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PETITIONER: S. N. DUTT

       Vs.

RESPONDENT: UNION OF INDIA

DATE OF JUDGMENT: 27/03/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B.

CITATION:  1961 AIR 1449            1962 SCR  (1) 560  CITATOR INFO :  D          1969 SC 674  (5,11)  O          1984 SC1004  (9,22)

ACT: Suit  against  Government--Notice--Defect  as  to  name   of Plaintiff-Effect of-Code of Civil Procedure, 1908 (Act 5  of 1908), s. 80.

HEADNOTE: The  appellant was the sole proprietor of a business  styled S.  N. Dutt SE Co. He gave a notice under s. 80 of the  Code of Civil Procedure to the respondent in the name of "S.   N. Dutt  &  Co.". After the requisite period he  filed  a  suit against   the  respondent  describing  the   plaintiff   as: "Surendra Nath Dutt sole proprietor of a business carried on under  the name and style of S. N. Datt & Co." The suit  was dismissed on the ground that the notice was defective as  it was  issued by S. N. Dutt & Co. and not the plaintiff.   The appellant contended that the notice was valid as S. N. Dtitt JUDGMENT: carried  on business and that no suit could have been  filed in the name of S. N. Dutt & Co. as it was not a firm. Held,  that the notice was defective and that the  suit  had been  rightly dismissed.  The person who issued  the  notice was not the same as the person who filed the suit.  Since S. N. Dutt & Co. could not file the suit in that name it  could not  give  a valid and legal notice in that name.   A  valid notice could have been given only in the name of S. N. Dutt. A  defect in the notice as to the name of the plaintiff  has to be viewed strictly. Bhagchand  Dagadusa  v.  Secretary of  State  for  India  in Council, (1927) L.R. 54 I.A. 338, Al.  Ar.  Velayan Chettiar v. Government       the Province    Madras, (1947)223 and Government      of   the Province of Bombay v.  Pestonji L.R. Wadia, (1949) L.R. 76   I.A. 85, referred to. Dhian Singh Subha Singh v. TheUnion  of  India,  [1958] S.C.R. 781 and The State of Madras v. C. P. Agencies, A.I.R. [1960] S.C. 1309, distinguished. Kamta  Prasad  v. Union of India, (1957) 55 A.L.J.  299  and Secretary  of  State v. Sagarmal Marwari, A.I.R.  1941  Pat. 517, disapproved.

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& CIVIL APPELLATE: JURISDICTION: Civil Appeal No. 191 of 1958. Appeal  by special leave from the judgment and decree  dated February  13,  1956,  of the High  Court  of  Judicature  at Calcutta in First Appeal No. 191 of 1949. B.   Sen and Sadhu Singh, for the appellant. 561 Vidyadhar Makajan and T. M. Sen, for the respondent. 1961.  March 27.  The Judgment of the Court was delivered by WANCHOO,  J.-This is an appeal by special leave against  the judgment  of  the  Calcutta High  Court.   The  brief  facts necessary for present purposes are these: The appellant,  S. N. Dutt, is the sole proprietor of the business known as "S. N. Dutt & Co." and carried on this business under that  name and  style at Krishnagore in the district of Nadia in  1944. On May 17, 1944, S. N. Dutt & Co. obtained an order from the military  authorities  for the supply of 10,000  baskets  of mangoes  to be delivered at Sealdah Railway  Station,  every day  from  May 24, 1944, for ten days at the rate  of  1,000 baskets,   per   day.    The   military   authorities   made arrangements  with  the  Bengal and Assam  Railway  for  the supply  of 30 covered wagons at Jiaganj Railway  Station  at the  rate  of three wagons per day commencing from  May  22, 1944  for  this purpose, and this was  communicated  to  the appellant  on May 19, 1944.  On May 18,1944, the  Divisional Superintendent,  Sealdah  informed  the  Station  Master  at Jiaganj  that contractor S. N. Dutt would book and  load  30 wagons of mangoes at Jiaganj at the rate of three wagons per day from May 22, 1944 and directed him to accept the booking and  allot  wagons  for the  said  purpose.   The  appellant thereupon  placed  indents with the Station  Master  Jiaganj for. the supply of the said wagons and began to bring to the Jiaganj  Railway  Station baskets of mangoes  from  May  21, 1944.   It  appears however that wagons  were  not  supplied regularly,  with  the  result  that  whatever   consignments reached  Sealdah  were  spoilt  and  were  rejected  by  the military  authorities.   On  May  30,  1944,  the   military authorities  informed the contractor that the  contract  had been  cancelled on account of the unsatisfactory  nature  of the  supplies.   The result of this was  that  5004  further baskets of mangoes could not be despatched, though they  had been  stacked  at  the  railway  station  at  Jiaganj.    In consequence the mangoes were spoilt 71 562 and  had to be thrown away.  The appellant claimed  that  he had  sustained  a heavy loss due to  the  misconduct,  gross negligence  and carelessness on the part of the  Bengal  and Assam  Railway administration.  Consequently he Submitted  a claim  for  damages  for  over  Rs.  84,000  to  the   Chief Commercial  Manager and the General Manager of the  Railway. Subsequently on November 4, 1944, he gave two notices  under s. 80 of the Code of Civil Procedure to the Secretary to the Governor-General of India in Council representing the Bengal and Assam Railway and followed it up by instituting the suit on July 21, 1945 claiming over Its. 84,000 as damages. The  suit was resisted by the Governor-General  in  Council, now represented by the Union of India.  Among other defenses with  which we are not concerned in the present  appeal,  it was  contended on behalf of the Union of India  (respondent) that the appellant was not entitled to maintain the suit  as the  two notices under s. 80 of the Code of Civil  Procedure were not valid and sufficient, but were defective.

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When the matter came to trial before the Subordinate  Judge, he  hold in favour of the appellant on the question  whether there  was  negligence  or misconduct on  the  part  of  the Railway  administration;  but he dismissed the suit  on  the ground  that  the  two notices under s.  80  were  defective inasmuch they had been issued by S. N. Dutt and Co. and  not on behalf of the appellant.  There was then an appeal by  S. N.  Dutt before the High Court.  The High Court agreed  with the  Subordinate  Judge that the notices under  s.  80  were defective  and the suit was rightly dismissed.   Further  on the   merits,  the  High  Court  did  not  agree  with   the Subordinate Judge that any misconduct or negligence had been proved  which  would entitle the appellant  to  any  damages except  in the matter of one small consignment.  The  appeal therefore  failed.   Thereupon the appellant applied  for  a certificate  to appeal to this Court which was refused.   He then came to this Court by petition for special leave  which was  granted; and that is bow the matter has came up  before us. 563 The  main  point  therefore that arises in  this  appeal  is whether  the notices in question were in conformity with  s. 80  of  the Code of Civil Procedure; if they were  not,  the suit  would fail on the ground of non-compliance  with  that provision.   Section 80 inter alia lays down that  "no  suit shall  be instituted against the Central  Government,  until the  expiration of two months next after notice  in  writing has  been  delivered  to,  or left  at  the  office  of  the Secretary  to that Government, stating the cause of  action, the  name,  description  and  place  of  residence  of   the plaintiff  and  the relief which he claims; and  the  plaint shall  contain  a  statement that such notice  has  been  so delivered".  The defect in the present case is in regard  to the  name,  it  being not disputed that there  is  no  other defect  in  the  notice; and the  question  that  arises  is whether the defect in name makes the notices ineffective and therefore  the suit becomes not maintainable in view of  the bar of s. 80. As far back as 1927, the Privy Council in Bhagchand Dagadusa v.  Secretary  of  State for India in  Council  (1)  had  to consider  the true application of s. 80 and held that s.  80 was  explicit and mandatory and admitted of no  implications or  exceptions and had to be strictly complied with and  was applicable  to all forms of action and all kinds of  relief. In particular, with reference to the name the Privy  Council had to consider the matter in Al.  Ar.  Vellayan Chettiar v. Government of the Province of Madras (2).  In that case  the suit was brought by two plaintiffs but the notice was  given by only one of them.  The Privy Council hold that this could not be done and observed that " section 80,according  to its plain  meaning, requires that there, should be  identity  of the person who issues the. notice with the person who brings the suit". Finally, in Government of the Province of Bombay v. Pestonji Ardeshir  Wadia the Privy Council had again to consider  the scope  of s. 80.  In that case the notice bad been given  by two trustees.  Before however the suit could be brought, one of the trustees (1) (1927) L.R. 54 I.A. 138   (2) (1947)  L-R. 74 I.A,. 223. (3) (1949) L. R. 76 I. A. 85. 564 died  and was replaced by two other trustees.  The suit  was brought  by the three trustees, only one of whom  had  given the  notice  while  two had not.  The  Privy  Council  again reiterated that the provisions of a. 80 were imperative  and

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must  be  strictly complied with.  It went on  to  say  that "there is no provision in the Code enabling the trustees  to sue  in the name of the trust, as members of a firm may  sue in  the  name  of the firm.  In the case  of  a  trust,  the plaintiffs  are bound to be the trustees and not  the  trust and where no notice has been served under s. 80,  specifying the names and addresses of all the trustees, the  provisions of the section have not been complied with and the suit is incompetent." Learned counsel for the appellant, however, relies on  Dhian Singh  Sobha  Singh and another v. The Union of  India  (1), where the following observations occur:               "The  Privy  Council no  doubt  laid  down  in               BhagChand Dogadusa v. Secretary of State (L.R.               54  I.A. 338) that the terms of  this  section               should  be strictly complied with.  That  does               not however mean that the terms of the  notice               should be scrutinized in a pedantic manner  or               in  a manner completely divorced  from  common               sense.   As  was stated by Pollock  C.  B.  in               Jones  v. Nicholls, (154 E. R. 149, 150),  ’We               must import a little common sense into notices               of this kind’.  Beaumont C. J., also  observed               in  Chandulal Vedilal v. Government of  Bombay               (I.L.R.  1943  Bom. 128):  One  must  construe               section  80 with some regard to  common  sense               and  to  the object with which it  appears  to               have been passed." The  next case to which reference was made is The  State  of Madras v. C. P. Agencies (2 ). The question in that case was whether  the cause of action had been stated as required  by s. 80, and this Court held that the cause of action had been stated in the notice.  This Court also observed that it  was not necessary in that case to consider the two decisions  of the Privy Council (to which reference has already been  made by  us)  requiring the identity of the person who  issues  a notice with the person who brings the suit. (1) [1958] S.C.R. 781, 795. (2) A.I.R. (1960) S C. 1309. 565 It is urged that these observations show that the strictness which  ’the Privy Council emphasised in these cases has  not been accepted by this Court.  It must however be  remembered that  the defect with which this Court was dealing in  these cases  was in the matter of cause of action and relief,  and this Court pointed out that it was necessary to use a little common  sense in such circumstances.  Where the matter  (for example) concerns the relief or the cause of action, it  may be  necessary to use common sense to find out whether s.  80 has been complied with.  But ,Where it is a question of  the name of the plaintiff, there is in our opinion little  scope for  the  use of common sense, for either the  name  of  the person  suing  is  there in the, notice or it  is  not.   No amount  of common sense will put the name of  the  plaintiff there, if it is not there. Let us therefore examine the notices and the plaint in  this case to see whether the suit is by the same person who  gave the notices, for it cannot be gain said that the identity of the person who issues the notice with the person who  brings the suit must be there, before it can be said that s. 80 has been  complied  with.   Now the relevant  part  of  the  two notices was in these terms:-               "Under instructions from my client Messrs.  S.               N.  Dutt and Co. of Krishnagar, I beg to  give               you  notice that my said client will  bring  a

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             suit   for  damages  in  the  court   of   the               Subordinate  Judge  of  Nadia  at   Krishnagar               against the B & A Railway Administration". In the plaint, the description of the plaintiff was in these terms:-               "Surrendra  Nath  Dutta sole proprietor  of  a               business  carried on under the name and  style               of  S.  N.  Dutt & Co. of  Krishnagar,  P.  S.               Krishnagar, District Nadia". It will be immediately obvious that the notices were in  the name  of  Messrs.  S. N. Dutt and Co., while  the  suit  was filed  by S. N. Dutt claiming to be the sole  proprietor  of Messrs.   S.  N. Dutt and Co. It is urged on behalf  of  the appellant that the reason why the 566 suit was filed in the name of S. N. Dutt as sole  proprietor of  Messrs.  S. N. Dutt and Co. was that no suit could  have been  filed in the name of Messrs.  S. N. Dutt and  Co.,  as that  was not a firm; that was merely the name and style  in which an individual, namely S. N. Dutt, was carrying on  the business.  The question therefore that immediately arises is whether  S.  N. Dutt who filed the suit was the  person  who gave  the notices and the answer is obvious that it  is  not so.   It  may be that S. N. Dutt is the sole  proprietor  of Messrs.   S. N. Dutt and Co. and is carrying on business  in that  name  and  style; but that does not  mean  that  these notices  were by S. N. Dutt.  Any one reading these  notices would  not necessarily come to the conclusion  that  Messrs. S. N. Dutt and Co. was merely the name and style in which an individual  was  carrying  on  business.   The  Prima  facie impression  from reading the notices would be  that  Messrs. S.  N.  Datt and Co. was some kind of partnership  firm  and notices  were  being given in the name of  that  partnership firm.   It cannot therefore be said on a comparison  of  the notices in this case with the plaint that there is  identity of  the  person who issued the notices with the  person  who brought  the suit.  Besides if Messrs.  S. N. Dutt and  Co., not being a partnership firm, could not file a suit in  that name  and style on behalf of its members, we cannot see  how S.  N. Dutt and Co. could give a valid and legal  notice  in that name and style on behalf of an individual, S. N.  Dutt. As  was pointed out by the Privy Council in Peslon  Ardeshir Wadias  case (1), the case of members of a firm stood  on  a different  footing, for the members of a firm might  sue  in the name of the firm; but in the present case Messrs.  S. N. Dutt and Co. is not a firm; it is merely the name and  style in  which an individual (namely, S. N. Dutt) is carrying  on business   and   though  the  individual  may   in   certain circumstances  be sued in name and style, he would  have  no right to sue in that none.  There-,fore, where an individual carries  on business in some name and style the  notice  has to’ be given by the individual in his own name, for the suit can only be filed in the name, (1)  (1949) L.R- 76 I.A. 85.                             567 of  the  individual.  The present suit is analogous  to  the case of trustees where the suit cannot be filed in the  name of  the  trust; it (,,an only be filed in the  name  of  the trustees  and the notice therefore has also to be  given  in the  name  of  all the trustees who have  to  file  a  suit. Therefore comparing the notices given in this suit with  the plaint, and remembering that Messrs.  S. N. Dutt and Co.  is not a partnership firm but merely a name and style in  which an individual trades, the conclusion is inescapable that the person  giving  the notices is not the same  as  the  person

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suing. It  was  urged on behalf of the appellant that  the  Railway Administration  knew the position that Messrs.  S.  N.  Dutt and Co. was merely the name and style in which an individual (namely,  S.  N. Dutt) was trading.  But even  this  in  our opinion is not correct as a fact, for, as pointed out by the High  Court,  there are documents on the record  which  show that  S. N. Dutt gave himself out as a partner  of  Messrs. S. N. Dutt and Co., thus suggesting that S. N. Dutt and  Co. was  a firm.  That was the reason why a plea was  raised  on behalf of the Union of India that the suit was barred  under s.  69  of  the  Partnership  Act as  the  firm  was  not  a registered firm. In  this  connection  learned  counsel  for  the   appellant referred  us  to  certain cases in  which  in  similar  cir- cumstances  the notice was considered to be valid  under  s. 80.  These cases are: Kamta Prasad v. Union of India (1) and Secretary  of State v. Sagarmal Mar. wari (2).  In  view  of what we have said above, we cannot agree with the view taken in these oases and must hold that they were wrongly decided. In this view of the matter, there is no force in this appeal and it is hereby dismissed with costs. Appeal dismissed. (1) (1957)53 A.L.J. 299, (2) A.T.R. 194.  Pat- 517, 568