JUDGMENT M.P. Mehrotra, J.
1. This second appeal arises out of a suit for a claim to a certain amount which the plaintiff sought against the defendants. The brief facts are contained in the following passage which is extracted from the judgment of the lower appellate court:--
"That the defendant No. 2 placed a work order with the plaintiff on 3-1-63/ 11-2-63 and it was agreed that the plaintiff will prepare a specimen and get it approved through the S.D.O., M.E.S. and thereafter get the specimen fixed to the Air Conditioning Compressor Plant and the plaintiff shall get a sum of Rs. 1210 for the same. That the plaintiff in pursuance of the said contract prepared the specimen and after approval by the authorities concerned fixed the same in the plant and thus performed his part of the contract. That the plaintiff requested the defendants to make the payment but they have refused to make any payment to the plaintiff on absolutely unwarranted ground. That though it was agreed that the plaintiff shall put the plant after completing the work under the order, in running condition but the same could not be put in running condition because the plant needed replacement of some other vital parts which were not replaced by the defendants in spite of repeated request of the plaintiff. That the plaintiff has done all that he has to do as part of his contract but for the defects in the other vital parts of the plant, the said plant is in working order and as such the plaintiff is entitled to the amount agreed upon between the parties under the work order. That a notice under Section 80, C.P.C. has been served on the defendants.
The suit was contested by the appellants on the following grounds:--
That the defendant had a 36 ton air conditioner which needed replacement of parts as indicated in the tender form. That the plant was inspected by the plaintiff and he on or about 30th January 1963, accepted the order on behalf of the defendant to set the plant in working order and took responsibility upon himself to satisfy the S.D.O. E/M, Agra. That the specification supplied by the plaintiff was correct and approved but the parts supplied were below the specification and the plant consequently did not function. That the plaintiff did not perform his part of the contract and knowing his default he kept quiet upto 2-8-63 when the bill was refused. That the suggestion that the defendant was bound to supply any further parts or the plaintiff desired any supply of parts is incorrect. That the plaintiff failed to comply with conditions of the contract and committed breach thereof. The defendant suffered a huge loss as the air conditioner has become useless. The suit is liable to be dismissed with costs. That the suit is also barred by Article 299 of the Constitution of India."
The trial court, after framing the necessary issues tried the suit and decreed the same. The lower appellate court affirmed the decree of the trial court. The Union of India has now come up in the instant second appeal and, in support thereof, J have heard Sri R. S. Dhawan, learned counsel for the defendants-appellants.
2. Learned counsel's contentions are two-fold: Firstly, he submits that Section 70 of the Contract Act could not apply to the facts of the instant case inasmuch as the plaintiff came to the court on the allegation that there was a contract between the parties. He contends that in case the averment of the plaintiff is that there is a contract between the parties then no relief can be granted under Section 70 of the Contract Act His point is that, in such a situation, Section 65 of the Contract Act may or may not apply but Section 70 will not be applicable because the said provision does not postulate or contemplate any contract to be the basis for granting relief. His second contention is that in the instant case there was no alternative case in the plaint based on Section 70 of the Contract Act and the courts below were wrong in granting relief under the said provision. Besides the cases referred to in the judgments of the courts below, learned counsel has also placed reliance on V. R. Subramanyam v. B. Thayappa, AIR 1966 SC 1034, Municipal Board, Gonda v. Bachchu, AIR 1951 All 736 (FB) and Mulamchand v. State of Madhya Pradesh, AIR 1968 SC 1218. It is not really very material as to whether the plaintiff was entitled to relief under Section 65 or under Section 70 of the Contract Act but it seems to me that the Supreme Court has uniformly taken the view that in a situation where a contract is not in accordance with Article 299(1) of the Constitution or in accordance with Section 175(3) of Government of India Act, 1935, then the provision of Section 70 of the Contract Act has been held to be applicable. In State of West Bengal v. B. K. Mondal and Sons, AIR 1962 SC 779, it has been held that in case a contract is not in accordance with the formalities as required by Section 175(3) of the Government of India Act, 1935, then it is a situation to which Section 70 is attracted. The same is the ratio laid down in New Marine Coal Co. (Bengal) Pvt. Ltd. v. Union of India, AIR 1964 SC 152. In the said case the contract was also examined with reference to. Article 299 of the Constitution. In Mulamchand v. State of Madhya Pradesh (supra) also it has been laid down as under:--
"Applying these principles, it is manifest that a person whose contract is void for non-compliance with Article 299(1) of the Constitution would be entitled to compensation under Section 70 of the Contract Act."
So far as the second contention is concerned, in my view, even though no alternative case was set out in the plaint entitling the plaintiff to get compensation under Section 70 of the Contract Act, still, the plaintiff could not be non-suited on the said ground if from the record it was clear that he was entitled to the benefit of the said provision. In V. R. Subramanyam v. B. Thayappa (supra) the plaintiff had claimed compensation on the basis of a contract. A decree was granted and on behalf of the appellant an argument was raised in the Supreme Court that the decree was wrongly passed. The contention was noticed by the Supreme Court in these words:--
"Counsel for the appellant submitted that as in the view of the High Court the respondent failed to prove the oral agreement pleaded by him, the suit should have been dismissed, and they should not have awarded compensation quantum meruit which was not claimed. It was urged that the respondent must succeed or fail on the case pleaded by him, and not on a cause of action not pleaded."
The Supreme Court rejected the said contention in these words:--
"The respondent claimed under an oral agreement compensation at prevailing market rates for work done by him; even if he failed to prove an express agreement in that behalf, the court may still award him compensation under Section 70 of the Contract Act. 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."
It will thus be seen that even though no alternative case under Section 70 of the Contract Act was made out in the case before the Supreme Court still it was held that the plaintiff could get a decree for compensation on the basis of the said provision. In my view, this case, therefore, very clearly lays down that it is not necessary that an alternative case must necessarily be pleaded and in the facts of the instant case it is not disputed that the courts below have clearly given a finding that the plaintiff had extended benefits to the defendants which were accepted by the latter and, therefore, I do not think that the mere absence of a formal alternative case under Section 70 of the Contract Act is fatal to the maintainability of the suit in question. I do not think that the Allahabad High Court's Full Bench decision in Municipal Board, Gonda v. Bachchu (supra) is of much assistance to the controversy at hand. As I said earlier, it will not be of much practical importance to decide whether Section 65 of the Contract Act would or would not be attracted to a case like the present one.
3. In the circumstances, the appeal fails and is hereby dismissed with costs. So far as the direction given regarding costs by the lower appellate court is concerned, the same will remain intact and no variation will be made therein.