G.R. Luthra J.
(1) The present application of Union M India, defendant No. 1 is to the effect that the plaint of the suit filed by M/s. Shakti Sugars Ltd. does not disclose any cause of action against the former and that thereforee the suit against the former should be dismissed with costs.
(2) For the purpose of deciding this application obviously only allegations of the plaintiff as contained in the plaint are to be and arc being considered. Those allegations briefly are as follows :
(3) Plaintiff is a public limited company incorporared under the provisions of the Indian Companies Act having its registered office at 73-A Race Course Road, Coimbatore. It is carrying on business, infer alia, of manufacture of white crystal sugar at its factory at Appakkudal Bhavani Taluk, District Periyar, Tamil Nadu.
(4) The State Trading Corporation of India, defendant No. 2. who is canalising export of sugar out of India under the Imports and Exports ( (Control) Act, 1947 (hereinafter referred to as the Act) issued a notice by way of publication in newspaper 'The Hindu' dated, August 18, 1978 inviting tenders receivable before August 22, 1978 from Sugar Factories in India for supplying of sugar for export. On ac- count of that notice the plaintiff submitted its tender and samples which were received by defendant No. 2 on August 21, 1978. The lenders were to be opened at 11.00 a.m. on August 22, 1973. By sending tender, plaintiff accepted the offer of defendant No. 2 in respect of supply of sugar and hence concluded contract regarding supply of sugar came into existence. Defendant No. 2, however, in breach of the aforesaid contract, by means of a letter dated August 28, 1978 which was received by the plaintiff on September 2, 1978 informed the latter that the tender of the latter was not accepted. Defendant No. 2 also returned bank draft which had been sent by the plaintiff as security. There was correspondence between plaintiff and defendant No. 2 and ultimately latter in a letter dated November 10, 1978 addressed to the former stated that the latter had right to reject any offer of any sugar factory without assigning any reason and that offer of the former had been rejected. On account of the said breach of the contract plaintiff is entitled to damages in the amount of Rs. 58.80 lakhs for the recovery of which present suit was brought against both the defendants.
(5) Defendant No. 1, Union of India, is liable beciusc (as alleged by the plaintiff), defendant was acting as agent of defendant No. 1 under the provisions of the Act for canalising export of sugar.
(6) I have heard the learned counsel for the parties. Relevant paragraphs which seek to fasten liability on the Union of India arc 23 and 26 of the plaint which read as under :
'23.The defendant No. 1, the principal authority under the Act and the defendant No. 2, the canalising agency of the defendant No. 1, which has committed the breach of contract by rejecting the plaintiff's tender are jointly and severally liable to pay the plaintiff a compensation of Rs. 58.80 lakhs towards the actual loss sustained by the plaintiff consequent on the breach of contract by defendant No. 2 to buy the sugar from the plaintiff. On the said sum, the plaintiff is also entitled to future interest at the rate of 12 per cent per annum from the date of filing the suit to the date of realisation. '26. The cause of action arose at Delhi where the defendants have their offices and from where the defendant No. 2 as agent of the defendant No. 1, invited tenders for D-30 Grade sugar; it also arose when the defendant No. 2 invited the tenders for supply of sugar for export on 18-8-78 and when the plaintiff submitted its tender for supply of 10,000 metric tonnes of D-30 Grade sugar on 22-8-1978, and also when the sugar samples were delivered at the office of the defendant No. 2 on 21-8-1978 and when the defendant No. 2 wrongfully failed to accept the plaintiff's tender on 22-8-1978, 7-9-1978 and 10-11-1978; when the plaintiff caused legal notices to be given to the defendants on 16-12-1978 and 8-2-1979 and when the defendant No. 2 repudiated its liability on 22-2-1979 and when the plaintiff invited offers for sale of sugar and subsequently sold the sugar at the price of Rs. 1840 per Metric tonne and on 7-4-1979 when the plaintiff caused legal notices to be delivered to the 'defendants under section 80 of the Code of Civil Procedure on 27-6-1979, when the defendant No. 2 replied to the notice dated 7-4-1979, denying its liability.'
It is apparent from the above that according to the plaintiff defendant No. 2 was working as agent of Union of India and on that account Union of India, as principal, was liable. The learned counsel for the plaintiff contends that it is for the Union of India to permit export of articles including sugar, that it had authorised defendant No. 2 to canalise that export under the provisions of the Act as well as Sugar Export Promotion Act, 1958 and that thereforee defendant No. 2 was acting as agent and Union of India was acting as principal in respect of the export of sugar.
(7) But the learned counsel forgets that defendant No. 2 acts independently of Union of India. It is a company registered under the Companies Act. In the plaint it is alleged by the plaintiff that defendant No. 2 had been incorporated under the State Trading Corporation Act. But at the time of arguments it was admitted that there is no statute by the name of State. Trading Corporation Act and that defendant No. 2 was incorporated under the provisions of the Companies Act. Thus defendant No. 2, being legal entity, acts as an individual on its own behalf. Permission for export is given to it by Union of India: but the latter does not act as principal. It is in the same manner in which any natural person or individual is authorised by the Union of India to export a commodity out of India. In that case that individual does not become agent of Union of India but is merely a licensee for exporting articles. Defendant No. 2 is also a licensee from the Union of India for canalising export of sugar, etc.
(8) The proposition that State Trading Corporation, defendant No. 2, is a company registered under the Indian Compa,nies Act has separate legal entity and is not agent of the Central Government finds support from a judgment of the Supreme Court in State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Vishakapatnam and others, : 4SCR99 . Following observations were made by the Supreme Court which occur at page 103 :
'THEquestion whether a corporation is an agent or servant of the State must be decided on the facts of each case. In the absence of any statutory provision, a commercial corporation acting on its behalf, even if it is controlled wholly or partially by a Government department, will be presumed not to be a servant or an agent of the State. Where, however, the corporation is performing in substance Govvernmental, and not commercial, functions, an inference will readily be made that it is an agent of the Government.'
It is clear from the above that State Trading Corporation could be agent of the government when it is performing governmental and not commercial functions. In the present case, defendant No. 2 was performing commercial function of export of sugar and there was no question of its performing any governmental function.
(9) The learned counsel for the plaintiff relied upon section 2(b) and section 3 of the Sugar Export Promotion Act, 1958 (hereinafter referred to as 'Sugar Act'), which reads as under :
'2.In this Act, unless the context otherwise requires, (b) 'export' agency means any such agency as may be specified in this behalf under section 3, and when no such agency has been so specified, the Central Government;' 3. (1) For the purposes of this Act, the Central Government may, by notification in the Official Gazette, specify as an export agency any company within the meaning of the Companies Act, 1956, or any body of persons established or recognised as a body corporate by or under any other law for the time being in force. (2) Where any such company or other body corporate has been specified as an export agency, it shall be lawful for such agency to perform all or any of the functions of an export agency under the Act, notwithstanding anything to the contrary contained in the memorandum or articles of association of the company or, as the case may be, the law applicable thereto'
The learned counsel contended that any body corporate could be notified as export agency, that defendant No. 2 had been notified as export agency of sugar and that thereforee defendant No. 2 was working as agent of the Central Government, The learned counsel also pointed out to the provisions of section 10 which reads as under :
'10.The export agency specified under section 3 shall be bound in the discharge of its functions under this Act, by such general or special directions, as the Central Government may give to it in writing.'
The learned counsel urged that the provision of section 10 clearly indicated that export agency was to act under the directions of the Central Government which meant that the former was an agent of the latter.
(10) But it is apparent from a reading of the provisions specifically relied upon by the learned counsel as well as other provisions of the Sugar Act that the Central Government does not become principal of any expart agency notified by the former the provisions of Sugar Act merely empower the Central Government to get promotion of sugar export through agency appointed for the said purpose, but the former does not have any concern with the commercial transactions or liability of the latter- There is no provision under the Sugar Act that the Central Government will become principal and as such would be liable to third parties dealing with the export agency. In the absence of such express provision the Central Government could not be liable. In fact intention is that export of sugar shall be subject to directions and license given by the Central Government but export agency will be liable for its commercial transactions with all the persons with whom it deals.
(11) The learned counsel for the plaintiff contended that at this stage only thing plaintiff has to show is that the allegations contained in the plaint do spell out a cause of action against defendants including the Union of India, in the present case, that it is not necessary that the said cause of action should be established and that the matter of establishing cause of action would come up for consideration only when the case would be tried on merits. He, thereforee, suggests that let this application of the Union of India be dismissed and the matter as to whether the plaintiff has any cause of action against the Union of India should be decided after the framing of issues and leading of entire evidence. The learned counsel explains that in the present case there was allegation of the plaintiff that defendant No. 2 was agent of the Union of India and that the said allegation is sufficient for disclosing the cause of action against the Union of India. In support of this contention he relied upon a judgment of Assam High Court in Shanti Ranjan Das Gupta, v. Dasuram Mirzamal Firm Air 1957 Ass 49(2). It was held that a plaint could not be rejected on the ground that there was no cause of action for the suit because that was something different from saving that the plaintff itself did not not disclose any cause of action. The learned counsel contended that in the present case what the Union of India was urging was that the plaintiff had no cause of action because according to law defendant No. 2 was not agent of the Union of India.
(12) But the law in this respect is laid down by the Supreme Court in T. Arivandandam v. T. V. Sutyapal and another. Air 1977 S.C. 2421(3). It is laid down that if on a meaningful and not formal reading of a plaint it is manifest that the plaint is vaxatious or meritless in the sense of not disclosing a clean right to sue trial court should exercise its power under Order Vii Rule II. Code of Civil Procedure, and should reject the plaint. So it is meaningful reading of the plaint which is required. It is to be seen if actually according to law, on the allegations contained in the plaint, defendant No. 2 was agent of the Union of India or not. Mere formal allegation of the plaintiff that defendant No. 2 was agent of the Union of India is not to be accepted. In view of the Supreme Court authority, it is the duty of the court to probe whether allegations made in the paint make defendant No. 2 as agent of the Union of India, as the principal according to law. I have already held that according to law defendant No.2 was not agent of the Union of India and that being so plaint docs not disclose any cause of action against the latter.
(13) The learned counsel for defendant No. 2 contended that not only the plaint did not disclose any cause of action against defendant No. I but the same did not disclose any cause of action against defendant No. 2 also because assertions contained in the plaint did not spell oat any concluded contract between the plaintiff and defendant No. 2 in respect of breach of which plaintiff claims damages. He explained that publication of notice was merely for inviting offers for supply of sugar to defendant No. 2 that plaintiff sent offer which was rejected and that thereforee, there could not be any concluded contract.
(14) But the matter was not fixed for arguments as far as disclosures of cause of action against defendant No. 2 is concerned and the argument will have to be heard after framing of appropriate issue in that respect.
(15) I, thereforee, accept the application and reject the plaint with costs under Order Viii Rule Ii, Code of Civil Procedure against the Union of India, defendant No. 1.