S. N. Dutt vs Union Of India

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 191 of 1958

Decision Date: 27 March, 1961

Coram: K.N. Wanchoo, P.B. Gajendragadkar

S. N. Dutt versus Union of India was decided by the Supreme Court of India on 27 March 1961. The judgment was authored by Justice K. N. Wanchoo and the bench also included Justice P. B. Gajendragadkar. The case is reported in 1961 AIR 1449 and 1962 SCR (1) 560, and later cited in D 1969 SC 674 and O 1984 SC 1004. The dispute concerned a suit against the Government filed under the provisions of the Code of Civil Procedure, 1908, specifically section 80, which deals with the service of notice. The petitioner, S. N. Dutt, was the sole proprietor of a business styled S. N. Dutt & Co. He issued a notice to the respondent, the Union of India, in the name of “S. N. Dutt & Co.” after which, following the prescribed period, he instituted a suit describing himself as “Surendra Nath Dutt, sole proprietor of a business carried on under the name and style of S. N. Dutt & Co.” The trial court dismissed the suit on the ground that the notice was defective because it had been issued by S. N. Dutt & Co. rather than by the plaintiff personally. The appellant contended that the notice was valid because the business was carried on under that name and argued that a suit could not be filed in the name of S. N. Dutt & Co. as it was not a partnership firm. The Supreme Court held that the notice was indeed defective and upheld the dismissal of the suit. It observed that the person who issued the notice was not the same person who filed the suit; since S. N. Dutt & Co. could not sue in its own name, it could not serve a valid notice in that name. A valid notice could only be given in the name of S. N. Dutt himself. The Court emphasized that a defect in the notice regarding the plaintiff’s name must be examined strictly.

The Court referred to several earlier decisions for guidance. It cited Bhagchand Dagadusa v. Secretary of State for India in Council (1927) L.R. 54 I.A. 338, Al. Ar. Velayan Chettiar v. Government of the Province of Madras (1947) 223, and Government of the Province of Bombay v. Pestonji L.R. Wadia (1949) L.R. 76 I.A. 85 as authorities supporting a strict approach to notice defects. It distinguished the cases of Dhian Singh Subha Singh v. The Union of India [1958] S.C.R. 781 and The State of Madras v. C. P. Agencies A.I.R. [1960] S.C. 1309, indicating that those authorities did not govern the present factual matrix. The Court also disapproved of the reasoning in 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. The appeal, filed by special leave, arose from a decree dated 13 February 1956 of the Calcutta High Court in First Appeal No. 191 of 1949. The appellate jurisdiction was civil, and the parties were represented by counsel for the appellant and counsel for the respondent. The judgment of the Supreme Court was delivered by Justice Wanchoo, confirming that the defect in the notice as to the plaintiff’s name rendered the suit untenable and that the lower court’s dismissal was proper.

The factual background relevant to the appeal can be summarized as follows. The appellant, S. N. Dutt, was the sole proprietor of a business carried on under the name “S. N. Dutt & Co.” at Krishnagore in the Nadia district during the year 1944. On 17 May 1944 the firm obtained an order from the military authorities requiring the supply of ten thousand baskets of mangoes to be delivered at Sealdah Railway Station each day from 24 May 1944 for ten consecutive days, at a rate of one thousand baskets per day. The military authorities arranged with the Bengal and Assam Railway to provide thirty covered wagons at Jiaganj Railway Station, to be dispatched at the rate of three wagons per day beginning on 22 May 1944, and communicated these arrangements to the appellant on 19 May 1944. On 18 May 1944 the Divisional Superintendent at Sealdah instructed the Station Master at Jiaganj that contractor S. N. Dutt would book and load thirty wagons of mangoes at Jiaganj, three wagons per day from 22 May 1944, and directed him to accept the booking and allocate the wagons accordingly. The appellant subsequently placed indents with the Station Master at Jiaganj for the required wagons and commenced bringing baskets of mangoes to Jiaganj Railway Station from 21 May 1944. However, the wagons were not supplied on a regular basis, and as a result the consignments that did reach Sealdah were spoiled and rejected by the military authorities. On 30 May 1944 the military authorities informed the contractor that the contract was cancelled due to the unsatisfactory nature of the supplies. Consequently, five thousand four hundred four baskets of mangoes that had been stacked at Jiaganj could not be dispatched and were destroyed as ruined fruit. The appellant claimed that he suffered a substantial loss arising from the misconduct, gross negligence and carelessness of the Bengal and Assam Railway administration. He therefore lodged a claim for damages exceeding Rs 84,000 with the Chief Commercial Manager and the General Manager of the Railway. On 4 November 1944 he served two notices under section 80 of the Code of Civil Procedure on the Secretary to the Governor‑General of India in Council, representing the Bengal and Assam Railway, and subsequently instituted a suit on 21 July 1945 seeking the claimed amount. The suit was opposed by the Governor‑General in Council, now represented by the Union of India. Among the various defences raised, which are not the focus of the present appeal, the respondent contended that the appellant was not entitled to maintain the suit because the two notices under section 80 were defective and insufficient, being improperly executed.

When the matter proceeded to trial before the Subordinate Judge, the judge found in favor of the appellant on the question of whether the railway administration had been negligent or had engaged in misconduct. However, the judge dismissed the suit on the ground that the two notices required by section 80 of the Code of Civil Procedure were defective because they had been issued by S N Dutt and Co. rather than on behalf of the appellant himself. The appellant then appealed the decision to the High Court. The High Court affirmed the Subordinate Judge’s conclusion that the notices were defective and consequently held that the dismissal of the suit was correct. On the merits, the High Court also disagreed with the Subordinate Judge’s view that any misconduct or negligence had been established, except for a single small consignment, and therefore found no basis for awarding damages. As a result, the appeal failed. The appellant subsequently sought a certificate to appeal to the Supreme Court, but the request was denied. He then filed a petition for special leave to appeal, which was granted, and the matter came before this Court for consideration.

The principal issue before the Court was whether the notices in question satisfied the requirements of section 80 of the Code of Civil Procedure, because a failure to comply with that provision would render the suit invalid. Section 80, inter alia, provides that no suit shall be instituted against the Central Government until the expiration of two months after a written notice has been delivered to, or left at the office of, the Secretary to that Government. The notice must state the cause of action, the name, description and place of residence of the plaintiff, and the relief claimed; the plaint must also contain a statement that such notice has been delivered. In the present case the only defect identified was the name used in the notice; no other defect was alleged. The question, therefore, was whether the defect in the name rendered the notices ineffective and consequently barred the suit under section 80. The Court referred to the 1927 Privy Council decision in Bhagchand Dagadusa v. Secretary of State for India in Council, which held that section 80 is explicit, mandatory, admits no exceptions, and must be strictly complied with in all forms of action and for all kinds of relief. The Court also considered the Privy Council’s earlier ruling in Al Ar Vellayan Chettiar v. Government of the Province of Madras, where the suit was brought by two plaintiffs but the notice was given by only one. The Privy Council held that such a situation could not be permitted and observed that, according to its plain meaning, section 80 requires that the person who issues the notice be identical to the person who brings the suit.

In its discussion, the Court emphasized that the identity of the person who issues the notice must be the same as the identity of the person who brings the suit. The Court then referred to the decision in Government of the Province of Bombay v. Pestonji Ardeshir Wadia, in which the Privy Council again examined the scope of section 80. In that case the notice had been given by two trustees. Before the suit could be instituted, one of those trustees died and was replaced by two additional trustees, as recorded in the authorities (1) (1927) L.R. 54 I.A. 138, (2) (1947) L-R. 74 I.A. 223, and (3) (1949) L.R. 76 I.A. 85. The suit was subsequently filed by three trustees, but only one of them had actually issued the notice while the other two had not. The Privy Council reiterated that the provisions of section 80 were mandatory and required strict compliance. It further explained 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 section 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.” Counsel for the appellant, however, relied upon the decision in Dhian Singh Sobha Singh and another v. The Union of India (1). That judgment contained the observation that although the Privy Council in Bhagchand Dagadusa v. Secretary of State (L.R. 54 I.A. 338) required strict compliance with the terms of the section, such strictness should not lead to a pedantic scrutiny of the notice divorced from common sense. The judgment quoted Pollard C. B. in Jones v. Nicholls (154 E.R. 149, 150) as saying, “We must import a little common sense into notices of this kind.” It also cited Beaumont C. J.’s remark in Chandulal Vedilal v. Government of Bombay (I.L.R. 1943 Bom. 128) that section 80 must be construed with regard to common sense and the object for which it was enacted. The Court then mentioned The State of Madras v. C.P. Agencies (2), in which the issue was whether the cause of action had been stated as required by section 80. The Court held that the cause of action had indeed been stated in the notice and observed that it was unnecessary to revisit the Privy Council decisions that required the identity of the notice‑giver to match the identity of the plaintiff. The authorities cited were (1) [1958] S.C.R. 781, 795 and (2) A.I.R. (1960) S.C. 1309. The appellant argued that these observations demonstrated that the strict approach emphasized by the Privy Council had not been adopted by this Court.

In the earlier decisions the Court noted that the problem it examined related to the adequacy of the stated cause of action and the relief claimed, and it emphasized that a small amount of common sense should be employed when assessing such matters. The Court explained that when the issue involves the nature of the relief or the cause of action, it may be appropriate to use common sense to determine whether Section 80 has been complied with. However, the Court held that where the question is merely the name of the plaintiff, there is little room for applying common sense, because either the plaintiff’s name appears in the notice or it does not, and no amount of common sense can insert a name that is absent. Accordingly, the Court proceeded to examine the notices and the plaint filed in the present case to ascertain whether the suit was brought by the same person who issued the notices, since it cannot be said that the identity of the notice‑issuer and the suit‑payer must be established before concluding that Section 80 is satisfied. The two notices contained the following wording: “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 suit for damages in the court of the Subordinate Judge of Nadia at Krishnagar against the B & A Railway Administration.” In the plaint, the plaintiff was described as “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 is immediately apparent that the notices were addressed in the name of Messrs. S. N. Dutt and Co., while the suit was instituted by an individual identified as S. N. Dutt claiming to be the sole proprietor of Messrs. S. N. Dutt and Co. The appellant argued that the suit could not have been filed in the name of Messrs. S. N. Dutt and Co. because that entity was not a firm, but merely the trade name under which the individual S. N. Dutt conducted business. The Court then considered the pivotal question of whether the S. N. Dutt who filed the suit was the same person who gave the notices, and found the answer to be clear that they were not the same. Even if S. N. Dutt were the sole proprietor of the business carried on under the name Messrs. S. N. Dutt and Co., that fact does not demonstrate that the notices themselves originated from him; the notices appear to have been issued in the name of a partnership‑type entity, not by the individual plaintiff.

In this matter the Court observed that a person reading the notices would not necessarily infer that Messrs S N Dutt and Co. was only a trade name used by an individual. The initial impression created by the notices was that Messrs S N Dutt and Co. appeared to be a partnership firm and that the notices were issued in the name of that partnership. Consequently, the Court could not accept a comparison between the notices and the plaint that would suggest the same person issued the notices and also instituted the suit. Moreover, if Messrs S N Dutt and Co., which was not a partnership, could not sue in its own name on behalf of any members, the Court could not understand how a legal notice could be validly issued in that name on behalf of the individual S N Dutt. The Court referred to the Privy Council decision in the Peslon Ardeshir Wadias case, noting that members of an actual firm may sue in the firm’s name, but that principle did not apply here because Messrs S N Dutt and Co. was not a firm; it was merely the name and style under which the individual S N Dutt conducted business. While an individual may sometimes be sued under a trade name, the individual has no right to sue under that same name. Therefore, when an individual carries on business under a particular name or style, any notice must be issued by the individual in his own name, since the suit itself can only be filed in the individual’s name. The Court likened the present situation to that of a trust, where a suit cannot be filed in the name of the trust but only in the names of the trustees, and consequently any notice must be given by all trustees who are parties to the suit. By comparing the notices with the plaint and recalling that Messrs S N Dutt and Co. was not a partnership firm but merely a trading name, the Court concluded that the party giving the notices could not be the same party who filed the suit. The appellant had argued that the Railway Administration was aware that Messrs S N Dutt and Co. was only a name and style used by the individual S N Dutt. The Court, however, rejected this contention as inaccurate, pointing out that the record contained documents in which S N Dutt represented himself as a partner of Messrs S N Dutt and Co., thereby implying that the entity was being treated as a firm.

In this matter, the Union of India had argued that the suit could not proceed because it was barred by section 69 of the Partnership Act, the ground being that the entity styled as a firm was not a registered partnership. In response, counsel for the appellant referred the Court to earlier decisions in which, under similar facts, the notice issued had been held to be valid pursuant to section 80 of the same Act. The authorities cited were Kamta Prasad v. Union of India, reported in the 1957 volume of the All India Law Journal at page 299, and Secretary of State v. Sagarmal Marwari, reported in the All India Tax Reports at page 194. After considering the earlier discussion concerning the nature of the alleged firm and the applicability of the statutory provisions, the Court found that the reasoning adopted in those cited cases was not persuasive. The Court concluded that those decisions had been incorrectly decided and therefore could not be followed. Consequently, the Court held that the appeal raised by the Union of India possessed no legal force. The appeal was dismissed, and the costs of the proceedings were awarded against the appellant. The order therefore read that the appeal was dismissed and costs were imposed, with the relevant citations recorded as (1) (1957) 53 A.L.J. 299 and (2) A.T.R. 194, and the case reference noted as Pat‑517.