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Doya NahaIn Tewary Vs. the Secretary of State for India in Council - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1887)ILR14Cal256
AppellantDoya NahaIn Tewary
RespondentThe Secretary of State for India in Council
Cases ReferredIn Subbaraya Mudali v. The Government
Excerpt:
jurisdiction - letters patent, 1865, section 12--carrying on business and personally working for gain--secretary of stats--cause of action--limitation--acknowledgment--statute 21 and 22 vic., c. 106, section 65--limitation act (xv of 1877), sections 19, 20. - .....carry out his duties as such purchasing agent and gomastah.3. he sues the secretary of state for india in council to recover the sum of rs. 2,52,034-14-5, or such other sum as may be found due to him on taking of an account of the sums paid to him, and of the sums spent by him in the course of his employment.4. the suit was instituted on the 19th of april 1884, on the original side of this court, without previous leave being obtained under the provisions of section 12 of the letters patent. it is stated in the plaint that the cause of action accrued in the month of january, 1884, when the authorities in charge of the commissariat department, after a protracted correspondence between the plaintiff and his attorney on the one hand and the said department on the other, finally refused to.....
Judgment:

Mitter, J.

1. The plaintiff in this case was appointed at Cawnpore in the North-Western Provinces, in the month of October 1879, as a purchasing agent and gomastah of the Commissariat Department of the Government of India to purchase stores, miscellaneous articles, &c.;, required for the troops assembled for the Second Cabul Expedition on a salary of Rs. 100 per month. His employment, which was in the Punjab Province, lasted till the month of October 1880.

2. His case is that the Commissariat Department, from time to time, made advances to him, but that, as a rule, he had to advance money out of his own funds to carry out his duties as such purchasing agent and gomastah.

3. He sues the Secretary of State for India in Council to recover the sum of Rs. 2,52,034-14-5, or such other sum as may be found due to him on taking of an account of the sums paid to him, and of the sums spent by him in the course of his employment.

4. The suit was instituted on the 19th of April 1884, on the Original Side of this Court, without previous leave being obtained under the provisions of Section 12 of the Letters Patent. It is stated in the plaint that the cause of action accrued in the month of January, 1884, when the authorities in charge of the Commissariat Department, after a protracted correspondence between the plaintiff and his attorney on the one hand and the said department on the other, finally refused to pay the amount claimed by him.

5. The plaintiff states further that it was understood that his emnleyment was to be subject to the rules of the said department, regarding the investigation and passing of the bills, and accounts to be submitted by him from time to time; that according to the said rules it was his duty to submit his bills and accounts, first, to his immediate superior, the executive Commissariat officer, who would forward the same with his opinion to the Examiner of Commissariat Accounts; that the said Examiner of Commissariat Accounts, after necessary investigation, would pass the bills for such amounts as to him might seem proper; that the retrenchments made by the latter officer would be subject to appeal to the Comptroller of Military Accounts, and to further appeal to the Government of India; and that the balance, if any, in his favour would not become due until the final adjustment of his bills and accounts thus arrived at.

6. Various pleas have been taken in the defence, but it was agreed on both sides that two preliminary issues should be decided first, and that if they were decided in favour of the plaintiff, the question of the examination and adjustment of accounts should be referred to an officer of this Court.

7. These issues are: (1) whether or not this Court has jurisdiction to entertain the suit; and (2) whether or not it is barred by limitation.

8. The Ordinary Original Civil Jurisdiction of this Court, regarding suits for recovery of money, is thus defined in Section 12 of the Letters Patent: 'That the said High Court of Judicature at Fort William in Bengal, in the exercise of its Ordinary Original Civil Jurisdiction, shall be empowered to receive try and determine suits of very description, &c.;, &c.;, &c.;, &c.;, (l) if the cause of action shall have arisen either wholly, or in case the leave of the Court shall have been first obtained, in part, within the local limits of the Ordinary Original Jurisdiction of the said High Court; (2) or if the defendant at the time of the commencement of the suit shall dwell or carry on business or personally work for gain within such limits.'

9. In this case it is admitted in the plaint that the cause of action did not arise wholly within the said local limits. Notwithstanding this admission it was contended in the course of the argument that the cause of action did arise wholly within the said limits, because the money claimed in the suit was payable in Calcutta. Supposing that it was payable in Calcutta, still the cause of action would not arise wholly there. But it was urged on behalf of the plaintiff that a cause of action arises wholly in a place where the breach of contract, upon which a particular suit is brought, takes place. In support of this contention the case of Muhammed Abdul Kadar v. The East India Railway Co. 1 M. 375 has been cited; but the view taken in this case is in conflict with the whole series of cases involving this point decided by this Court see Greeschunder Bonnerjee v. Collins 2 Hyde 79; Indian Carrying Company v. Mc Carthy Cor. 116. There is not a single case decidcd by this Court in which the view taken by the learned Judges of the Madras High Court--Muhammed Abdul Kadar v. The East India Railway Co. 2 hyde 76--was adopted. It has been uniformly held here that the words 'the whole cause of action' in Section 12 of the Letters

10. Patent mean all things necessary to give a right of action, and that in a suit for breach of contract it must be established that the contract, as well as the breach thereof, have taken place within the local jurisdiction of the Court. When the law has thus been settled in this Court by a current of decisions, we would not be justified in disturbing it. But in this case, as I shall show, in dealing with the question of imitation, there is no foundation for the contention hat the breach of the contract took place in Calcutta.

11. Therefore, under the first head of jurisdiction laid down in Section 12 of the Letters Patent, the present suit is not cognizable by this Court.

12. Neither is it cognizable under the second head of jurisdiction. In discussing this question it is material to consider the nature of the suit and the position and the connection of the defendant with reference to the claim involved in it.

13. It is enacted in Section 65 of the Act for the better government of India, 21 & 22 Vic., c. 106, that 'the Secretary of State in Council shall and may sue and be sued as well in India as in England by the name of the Secretary of State in Council as a body corporate, and all persons and bodies politic shall and may have and take the same suits, remedies and proceedings, legal and equitable, against the Secretary of State in Council of India as they could have done against the said Company, and the property and effects hereby vested in Her Majesty for the purposes of the Government of India, or acquired for the said purposes, shall be subject and liable to the same judgments and executions as they would, while vested in the said Company, have been liable to in respect of debts and liabilities lawfully contracted and incurred by the said Company.' This section does not constitute the 'Secretary of State in Council' a body corporate, but it simply lays down that that officer and department are to be sued as a body corporate, the object of the suit being to obtain satisfaction of the plaintiff's claim, if it should be decreed, out of the Indian Exchequer. A suit of this kind is not really against any person or any real body corporate. But it is allowed to be brought against the Secretary of State in Council as a body corporate. In other words as a suit cannot be brought without a defendant, a nominal defendant is allowed to be put upon the record to enable the plaintiff to obtain the remedy secured to him by this section. I am supported in this view by the following observations of Lord Justice James in Kinloch v. Secretary of State for India in Council L.R. 15 Ch. Div. 8. 'When you look,' says his Lordship, 'at the Act 21 & 22 Vic., c. 106, which put an end to the East India Company, all the property and assets of the East India Company were not transferred to any body corporate which were successors to the East India Company, but were vested in the Crown in trust for the Government of India; and the words 'the Secretary of State for India in Council,' which are mere words providing that that officer and department could be capable of suing and being sued, are nothing more in my judgment than words indicating the mode by which the Government of India is to sue and be sued ; that is to say, the mode in which the Indian Exchequer might itself institute proceedings, and might be made the subject of proceedings, for the purpose of determining the rights between any of Her Majesty's subjects and that Government. But the Government of India is not, it appears to me, capable of being a trustee; nor is the Secretary of State for India in Council (the name by which the Government can be sued) a person capable of being a trustee any more than the Attorney-General in this country would be, or any other person who sues in certain cases for or on behalf of the Crown.' The words 'the Secretary of State for India in Council,' as observed by his Lordship, indicate the mode by which the Indian Exchequer is to be sued. Further on his Lordship says, referring to the words 'the Secretary of State for India in Council' : 'There is no such body known except as a name, as I said before, for suing and being sued on behalf of the Indian Exchequer.'

14. This being the nature of the suit contemplated by Section 65 of the Act for the better Government of India, and the defendant on the record being a mere name used for the purpose of prosecuting the suit, the words by which the second head of jurisdiction has been defined in Section 12 of the Letters Patent are in my opinion inapplicable to it. The same view was taken by Wells, J., in Rundle v. The Secretary of State in Council 1 Hyde 37. He says: 'The words 'carry on business and personally work for gain' do not refer to an institution like the Government of India.' He further held that the carrying on of the business of the Government cannot be considered to be carrying on of business within the meaning of the 12th section of the Letters Patent. It is somewhat difficult, nor is it necessary in this ease, to define exactly what may be deemed as 'business' within the meaning of Section 12 of the Letters Patent; but it is clear to me that the business of governing the country is not business within the meaning of Section 12 of the Letters Patent. It may be useful here to cite the case of Nobin Chunder v. Buroda Kant Shaha 19 W.R. 341; and of the Anonymous case 23 W.R. 223 in which it was held that zemindari business is not business of the kind contemplated in Section 17 of the Code of Civil Procedure; and the cases Sangster v. Kay 5 Ex. 386, and Buckley v. Hann 5 Ex. 43 in which 'it was held that clerks in Government offices cannot be said by reason of their being so to carry on business within the jurisdiction of the County Courts in which these offices are situate. 'That the word' business' in Section 12 of the Latters Patent was used in a restricted sense is also indicated by the words 'personally work for gain' to be found in the same section. The latter words would be unnecessary if the word, 'business' had been intended to be used in an unrestricted sense.

15. In Subbaraya Mudali v. The Government 1 M.H.C. 286. Scotland, C.J., says: 'The words carrying on business can, we think, reasonably be applied to the Government as a deliberative body.' Being of that opinion he held that a suit brought, against the Government which was located within the limits of Madras was properly brought on the Original Side of the Madras High Court. It seems to me that quite apart from the question whether the business of governing the country is business within the meaning of Section 12 of the Letters Patent, it was overlooked in that case that under Section 65 of 21 and 22 Vic., c. 106, the suit should have been considered as brought against the Secretary of State for India in Council. If this fact had been present to the mind of the learned Chief Justice of Madras he would have come to the conclusion that the suit was not cognizable by the High Court; because in another part of his judgment he held that, by Section 12 of the Letters Patent, 'a personal attendance to business was intended.' This could not have been predicated of the Secretary of State in Council.

16. It has been said that supposing the business of governing the country is not business within the meaning of Section 12 of the Letters Patent, still the Government in this country carries on various trades, such as the trades in opium and salt, and the principal places of business of these trades are located in Calcutta. But these trades are not carried on by the defendant in this case. As already observed, the words carrying on of a business or trade are inapplicable to this case. These trades, if they can be properly called trades, are carried on in one sense by the Government officers in charge of them, but they are so carried on for the benefit of the Indian Exchequer. For these reasons I am of opinion that this Court has no jurisdiction to entertain this suit.

17. On the second issue I am also of opinion that the plaintiff's suit fails. It seems to me that the present suit is based upon an implied contract on the part; of the Commissariat Department to pay whatever money has been advanced by the plaintiff for the purchase of stores, miscellaneous articles, &c.;, in the course of his employment as a gomastah and purchasing agent of that department. It is stated in the written statement that it was understood at the time when the plaintiff was appointed a gomastah and purchasing agent in the Commissariat Department, that he was to be kept supplied with sufficient funds to effect the purchases of the articles that he might be required to purchase for the use of the troops. The case for the plaintiff is, that by the rules of the department, subject to which his appointment was made, he was required to advance funds for these purchases from time to time, and that the money so advanced by him would not become due until his bills and accounts had been finally adjusted in the mode described in the plaint.

18. Beyond the fact that there are certain rules observed in the Commissariat Department for investigating and finally passing the accounts of a gomastah, the plaintiff has not adduced any evidence in support of the case set up by him. It is not necessary to ascertain with any degree of precision what these rules are; because it seems to me that their existence has no bearing upon the question whether it was intended, as alleged by the plaintiff that a purchasing gomastah should be required to advance money when necessary from his own funds to make the purchases which he would be required to make. Upon this point the plaintiff has adduced no evidence at all. In ordinary cases, when an agent is engaged on a small monthly pay without any further remuneration, to make purchases on behalf of his principal, in the absence of any express contract to the contrary, it would be reasonable to hold that it is understood that the principal should always keep the agent supplied with funds to make the required purchases. But in this-case we have these additional facts. Prom the correspondence and bills filed as exhibits, it appears that the plaintiff was not entitled to charge interest as a matter of right upon the advances, if any, made by him. No such interest has been charged in these bills, and in some of these letters the plaintiff intimated to the Commissariat officers that, if his accounts were not settled speedily, he would claim interest. It is further clear upon the materials placed on the record that, when the plaintiff was appointed, it was well known to him that the funds that would be required for the purchases to be affected by him as Commissariat gomastah and purchasing agent would be considerably large. Under these circumstances I think it may be reasonably concluded that the understanding was that the plaintiff was to be always kept supplied with funds to affect the purchases that he would be directed to make.

19. Having regard to this understanding it seems to me that, if on any occasion the plaintiff happened to have advanced money out of his own pocket to make any of these purchases, he was entitled to demand immediate payment of it. An agreement under the circumstances set forth above would be implied on the part of the Commissariat Department to repay immediately the money advanced by the plaintiff. If the money be not paid immediately there would be a breach of the contract, which would entitle the plaintiff to maintain an action for the recovery of the money advanced. In this state of things, in an ordinary case, Article 61 of the second schedule of the Limitation Act would be applicable. But it is doubtful whether the money in this case could be said to have been paid for the defendant who, as already observed, is a mere name. But if Article. 61 is not applicable, then the suit would fall under Article 115, which is a sweeping Article providing for all cases of breach of contract not specially provided for in the Act. The suit was brought in 1884, that is, more than three years after the termination of the plaintiff's agency, and therefore more than three years after the last supply made by him as a gomastah and purchasing agent. It is, therefore, barred under Article 115. Even if we hold that the breach took place when the money was demanded, and not paid, still the suit would be barred.

20. In the course of the argument, several letters were referred to as containing acknowledgments of liability on the part of the Government. But I have carefully examined these documents, I do not find any acknowledgment of liability contained in them which would bring the case within Section 19 of the Limitation Act. Nor is it shown that the present suit is saved from the bar of limitation by the second para, of Section 20. There is not a single instance in which a part payment within three years has been made of an admitted debt.

21 .The result is that the plaintiff's suit will be dismissed with costs.


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