M.S Menon, J.:— The plaintiff in S.C.S No. 53 of 1955 of the Court of the District Munsiff, Chenganachery, is the petitioner before us. The suit was dismissed on the ground that it was barred by limitation under Article 115 of the Indian Limitation Act, 1908, and the contention before us is that the article applicable is not Article 115 but Article 120 and that the suit should have been held as having been filed within time.

2. Under Ext. A, an agreement between the petitioner and the Tahsildar, Chenganachery, dated 27-12-1950, the petitioner undertook to pump out water from certain paddy lands and was entitled to be paid therefor at the rate of Rs. 12-4-0 per acre under condition No. 1 of the said agreement. Condition No. 2 of the agreement reads as follows:

(The condition given in Malayalam script omitted. — Ed.)

3. The respondent was no party to the contract and cannot hence be held as bound by its terms. He was, however, benefited by the pumping operations and the question that arises for consideration is what exactly is the nature of the claim made against him by the plaintiff.

4. If the claim can be considered as one based on a contract Article 115 of the Limitation Act, 1908, will definitely apply and the suit has to be held as barred by limitation, but as the respondent was no party to Ext. A, his obligation can be treated only as the obligation of a person enjoying the benefit of a non-gratuitous act, i.e, an obligation coming within the ambit of Section 70 of the Indian Contract Act, 1872;

“Where a person lawfully does anything for another person or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.”

5. Section 70 occurs in Ch. V of the Contract Act which is beaded: “Of Certain Relations Resembling Those Created by Contract” and prima facie the obligation created under S. 70 should be considered as based not on contract but on quasi-contract, a term which covers a wide area including claims on a quantum meruit.

6. The rationale of quasi-contract according to Lord Mansfield, is the necessity of restoring benefits unjustly obtained — Moses v. Macferlan, (1760) 2 Burr 1005 (A) — and according to Lord Sumner the existence of an implied agreement, Sinclair v. Brougham, (1914) AC 398 (B). As stated by Cheshire and Fifoot (The Law of Contract, 4th Edition, p. 554):

“Between the reviews of two such lawyers as Lord Mansfield and Lord Sumner, divergent alike in temperament and in historical method, reconciliation would seem impossible”.

7. A via media, however, has been offered by Sir C.K Allen and the authors deal with Sir C.K Allen's solution as follows:

“Sir C.K Allen's solution, in fact, is to pay deference to the propriety, so strongly urged in the dicta in Sinclair v. Brougham (B), of expressing the English qniasi-contract in contractual language, but to find its substantial criterion in the idea of unjust benefit. The Judges may feel constrained, if they wish to give judgment for the plaintiff, to ‘imply’ or ‘construe’ a contract in his favour: they will do so only if the defendant has been improperly enriched at his expense. The compromise is consistent with the national genius, and nothing in the many and varied judicial pronouncements upon the basis of quasi-contract goes so far as to forbid its adoption.”

8. In United Australia, Ltd. v. Barclays Bank, Ltd. — (1941) AC 1 (C) — Lord Atkin characterised the fiction of a contract as fanciful;

“These fantastic resemblances of contracts, invented in order to meet requirements of the law as to forms of action which have now disappeared, should not, in these days, be allowed to affect actual rights. When these ghosts of the past stand in the path of justice, clanking their mediaeval chains, the proper course for the Judge is to pass through them undeterred.”

9. In Fibrosa Spolka Akcyjna v. Fairbairn Lawson Combe Barbour, Ltd. — (1943) AC 32 (D) — Lord Wright thought that the legal basis for an action under quasi-contract was restitution and said:

“It is clear that any civilised system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognised to fall within a third category of common law which has been called quasi-contract or restitution.”

10. It should be clear from the above that the rationale of quasi-contract is still a matter of speculation in English law and all that Cheshire and Fifoot are prepared to say in concluding their discussion of quasi-contract is that if ever English Judges “feel the necessity or yield to the temptation to construct a doctrine of restitution on the basis of unjust enrichment, they will not find themselves in bad company.”

11. Section 2(1)(a) of the (English) Limitation Act, 1939, provides that “actions founded on simple contract or on tort” shall not be brought after the expiration of six years from the date on which the cause of action accrued and in commenting on the provision Preston and Newsom (3rd Edition, p. 33) says:

“A difficult question arises in regard to certain obligations not strictly contractual. Every system of law admits the existence of some personal actions which are based neither on a true consensus nor on wrong doing. Thus, in English law there is no difficulty, for instance in suing to recover money paid by mistake, or on a quantum meruit for work done, or in recovering from an infant or a lunatic the price of necessaries supplied to him, or in waiving a tort in order to sue for recovery of the proceeds of the wrong if that is a more convenient remedy to pursue, (where the tort was waived so as to avoid the application to the case of the maxim actio personalis moritur cum persona).

Until the nineteenth century there was no necessity for any classification of causes of action of these sorts; indeed, English law possessed no classification of personal actions, being content with the enumeration provided by the forms of action. All the peculiar claims in question were in assumpsit, and this fact determined all the incidents of the action in which they were made. In particular, they fell, as assumpsits, within the enumeration of the causes of action in the Limitation Act, 1623, S. 3, and were subject to the six-year period provided for by that section.”

“After the forms of action were abolished, English law might have accepted the logical, but alien, classification of the civilians, and treated these cases as forming a kind or class neither ex contractu nor ex delicto but quasi-ex contractu. Though some of the dicta cited above appear to favour such a step, the Courts did not ultimately take it.

The common law of England really recognises (unlike the Roman law) only actions of two classes, those founded on contract, and those founded on tort. When it speaks of actions arising quasi ex contractu it refers merely to a class of action in theory based on a cantract which is imputed to the defendant by a fiction of law.”

“When, therefore, a statute is designed to refer to all classes of personal actions, it refers to actions of contract and actions of tort (see the County Courts Act, 1934, Ss. 40 to 47).

Accordingly, since the Limitation Act, 1939, S. 2(1)(a), applies the six-year period to ‘actions founded on simple contract or on tort’ it seems that the miscellaneous actions here discussed, all of which were formerly actions of assumpsit, must be subject to that period of limitation.’’

12. In India the law of contract is essentially statutory in character and as already indicated the claim in this case has to be considered not as one based on a contract but as one based on a relation resembling those created by contract and as coming under Section 70 of the Indian Contract Act, 1872. In other words, what we are dealing with is a statutory liability for the breach of which the only article available is Article 120 of the Limitation Act, 1908.

13. Such a conclusion no doubt leads to the anomaly of suits on contract having a period of limitation of three years and of quasi-contract coming under S. 70 of having a period of limitation of six years. The anomaly, however, appears to be unavoidable in the present state of the law and will certainly disappear if the suggestion of the Law Commission in their 3rd Report is adopted. The suggestion is that the term ‘contract’ be defined as follows:

“‘contract’ shall have the same meaning as in the Indian Contract Act (IX of 1872) and includes an obligation imposed by law to restore or to make restitution of any benefit derived by a person, on the basis of unjust enrichment” and that the following article be substituted for the present Articles 2, 7 to 9, 19 to 43, 50 to 84, 86, 87, 97, 99 to 102, 107 to 111, 113, 115, 116 and 131:

“Description of suit, appeal or application: Period of limitation Time from which period begins to run Suit founded on contract or on tort. Three years The date on which the I cause of action accrues.”

14. According to Section 108(q) of the Transfer of lerty Act, 1882, a lessee of immovable property, in the absence of a contract or local usage to the contrary, is bound to put the lessor into possession of the property on the determination of the lease and in Mt. Sukh Dei v. Lachhmi Narain, 1946 All LJ 305 (2) : (AIR 1947 All 31) (E), it was held that the article applicable for a claim for compensation or damages for breach of the liability is Article 120 of the Limitation Act, 1908. The Court said:

15. The plaintiff is claiming compensation or damages for breach of the liability and although she has chosen to put the claim in the form of an arithmetical calculation based on the period for which she was kept out of possession, she was perfectly entitled to claim this sum or indeed any larger or smaller sum which she might fix as a suitable amount of compensation for breach of the statutory duty which lay upon the defendant” and that

“the learned Munsiff was perfectly right in holding that the case fell within the scope of Article 120, and he was, therefore, right in decreeing the plaintiff's claim as made by her.”

16. Our conclusion being that it is Article 120 and not Article 115 that applies to the case, the suit has to be held as not barred by limitation and the revision petition allowed.

17. We allow the revision petition, set aside the decree of the trial Court, and remand the case for fresh disposal according to law. The costs of the revision petition will be costs in the cause.

V.B.B

18. Petition allowed.