A.N. Ray, J.
1. This suit has been instituted by the plaintiff against the State of West Bengal for recovery of Rs. 31,450/- with interest in respect of price of Bone Meal sold and delivered between the 21st June and the 3rd July, 1947 to the Government of Bengal, as it was then constituted. The plaintiff's case is that by letter dated 7-6-1947, the Fertiliser Controller, Government of Bengal requested the plaintiff to supply to him 800 tons of Bone Meal at the plaintiff's Mill or Godown at the rate of Rs. 115/-per ton or such other rate as the Government of India might finally decide. Between 21-7-1947 and 3-7-1947 the plaintiff, in pursuance of the aforesaid request, supplied to the Government of Bengal, as it was then constituted 185 tons of Bone Meal.
2. The price of the Bone Meal was ultimately fixed by the authorities at Rs. 170/- per ton and the State of Bengal in the Directorate of Agriculture, paid to other suppliers of similar Bone Meals at the rate of Rs. 170/- per ton. In any event, the plaintiff claims Rs. 170/- per ton, as reasonable price.
3. The plaintiff's further case is that the plaintiff submitted bills in the year 1947. Since 1947 the Application Committee for Investigation into claims against the former Government of Bengal, has been considering the plaintiff's claim in respect of the said supply but has not passed the plaintiffs claim for payment.
4. By letter dated 14-11-1951, the State of West Bengal, according to the plaintiff, admitted the validity of the plaintiff's claim for the supply of the said Bone Meal, but wrongfully sought to apportion liability for the same to the Government of East Bengal. According to the plaintiff, by letter dated 24-9-1953, the authorities of the defendant State, for the first time disclosed to the plaintiff that the said Bone Meal had in fact been utilised by the defendant and that the same had been received by the defendant. In paragraph 12 of the plaint, the plaintiff states that prior to the receipt of the said letter dated 24-9-1953, the plaintiff had no knowledge nor any means or knowing where the said Bone Meal delivered at its godown had been taken or how the same had been utilised.
5. The plaintiff, in paragraphs 6, 9 10 and 13 of the plaint states that in August, 1947 the liabilities of the Government of Bengal, as then constituted, ceased to exist and the liabilities of the said Government devolved by Statute, upon the then Province of Bengal. By reason of the provisions of the Indian Independence (Rights, Properties and Liabilities) Order 1947, in respect of claims arising prior to the partition of India in 1947, the right of action of the plaintiff as to whether against the Province of West Bengal or against the Province of East Bengal, depended upon the purpose for which the Bone Meal was ordered. The purpose and/or use of the Bone Meal was well known to the Province of West Bengal its succes-sor-in-interest but they concealed the same from the plaintiff until 24-9-1953. The plaintiff states that the authorities or servants of the defendant by referring to an inapplicable provision of the Indian Independence (Rights, Properties and Liabilities) Order, 1947 and withholding information as to the purpose or use of the said Bone Meal, fraudulently Kept from the plaintiff the knowledge of the same until the plaintiff's receipt of the letter dated 24-9-1953.
6. In paragraph 14 of the plaint, the plaintiff states that the plaintiff supplied the said Bone Meal to the authorities in good faith, not intended to do so gratuitously and the defendant had the benefit of such, supply.
7. Hence the plaintiff sues the defendant for Rs. 31,450/-. In paragraph 15 of the plaint, the plaintiff states that no part or the plaintiff's claim is barred by limitation for reasons and circumstances set out in the preceding paragraphs of the plaint.
8. The defendant does not admit paragraphs 1, 2, 3, 4 and 5 of the plaint, save that the plaintiff submitted certain bills to the Province of West Bengal. The defendant admits that the plaintiff's claim is under consideration by the Application Committee. The defendant denies that by the letter dated 14-11-1951 the defendant admitted the plaintiff's claim or that the defendant wrongfully sought to apportion liability to the Government of East Bengal. With regard to the defendant's letter dated 24-9-1953, the defendant craves reference to the letter and denies that the defendant disclosed to the plaintiff that the Bone Meal had been utilised for the defendant or that the same had been received by the defendant. The defendant further denies that it had any duty to disclose the purpose or use of the Bone Meal supplied by the plaintiff and further states that the plaintiff well knew the purpose and/or use of the goods supplied by the plaintiff. The defendant denies the validity of the notice under Section 80. The defendant also took the plea that the plaintiff's claim was barred by limitation and this Court had no jurisdiction to try this suit.
9. The following issues were framed :
1. Did the plaintiff supply to the Government of Bengal 185 tons of Bone Meal?
2. Was the price of the said goods fixed by the authorities concerned at Rs. 170/- per ton?
3. Were the goods supplied for purposes of the Government of West Bengal?
4. Did the plaintiff supply the goods in good faith not intending to do so gratuitously and did the defendant enjoy benefit of such supply?
5. Is the plaintiffs claim barred by limitation?
6. Is the notice under Section 80 of the Code of Civil Procedure valid and sufficient?
7. Does the plaint as framed show that this Court has jurisdiction to try the suit?
8. To what relief, if any, is the plaintiff entitled?
10. On behalf of the plaintiff, Ezekiel Hyani Levy was examined. He stated that the Bone Meal was required by the Agricultural Department. In q. 9, he stated that he was told by all the Government officers that the Bone Meal was to be used in East Bengal mostly. The witness proved the letter dated 24-9-1953 and stated that prior to receiving the letter, he was given to understand at interviews that the price of the Bone Meal would he paid by the Government of East Bengal. But after the receipt of the letter, the witness understood that the price would be paid by the West Bengal Government. The witness in cross-examination stated that he joined the head office in the month of September, 1947, and the gentleman who dealt with the supply was one Mr. Zachariah. The witness also stated that the letter dated 25-6-1947 from the Fertiliser Controller, Directorate of Agriculture to the Transport Officer, Directorate of Agriculture asked the Transport Officer to arrange to move 720 tons Bone Meal from the godown of the plaintiff at Pagladanga to various Seed Stores mentioned in the letter. The various Seed Stores mentioned in the letter are in the districts of Mymen-singh, Chattagong, Rangpur and other places which are now all in East Pakistan.
11. In q. 29, 30 and 31 Mr. Levy in cross-examination stated that the letter dated 24-9-1950 was understood by him as meaning that the West Bengal Government was to pay money for the supplies. With regard to the letter the witness indicated that because the Government of West Bengal wanted information in that letter that was indicative of the fact that the payment would be made by the West Bengali Government. In question 42 following, the witness again stated that his interviews with the Government of West Bengal gave him the impression that the defendant would pay for the supplies. In question 46, the witness was asked whether the plaintiff had written a letter to the Chief Minister, Eastern Pakistan for payment and the witness answered in the affirmative. In q. 50 the witness said that the plaintiff made demand of the Government of East Pakistan for payment.
12. On behalf of the plaintiff Hrishikesh Mitra, Supervisor of the plaintiff was examined. He worked at Pagladanga Bone Meal. He stated that the deliveries were made at the godown by issuing gate pass. The witness proved gate passes Nos. 455, 456, 457 and 461, 469, 470 to 490 being Ext. B-1. With reference to gate pass No. 479, the witness stated that the date shown there is 2-7-1947 and gate passs Nos, 480 to 490 also bear the dates 2-7-1947. There was no cross-examination on the point that deliveries had been made by the plaintiff to the Government at the plaintiff's godown.
13. Netai Chand Laha, Invoice Clerk of S. Cur-lender was examined. He stated that Curlender and Co. supplied Bone Meal to the Government of Bengal in 1947 at the rate of Rs. 170/- per ton. The witness proved Bills Nos. 93, 94, 95, 96, 98, 100, 101, 102 and other Bills. The witness further proved that payment was made at Rs. 170/- per ton for such supply by S. Curlender and Co. to the Government of Bengal. The witness stated that the rate of Rs. 170/- per ton was under contract between Curlender and Co. and the Government of Bengal.
14. On behalf of the defendant Manindra Prosad Bagchi, Transport Assistant, was, examined. He stated with reference to the letter dated 25-6-1947, that the Bone Meal referred to in the letter was sent by the Government to several places which are now situated in Eastern Pakistan. The witness also stated that Bone Meal was taken delivery of by the Government from the godown of the plaintiff and was thereafter given to the Transport Officer. The witness further stated that the documents for the 720 tons of Bone Meal were taken by the East Bengal Government on the occasion of partition. The witness stated that the letter dated 25-6-1947 was a programme for the purpose of distribution sent to the Transport Officer, and such distribution was at the discretion of the Transport Officer. In Q. 26, the witness stated that the Stock Book would show all the distribution at places in West Bengal as well as in East Bengal. The Stock Book, the witness said, had been taken over by the East Bengal Government at the time of partition. In q. 41, the witness stated that the goods taken delivery from Curlender and Co. were also sent to different parts of East Bengal now situated in Eastern Pakistan.
15. On behalf of the defendant Radhika Mohan Sanyal, Personal Assistant to the Director of Agriculture, was examined. He has been working in that post since the month of November, 1952. The witness stated that with regard to the letter dated 24-9-1953 the goods were supplied to the Government of Bengal. as it then was. In cross-examination, the witness stated that the Directorate of Agriculture wanted in-formation for its own purpose. The witness also stated that the letter dated 24-9-1953 was drafted by him. He was not conversant with the procedure of the Application Committee.
16. The two main questions in tin's suit are, whether the supplies were made by the plaintiff to the Government of West Bengal within the meaning of the Indian Independence (Rights. Properties and Liabilities) Order, 1947, and if so, whether the claim is barred by limitation.
17. Mr. De, on behalf of the plaintiff stated that the plaintiff relied on Section 18 of the Limitation Act for the purpose of saving the limitation. Section 18 of the Limitation Act enacts that where any person having a right to institute a suit has by means of fraud been kept from the knowledge of such right or of the title on which it is founded or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit
(a) against the person guilty of the fraud or accessory thereto, or
(b) against any person claiming to him otherwise than in good faith and for a valuable consideration shall be computed from the time when the fraud first became known to the person injuriously affected thereby or in the case of the concealed document, when he first had the means of producing it or compelling its production.
The plaintiff's case is not that, a document necessary to establish the plaintiff's right has been fraudulently concealed from him. The plaintiff's case is that the plaintiff was fraudulently kept from the knowledge of the purpose or use of the Bone Meal until the plaintiffs receipt of the letter dated 24-9-1953 and further that the purpose of use of the Bone Meal was well known to the province of Bengal and its Successor-in-interest, the defendant, but they concealed the same from the plaintiff until 24-9-1953.
18. In my view the language of Section 18 makes it abundantly clear that what has to be proved is that a person having a right to institute a suit has by means of fraud been kept from the knowledge of that right. It is the right itself of which the plaintiff must be unaware by fraud practised on him before the plaintiff can invoke Section 18 of the Limitation Act. Paragraphs 6, 7, 8, 9, 10, 11, 12 and 13 are attracted by the plaintiff to invoke Section 18. These paragraphs plead that the plaintiff did not until 24-9-1953, know the purpose or use of the Bone Meal. The question is whether the plaintiff had thus been by means of fraud kept from the knowledge of the plaintiff's right to sue. Paragraph 13 of the plaint merely states that the purpose or use of the goods had been fraudulently withheld. There is no proper pleading that the plaintiff's right to sue had been fraudulently withheld. What the plaintiff pleaded is that the plaintiff's right of action whether against the defendant or the province of East Bengal depended upon the purpose for which the goods had been ordered. On behalf of the plaintiff it is argued that such purpose or use should have been disclosed by the Government and that such purpose or use was disclosed by the letter dated 24-9-1953. In my view there is no duty cast on the Government to disclose the purpose or use of the goods. The purpose or use is a question of fact which the supplier of the goods knew at the time of the supply.
19. The letter in question says that 'in connection with the audit of the plaintiffs bills for supply of Bone Meal during pre-partition days to the Director of Agriculture, West Bengal the following informations are needed'. An argument was extracted from the words 'for supply to the Director of Agriculture, West Bengal' as informing the plaintiff for the first time that the goods were for purpose or use of the defendant. There was no office of Director of Agriculture, West Bengal before the partition. Suppose the words-Director of Agriculture were deleted and the letter read with the words 'for supply to West Bengal', could it then be treated as meaning that supply was for purpose and use of West Bengal. In my opinion that would be introducing new words in the letter when such words do not occur. Furthermore the fallacy of the argument lies in equating the word 'supply' with the words 'purpose and use'.
20. Another argument was advanced with reference to the word 'audit'. Since the word 'audit' was used it was argued on behalf of the plaintiff that the Government of West Bengal would only audit for the purpose of payment and therefore the Government admitted its liability to pay and the letter of 24-9-1953 for the first time disclosed to the plaintiff that the defendant was liable to pay. In my view the word 'audit' does not mean any admission of liability to pay. Suppose the letter could be treated as a liability to pay. In law it could not be so treated because the Government would not be bound by any assurance to pay unless such assurances were made for and on behalf of the Government in accordance with Article 299 of the Constitution.
21. Next there is the question whether the plaintiff's right to sue has by means of fraud been kept from the knowledge of the plaintiff. The only pleading of fraud is in paragraph 13 of the plaint. It is well settled that general allegations of fraud do not amount even to an averment. The plaintiff submitted bills for the goods on 4-7-1947. On 18-11-1947 the plaintiff wrote to the office of the Application Committee, Writer's Building, Calcutta and asked for payment. The plaintiff on 27-1-1949 sent a reminder for payment. On 12-9-1951 the plaintiff wrote to the Chief Minister, West Bengal for securing payment and sent a copy of that letter to the Chief Minister, Eastern Pakistan. The plaintiff on 21-11-1951 wrote to the Chief Minister, East Pakistan asking for payment. The plaintiff in 1952 ad-dressed letters to the Application Committee, Government of West Bengal asking for payment of the plaintiff's bills. Under these circumstances I do not see as to how the plaintiff's rights to sue for the bills was by fraud or at all withheld from the plaintiff. The plaintiff was fully aware of its rights and was actively pursuing the same. In my judgment there is no proper pleading of fraud, nor is there any material to suggest that the plaintiff was by fraud kept from the knowledge of the plaintiff's tights.
22. In order to succeed on the question of limitation the plaintiff has further to prove as I have already indicated that the plaintiff was by fraud kept from the knowledge of its right to sue. As I appreciated the plaintiff's argument it is this. The plaintiff's right to sue includes the right to sue the proper defendant. In my view the fallacy of the argument is to equate the right to sue with the suit itself. The right to sue must exist before the suit is instituted. Ail that the suit does, in my opinion is to determine a person's right or claim before the institution of the suit to be valid. By such determination in the suit the light or claim of the plaintiff is held to be a valid right or claim. Suit or action is a mere procedure. Furthermore in my view choice of the defendant or framing of the suit is a mere procedure for enforcing the plaintiff's right or claim. The right to sue the defendant must exist before the suit is instituted. In this case the goods were supplied to the province of Bengal, as it then was before 15-8-1947. The plaintiff's rights arose on the supply of the goods to the said province of Bengal and were complete by delivery of the Bill on 4-7-1947 and the plaintiff was fully aware of such rights.
23. The liability of the province of Bengal as it then was has been determined by the Indian Independence (Rights, Properties and Liabilities) Order, 1947. The plaintiff's rights had accrued before 15-8-1947 because the goods had already been supplied and the contract was executed. Even if the contract had remained executory it would have made no difference. The Supreme Court has held in the case of Union of India v. Chamanlul Loona and Co. : 1SCR1039 as follows :
'If the contract has been fully and completely performed no question of any further rights and liabilities under the contract is likely to arise. If, however, the contract is one in which the consideration is executed on one side there will be a right on one side and outstanding liability on the other.'
Therefore the plaintiff's rights had been complete and there was a mere outstanding liability on the part of the province of Bengal as it then was. Whether the liability of the province of Bengal is the liability of the Government of West Bengal or of the Government of East Pakistan is entirely a different question. The question of liability under the Indian Independence Order, in my opinion, cannot be held to have kept from the knowledge of the plaintiff its right to sue. The plaintiff could even before 15-8-1947 have instituted a suit against the then province of Bengal because the plaintiffs right to sue had accrued on submission of the plaintiff's Bill dated 4-7-1947. The plaintiff knew then what the plaintiff's rights were. If in that case the liability was that of the province of Bengal, the suit could be continued by the appropriate Government which succeeded to such liability. If it were the liability of the immediate successor province of West Bengal that province would have continued the suit or if it were the liability of the province of East Bengal that province would similarly have continued the suit. I am of opinion that the plaintiff cannot invoke in aid Section 18 of the Limitation Act for the only purpose of its uncertainty as to whom it should sue. Order 1, Rule 7 of the Civil Procedure Code enacts that when plaintiff has any doubt as to the person from whom he is entitled to obtain redress he may join two or more defendants in order that the question as to which of the defendant is liable and to what extent, may be determined as between all parties. This is a provision which resolves conflicts of the plaintiff. The doubt in the plaintiff's mind as to who is liable is no part of the plaintiff's right. Furthermore there is a distinction between right and exercise of rights. What has happened here is that the plaintiff knew its rights but failed to exercise such rights by instituting a suit and by choosing a defendant.
24. For these reasons I am of opinion that there is no proper pleading that the plaintiff has been by fraud kept from knowledge of tae plaintiff's right to sue. I also hold that the plaintiff has not proved that the plaintiff has by fraud been kept from the knowledge of the plaintiff's light to sue. In my opinion the plaintiff's claim is barred by limitation.
25. With regard to the question of liability under the Indian Independence (Rights, Properties and Liabilities) Order, 1947, it has to be determined in accordance with provision contained in Article 8 of the Order whether the liability is that of the State of West Bengal or of Eastern Pakistan. At the outset I shall repeat that the goods were delivered by the plaintiff to the province of Bengal as it then was at the plaintiff's godown at Pagladanga which is situate in the province of West Bengal. The property in the goods passed on delivery to the then province of Bengal. The goods were thereafter at the disposal of the then province of Bengal and were distributed by the then province of Bengal to the different parts of the then province of Bengal. The question for determination is whether the contract is for purposes which as from the appointed late, to wit, the 15th August, 1947, are exclusively purposes of the province of West Bengal or its successor.
26. The Supreme Court in the decision of : 1SCR1039 has given the proper meaning of the expression a contract for the exclusive purposes of the Dominion of Pakistan'. Their Lordships have approved the test laid down by Chagla C.J. in the decision of Union of India v. Chinubhai Jeshingbhai, : AIR1953Bom13 . The test is as follows :--
'It is clear from the language used in Article 8 that the test to be applied with regard to the contract is not whether the contract was for the purpose of the Dominion of Pakistan at the date when it was made.
Ex hypothesi that test is clearly inapplicable. All contracts contemplated by Article 8 must be contracts which when made were made by undivided India by the Governor General in Council. The test that must be applied is an artificial test and the test may be either if the contract had been entered into on August 15, 1947, whether it would have been a contract for the purpose of the Dominion of Pakistan, or if the Dominion of Pakistan had been in existence when the contract was entered into, whether it would have been a contract for the purposes of Pakistan.'
27. In the case before the Supreme Court the goods were delivered to the Manager, Military Farms, Lahore, The contract was signed by the Assistant Director of Military Farms on behalf of the Government of India. The location of the Farms was the decisive factor in that case. Their Lordships held that the purpose of the contract was in supply fodder to the Manager, Military Farms, Lahore which farms were in Pakistan on the appointed date. The contract was therefore exclusively for the purposes of the Dominion of Pakistan as from the appointed date. In that case it was further held that the purpose of the contract and the ultimate disposal of the goods were two distinct things. The purpose of the contract is not determined nor modified by the ultimate disposal of the goods supplied under the contract, nor even when the powers of control exercised over the goods after the contract had been performed. In the Supreme Court case an argument was advanced that there were a possibility of the goods being sent from Lahore to other parts of the then India which have since become parts of the Union of India. The possibility of disposal of the goods from Lahore to other parts of India was negatived as a determining factor and it was held that the contract in that case was for the exclusive purposes of Pakistan.
28. Applying the test and also on the facts of the case before me I hold that the goods were delivered to the then province of Bengal at a place which is since within West Bengal. That fact coupled with the passing of the property in the goods to the then province of Bengal in my opinion conclusively establishes that the goods were for the exclusive purposes of the province of West Bengal.
29. The plaintiff had also claimed under Section 70 of the Indian Contract Act. In my opinion that claim is neither properly pleaded nor proved. There is no pleading for compensation under Section 70. Furthermore under Section 70, compensation or reasonable value of the goods is a question of fact. There is no proof as to what the reasonable value of the goods would be. Finally I hold, that there is no application of Section 70 of the Indian Contract Act inasmuch as the Court of Appeal has held in the case of Union of India v. Ram Nagina Singh reported in 89 Cal LJ 342 that where goods are deliver-ed pursuant to a request Section 70 does not apply. The plaintiff's case is here that the goods were delivered pursuant to a request. Therefore in my opinion the plaintiff fails on Section 70 of the Indian Contract Act.
30. There is a short point namely the price of the goods whether it is at the rate of Rs. 170/- per ton. The evidence before me shows that the rate of Rs. 170/- per ton was fixed in the case of Curlender and Co., under a contract. There is no evidence before me that the authorities fixed the rate of the plaintiff's supplies at Rs. 170/- per ton. Furthermore it is a question of fact whether Rs. 170/- would be a reasonable price. I have no evidence before me to come to the conclusion that Rs. 170/- is the reasonable price.
31. On behalf of the defendant it was argued that the notice under Section 80 of the Code of Civil Procedure is not valid inasmuch as the notice dated the 7th September, 1955 at page 42 of Ext. A gave the particulars of supply of Bone Meal as on the 21st June, 1947, 23rd June, 1947, 1st July .1947 and 3rd July, 1947 whereas delivery was all completed by the 2nd July, 1947. The evidence of Hrishikesh Mitra on behalf of the plaintiff shows that the goods were delivered by the 2nd July, 1947. In my opinion the discrepancy between the date 2nd July, 1947 and 3rd July, 1947 is a trifle. In my opinion the notice under Section 80 is not invalid on that ground. The notice under Section 80 was also attacked as invalid on the ground that paragraph 13 of the plaint which alleges that the authorities or servants of the defendant fraudulently kept from the plaintiff the knowledge of the purpose or use of the Bone Meal was not alleged in the notice under Section 80. In my view that is a sound point. Fraud is a part of the cause of action. The notice in my opinion should have alleged fraud which is plead-ed in the plaint. I am therefore of opinion that the notice under Section 80 is invalid on that ground.
32. The last point which was canvassed before me is that the plaint as framed does not show that the Court has jurisdiction to try this suit. The plaintiff has not obtained any leave under Clause 12 of the Letters Patent. The plaintiff does not plead that the whole cause of action has arisen within the jurisdiction of this court. As a matter of fact the plaint nowhere pleads that any part of the alleged cause of action arose within the jurisdiction of this court. It was contended before me that the State of West Bengal resides within the Jurisdiction of this Court and I should take judicial notice of that fact and come to the conclusion that the defendant resides within the jurisdiction of this court and that the suit is competent. I am unable to accept that contention. It is well settled that neither the Union of India nor any of the States carries on business or resides and the Government does not reside at its seat of Government. The suit therefore fails.
33. I answer the issues as follows :
34. I make no orders as to costs because of the facts and circumstances of the case. Certificate for 2 Counsel.