Nathoolal Mistry vs Leonard Theological College, Jabalpur

Shiv Dayal, J.—This appeal arises from a suit for the recovery of Rs. 6,900/- for work done for the defendant. The appellant''s case was that in April 1961, the respondent Theological College gave the appellant a contract for construction and carpeting of the approach road to the College covering an area of about 33,975 sq. ft. His final bill for that work was paid by the College on January 6, 1964. It is his case that in October 1963, Dr. Sahai, Principal of the College, ordered him to do the work of seal coating of the entire carpeted area. The plaintiff accepted to do this work, The contract was oral. It was agreed that for this work, the plaintiff would be paid actual cost of the material and labour together with 10 per cent as contractor''s contingency. Accordingly the plaintiff carried out the work of seal coating in the months of November and December 1963 and also in January 1964. He submitted a bill for Rs. 6,614 48 p. but the amount was not paid. The appellant claimed a further sum of Rs. 265/- on account of cost of material which the defendant utilised for himself.

The defendant''s case was that the work done by the plaintiff in pursuance of the contract of 1961 was defective so that when Dr. Sahai, the Principal, returned from abroad and inspected the work, he found it to be incomplete and unsatisfactory. He, therefore, called upon the plaintiff to remove the defects before his final bill could be paid. In November and December 1963 the plaintiff completed the work of carpeting. His final bill was paid in January 1964. The defendant completely denied that the plaintiff was asked to do any seal coat work or that any such work was actually done by him.

The trial Court dismissed the suit holding it not proved that the plaintiff had done any seat coat work or that there was any agreement to that effect between the parties. It farther held that the defendant had not utilised any material belonging to the plaintiff.

The plaintiff appealed. The learned District Judge, in his elaborate judgment, upheld that findings of the trial Court. In doing so, he believed the evidence of Dr. Sahai and Dr. Thomas, who denied that the plaintiff was asked to do any carpeting work as alleged by him. The first appellate Court held that "the work actually done by the plaintiff in November and December 1963 was for the purpose of carrying out repairs and removing the defects in the execution of contract relating to carpeting of the road." It further observed: -

"It seems that that plaintiff carried out some work which was skin to seal coating in order to remove the defects pointed out by the defendant and he now wants to take advantage of it to fasten a claim for seal coating on the defendant."

It also observed that no question of paying the plaintiff any amount on quantum meruit basis arose. In the result, it dismissed the suit.

In this second appeal, preferred by the plaintiff, the entire stress is on the principle of quantum meruit. There being clear finding of fact concurrently reached by the Courts below, the plaintiff could not successfully urge that he did the seal coating work in pursuance of an oral agreement between him and Dr. Sahal, the Principal of the College. There is no reason to take a view different from the one taken by the Courts below by placing reliance on the evidence of Dr. Sahai. Shri J.S. Verma, Learned Counsel for the appellant, urged that even if the express contract was not proved, the plaintiff is entitled to a decree for reasonable compenation for the work done by him, which was not done gratuitously and the benefit of which the defendant has been enjoying.

Relinace is placed on section 70 of the Contract Act and a decision of their Lordships in V.R. Subramanyam Vs. B. Thayappa and Others,

Where work is done or services performed by one person for another without intending to do it gratuitously and in circumstances which entitle the former to receive a reasonable remuneration therefor, a quantum meruit claim (so much as is deserved or marited) arises. A quantum meruit action may be contractual or quasi-contractual. It is contractual where, for instance, one person has rendered a service or has done a work in circumstances which indicate an understanding between them that it is to be paid for, or where from the conduct of the parties to an express contract, it can be inferred that they have agreed to substitute for it a new contract, or where one party has in breach of contract either only partially performed his side of the agreement, or performed it in a manner different from that contemplated by its terms. A quantum meruit claim is quasi-contractual where an obligation is imposed on the parties by the law without reference to any existing agreement. It is stated in the Law of Contract by Cheshire and Fifoot (6th Edition) at page 572 : -

"Whether or not the claim in quantum meruit is, in any particular case, alternative to an action for breach of contract it is clear that it is itself independant of the original contract between the parties and is sustained, not because it represents an agreement reached between the parties, but because the law will compel the defendant not to disappoint the plaintiff of the ''fruit of his labour''."

In 8 Halsbury (Simonds) 226 (Para 390), the law is stated thus :-

"Acceptance of the benefit of another''s work does not of itself give rise to an implied promise to pay therefor, and in general no remuneration can be claimed for work done voluntarily or without request even though the defendant has accepted the benefit of it and actually subsequently promised to pay for it. The employment of a person in a professional capacity raises a rebuttable presumption, however, that he, is to be paid for his service. A request is implied so as to render the work and labour good consideration when the plaintiff is compelled to do what the defendant was under a legal duty to do, or when the plaintiff voluntarily does what the defendant was legally bound to do, and the latter afterwards promises to pay, or when the work was done for the benefit of the defendant''s property and he adopts the benefit of it in such circumstances as give rise to an inference of a contract to pay.'' If services are rendered and accepted in pursuance of an agreement, which is unenforceable, remuneration is payable on the basis of a quantum meruit."

The principle of quantum meruit is often pleaded where because of some technical defect a contract is held inoperative. An implied contract is then assumed by which the person for whom work has to be done contracts to pay the person, who does the work, reasonably for the work done.

Shri Dabir, Learned Counsel for the respondent, contended that the plaintiff having sued for damages only on the basis of breach of contract, he cannot be permitted to convert it into a suit on the basis of a quasi-contract. This objection is completely answered in subramaniyam. v. Thayappa (supra), where the same argument was advanced and it was urged that the plaintiff must succeed or not on the case pleaded by him and not on any cause of action not pleaded. Their Lordships held as follows :-

"In our view, there is no substance in this contention.........If a party to a contract has rendered service to the other not intending to do so gratuitouly and the other person has obtained some benefit the former is entitled to compensation for the value of the services rendered by him......He was therefore entitled to receive compensation for the work done which was not covered by the agreement."

their Lordships then further held that although the plaintiff had claimed under an oral agreement compensation at the prevailing market rates for the work done by him and an express agreement was not proved, the Court may still award him compensation u/s 70 of the contract Act. Their Lordships then laid down thus :-

"By awarding a decree for compensation under the statute and not under the oral contract pleaded, there was in the circumstances of this case no substantial departure from the claim made by the respondent."

However, in ultimate analysis, the claim quantum meruit is based on the equitable doctrine which is supported by section 70 of the Contract Act. Taken broadly and philosophically, equity means to do to all men as we would they would do unto us, i.e., to live honestly, not to hurt another to give to each his due. (Honeste vivere, alterum non laedre, suum cuicue tribuere Justinian Pandects). It is stated in Jowitt''s Dictionary :-

"While equity aims to assist the defect of the common law, by extending relief to those rights of property which the strict law does not recognise, and by giving more ample and distributive redress than the ordinary tribunals afford it, by no means controls, mitigates, or supersedes the common law, but rather guides itself by it analogies, and does not assume any power to subvert its doctrines."

Applying these principles to a case of execution of a building contract, where the contractor does something which in excess of the work agreed to be done, it will have to be seen whether the enjoyment of the benefit within the meaning of section 70 of the Contract Act is intentional or conscious. For instance, if the owner asks a contractor to build two rooms for him and the latter builds three rooms and the owner enjoys the benefit of the third room which was not in contemplation of the agreement, he will be bound to make compensation to the contractor in respect of the third room, or to allow the contractor to dismantle the room and take away the material. Again, for instance, if doors are not contemplated in the agreement but the contractor provides for penalled doors and the owner enjoys the benefit thereof, he must make compensation to the contractor, or allow the contractor to take away the doors. Again, suppose in constructing a wall in brick and cement, the contractor mixes gold or silver with cement or uses a very superior costly cement which is wholloy unnecessary and without the consent of the owner, he cannot make a claim for compensation, although it will be his option to rebuild the wall and remove gold or silver from it.

In the trial Court the plaintiff and defendant had both pleaded for appointment of expert commissioner but the trial Court had rejected their applications on the ground that they were belated. By an order dated November 20, 1967, this Court allowed the appellant''s application on the ground that both parties had agreed in the trial Court on the necessity of expert evidence and undoubtedly the nature of the dispute was such that expert evidence was infact necessary, the dispute being of a technical nature.

By consent of parties, Shri S.M. Agrawal, Reader in Civil Engineer-tag, Government Engineering College, Jabalpur, was appointed Commissioner to inspect the work. The commissioner submitted his report. His evidence was recorded. Shri Agrawal is master of Engineering in highways. He states :

"The road like this is constructed in the following stages. Let us assume that the water bond Macadam road surfacing in existing. On this we shall make bitumenous road. The road surfacing can now be done by various methods and in various coats. The common methods of road surfacing are (1) premix carpet laying. This can be done by hot process as well as by the cold process. (2) By grouting process. (3) Surface dressing. The number of coats requited on a particular road will depend mostly upon the intensity of traffic and the other requirements like smothness of the surface and weather resistant qualities."

He further states that on the disputed road bituminous carpeting exists. That in the upper most layer. He found it to be in two layers. On being specifically asked whether there was any Bajri between the two layers, he answered in the negative, and also said that there was no Bajri inside. He said that it was very difficult to find out which bitumenous material was used. He also could not say whether mixing was done before spreading or not On re-examination by Shri Verma, the witness says :

"From the specifications which have been read out to me from the agreement, I can say that only one layer of bitumenous material was to be done."

14 In the present case, it is clear that the defendant asked the plaintiff to remove the defects in the work done by him in pursuance of the contract of 1961, and it appears that it was in continuation of that work that the contractor did the seal coat work also. Apart from whether the seal coat work was done as a process of removing the defects in his initial work or in addition to the original work, I find that the plaintiff could not establish clearly what he actually did in addition to the contracted work. Shri Agrawal, the expert witness, no doubt says that seal coat was done and that there are two layers. It is only in re-examination that he says that under the initial agreement, only one layer of bituminous material was to be done. In the original contract I find that in the specification, the following item is included :

"(5) Carpeting:-

1" thick maxphalt or Tar premix coat will be done after months metal consolidation. This will include 3/4" to 1/2" thick black basalt metal tar or maxphalt. Tar boiler, Tar mixer and brushes-can and various at machinery road roller etc. and labour."

15 In Highway Engineering by N.K. Vaswani, at page 276, seal coat is defined as follows : -

"Seal Coat-It may be defined as a very thin surface treatment which is applied as a final step in the construction of certain bitumenous surfaces. The object of seal coat is (i) to waterproof the wearing surface (ii) in some cases to provide a more desirable surface texture (iii) when provided on an existing bituminous surface the object is to enliven or rejuvenate a dry or badly weathered surface to build up the pavement structure or reduce slipperiness or to improve night visibility".

And, its process is described at page 282, as follows :-

"After consolidation the road is either open to traffic for some months before application of seal coat or the seal coat is applied immediately after. In either case the surface should be brushed free of any loose blindage. The surface is then cleared of all depressions, by painting with asphalt and blinding with aggregate equivalent to size of depression. The surface is then painted by spraying hot bitumen at the rate of 13 to 26 Ibs-per 1(0 sq. ft. (0.65-1.3 kg/m2) or applying cold binder and immediately blinded with 1/4 in size chips at the rate of 3 to 4 c. ft. per 100 sq. ft. (0.8-1.2 m3/100 m2). The surface is then rolled with 10-12 ton roller and then open to traffic. The seal coat produces a dense smooth and nonskid surface.

If temporary kerbs have been used, they are removed and replaced by 18 to 24 inch, wide WBM, to provide lateral support Instead of WBM, edging is also provided. The brick edging or WBM is further supported by earthen or stabilized soil berms."

The specification quoted above shows that carpeting of the road with basalt metal tar or maxphalt was also contemplated. Whether the plaintiff did it in one layer or two layers was too technical a thing for the defendant to know, particularly when in between the two layers there was no Bajri. It cannot therefore, be said that the defendant intended to enjoy the benefit or consciously enjoyed the benefit of the second layer.

The appeal is dismissed. However, having regard to the facts and circumstances of the case and in particular the fact that the plaintiff really did more work than what he was required to do, I direct that the parties shall bear their own costs throughout.