1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.757 OF 2010. _______________________________________________________________ Office Notes, Office | Memoranda of Coram, | Court's or Judge's orders appearances, Court's | orders or directions | and Registrar's orders | _______________________|_______________________________________ CORAM : S.V.GANGAPURWALA,J. Date : 09.12.2010. 1. This is defendant's Second Appeal. The plaintiff had filed a suit for recovery of an amount of Rs.1,25,700/- (Rupees one lac twenty five thousand seven hundred) against the present defendant. The trial Court dismissed the suit. The plaintiff preferred an appeal. The appellate Court allowed the appeal and passed the decree for recovery of the amount. The defendant has assailed the said judgment and decree in the present Second Appeal. 2. Mr.R.B.Deshmukh, learned counsel for the appellant submitted that the suit itself was 2 not tenable. The agreement was between the plaintiff and three persons. The plaintiff has arrayed only the present appellant as a party defendant. As two other joint promisors are not added as parties, the suit was not maintainable against the defendant. The learned counsel further contended that it was observed by the trial Court that plaintiff was not ready and willing to perform his part of the contract. The plaintiff should have filed suit for specific performance of contract. In absence of the same, he could not have filed suit for recovery. According to the learned counsel as per latest agreement between the parties, the defendant was ready and willing to perform his part of the contract. On this count also the plaintiff is not entitled to any relief. 3. Regarding the first contention that as the amount was paid to three persons, only defendant can not be compelled to pay the amount in exclusion of the other two persons is concerned, the same is not sustainable in view of Section 43 of the Indian Contract Act, which lays down that when two or more persons make a joint promise, 3 the promisee may, in the absence of express agreement to the contrary, compel any one or more of such joint promisors to perform the whole of the contract. It is undisputed that the defendant is beneficiary of the amount of Rs. 1,00,000/- (Rupees one lac). The defendant did not file any counter claim seeking specific performance of contract. Even on the basis of unjust enrichment, the defendant can not be allowed to retain the amount. The principle of "Restitutio in integrum" would be applicable and whatever benefit has been received by the defendant will have to be paid to the plaintiff. 4. In light of the above, no substantial question of law arises. The Second Appeal is dismissed. However, there shall be no order as to costs. (S.V.GANGAPURWALA,J.) Dt.09.12.2010. asp/office/sa757.10 4