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Union of India Vs. Tamil Nadu Small Industries Corporation Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 2464 of 1977
Judge
Reported inAIR1981Mad316
ActsCode of Civil Procedure (CPC), 1908 - Sections 80
AppellantUnion of India
RespondentTamil Nadu Small Industries Corporation Ltd.
Appellant AdvocateP.S. Srisailam, Adv.
Respondent AdvocateK. Chandrasekharan and ;K. Swarninathan, Advs.
Cases Referred and Messrs. Dahyabhai Patel & Co. v. Union of India
Excerpt:
- - 80(1)(b) of the civil procedure code and as there is non-compliance of this statutory requirement, the plaintiff's suit is bound to fail......that the plaintiff must strictly prove service of valid notice as required under s. 78-b of the indian railways act and sec. 80 of the civil procedure code. the trial, court rejected all the contentions of the defendant and decreed the suit and this was confirmed in appeal by the lower appellate court. hence the present second appeal.2. the learned counsel for the defendant-appellant contended that notice is a condition precedent to the institution of the suit against the government and in the case of a suit against the central government relating to the railways, the notice must be sent to the general manager of that railway as required under s. 80(1)(b) of the civil procedure code and as there is non-compliance of this statutory requirement, the plaintiff's suit is bound to fail. in.....
Judgment:

1. The defendant is the appellant before this court and the plaintiff is the respondent. The plaintiff company placed orders with Messrs. Hindustan Steel Ltd., Calcutta, for 24 - 4 metric tons for the Trichi unit and 23-9 metric tons for Tanjore - unit. The two consignments were loaded from Durgapur Steel Plant in two separate wagons. When the wagons arrived at Tiruchi goods-yard there was shortage in weight. The plaintiff filed a suit against the defendant for recovery of a sum of Rs. 3451-78 being the value of the shortage of the Tanjore consignment and Rs. 6442-02 being the value of the shortage of the Tiruchi consignment. They have also claimed weighment and demurrage charges for the Tanjore consignment. The defendant resisted the claim on various grounds and one of the pleas taken was that the plaintiff must strictly prove service of valid notice as required under S. 78-B of the Indian Railways Act and Sec. 80 of the Civil Procedure Code. The trial, court rejected all the contentions of the defendant and decreed the suit and this was confirmed in appeal by the lower appellate Court. Hence the present second appeal.

2. The learned counsel for the defendant-appellant contended that notice is a condition precedent to the institution of the suit against the Government and in the case of a suit against the Central Government relating to the railways, the notice must be sent to the General Manager of that railway as required under S. 80(1)(b) of the Civil Procedure Code and as there is non-compliance of this statutory requirement, the plaintiff's suit is bound to fail. In support of his contention, the learned counsel relied a decision of the Kerala High Court ported in Dahyabhai Patel & Co. v. the Union of India, represented by the General Manager, Southern Railway, Madras, ILR (1959) Ker 11,: AIR IP60 Xer.135. In the decision relied on, the Kerala High Court has held that the provisions of S. 80 C.P.C. are explicit and mandatory and should be strictly complied with, and a notice sent to the Chief Commercial Superintendent cannot be treated as notice under S. 80(1)(b) which should be addressed to the General Manager of the Railway and as the notice was wrongly addressed, it is defective and there is no compliance of S. 80(1)(b) C.P.C. In the case reported in Union of India v. Suraj Bhan Khandel wall, AIR 1963 Ass 179 the notice under S. 80 C.P.C. was addressed to the Deputy Chief Commercial Superintendent, and the question arose whether the statutory requirement under S. 80(1)(b) has been complied with. It was held ~hat all that is required to be done under S. 80 C.P.C. is that the notice should have been either delivered to the General Manager or left at the office of the General Manager and personal delivery is not required as a condition precedent and if the notice is left at the office of the General Manager in the hands of a responsible senior official of the office, both the letter and the spirit of the section must be deemed to have been complied with. In Lakshmi narayan v. Union of India, : AIR1958Pat489 , the suit was against the Union of India, in respect of a claim for non-delivery of goods by the East Indian Railway, and a notice under S. 80 C.P.C. served on the management of the railway was held to be valid even though the notice was not served on the management of the South Indian Railway which was the despatching railway. In Governor-General in Council v. Sankarappa, : AIR1953Mad838 , notice claiming damages for loss of goods in railway transit was sent to the Member-in-charge of the Railway Board and was forwarded by the Railway Board to the General Manager, M.S.M. Railway as the competent authority and it was held that the notice was a proper notice under S. 80, C.P.C. In Dhian Singh Sobha Singh v. Union of India, : [1958]1SCR781 , the Supreme Court has held (at p. 275):-

'Though the terms of S. 80 are to be strictly complied with, it does not mean that the terms of the notice should be scrutinised in a pedantic manner or in a manner completely divorced from common sense.'

From the decision cited above it can' be seen that there is no requirement under S. 80 C.P.C., that the statutory notice must be addressed to any particular person, much less the General Manager. The requirement under S. 80 C.P.C., is that the notice should either have been delivered to 'he General Manager or left at the office of the General Manageri and if the notice is left at the Office of the General Manager, there is compliance of S. 80 C.P.C. personal notice to the General Manager-is not required or contemplated under S. 80 C.P.C. The office of the General Manager being big one with many officers working under him and if the notice is left at the office of the General Manager in the hands of a responsible senior official of the office both the letter and spirit of S. 80 C.P.C. must be taken to have been complied with. In the present case S. 80 C.P.C. notice was addressed to the Chief Commercial Superintendent, Madras. The office of the Chief Commercial Superintendent and the office of the General Manager are housed in the same building in Park Town, Madras. The allegation in paragraph 10 of the plaint is-

'The plaintiffs, issued a notice under S. 80 C.P.C. addressed to the Chief Commercial Superintendent, Southern Railway by their advocates notice dated 29-11-1970 by registered post and the same was received by the defendants on 30-11-1970.'

3. The defendant in this case is Union of India, represented by the General Manager,, Southern Railway. This allegation in ' the plaint has not been denied in the written statement filed by the defendant. S. 140 of the Indian Railways Act provides that any notice required or authorised by this Act to be served on a railway administration may be served, in the case of a railway administration by the Government, on the Manager or the Chief Commercial Superintendent. Though this may be for the purpose of the Railways Act what requires to be noticed is the statutory provision which provided for notice being served either on the General Manager or the Chief Commercial Superintendent thus equating both for purpose of receiving statu-tory notices under the Railways Act, Viewed against the background of these facts there is every justification to hold that the notice in the instant case complies with the statutory t6quirement under S. 80 C,P.C. as it is a notice left at the office of the General Manager in the hands of a responsible senior official. Ths learned counsel for the appellant contended that as there is a conflict between the decisions reported in Union of India v. Suraj Bhan Khandelwall, AIR 1963 Ass 179 and Messrs. Dahyabhai Patel & Co. v. Union of India, represented by the General Manager, Southern Railway, Madras. ILR (1959) Ker 1135, and the unreported decision of a learned single Judge of this court in C. S. No. 231 of 1974, dated 27-7-1976, the case may be referred for decision to a Division Bench Whet-her there is compliance with the requirement of S. 80 C.P.C. in any particular case is essentially a question of fact depending on the facts and circumstances of each case. No legal principle or test can be evolved for application and determination as to when exactly the requirement under S. go C.P.C. can be said to have been complied with in any particular case. It may ultimately depend upon the facts and circumstances of each case. There is no need to refer this case to a Division Bench for decision.

4. In the result, the second appeal fails and stands dismissed; in the circumstances, without costs.

5. Second Appeal dismissed.


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