S.N. Dutt vs Union Of India (Uoi)

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 27 March, 1961

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

In this case, the Court noted that the appeal was filed by special leave against a judgment of the Calcutta High Court. The appellant, S. N. Dutt, was the sole proprietor of the business carried on under the name S. N. Dutt & Co. at Krishnagore in the District of Nadia, which he had been operating since 1944. On 17 May 1944 the appellant obtained an order from the military authorities directing him to supply ten thousand baskets of mangoes to be delivered at Sealdah Railway Station each day from 24 May 1944 for ten 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 at a rate of three wagons per day commencing on 22 May 1944, and this arrangement was communicated to the appellant on 19 May 1944. On 18 May 1944 the Divisional Superintendent at Sealdah informed the Station Master at Jiaganj that contractor S. N. Dutt would book and load thirty wagons of mangoes at the rate of three wagons per day from 22 May 1944 and directed the Station Master to accept the booking and allot wagons for that purpose. Consequently the appellant placed indents with the Station Master at Jiaganj for the supply of the required wagons and began bringing baskets of mangoes to Jiaganj Railway Station from 21 May 1944. It subsequently appeared, however, that wagons were not supplied regularly, resulting in consignments that reached Sealdah being spoiled and consequently rejected by the military authorities. On 30 May 1944 the military authorities informed the contractor that the contract had been cancelled due to the unsatisfactory nature of the supplies. As a result five thousand four baskets of mangoes that had been stacked at Jiaganj could not be dispatched and were spoiled and had to be thrown away. The appellant claimed that he had suffered a heavy loss because of the misconduct, gross negligence and carelessness of the Bengal and Assam Railway administration and therefore submitted a claim for damages exceeding rupees eighty‑four thousand to the Chief Commercial Manager and the General Manager of the Railway. Subsequently, on 4 November 1944, he gave two notices under section 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 thereafter instituted a suit on 21 July 1945 claiming damages of more than rupees eighty‑four thousand. The suit was resisted by the Governor‑General in Council, now represented by the Union of India. Among other defences, the respondent contended that the appellant was not entitled to maintain the suit because the two notices under section 80 were not valid and sufficient, alleging that they were defective. When the matter came to trial before the Subordinate Judge, the judge held in favour of the appellant on the question of whether there was negligence or misconduct on the part of the Railway administration, but dismissed the suit on the ground that the two notices under section 80 were defective because they had been issued by S. N. Dutt & Co. and not on behalf of the appellant. The appellant then appealed to the High Court. The High Court agreed with the Subordinate Judge that the notices under section 80 were defective and that the suit was rightly dismissed, and it also did not accept the Subordinate Judge’s finding that any misconduct or negligence had been proved that would have entitled the appellant to relief.

In the proceedings before the Subordinate Judge, the Union of India maintained that the appellant could not sustain the suit because the two notices required by section 80 of the Code of Civil Procedure were allegedly invalid and defective. The Judge accepted the claim that the Railway administration had been negligent or had engaged in misconduct, but he dismissed the suit on the ground that the notices had been issued by S N Dutt and Co. rather than by the appellant himself. The appellant then appealed the decision to the High Court. The High Court affirmed the Subordinate Judge’s view that the notices were defective and thus the suit was properly dismissed. On the merits, the High Court also held that the evidence did not establish negligence or misconduct by the Railway sufficient to justify any damages, except possibly in relation to one small consignment, and consequently the appeal was dismissed. After the High Court’s order, the appellant sought a certificate to appeal to this Court, which was denied. He subsequently filed a petition for special leave, which was granted, and the matter consequently came before this Court for resolution.

The central issue before this Court is whether the two notices complied with the requirements of section 80 of the Code of Civil Procedure; a failure to comply would render the suit untenable. Section 80 provides that no suit may be instituted against the Central Government until two months have elapsed after a written notice is delivered to, or left at the office of, the Secretary to that Government. The notice must state the cause of action, the plaintiff’s name, description and place of residence, and the relief claimed, and the plaint must affirm that such notice has been delivered. In the present case the only defect identified concerns the name of the party issuing the notice; there is no dispute that the notice is otherwise compliant. The question, therefore, is whether this defect in the name renders the notice ineffective and bars the suit under section 80. The Privy Council, in Bhagchand Dagadusa v. Secretary of State for India in Council (1927) L.R. 54 I.A. 338, held that section 80 is an explicit and mandatory provision that admits no implication or exception and must be strictly observed for all forms of action and all kinds of relief. The Council’s interpretation, particularly with respect to the requirement of the correct name, is relevant to the determination of the present appeal.

In the case of Vellayan Chettiar v. Government of the Province of Madras, reported in (1947) L.R. 74 I.A. 223, the court observed that the suit had been filed by two plaintiffs while the statutory notice required by section 80 had been served by only one of those plaintiffs. The Privy Council held that such a situation could not be permitted, stating 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.” The Council emphasized that the person who gives the notice must be exactly the same person who thereafter institutes the action.

Subsequently, in Government of the Province of Bombay v. Pestonji Ardeshir Wadia, reported in (1949) L.R. 76 I.A. 85, the Privy Council examined another aspect of section 80. In that matter, the notice had originally been served by two trustees of a trust. Before the suit could be instituted, one of those trustees died and was succeeded by two additional trustees. The suit was eventually filed by the three trustees then in existence, but only one of them had been a party to the original notice; the other two had not. The Privy Council again reiterated that the provisions of section 80 are imperative and must be strictly complied with. It further explained that the Code contains no provision allowing trustees to sue in the name of the trust in the same way that members of a firm may sue in the firm’s name. Accordingly, the plaintiffs in a trust‑related action must be the trustees themselves, and if a notice under section 80 does not specify the names and addresses of all the trustees, the statutory requirement has not been satisfied and the suit is deemed incompetent.

The appellant’s counsel, however, sought to rely upon the decision of Dhian Singh Sobha Singh and another v. Union of India, reported in [1958] S.C.R. 781, 795. That judgment quoted several observations, noting that while the Privy Council in Bhagchand Dagadusa v. Secretary of State (L.R. 54 I.A. 338) required strict compliance with the terms of section 80, such strictness should not extend to a pedantic or overly literal scrutiny that ignores common sense. The judgment cited Pollock C.B. in Jones v. Nicholls (154 E.R. 149, 150), who urged the importation of a little common sense into notices of this kind, and also referenced Beaumont C.J.’s observation in Chandulal Vedilal v. Government of Bombay (I.L.R. 1943 Bom. 128), stating that section 80 must be construed with regard to common sense and to the purpose for which it was enacted.

The next authority cited was The State of Madras v. C.P. Agencies. In that case, the issue was whether the notice had complied with the requirement of stating the cause of action as mandated by section 80. The Court held that the cause of action had indeed been stated in the notice and further observed that it was unnecessary to consider the two Privy Council decisions previously referenced for the purpose of deciding that particular question.

The Court observed that the earlier observations demonstrate that the Court has not adopted the strict approach emphasized by the Privy Council in those cases. However, the Court emphasized that the defect addressed in those earlier decisions concerned the specification of cause of action and relief, and it was pointed out that a modest application of common sense was required in such circumstances. The Court explained that when the issue pertains to the nature of the relief sought or the articulation of the cause of action, it may be appropriate to employ common sense to determine whether section 80 has been satisfied. In contrast, the Court held that where the issue is merely the identification of the plaintiff’s name, there is very little room for common‑sense interpretation; 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.

Consequently, the Court decided to examine the notices and the plaint in the present matter to ascertain whether the individual who issued the notices was the same person who filed the suit. The Court reiterated that the identity of the notice‑issuing party must correspond with the identity of the plaintiff before it can be said that section 80 has been complied with. The two notices in question contained the following wording: “Under instructions from my client Messrs. S. N. Dutt and Co. of Krishnagar, I beg to give your 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.” The plaint, on the other hand, described the plaintiff as follows: “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 became immediately apparent that the notices were addressed in the name of Messrs. S. N. Dutt and Co., whereas the suit was instituted by S. N. Dutt claiming the status of sole proprietor of Messrs. S. N. Dutt and Co. The appellant contended that the suit was filed in the name of S. N. Dutt as sole proprietor because a suit could not be filed in the name of Messrs. S. N. Dutt and Co., which was not a partnership firm but merely a trading name used by an individual, namely S. N. Dutt. The Court noted that the crucial question that therefore arose was whether the person who filed the suit, S. N. Dutt, was the same individual who gave the notices. The Court found the answer to be obvious: the plaintiff was not the same person who had issued the notices. The Court remarked that it might be that

The Court observed that S N Dutt was the sole proprietor of the business carried on under the name and style of Messrs S N Dutt and Co., but that this fact did not automatically mean that the notices in question had been issued by S N Dutt himself. A person reading those notices would not necessarily conclude that Messrs S N Dutt and Co. was merely a trading name; rather, the natural impression would be that the name represented a partnership firm and that the notices were issued in the name of that firm. Consequently, the Court held that a comparison of the notices with the plaint could not establish identity between the party who issued the notices and the party who instituted the suit. Moreover, because Messrs S N Dutt and Co. was not a partnership firm, it could not file a suit in its own name on behalf of any members, and therefore it could not give a valid legal notice in that name on behalf of the individual S N Dutt. The Court referred to the Privy Council decision in Pestonji Ardeshir Wadia’s case [(1949) L.R. 76 I.A. 85], which explained that while members of a firm might sue in the firm’s name, the present situation differed since Messrs S N Dutt and Co. was not a firm at all but simply a name and style used by an individual. In such circumstances, any notice had to be issued by the individual in his own name, because only the individual could be the plaintiff. The Court likened the present case to that of trustees, where a suit must be filed in the name of the trustees and the notice must likewise be issued in the names of those trustees. Accordingly, after comparing the notices with the plaint and acknowledging that Messrs S N Dutt and Co. was not a partnership but merely a trading name, the Court concluded that the person who gave the notices was not the same person who brought the suit. The appellant had argued that the Railway Administration was aware that Messrs S N Dutt and Co. was only a trading name of an individual, but the Court found that contention to be factually incorrect.

In this case, the Court noted that, as the High Court had observed, the record contained documents demonstrating that S. N. Dutt represented himself as a partner of the entity styled Messrs. S. N. Dutt and Co. This representation led to the inference that the entity was a partnership firm. Consequently, the Union of India contended that the suit was barred by section 69 of the Partnership Act because the alleged firm had not been registered under the Act. The Court then considered the argument advanced by counsel for the appellant, who cited earlier decisions in which, under comparable facts, a notice had been treated as valid pursuant to section 80. The cases cited were 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). After reviewing the material before it, the Court concluded that the reasoning adopted in those earlier decisions was not applicable, and that those judgments had been decided incorrectly. Accordingly, the Court held that the appeal had no merit, ordered its dismissal, and directed that the costs of the proceedings be awarded against the appellant. The decision therefore affirmed the position that the procedural defect could not be cured by the alleged notice. The appeal was therefore dismissed.