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Gobind Ram Tilokchand Vs. Union of India (Uoi) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 249 of 1953
Judge
Reported inAIR1960Cal400
ActsLimitation Act, 1908 - Section 15(2) - Schedule - Article 31; ;Code of Civil Procedure (CPC) - Section 80
AppellantGobind Ram Tilokchand
RespondentUnion of India (Uoi)
Appellant AdvocateAmal Kumar Mukherji, Adv.
Respondent AdvocateAjoy Kumar Basu, Adv.
Cases Referred and Jehangir v. Secretary
Excerpt:
- .....consignment by, inter alia, as it turned out in evidence appropriate endorsement of the relative railway receipt. of the 8 bales, however, only two were delivered on 18th april, 1951, to the plaintiff's man at shalimar and the remaining six could not be delivered and a short certificate was issued by the railway authorities at shalimar in respect of the said six undelivered bales of cotton yarn. thereafter, after service of notice, -- or, to be exact, a combined notice, --under section 77 of the indian railways act and section 80 of the code of civil procedure, the present suit was brought by the plaintiff on 2nd may, 1952. the plaintiff also alleged, inter alia, in his plaint, that, in the circumstances of this case, the nondelivery of the six bales of cotton yarn must have been due.....
Judgment:

P.N. Mookerjee, J.

1. This is the plaintiff's appeal arising out of a suit for recovery of a sum of Rs. 6073-11-9 pies on account of compensation for alleged non-delivery of six bales of cotton yarn out of eight bales, delivered to the Railway respondents, who were defendants in the Court below and who were represented there, as also in this Court, by the Union of India, for carriage to and delivery at the destination station. The suit arose, inter alia under the following circumstances and on the following allegations:

2. That a consignment of 8 bales of cotton has been booked and made over to the respondent No. 1, Railway, at Udumalpet for carriage to and delivery at Shalimar. The plaintiff claimed to be the endorsed consignee for valuable consideration, of the said consignment by, inter alia, as it turned out in evidence appropriate endorsement of the relative Railway Receipt. Of the 8 bales, however, only two were delivered on 18th April, 1951, to the plaintiff's man at Shalimar and the remaining six could not be delivered and a short certificate was issued by the Railway authorities at Shalimar in respect of the said six undelivered bales of cotton yarn. Thereafter, after service of notice, -- or, to be exact, a combined notice, --under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure, the present suit was brought by the plaintiff on 2nd May, 1952. The plaintiff also alleged, inter alia, in his plaint, that, in the circumstances of this case, the nondelivery of the six bales of cotton yarn must have been due to the negligence and misconduct of the Railway Administration.

3. The suit was contested by the Union of India, representing the two defendant Railways, and its material defence was that the plaintiff had no title to the consignment in, question; that, in any event, such title had to be proved before the plaintiff could get a decree; that the notice under Sections 77 and 80 was defective and invalid in law, in particular, so far as Section 80 of the Code of Civil Procedure was concerned; and that there was neither negligence nor misconduct on the part of the Railway Administration but the non-delivery of the six bales of cotton yam was due to the loss thereof on account of theft in course of transmission.

4. On the above pleadings, the suit came to trial on several issues which were considered by the Court below to be necessary for the purpose of deciding the disputes between the parties. For our present purpose, it is necessary to refer, in particular, to three only of the said issues, namely, issue No. 2, relating to the question of the plaintiff's title to the disputed consignment; issue No. 5 which was in these terms, namely, 'Is the suit barred by limitation' and issue No. 6, that is, 'Were the notices under Section 77 of the Indian Railways Act and under Section 80 of the Code of Civil Procedure duly served and are those valid in law'?

5. The learned Subordinate Judge answered the last two issues against the plaintiff and, mainly, on them,-- although there are incidental findings against the plaintiff on the other issues too,--he dismissed the plaintiff's suit. From this decree of dismissal, the present appeal has been preferred by the plaintiff.

6. So far as the point of limitation is concerned, the learned Subordinate Judge's view is obviously wrong and that has not been supported by the respondent or respondents in this Court. According to the learned Judge, the suit had to be instituted within one year of the date of delivery of the two bales (which were actually delivered to the party by the Railway authorities), that is, within one year of 18th April, 1951. The suit, however, was instituted, as we have stated above, on 2nd May, 1952, and as, according to the learned Subordinate Judge, the plaintiff was not entitled to get any exclusion of the excess or additional period or any extension of time for the purpose of limitation, the suit would fail in limine on the ground of limitation.

7. It is quite clear that, in taking the above view, the learned Subordinate Judge overlooked the fundamental aspect of the matter and the most material point for consideration on this part of the case, namely, that the imperative notice under Section 80 of the Code of Civil Procedure had to be and had been given by the plaintiff and, under the said Sec, 80, the plaintiff could not institute the suit before the expiry of two months from the service of the said notice. Clearly then, under the express provision of Section 15(2) of the Indian Limitation Act, the plaintiff, for purposes of limitation, would be entitled to the deduction or exclusion of this period of two months, for which his hands were tied by the statute, and, if we make that deduction or exclusion, the suit would clearly be within time, that is, within the one year limitation period as contemplated by the learned Judge. This position, as we have stated above, has not been challenged before us by the learned Advocate for the respondents and, accordingly, the finding of the learned Subordinate Judge that the suit was barred by limitation was wrong and it must be set aside. We, accordingly, set aside the said finding.

8. On the other question, namely, about the service of the notice under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure, not much dispute exists as to the factum of such service, but the contention of the defendants Railways was that the notice, that was served, was invalid and insufficient in law. This was put, not on the ground that the said notice was a composite notice under the aforesaid two sections and, because of that, the notice should be considered to be invalid, but on the ground that, so far as Section 80 of the Code of Civil Procedure is concerned, the notice served, namely. Ext. 1, does not contain the necessary particulars or, in other words, is not in compliance with the said Section, as regards the essential particulars. Particular stress was laid on the fact that, in the notice (Ext. 1), the cause of action has to be stated under the Section and the statement of the cause of action, as given in Ext. 1, was not sufficient or complete, as it did not mention, inter alia, in what right the plaintiff was claiming the disputed compensation. In this connection, attention was drawn to the statement in the plaint that the plaintiff there set up the claim as an endorsed consignee for valuable consideration, obviously meaning consignee by appropriate endorsement of the relative Railway Receipt for valuable consideration, as disclosed later in evidence; but no such statement, -- and not even an indication thereof, -- is to be found in the notice (Ext. 1) and, as the plaintiff's right, or the facts, entitling the plaintiff to make the claim, would be, according to the defendants Railways, a part of the cause of action, the cause of action as stated in the notice, was not complete or sufficient and the notice, therefore, was not in compliance with the mandatory provisions of Section 80 of the Code of Civil Procedure. This argument, on behalf of the Railways, was accepted by the learned Subordinate Judge and, in his opinion, the notice (Ext. 1) was materially defective and could not form or afford a valid basis for the present suit and that, indeed, was one of the principal grounds, upon which the plaintiff's suit was dismissed by the learned Court below,

9. Before we actually take up the above question, it is necessary to state and put on record that the Railway Receipt, as it appears from the materials before us, was admittedly handed over to the Railway Authorities, when delivery was taken of the two bales of cotton yarn out of the 8-bale consignment. In the suit, the defendants were directed to discover all documents in their possession or power, relating to the disputed consignment. The Railway Receipt would be, obviously one of them, The defendants took time on several occasions for complying with the above order of discovery and for discovering the said documents, but that was not ultimately done and the Railway Receipt was not also produced before the Court. The learned Subordinate Judge has himself made comments upon this attitude of the defendants and he has expressed the view that, normally, a presumption would be drawn against the Railways under those circumstances that, if the receipt in question had been produced, that would have gone against the defendants Railways. He has, however, because of the defect in the. notice (Ext. 1), as pointed out above, thought that this presumption should not be made in the circumstances of this case, and, in any event, the present suit would fail on account of the said defect.

10. In our opinion, the above view of the learned Subordinate Judge would not be a proper or reasonable view of the requirements of Section 80 of the Code of Civil Procedure, so far, at least, as the contents of the notice (Ext. 1) are concerned. It is true that, in view of the well-known decision of the Judicial Committee in the case of Bhagchand Dagadusa v. Secretary of State , it can no longer be maintained that Section 80 is merely directory and not mandatory. It may also be conceded, in view of the said decision, that the service of the above statutory notice, that is, under the aforesaid Section, is imperative under the statute and the interval period of two months also, fixed as the minimum interval between the service of such notice and the institution of the suit, may well be regarded as mandatory and imperative. That, however, does not really solve the question before us. The service of the notice may be imperative, but, as to its contents, in regard to the particulars, mentioned in the Section, substantial compliance may be enough. Indeed, in spite of Bhagchand's case this has been the view, taken in some of the decisions of this Court and also of the other High Courts. It is necessary to cite, for that purpose, only the decision of this Court, reported in Bhupal Chandra Dutt v. Governor General of India in Council, 52 Cal WN 808, and the two decisions of the Patna and the Nagpur High Courts, reported respectively in Surajmal Jain v. Union of India, AIR 1956 Pat 478 and State of Madras v. C. P. Agencies, AIR 1954 Nag 342, where the law on this point has been carefully analysed and explained. It is enough, for our present purpose, to refer in this connection to 52 Cal. W.N. 808 at p. 811 where his Lordship Chatterjee, J. as he then was, made the following significant observation on this particular point:

'The object of serving notice under Section 80 is to give the Government sufficient warning of the case which is going to be instituted against it so that the Government may, if it so wishes, settle the claim without litigation or afford restitution without recourse to a court of law. A liberal construction should be put upon the Section. The notice is sufficient if it substantially fulfils its object in informing the Government or the public officer of the nature of the suit to be filed. In my opinion, the Privy Council judgments, in and Vellyan Chettiar v. Governor of Madras, AIR 1947 PC 197, do not militate against this view''

and followed up the said observation by reference to some of the cases of the other High Courts on the point and to the decision of Chief Justice Rankin in Prasaddas Sen v. K. S. Bonerjee : AIR1931Cal61 which was quoted as substantially laying down that,

'if the defendant has no real difficulty in approaching the plaintiff for the purpose of making a tender of amends or otherwise negotiating with him, it is open to the Court to take a broad view as to the sufficiency of the notice'

and the discussion ends with the observation of Beaumont C.J., in Chandulal Vedilal v. Govt. of the Province of Bombay ILR 1943 Bom 128: (AIR 1943 Bom 138).

'that the object of the notice is to give the Government or the officer concerned notice of the claim which is going to be made against them and to give them reasonable time in which to consider the reactions.'

11. In our opinion, if we may say so with respect, Chatterjee, J. took the proper view of Section 80 as regards the requisite contents of the notice, namely, cause of action and the other particulars, mentioned in the Section, and that view, as the learned Judge himself observed, was clearly permissible and well supportable in suite of Bhagchand's case which, as will be clear from the report, was a case really of service of an admittedly insufficient notice and, in the context, the Privy Council proceeded on the footing as if no notice had been served under Section 80 and rejected the contention that, having regard to the nature of the suit (which was, inter alia, for an injunction) in the particular case, no notice would really be necessary. In other words, the Privy Council repudiated the suggestion that Section 80 was merely directory and not mandatory. It is true that their Lordships held that 'Section 80 is express, explicit and mandatory and it admits of no implication or exceptions' but that did not rule out a commonsense view of its contents and did not necessarily imply that such contents, that is to say, the statements of the cause of action, etc., to be made therein should be as full and complete as would be required for the plaint. The notice indeed must be served and the plaintiff also must wait for two months from such service before filing his suit but the requirement as to the contents of the notice would be amply satisfied if they substantially or sufficiently inform the defendant of the necessary particulars, mentioned in the Section, to enable him to achieve the purpose, for which the Section was enacted, namely, to have necessary opportunity to consider the matter and make amends or restitution in proper cases.

12. If what we have said above be the proper view of Section 80 with regard to the contents of the notice, as required under that Section, the view of the learned Subordinate Judge cannot certainly be accepted. Each case, of course, would depend upon its particular facts and the sufficiency or insufficiency of the notice, from the point of view of its contents, or, in other words, whether, from that point of view, substantial compliance has been made with the Section, has to be judged in the background of the relevant facts. This, indeed, was the view even in the very early cases of the several High Courts, of which reference may or need be made only to four, namely, Bhoiaram Choudhury v. Administrator General, 8 Cal WN 913 at p. 916 by Mr. Justice Woodrooffe of this Court, Secretary of State v. Perumal Pillai ILR 24 Mad. 279 at page 282 of the Madras High Court, Bsichchu Singh v. Secretary of State ILR 25 All. 187 at p. 191 and Jehangir v. Secretary cf State, ILR 27 Bom. 189 at p. 206. It is interesting to note in this connection that, in the Allahabad case, although the notice was held to be insufficient or invalid on another ground, upon the particular ground, with which we are here concerned, namely, whether the cause of action, to be stated in the notice, must include every allegation of fact, which it is necessary for the plaintiff to make in this plaint in order to succeed in the suit, their Lordships expressed the view that substantial compliance would be enough, and too strict Or narrow a construction should not be put on the word 'cause of action' in the Section and, even though all such facts as would be required for the statement of cause of action in the plaint do not appear in the notice, if the Court thinks that, substantially, the cause of action had been incorporated therein.-- or, to put it in another form, if what may be said to be the immediate cause of action, on which the particular suit is founded, has been mentioned in the notice,--that would be enough for purposes of Section 80 of the Code or Civil Procedure. Similar statements of the law are also to be found in the other cases cited.

13. Looking at the matter from the above point of view, the mere fact that the plaintiff did not mention in the notice that he was making his claim as an endorsed consignee for valuable consideration, as stated, later on, in the plaint, would not, in our opinion, render the said notice defective in the circumstances of this particular case. We may point out here that, even if the said statement had been there, that would not have improved the position of the defendant Union of India, representing the Railways concerned, in the matter of making amends, if it was so minded (for which alone, strictly speaking, opportunity was provided in Section 80 and which, incidentally, was the object of enactment of the said Section) as even without the said statement, the defendant had been made aware by the said notice of the nature of the claim, or, as it has been put in the above earlier decisions of the several High Courts, of the substance of the ground of complaint and it had ample opportunity of investigating the matter further for the purpose of making the necessary offer of amends.

14. In the present case, in the notice (Ext. 1), reference was given of the Railway Receipt, under which the claim was being made by the plaintiff. The Railway Receipt was also admittedly in the possession of the defendant Railway. If, therefore, it appears from the said Railway Receipt that the plaintiff was the endorsee thereof and had become the consignee (for valuable consideration) by or under such endorsement inter alia, there can be no serious difficulty in the way of the defendant's knowing, at least, prima facie, the nature of the plaintiffs claim from the aforesaid notice (Ext. 1) and the said document (Railway Receipt) in its possession and also of the right, in which the plaintiff was making the said claim. In that context, the present notice (Ext. 1) may well be held to be in sufficient compliance with the provisions of Section 80 of the Code of Civil Procedure as regards the contents of notice, as required under the said Section, namely, cause of action etc. It is, therefore, necessary, that this aspect of the matter should be further investigated and fully considered alter production of the above Railway Receipt by the Railway authorities. It is also clear that if the said Railway Receipt be produced and the plaintiff does not appear therefrom to be an endorsed consignee, the plaintiff's suit would fail on the merits.

15. In the above circumstances, we deem it proper that the matters in dispute between the parties, except the point of limitation, on which we have expressed the final opinion, should be further investigated and considered by the Court below in the light of the evidence, already on record, and such further evidence as the parties may choose to produce before it at the said further or fresh hearing. For the above purpose, the necessary leave is hereby granted by us. The points that will have to be proved by the plaintiff, in view of his plaint and the evidence, already before the Court, will be that he was the endorsed consignee of the particular Railway Receipt for valuable consideration and was as such entitled to claim the suit compensation. It will have to be proved by him, further, as to what would be the quantum of damages for the undelivered bales of cotton. If the plaintiff fails to prove any of the above particulars, the plaintiff's suit would fail. Even if the plaintiff succeeds in proving the above particulars but the defendant, at the same time, succeeds in proving that there was no negligence or misconduct on the part of the Railway or Railways concerned, either because there was a theft, which could not be prevented, or otherwise, the plaintiffs present suit would fail.

16. Subject to the above observations, this appeal is allowed, the decree of dismissal of the learned Subordinate Judge is set aside and the case is remitted to him for further consideration in the light of the observations, contained in this judgment, and in accordance with law.

17. As we cannot altogether absolve the plaintiff of the blame for this remand or of want of full and proper diligence in the matter of proof of his claim, this order of remand must be made on terms and we direct that the plaintiff appellant will pay to the respondent Union of India the costs of this appeal, hearing-fee being assessed at five gold mohurs, irrespective of the ultimate result of the Suit. This amount must be paid within one month of the arrival of the records in the court below and this payment will be a condition precedent to the further hearing of the suit, as contemplated in this judgment. If the payment is not made, as directed above, the decree of dismissal of the learned Subordinate Judge will stand affirmed and this appeal will stand dismissed. If the payment is made in terms of our above direction, the suit will be taken up for further hearing by the learned Subordinate Judge and disposed of in accordance with law in terms of this judgment. There will be no order for costs in this appeal, except as stated hereinbefore. Costs of the trial court before and after remand will be in the discretion of that court when it finally disposes of the present suit.

Law, J.

18. I agree.


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