MUNICIPAL COUNCIL Vs. MOHD SHABAN

JUDGEMENT

(1.) THIS is a plaintiffs first appeal and arises out of a suit instituted by it against Mohd Shaban for recovery of Bs. 22,043/ - as balance of the contract money due from the defendant. The case of the plaintiff, Municipality Srinagar, was that night soil was auctioned by it and the defendant offered Rs. 37,000/ - for the same. The offer was accepted by the Municipality and the defendant was to collect night soil from 1st Baisakh 2004 upto the end of Chet 2004 and had to pay Rs. 37,000/ - to the Municipality of Srinagar. The parties entered into a contract which was sanctioned by the Government vide Order No. 137 dated 7 -4 -1947. Defendant, Mohd Shaban, in accordance with the terms of the agreement paid Rs. 9,250/ -, One fourth of the total amount of the contract money to the Municipality. The balance of Rs. 27, 750/ - was to be paid by the defendant in nine instalments of Rs. 3,083/ - each.

(2.) AFTER assessing the evidence adduced by the parties the trial Court found that the contract was not enforceable inasmuch as the defendant had not agreed to the terms mentioned in the agreement with the plaintiff Municipality; that in view of abnormal circumstances it had become impossible to carry out the terms of the contract and, therefore, the contract had come to an end; that the plaintiff could not forfeit the sum of Rs. 9,250/ -lying in deposit with it and lastly that the suit was barred by time. On these findings the suit of the plaintiff was dismissed. The plaintiff has come up in appeal to this Court.

(3.) IT is argued on behalf of the appellant that the trial Court has erred in holding that the contract was unenforceable against the defendant. We have been taken through the agreement executed by the defendant in favour of the Municipality. By virtue of this agreement the defendant agreed to pay Rs. 37,000/ - for night soil of Srinagar town for the year 2004. The defendant; had to collect night soil from 1st Baisakh to the end of Chet 2004. The defendant further agreed to pay monthly instalments of Rs. 3,083/ - at the end of each month and also deposited Rs. 9,250/ - in accordance with the terms of the agreement. If the defendant had not agreed to the terms contained in the agreement he would not have signed that agreement with the plaintiff. Moreover, the defendant paid two monthly instalments on 28 -2 -2004 and 16 -3 -2004 which clearly shows that he agreed to abide by the terms of the agreement. The learned Additional District Judge has, therefore, erred in holding that the agreement was not enforceable.