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Kothari Trading and Investment Co. Pvt. Ltd. Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 2230 of 1971
Judge
Reported inAIR1972Cal466
ActsCode of Civil Procedure (CPC) , 1908 - Section 80
AppellantKothari Trading and Investment Co. Pvt. Ltd.
RespondentUnion of India (Uoi)
Appellant AdvocateN.C. Ganguly, Adv.
Respondent AdvocateAjoy Kumar Basu, Adv.
DispositionRevision dismissed
Excerpt:
- .....for the first consignment the plaintiff claimed rs. 877.27. for the secondconsignment the plaintiffs claim forrs. 792-52. the railway administrationpaid to the plaintiff rs, 731.22 in respectof the first consignment and rs. 663.68 inrespect of the second consignment. theplaintiff instituted the suit for recoveryof the balance of rs. 146.05 for the firstconsignment and rs. 129.91 for the se-cond consianment. 2. it appears that both the payments, aforesaid, by the railway adminis-tration were made in full settlement of the plaintiffs claim but the plaintiff accepted the said sums under protest. the learned judge has held that the plains tiff's claim with regard to the first consignment was maintainable but as the protest for the second consignment was made long after the receipt.....
Judgment:

Sankar Prasad Mitra, J.

1. This Rule has been obtained against theJudgment of the Small Cause Court,Sealdah. delivered on the 27th April. 1971in S. C. C. Suit No. 1061 of 1970. Twoconsignments of 145 Bags of Sugar belonging to the plaintiffs were booked on April1, 1968 under N/R No. 297704 and onMay 2, 1968 under R/R. No. 847875 fromBiswas and Bazpur respectively on theNorth Eastern Railway. The goods wereto be delivered at Kantapukur on theEastern Railway. The plaintiff allegedthat there was shortage of 530.200 Kgs.in the first consignment and 414.600 Kgs,in the second consignment due to thenegligence of the Railway Administra^tion. For the first consignment the plaintiff claimed Rs. 877.27. For the secondconsignment the plaintiffs claim forRs. 792-52. The Railway Administrationpaid to the plaintiff Rs, 731.22 in respectof the first consignment and Rs. 663.68 inrespect of the second consignment. Theplaintiff instituted the suit for recoveryof the balance of Rs. 146.05 for the firstconsignment and Rs. 129.91 for the se-cond consianment.

2. It appears that both the payments, aforesaid, by the Railway Adminis-tration were made in full settlement of the plaintiffs claim but the plaintiff accepted the said sums under protest. The learned Judge has held that the plains tiff's claim with regard to the first consignment was maintainable but as the protest for the second consignment was made long after the receipt of the money, the claim in respect thereof could not be sustained. We do not intend to express any view on these findings

3. The learned Judge has dismissed the suit altogether on the ground that no fresh notice under Section 80 of the Code of Civil Procedure was served on the General Manager of the Railway concerned so far as the balance of the plaintiff's two several sums aforesaid is concerned. In our opinion, the learned Judge has come to the correct conclusions. After acceptance of the two sums, mentioned above by the plaintiffs, a new eet of facts had arisen. The said two Bums were offered in full settlement of the plaintiff's claims. The plaintiff accepted the said sums, it is alleged, under protest and the plaintiff intended to sue for the balance of his claims. This is a new set of facts giving rise to a cause of action (not pleaded in the notice under Section 80). The reliefs claimed in the suit are also much less than the reliefs claimed in the notice under Section 80. The obiect of this notice, it is well known, is to give the Government concerned, an opportunity to reconsider its legal position and to make amends or settle the claims without litigation. It is true that the notice should not be construed in a pedantic manner or in a manner completely divorced from common sense. But in the instant case, we find that the Government was given no opportunity at all to consider whether in view of the plaintiff's alleged acceptance under protest the balance of the plaintiff's claims should be paid off. The original notice under Section 80 which the plaintiff had served, did not fulfil the requirements of law. In these premises we are inclined to uphold the judgment of the lower Court.

4. This Rule is discharged. There will be no order as to costs.

Janah, J.

5. I agree.


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