appropriating sale proceeds towards debt. Hence, on the basis of the above admission of the plaintiff, it is the first defendant, who has undertaken to discharge the liability of tax as well as he had undertaken, to sell the vehicle in the open market, and on that undertaking the plaintiff paid a sum of Rs.40,000/- on 24.05.1989. The first defendant admitted in the statement that he has written a letter to the 2nd defendant not to release the vehicle as the vehicle is hypothecated to the first defendant and a decree was also obtained. But the first defendant denied the suggestions made by the plaintiff about the assurance given by the first defendant to get the vehicle released, if the substantial amount is paid by the plaintiff. 21. It is the case of the plaintiff that he has contacted one Sathiyamoorthy, who was the Branch Manager of the first defendant, at that time, only he gave the assurance. Admittedly, the said person was not examined by the first defendant. 21. It is the case of the plaintiff that he has contacted one Sathiyamoorthy, who was the Branch Manager of the first defendant, at that time, only he gave the assurance. Admittedly, the said person was not examined by the first defendant. Therefore,in the absence of any contra evidence by the first defendant we have got the evidence of the plaintiff to the fact that the first defendant had undertaken to pay the tax and to get the vehicle released and also agreed to sell the vehicle in the open market. In that event, there was a failure on the part of the first defendant in releasing the vehicle from the custody of the first defendant by paying the tax and the 1st defendant is primarily liable to the plaintiff for not acting, according to the promise given by him to the plaintiff and had the first defendant acted as per the assurance given to the plaintiff, by getting release of the vehicle in 1989 itself, the vehicle would not have damaged and the plaintiff would also have got some money by the sale of the vehicle. 22. Further, the tax payable on the vehicle is only Rs.700/-with penalty and even if interest is calculated, it may not be more than Rs.2,500/-. Though, the plaintiff has stated that he was prepared to pay the tax and get the vehicle released, the 2nd defendant refused to release the vehicle on the basis of the letter written by the first defendant. But admittedly, no action was taken by the plaintiff either to send a letter to the 2nd defendant, informing him that he is prepared to pay the tax with penalty and the 2nd defendant should release the vehicle, on receipt of that and the 2nd defendant should not retain the vehicle at the instance of the letter of the 1st defendant. 23. In this connection, it is pertinent to mention the statement of the 2nd defendant wherein it has been clearly stated that the 1st defendant never restrained the 2nd defendant from releasing the vehicle and the 2nd defendant would have released the vehicle to the plaintiff, if tax had been paid. 24. 23. In this connection, it is pertinent to mention the statement of the 2nd defendant wherein it has been clearly stated that the 1st defendant never restrained the 2nd defendant from releasing the vehicle and the 2nd defendant would have released the vehicle to the plaintiff, if tax had been paid. 24. Further, it is also admitted by D.W.2 that several notices were sent to the plaintiff reminding him to pay the tax and get the vehicle released and one of the notices was, dated 30.12.1989, which was marked as Ex.B6 and despite the notices given by the 2nd defendant, the plaintiff did not come forward to pay the tax and he also denied the allegations of the plaintiff that he attempted to make the payment and that was not accepted by the 2nd defendant. 125. Further, it is seen from Ex.B8 that on 11.08.1988, the plaintiff has sent a letter to the 2nd defendant requesting the 2nd defendant to release the vehicle to him. In that letter, he has not stated that he came to the office of the 2nd defendant and expressed his willingness to make the payment of tax, but the 2nd defendant refused to release the vehicle on the basis of the letter of the first defendant. Therefore, the story that has been built up in the plaint as well as in the evidence that he came to the office of the 2nd defendant and offered to pay the tax and the 2nd defendant has refused to accept the same cannot be accepted. 126. Further, the vehicle was seized on 25.05.1988 and on 19.07.1988, the first defendant sent a letter to the 2nd defendant requesting the 2nd defendant not to release the vehicle as the first defendant has obtained decree and the vehicle is also hypothicated to him and from 25.05.1988 till 19.07.1988, no attempt was made by the plaintiff for the payment of tax and even in the letter, dated 11.08.1988 the plaintiff did not mention about his willingness to pay the tax and got the vehicle released, all would cumulatively prove that the plaintiff is not stating the truth and no attempt was made by him to pay the tax. .27. Further, the conduct of the plaintiff would also prove that he has no intention of paying the taxes. .27. Further, the conduct of the plaintiff would also prove that he has no intention of paying the taxes. After the seizure of the vehicle, on 24.05.1989, the plaintiff paid a sum of Rs.40,000/- towards loan amount and when the plaintiff was capable of paying such amount towards debt, he was not prepared to pay the tax. The payment made on 24.05.1989 is admitted and this would prove either the understanding between the plaintiff and the 1st defendant, as stated by plaintiff or it would lead to the conclusion that the plaintiff was not willing to pay the tax. Therefore, it is proved that the plaintiff never made any attempt to pay the tax and having failed to pay the tax as per the statute he is not entitled to find fault with the 2nd defendant in not acting, according to the provision of the said Act. As stated supra, even according to the plaintiff, the first defendant had undertaken to get the vehicle released, if substantial payment is made and on that basis, the plaintiff paid Rs.40,000/-on 24.05.1989 and therefore, according to the plaintiff, the failure was on the part of the first defendant and hence, the plaintiff is not entitled to blame, the defendants 2 and 3, by contending that by reason of the act of the 2nd defendant in not acting as per the provision of the M.V.Act, he sustained loss and therefore, the plaintiff is entitled to claim damages from the defendants 2 and 3. 128. Mr.V.K.Vijayaragavan, the learned counsel appearing for the respondents submitted that as per Section 18-A of the Tamil Nadu Motor Vehicle Taxation Act, the duty was cast upon the official of the Transport Department to wait for 90 days to enable the owner of the vehicle to pay the tax from the date of seizure and if the tax is not paid within that period, he ought to have sold the motor vehicle in auction and appropriated the sale proceeds towards recovery of tax, penalty or loss incurred after adjusting the sale proceeds and paid the remainder to the Registered owner of the vehicle. Therefore, the learned counsel appearing for the respondents contended that when the plaintiff did not pay the tax, the second respondent is bound to sell the vehicle in auction and had the second respondent sold the vehicle in September 1988, the vehicle would have fetched a good sum and therefore, by the failure on the part of the 2nd defendant/first appellant, the plaintiff sustained loss and the vehicle was also damaged by reason of the act of the appellants 1 and 2 in not taking proper care for the maintenance of the vehicle and keeping the vehicle exposed to sun and rain, the value of the vehicle got diminished and therefore, they are liable to pay damages. 129. Insupport of his contention, the learned counsel relied upon the judgments reported in AIR 1976 SC 789 in the case of Hukam Chaand ShyamLal vs. Union of India and others and in 2006(1) L.W.409 in the case of V.Sarangapani (deceased) and 13 others vs. the Collector of Thanjavur District at Thanjavur and another. The gist of the argument of Mr.V.K.Vijayaraghavan, is that when the statute prescribes an Act to be done in a particular manner it must be done in that manner only and under the Motor vehicle Taxation Act, the 1st appellants duty was to sell the vehicle in auction and appropriate the same towards tax arrears and having failed to perform the duty, he is liable to pay damages. 130. Though the argument of the learned counsel appearing for the respondents, Mr.V.K.Vijayaraghavan, seems to be attractive, having regard to the law of negligence as interpreted by our Honourable Supreme Court, the argument of the learned counsel cannot be accepted. The law on this aspect viz., vicarious liability by reason of the carelessness approach by the authorities has been discussed in detail in the reported judgment (1997)9 SCC 552, in the case of Rajkot Municipal Corporation vs. Manjulben Jayantilal Nakum and others. The fact of the case was that the deceased while walking on the foot path a roadside tree certainly fell on him and he died in the hospital. The legal-heirs filed a suit for damages and the Division Bench of the Gujarat High court held that the Municipality has a statutory duty to plant trees on the roadsides as also the corresponding duty to maintain the trees in proper condition. The legal-heirs filed a suit for damages and the Division Bench of the Gujarat High court held that the Municipality has a statutory duty to plant trees on the roadsides as also the corresponding duty to maintain the trees in proper condition. The statutory duty gives rise to tortious liability on the State and as its agent the Corporation being a statutory authority was guilty of negligence on its part in not taking care to protect the life of the deceased. While allowing the appeal filed by the Municipal Corporation, the Honourable Supreme Court after thoroughly analyzing various laws enunciated by the English courts held as follows: “A breach of statutory duty, therefore, does not ipso facto entail Corporations liability for its failure or of its staff to comply with the statutory duty to protect Jayantilal or the class of persons to which the deceased is a member. There is no liability for negligence unless a legal duty to take care exists towards the deceased Jayantilal or a class of persons.” “The tortious liability falls into one of the three categories viz., (a) some intentional wrongdoing, (b) negligence, and (c) strict liability. In this case, we are concerned with negligence on the part of the appellant-Corporation in maintaining the trees on the roadsides. The principle evolved by the courts in England is that a reasonable foresight of harm to persons whom it is foreseeable or is likely to harm by ones carelessness is essential. For the plaintiff to succeed in an action for negligence the plaintiff requires to prove that (i) the defendant is under a duty to take care; (ii) the burden of proof owned by the plaintiff has been discharged by the proof of breach of duty and (iii) the breach of the duty of care is the cause for damage suffered by the plaintiff. Breach of duty raised factual question whether the required standard of conduct has been reached.” “The degree of liability depends upon the degree of mental element. The elements of tort of negligence, therefore, consist in (a) duty of care (b) duty owed to the plaintiff; and (c) it has been carelessly breached. Negligence does not give rise to liability unless the law fastens the duty of care in given circumstances. Duty is an obligation recognized by law to avoid conduct brought with unreasonable risk of damage to another. Negligence does not give rise to liability unless the law fastens the duty of care in given circumstances. Duty is an obligation recognized by law to avoid conduct brought with unreasonable risk of damage to another. The question whether duty consists in a particular situation involves determination as a question of law.” “Negligence would, therefore, mean careless conduct in commission or omission of an act, whereby another to whom the plaintiff owed duty of care has suffered damage. The duty of care is crucial in understanding the nature and scope of tort of negligence. The question in each case is whether the defendant has been negligent in the performance of duty or omission thereof.” “Negligence connotes inadvertence to the consequences of his conduct which can be a measure of behavior where one person had been careless in that he did not behave as a prudent man would have done whether by advertence or otherwise. The tort of negligence always requires some from of careless conduct which is usually, although not necessarily, the product of inadvertence. Not every careless conduct which causes damage, however, will give rise to an action in tort. The negligence lies in failure to take such steps as a reasonable, prudent man would have taken in the given circumstances. What constitutes carelessness is the conduct and not the result of inadvertence. Thus negligence in this sense is a ground for liability in tort.” “If the statue creates right and remedy, damages are recoverable by establishing the breach of statute as the sole remedy available under the statute. But where a statute merely creates a duty without expressly providing any remedy for breach of it, appropriate remedy, prima facie, is punishment for misdemeanor in respect of the injury to the public and the action for damages in respect of any special damage suffered by an individual. Where special remedy is expressly provided prima facie that was intended to be the only remedy and by implication it excludes the resort to common law. But this is also by no means conclusive. The consideration would be whether the statute intends to award damages for breach of statutory duty. Though general rule is that where a statute carats an obligation and enforces performance in a specified manner, performance cannot be enforced in any other manner. But this is also by no means conclusive. The consideration would be whether the statute intends to award damages for breach of statutory duty. Though general rule is that where a statute carats an obligation and enforces performance in a specified manner, performance cannot be enforced in any other manner. It depends on the scope of the Act which creates the obligation and on consideration of the underlying policy of the statute, effect on the individuals is to be carefully examined and analyzed as to what the statue has expressly laid down or probably what the statute aims to achieve. The action for damages will not lie if the damage suffered by him is not of the type intended to be guarded against.” If the statute provides that a certain thing must be done, it is a question of interpretation whether the statute aims the thing to be done in all events or merely that the person upon whom the duty is imposed is to use due care and diligence in the performance of duty or that if he fails to perform it, though for no fault of his, he should be free form liability. When a duty is created by the statute, breach of which is an actionable tort, the question would be whether the liability is absolute or dependent on wrongful intent or negligence. It seems to be contrary to statutory intendment to impose liability upon a public body for a thing for which no reasonable care in the performance of the act concerned could be inferred from the language used in the statute; it ought not to be so construed as to inflict the liability on the public authority unless the purpose sought to be achieved has been wanting due to want of exercise of duty and reasonable care in the performance of duty imposed by the statute.” “The general rule is that the public authorities are liable for positive action (misfeasance) but not for omission (non-feasance). In considering the duty of public authority to avoid harm to those likely to be affected by the exercise of power or duty, the courts have evolved the relationship of proximity or neighborhood nexus which exists between the person who suffered damages and wrongdoer. In considering the duty of public authority to avoid harm to those likely to be affected by the exercise of power or duty, the courts have evolved the relationship of proximity or neighborhood nexus which exists between the person who suffered damages and wrongdoer. Where there is allegation of wrongdoing it has to be seen whether the latter reasonably ought to have foreseen that the carelessness on his part, is likely to cause damage to the other. In other words, if it is a reasonable foreseeability that carelessness on the defendants part will cause damage to the plaintiff, then the defendant is plaintiffs neighbour and prima facie owes towards the plaintiff a duty of care which may, however, be negatived on the ground of public policy or reasonable care taken at the operational stage.” “Statutory power is not something like statutory duty. Before the repository of a statutory power can be made liable for negligence for a failure to exercise it, the statue must (either expressly or by implication) impose a duty to exercise the power and confer a private right of action in damages for a breach of the duty so imposed. The question whether the Act confers a private right of action depends upon the interpretation of the provisions of the Act. But by process of statutory interpretation, the courts may not superimpose a general common law duty on a statutory authority in order to give effect to its presumed idea of policy or duty.” There is a distinction between misfeasance (positive action) and non-feasance (omission). Misfeasance is wilful, reckless or heedless conduct in commission of a positive act lawfully done but with improper conduct. Non-feasance means non-performance of some act which ought to be performed or omission to perform required duty or total neglect of duty. In the case of misfeasance, the defendant is the author of the source of danger to cause damage due to careless conduct, to the person/property of plaintiff. He has knowledge that the act may give rise to tort but in the case of non-feasance several factors require consideration for giving rise to actionable negligence. In the case of misfeasance, the defendant is the author of the source of danger to cause damage due to careless conduct, to the person/property of plaintiff. He has knowledge that the act may give rise to tort but in the case of non-feasance several factors require consideration for giving rise to actionable negligence. In The Law or Torts by John G.Fleming (8th Edn.) 1992, at p. 435 on the Chapter of “Public Authorities”, the author has stated that although public authorities enjoy no immunity as such from ordinary tort liability, a protective screen has long remained in the vestigial “non-feasance” rule that mere failure to provide a service or benefit pursuant to statutory authority would ordinarily confer no private cause of action on persons, who thereby suffer loss. In an article “Affirmative Action in the Law of Tort: The case of the Duty to Warn”. It is stated that the distinction between acts (misfeasance) and omissions (non-feasance)sometimes referred to as pure omissions, though a fundamental one, is not one which is easy to make. F.H. Bohlen suggested that “misfeasance differs from non-feasance in two respects: in the character of the conduct complained of, and second, in the nature of the detriment suffered in consequence thereof”. The first aspect relates to the distinction between active misfeasance and passive inactivity; the second to the distinction causing loss and simply failing to confer a benefit. A defendant who has inflicted a loss on the plaintiff by his negligent action will be liable for the misfeasance. On the other hand, if he has simply allowed harm to occur without preventing it, or failed to confer a benefit on the plaintiff, he will not be liable, as this is considered to be an omission or non-feasance. The conferment of such benefits lies in the province of contract, or tort. At p.117, he states that tort law has developed in such a way as to allow the imposition of liability for injuries that are not easily described as “damage” or “loss”. At p.119 it is further stated that there are, however, more practical arguments why misfeasance and non-feasance should be treated differently, Imposing liability in cases of non-feasance, it is argued, would be to create liability for an indeterminate class of persons. At p.119 it is further stated that there are, however, more practical arguments why misfeasance and non-feasance should be treated differently, Imposing liability in cases of non-feasance, it is argued, would be to create liability for an indeterminate class of persons. “In the judgment reported in 1994(4) SCC 1 in the case of Jay Laxmi Salt Works (p) Ltd., vs. State of Gujarat that In Blacks Law Dictionary the meaning of each of these expressions in explained as under: “Malfeasance-Evil doing, ill conduct. The commission of some act which is positively unlawful; the doing of an act which is wholly wrongful and unlawful; the doing of an act which person ought not to do at all or the unjust performance of some act which the party had no right or which he had contracted not to do. Comprehensive term including any wrongful conduct that affects, interrupts or interferes with the performance of official duties. Misfeasance-the improper performance of some act which a man may lawfully do. Non-feasance- Non-performance of some act which ought to be performed, omission to perform a required duty at all, or total neglect of duty”. Stroud defines it as under: “Misfeasance- There is no such distinct wrongful act known to the law as misfeasance. Non-feasance-The decisions as to non-feasance cannot be invoked to excuse a highway authority from liability for nuisance caused by a defective stud brought on to the highway, not for the purpose of the highway, but for purposes of traffic regulation under the Road Traffic Acts”. The words are undoubtedly of very wide import. They are strong expressions as well. Malfeasance and non-feasance bring into motive, intention, malice etc. “In Calveley v. Chief Constable of the Merseyside Police (1989)1 A11 ER 1025, it was held that for the tort of misfeasance it was necessary that the public officer must have acted maliciously or with bad faih. In Dunlop v. Woollahra Municipal Counsel 1981(1) A11 ER 1202;(1982) AC 158, it was held that without malice the claim for misfeasance could not be accepted. Non-feasance on the other hand is omission to discharge duty. But the omission to give rise to action in torts must be impressed with some characteristic, namely, malice or bad faith. In Dunlop v. Woollahra Municipal Counsel 1981(1) A11 ER 1202;(1982) AC 158, it was held that without malice the claim for misfeasance could not be accepted. Non-feasance on the other hand is omission to discharge duty. But the omission to give rise to action in torts must be impressed with some characteristic, namely, malice or bad faith. The expressions malafeasance, misfeasance and non-feasance would therefore, apply in those limited cases where the State or its officers are liable not only for breach of care and duty but it must be activated (sicactuated) with malice or bad faith.” Therefore, it is seen from the above enunciation of law by our Honourable Supreme Court that the first appellant has committed act of non-feasance in not selling the vehicle, after the expiry of 90 days and appropriate the sale proceeds towards tax and pay the remainder to the plaintiff. In other words, he failed in his duty to sell the vehicle, as per the provio to Section 18-A of the Act. As stated supra, it comes only under the definition of non-feasance and in that case, as held by the Honourable Supreme Court following the English cases, as the omission or failure on the part of the official in performing duty will not give rise to action in torts, unless it is actuated by malice or bad faith. 31. Inthis case, it cannot be stated that the first appellant acted in bad faith or acted with malice, and there is no pleading to that effect nor any evidence was let in. Hence, the 2nd appellant is also not liable to pay damages in an action of tort, unless, he acted in bad faith or malice is given statutory recognition in the said Act, under Section 22-A. 32. As per Section 22 of the Tamil Nadu Motor Vehicle Taxation Act, no suit, prosecution shall lie against any person for anything done in good faith, or intended to be done in pursuance of the act and no suit or other legal proceedings shall lie against the Government for any damage caused or likely to be caused by anything, which is in good faith done or intended to be done in pursuance of the act. Therefore, the Act postulates that in order to claim damages from the Government officials for having anything done or omitted to be done as per the provision of the said act, it must be done in bad faith and if it is done in good faith, no action will lie. In this case, by no stretch of imagination, it can be stated that the first appellant has acted in bad faith or malice. The first appellant seized the vehicle in exercising of the power conferred on him under Section 18A of the Act and though under the same provision, he is bound to sell the vehicle and appropriate the sale proceeds towards tax and that was refused to be accepted by the first appellant on the pretext of letter sent by the 2nd defendant bank. 33. In the letter sent by the plaintiff, dated 11.08.1988, Ex.B8, which was in earlier point of time, he did not say anything about the offer made by him and refusal by the first appellant. 34. According to the plaintiff, the first defendant assured that if the plaintiff pays any substantial amount towards loan, the first defendant would take steps to release the vehicle from the 2nd defendant and sell the same in public auction and adjusting the sale proceeds towards dues and pay the balance to the plaintiff. 35. Further admittedly, the plaintiff paid a sum of Rs.40,000/- on 24.05.1989. When the plaintiff was able to pay Rs.40,000/-, he would have paid the tax and got the vehicle released or he could have sent a letter or notice about his willingness to pay the amount and refusal by the 2nd defendant/first appellant in releasing the vehicle. 36. Ex.A5, is the notice issued by the plaintiff, under Section 80 C.P.C and that was the first action taken by the plaintiff. In that notice, the plaintiff did not say anything about the alleged act of approaching the official of the 2nd defendant/1st appellant and requested him to release the vehicle and offered to make payment. It was only stated that when he was making arrangements for the payment of tax arrears, the first defendant sent a letter, dated 19.07.1988, Ex.B3, requesting the 2nd defendant not to release the vehicle. It was only stated that when he was making arrangements for the payment of tax arrears, the first defendant sent a letter, dated 19.07.1988, Ex.B3, requesting the 2nd defendant not to release the vehicle. The 2nd defendant in the written statement made it clear that they did not detain the vehicle on the basis of the letter given by the plaintiff and they would have released the vehicle had the tax been paid. It was also made clear in the written statement that if the plaintiff had paid the tax arrears with penalty, they would have released the vehicle to the plaintiff. Therefore, before blaming the first appellant that he has failed to perform his duty as per the Motor Vehicle Taxation Act, the plaintiff failed in his duty to perform his part of paying tax arrears in time. 37. Further, as held by the Honourable Supreme Court in the judgment 1997 (9) SCC 552, in the case of Rajkot Municipal Corporation vs. Manjulben Jayantilan Nakum and others, before making a repository of statutory power liable for, the statue as interpreted must impose a statutory duty and confer a private right of action in damages for breach thereof. .38. The House of Lords in the case of Bourhill v. Young (AC at p.98: All ER.p.399) Lord Thankerton, laid the test to ascertain whether a duty was owed to the plaintiff wherein an injury to the plaintiff was the foreseeable result of the defendants conduct in given circumstances. The foreseeability must be of reasonable possibilities. .Therefore, it cannot be stated in this case that statute provides a cause of action to the plaintiff that for the failure on the part of the officials in performing his duty and when there is no malice or bad faith on the part of the officials, no action will lie against the officials. .39. This case can also be looked from another angle. Admittedly, there was a failure on the part of the plaintiff in paying the taxes in time, which resulted in the seizure of the vehicle. It is a well known legal maxim that the court will not come to the aid of a person, who himself is a party to an illegality. “In Pari delicito portior est. Admittedly, there was a failure on the part of the plaintiff in paying the taxes in time, which resulted in the seizure of the vehicle. It is a well known legal maxim that the court will not come to the aid of a person, who himself is a party to an illegality. “In Pari delicito portior est. condition decidenti” Though, the above principle is made applicable in the realon of contract, there is nothing wrong in invoking the said principles to the present case, where the plaintiff himself has committed a wrong in not paying the tax and running the vehicle, he cannot later on make a complaint against the 2nd defendant for their failure to act as per the provisions of the act. Hence, according to me, in the absence of bad faith or malice, the appellants cannot be made liable for damages. 40. Further, it cannot be stated that the respondents/appellants 1 and 2 failed to take reasonable care that was expected from a prudent man in that circumstances. When, a vehicle is seized, while exercising the statutory function, the officials have acted in a prudent manner by keeping the vehicle in safe custody so that the vehicle can not be removed without the knowledge of the officials. Of course, in that process the vehicle may be exposed to sun and rain, but for that one cannot blame the officials. 41. Therefore, according to me, the appellants 1 and 2 have acted in a prudent manner in the given circumstances and they cannot be blamed if the vehicle got damaged. Hence, I hold that the appellants are not liable to pay damages to the plaintiff. 42. Point No.2: The lower court has held that the first defendant is not liable to pay any compensation, according to me, the finding of the lower court in exonerating the first defendant is not correct. As stated supra, it was admitted by the plaintiff that at the instance of the first defendant, the 2nd defendant refused to deliver the vehicle and the first defendant also assured the plaintiff to get custody of the vehicle from the other defendants, if the plaintiff pays substantial amount and acting on the premises made by the first defendant, the plaintiff also deposited Rs.40,000/- on 24.05.1989. It is also stated by PW1 that the plaintiff after depositing Rs.40,000/-he also handed over the R.C book, filled forms to enable the bank to sell the vehicle. Therefore, the plain reading of the plaint as well as evidence of PW1 would lead only to an irresistible conclusion that the first defendant agreed to release the vehicle provided the substantial amount is paid by the plaintiff and therefore, the first defendant failed in his premise in getting the vehicle released and if at all any claim can be made against anybody by the plaintiff that can be only made against the first defendant and hence, the finding of the lower court that the first defendant is not liable to pay any compensation is not correct. However, the finding of the lower court that the first defendant is not liable has become final as there is no cross objection filed by the plaintiff against the said finding. 43. Point NO.3: This issue has already answered, while answering the Point No.1. Therefore, the plaintiff is not entitled to claim any damages from the defendants 2 and 3, when they have acted in pursuance of the power conferred under the Act. The trial court without properly appreciating these facts and evidence erroneously came to the conclusion that the defendants 2 and 3 are liable and hence, the findings of the lower court is liable to be set aside and it is hereby set aside. 44. In fine, the judgment and decree, dated 24.02.1995 passed in O.S.No.62 of 1991, on the file of the Subordinate Judge, Pattukkottai, is set aside and the appeal is allowed. No costs.