NARENDRA SING BHASIN Vs. S N LIMAYA

JUDGEMENT

(1.) THE petitioners are a partnership firm carrying on the business of building contractors the in Nagpur. They entered in to a contract with the Municipal Corporation of the City of Nagpur for Constructing 100 quarters They Constructed 50 quarters. There after disputes arose between the parties. On account of which the petitioners did not complete the work of the construction of the remaining 50 quarters. The corporation therefore carried out the remaining part of the work departmentally. On 28-8-1962 the corporation issued a notice to the petitioners under S. 374 of the city of Nagpur Corporation Act. 1948, informing the petitioners that the corporation proposed to recover to Rs. 8,225 from the petitioners on account of the non - fulfillment of the contract work of the construction of 100 quarters and that they proposed to do so by issue of a distress warrant as provided by the S. 374 read with t he S. 154 of the Nagpur Corporation Act. The petitioners made certain representations against the this notices, but these were of the no avail. Subsequently a distress warrant was also issued on 7-2-1963. The petitioners then filed the present special civil application in which they have prayed that the distress warrant dated 7-2-1963 should be quashed.

(2.) THE question, which arises for determination of in this application, is whether S. 374 of the city of Nagpur corporation of Ac empowers of the corporation to recover damages or any other sum which according to the corporation is due to the it on account of a breach of a contract entered into by the a corporation for carrying out a work on behalf of he corporation from whom such sum is alleged to be due, section 374 of the Act provides:

(3.) ON behalf of the corporation, Mr. Dharmadhikari has relied upon Gajanan Marotrao v. Municipal commr. City of Nagpur corporation 1962, Nag LJ 535. In the case ,the corporation had given to block in a chawl the corporation had given a block in the belonging to the corporation to the petitioners, who had executed an agreement of license in the favour of the corporation of period from 3-2-1960 to 31-3-1961 The petitioner vacated the block before the expire of the period of the licenses and hands it over to the corporation. The corporation the put the block to auction, subsequently the corporation claimed from the petitioners the amount of loss which it had sustained, the amount on account of the petitioners vacating the block before the expire of the period of then licenses part of the claim relating to the amount payable to the corporation fort he period block remained unoccupied while the rest of the claim was made as and by way of the compensation being the differences between the amount which the petitioner was liable to pay for the remaining period and the amount actually recovered from the new occupant. It was held that the amount claimed by the corporation fell with in the purview of the S. 374 as being as the "any other account under this Act" with in the meaning of S. 374. This case is clearly distinguishable from the one before us. In that case the amount was claimed in respect of property of the corporation, which had been given for use and occupation for accretion amount each month. The sum which the corporation, claimed was also an ascertained sum being the difference between what the corporation claimed was also corporation would have realized under the agreement from the petitioners if he had continued in occupation for the whole actually of it realized upon the support of amount which aurally contention that even is case in breach of buildings contracts, such as the one of the present case the committed the breach of the contract and also assess the amount of damages which might be due to it.