MOOSA BHOY Vs. V. KRISTIAH

JUDGEMENT

(1.) THIS is a second appeal filed by the plaintiff. The suit was brought by the plaintiff for the recovery of the sum of Rs. 4070 -9 -4 against two persons. Defendants Nos. 1 & 2, on the allegation that he obtained from the Railway a contract for the construction of Section No. 8 :n the Adilabad Railway to the extent of putting up the bank of the Railway line, etc. for a distance of nearly 10 lacs feet. This contract was to be completed by 1940 and in this contract work that he secured from the Railway the Defendant No. 1 was taken in as a Sub -contractor or petty contractor. The terms and conditions of this sub -contract were embodied in an executed by Defendant No. 2, the Gumastha of Defendant No. 1 on behalf agreement of Defendant No. 1 on the 15th May 1940. That subsequent to the execution of the agreement, Defendant No. 1, through Defendant No. 2 received sums of monies from time to time amounting to Rs. 8,104/ -. The plaintiff further stated that Defendant No. 1 made the plaintiff believe that the laborers would not work unless some amounts were paid to them and received from the Plaintiff a further sum of Rs. 1,000/ - on the 21st July 1940, through defendant No. 2 who executed a promissory note in favour of the Plaintiff. That although the Defendant had received amounts from the Plaintiff sufficient to carry out the full work to the extent of 10 lacs feet embankment the defendant failed to carry out the whole work but completed only to the extent of about half the work and stopped further work suddenly on the 22nd July 1940 and disbanded the laborers that had been connected for the work. The Plaintiff therefore claimed a sum of Rs. 4,070 -9 -4 as being due from the Defendant after giving credit for the amount of work done. He impleaded Defendant No. 1 Vanparti Kishtiah, who according to him, was his sub -contractor and also his gumshoe Hanumanthu as defendant No. 2. The defence of the defendant No. 1 was one of absolute denial of the contract. Defendant No. 2 also denied the claim at first. The trial Court found that the pleadings were not quite clear and therefore called upon both the plaintiff and Defendant No. 2 to make a further statement clarifying their respective pleadings, and in his further statement the defendant No. 2 completely admitted the claim of the Plaintiff

(2.) ON these pleadings necessary issues were framed and both the parties led evidence. The trial Court as well as the Lower Appellate Court came to the conclusion that the defendant No. 1 could not be held liable for the contract entered into by Defendant N. 2. They therefore passed a decree against defendant No. 2 and dismissed the suit as against defendant No. 1. This appeal is by the Plaintiff before us.

(3.) ANALYSING the evidence led on behalf of the plaintiff we find that P.W. 2 has proved the agreement between Defendant No. 2 on behalf of Defendant No. 1 the Plaintiff. P.W. 3 who is defendant No. 2 says that he wrote the agreement as per instructions of defendant 1. He also says that he used to supervise the work on behalf of defendant No. 1. He further says that he received monies from the Plaintiff and paid them over to defendant No. 1. We find from the record that the trial Court has remarked about the defendant No.2 as being a truthful witness. The letters that we have referred to clearly show that the Defendant No. 2 was acting under the instructions of Defendant No. 2 as his gumshoe and really the work of the sub -contract was that of defendant No. 1. It was argued by the Advocate for the Respondent that no direct contract between the plaintiff and defendant No. 1 has been established In this case. The agreement and the promissory note are signed by Defendant No. 2, and therefore the defendant No. 1 could not be held liable for monies paid to Defendant No. 2. In the face of the evidence on record we cannot agree with this contention of the Advocate for the Respondent. Although there may not have been an express agency proved, the law recognizes agency by estoppels, that is to say, if a person allows another to transact with third parties on his behalf and makes them believe that that person who is transacting with third parties is doing so on his behalf then such person who allows third parties to believe that a person was acting on his behalf will be bound by the transactions entered into by the ostensible agent. In this case the course of conduct completely shows that defendant No. 2 was the ostensible agent of defendant No. 1 and we are therefore of opinion that the agreement entered into by defendant No. 2 is binding on defendant No. 1. The Defendant No. 2 in his sworn testimony says that he worked as gumastha of Kishtiah for 5 years and he also says, (as has been already adverted to by us), that he received the sums of monies from the Plaintiff and paid over as per instructions of Kishtiah. There is no reason why we should disbelieve the - statement of Defendant No. 2 especially when the trial Court has regarded him as a truthful witness. The signature of defendant No. 2 has teen obtained at each time that payment was made. These circumstances conclusively go to establish the liability of defendant No. 1. It was urged that the Plaintiff did not prove what amount of work was done in the sub -contract and unless that was proved the amount payable to the Plaintiff could not be ascertained. There is not much force in this argument because we find that Exhibit 12 is a document which shows the amount of work turned out and this has been proved by P.W. 5, a Railway employee and also by another witness who was examined in this Court. The defendant No. 2 -also as P.W. 3 has spoken about the extent of work done by him on behalf of defendant No. 1.