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Buridehing Tea Co. Ltd. Vs. Dominion of India - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 192 of 1948
Judge
Reported inAIR1955Cal360,59CWN667
ActsCode of Civil Procedure (CPC) , 1908 - Sections 34 and 80; ;Code of Civil Procedure (CPC) (Amendment) Act, 1948
AppellantBuridehing Tea Co. Ltd.
RespondentDominion of India
Appellant AdvocateAjit Kumar Dutta and ;Prasun Chandra Ghose, Advs.
Respondent AdvocateBhabesh Narain Bose, Adv.
DispositionAppeal partly allowed
Cases ReferredB. N. Rly. Co. v. Ruttanji Ramji
Excerpt:
- .....put at rs. 12678/-.6. in the plaint, service of the statutory notices under section 77 of the indian railways act and section 80 of the code of civil procedure was pleaded but, at the trial, it was admitted that there was no notice given within time under section 77 of the railways act in regard to the second consignment. the notice under section 80, civil p. c. was also admittedly addressed to the secretary, railway board, new delhi, and served upon him.7. the learned subordinate judge has dismissed the plaintiff's suit and hence the present appeal. the appeal, however, is confined to the first consignment, the claim in regard to which has been dismissed only on the ground that the notice under section 80, civil p, c., was not valid, legai and proper. with regard to this.....
Judgment:

P.N. Mookerjee, J.

1. A short point arises for decision in the present appeal. It relates to the validity of the notice under Section 80, Civil P. C.

2. The relevant facts He within a short compass:

3. In October, 1942, the plaintiff company-booked two consignments of tea valued respectively at Rs. 7235/- and Rs. 3509/- at Gangasagar Railway Station of the B. and A. Railway, administered by the Central Government, ior carriage and delivery to the plaintiff's Calcutta Agents Messrs. S.C. Dutt and Co., at the Tea Ware House T.T. Shed, Kidderpore.

4. The second consignment was duly delivered to the plaintiif's brokers, Messrs. W.S. Creswell and Co., although the plaintiff company did not. actually get it due to some mixing up with other teas at the Port Commissioners' Godowns, but the first consignment got lost in transit on the railway. The plaintiff company also appears to have refused the offer of rateable payment, made to them, in respect of the second consignment, under the Port Commissioners' 'B' Scheme.

5. There was prolonged correspondence between the plaintiff company and the Railway concerned and thereafter the present suit was instituted on 30th August, 1944, claiming the value of the goods, as set forth above, and interest Rs. 1934, the total claim being put at Rs. 12678/-.

6. In the plaint, service of the statutory notices under Section 77 of the Indian Railways Act and Section 80 of the Code of Civil Procedure was pleaded but, at the trial, it was admitted that there was no notice given within time under Section 77 of the Railways Act in regard to the second consignment. The notice under Section 80, Civil P. C. was also admittedly addressed to the Secretary, Railway Board, New Delhi, and served upon him.

7. The learned Subordinate Judge has dismissed the plaintiff's suit and hence the present appeal. The appeal, however, is confined to the first consignment, the claim in regard to which has been dismissed only on the ground that the notice under Section 80, Civil P, C., was not valid, legai and proper. With regard to this consignment, the learned subordinate Judge has found in favour of the plaintiff on all the other points, including the question of limitation and service of notice under Section 77 of the Indian Railways Act, but the suit has been dismissed because of the alleged defect in the Section 80 notice, to which reference has been made above.

8. The point, therefore, that requires consideration is whether the notice under Section 80, Civil P.C., or the service thereof was bad in law.

9. The relevant notice (Ex. 1(x)) was addressed and sent to the Secretary, Railway Board, Newt Delhi, and the General Manager, B. and A. Railway, Calcutta. There is no dispute that the notice was duly received by the addressees. In the notice, the claim was made against the B. and A. Railway and particulars of the plaintiff, the cause of action and relief, as required by Section 80 of the Code, were also duly given. The demand was no doubt for payment within 30 days from the receipt of thenotice but, as the suit was actually filed long after the statutory two months after service of the same,the notice cannot be held to be defective on this score.

10. To the above notice two replies were received by the plaintiff -- one from the Railway Board (Ex. 1(y), D/- 4-7-1944, acknowledging receipt and intimating that the notice had been 'forwarded for disposal to the General Manager, B and A Rly., Calcutta, who is the competent authority to deal with the matter and to whom all further reference on the subject should be made' end the other (Ex. 1Z(17)), dated 16-8-1944, fromthe Chief Commercial Manager, Bengal and Assam Railway, acknowledging receipt of the notice and stating that the second consignment had been dulydelivered on 19-11-1942, and, as regards the first consignment, the matter was still under enquiry, on completion of which the result would be communicated to the plaintiff's lawyer Ramendra Nath Mukherjee who had given the notice on the plaintiff's behalf. Nothing further was heard on this subject until the institution of the present suit on 30-8-1944.

11. The plaint contained a fairly full statementof the above facts as regards the notice under Section 80 of the Code, a copy of which was also annexed to the plaint.

12. The relevant objection to the notice appears in para. 5 of the written statement which runs as follows :

'There having been no proper, valid and legal notice under Section 77 of the Indian Railways Act and Section 80 of C.P.Code, the suit is not maintainable at all'.

13. The relevant issue in Issue No. 6 which is in the following terms:

'Have any notices under Section 77 of the Indian Railways Act and under Section 80 of the Code of Civil Procedure been served upon the defendant?'

14. The trial court has answered the first part of this issue, viz., that relating to the notice under Section 77, in the plaintiff's favour so far as the first consignment (which alone is the subject-matter of the present appeal) is concerned but, on the other question, namely, under Section 80 of the Code, its decision has gone against the plaintiff, entailing dismissal of the suit.

15. The relevant part of Section 80 of the Code, as it stood at the material time, ran as follows:

'No suit shall be instituted against the Crown until the expiration of two months next afternotice in writing has been delivered to or left at the office of:

(a) in the case of a suit against the CentralGovernment, a Secretary to that Government.'

16. This section (Section 80) came up for discussion in at least three cases, before the Judicial Committee. In -- 'Bhagchand Dagdusa v. Secy. of State their Lordships, after an exhaustive review of the different aspects of the matter, came to the conclusion that: ' Section 80 is express, explicit and mandatory and it admits of no implications or exceptions.' The same view was reiterated by them in. -- 'Vellayan Chettiar v. Govt. of the Provinces of Madras', AIR 1947 PC 197 (B), although it was recognised at the same time that 'the provisions of the section' may be waived. In -- 'Govt. of Bombay v. Pestonji Ardeshir , the Judicial Committee affirmed, once again the mandatory and imperative character of Section 80 and, at p. 146 of the Report, their Lordships recorded the following observations:

'The provisions of Section 80 of the Code are imperative and should be strictly complied with before it can be said that a notice, valid in law, has been served, on the Government.'

17. It is unnecessary to examine in this case the exact limits of the rule of 'strict compliance', laid down by their Lordships. Whether, in the face of the authorities cited, it is possible or permissible 'to import a little common-sense' in the application of the section or whether the rule is so rigid as to forbid the slightest deflection even at the expense of all reason and common-sense or whether a plea of substantial compliance may still be open in some form or other in the matter of this statutory notice or its service are questions which in the view I am taking do not require consideration in the present case. The service of the relevant notice (Ex. 1(x)), as we shall presently see, is in strict conformity with the statute, both in letter and in spirit, and the appellant must succeed even on the strict terms of the section.

18. It is an admitted fact that the notice under Section 80 of the Code was duly received at the Railway Board's Office by its Secretary and a reply was sent to the appellant's lawyer by the Deputy Director of the Board. The question is whether this receipt of 'service' of the Section 80 notice constituted in law due compliance with the relevant statute (Section 80, Civil P.C.,) which requires the statutory notice to be, to quote the relevant part as it stood at the relevant time, 'delivered to or left at the office of -- (a) in the case of a suit against the Central Government a Secretary to that Government'.

19. The appellant's extreme contention that the Secretary of the Railway Board was a Secretary to the Central Government cannot be accepted. There is nothing to show that the Board's Secretary had the status, claimed for him, and, indeed, the contrary is well indicated by the fact that his superior, the Chief Commissioner, the President of the Board, was assigned that status to facilitate direct access to the Viceroy or the Governor-General (who was the head of the Government at the relevant time) on matters, concerning the Railway Board. In the face of this, it is difficult to accept the appellant's extreme argument that the Secretary to the Railway Board was a Secretary to the Central Government and uphold the validity of the notice, or rather the service thereof, on that footing.

20. It is unnecessary also, as already stated, to consider, for my present purpose, the applicability of the rule of substantial compliance in matters relating to Section 80 of the Code I do not, therefore, propose to enter into any discussion as to the exact scope and effect of the Privy Council decisions, cited above, or as to the merits of the appellants' submission in this regard.

21. The conception of the Railway Board as a controlling authority over the Railway administration which had been advocated for many years past was given a concrete shape by certain resolutions of the Government of 'India of the year 1905 which followed the recommendations of Sir Thomas Robertson who had been appointed, sometime in October 1901, the Special Commissioner 'to enquire into and report on the administration and working of Indian Railways'.

In his report which was made in 1903 Sir Thomas recommended inter alia that the administration of the railways in India should be entrusted to a small Board consisting of a President or Chief Commissioner who should have a thorough practical knowledge of railway working and should be a member of the Viceroy's Council for railway matters and two other Commissioners who should be men of high railway standing and should have a similar training to that of the President and that 'the Board should in addition to the necessaryoffice establishment be provided with-

(1) A Secretary who should have received a suitable training in the practical working of railways and who could be ex-officio a Secretary to the Government of India.

(2) A Chief Inspector of Railways to adviseon all technical, engineering and mechanical questions.

(3) A suitable number of Government inspectors.'

In the light of this report, which was broadly accepted in principle by the Government it was decided to abolish the Railway Branch of the Public Works Department and to transfer (entrust) the control of the railway systems in India to a Railway Board consisting of a Chairman and two members. The Chairman was

'vested with the general control of all questions, committed to the Railway Board, with power to act on his own responsibility subject to confirmation by the Board.'

22. The Board assumed office in March 1905 and to regulate its powers and functions the Indian Railway Board's Act (Act 4 of 1905) was passed at or about that time. The Board was provided, with a Secretary who was constituted its principal executive officer. The Board, however, was made 'subordinate and directly responsible to the Government of India in the Department of Commerce and Industry'. It served as a limb of this parent Department and it bad no direct access -- not even its Chairman -- to the Governor-General in Council.

This was a serious handicap and, within a short time, it was found that work was being hampered by having the Commerce and Industry Department between the Railway Board and the Governor-General in Council, and accordingly, in 1908, certain important changes were introduced, following several recommendations of the Inchcape Committee on Railway Finance, which, namely, the relevant changes, may be briefly summarised as follows:

'1. The designation of the appointment of Chairman, of the Railway Board was changed into President of the Railway Board and enhanced powers were vested in the President, The Board with its staff became collectively the Railway Department distinct from andindependent of the Department of Commerce and Industry though remaining under the administrative charge of the Hon'ble Member, Commerce and Industry Department, as theRailway Member,

3. The President of the Board was given direct access to the Viceroy as if he were a Secretary to the Government of India.'

23. The President of the Board, however, was not, as is clear from the above, expressly made a Secretary to the Government of India or given that legal status and, as a matter of fact, he did not bear that title although he had similar rights and responsibilities.

24. With the passage of time, further administrative changes followed, and, in the wake of the Acworth Committee's Report and in the light of one of its major recommendations, a Chief Commissioner of Railways was appointed in November 1922 to be

'solely responsible under the Government of India for arriving at decisions on technical railway questions and for advising Government on matters of railway policy'.

The Chief Commissioner was the President of the Board with enlarged powers and the raised status, expressly conferred upon him, of a Secretary to the Government of India, and, on the recommendations of the first Chief Commissioner, Mr. C. D. Hindley, a complete re-organisation of the Railway Department was undertaken by the Government and it was given effect from 1-4-1924.

25. The organisation of the Railway Board, as adopted in 1924, really marked 'the close of the Board system of control which had been in force since the Railway Board was first constituted' in 1905. The title 'Railway -Board' was, however, retained for certain statutory reasons and this name was given to the 'headquarters organisation of the Railway Department' of the Government of India,

26. The Railway Board, as finally constituted, consisted of the Chief Commissioner, the Finance Commissioner and two members. The Chief Commissioner, as already stated, was the President of the Board and had the status of a Secretary to the Central Government. The Board was assisted by four Directors and several Deputy Directors and its principal executive officer was the Secretary.

27. This was also the state of things in 1944 when the notice (Ext. 1(x)) under Section 80 of the Code was given in the present case. That notice, as it is admitted by both parties, was duly received at the Railway Board's office and the only enquiry that remains to be made is whether the Board's office was the office of a Secretary to the Central Government. On the materials before us, there can be only answer to this question which must be in the affirmative.

28. The Railway Board is the 'headquarters organisation of the Railway Department' of the Government of India. Its office, therefore, is the office of that organisation (vide in this connection the Board's reply, Ext, l(y), which is headed 'Government of India, - Railway Department (Railway Board)' and the Chief Commissioner being the President of the Board it may legitimately be taken as his office, particularly when it has not been shownto us that he has any separate office distinct from the Railway Board's. The Chief Commissioner again is a Secretary to the Central Government. His office, that is the office of the Railway Board, is thus the office of a Secretary to the Central Government, and, once this is accepted, there is no difficulty in holding that the notice under Section 80 was, in the present case, duly left at the office of a Secretary to the Central Government as required by the said Section 80 of the Code.

29. I would, accordingly, hold that there has been full compliance with the statute even within its strict terms and the defence objection as to the notice under Section 80 and service thereof ought to be rejected, and the decision of the learned Subordinate Judge on this point ought to be reversed.

30. I am quite conscious that, in taking the above view of the service of the notice under Section 80, Civil P. C., in regard to claims against Railways, I am actually differing from the conclusion which was readied in -- -'Dwarka Das v. Union of India', under almost similar circumstances but it seems to me that the learned Judges of the Punjab High Court in the case cited merely considered whether the Secretary to the Railway Board was a Secretary to the Central Government and having answered it in the negative, as I myself have done, they did not address themselves to the other aspect of the matter which has led me to a different conclusion on the effect of the service of the Section 80 notice on the Secretary of the Railway Board at his (the Board's) office. The same remarks apply to the earlier Lahore case-- 'Kumar Bros. v. G. G. in Council', AIR 1949 Lah 165 (E) and apparently also, to the unreported decision of the Nagpur High Court --. 'Dominion of India v. Beni Prasad', F. A. No. 7 of 1950, D/- 22-4-1952 (F), referred to in the later Nagpur case, -- 'Union of India v. Jaichand Arjundas', AIR 1953 Nag 360 (G).

This last cited case AIR 1953 Nag 360 (G) as also the decision of Harries C. J. -- 'Sandhya Trading Co. v. Governor-General, Dominion of India', : AIR1950Cal426 are distinguishable as the notices there which, as it seems, had to be served on the General Manager under the amended Section 80, were addressed to and served on the Secretary of the Railway Board in the one case : AIR1950Cal426 and on a Secretary of (he Central Government in the other AIR 1953 Nag 360 (G). The earlier decision of Sen J. of this Court in 'Civil Revn. Case No. 856 of 1949 (Cal) (1) is also open to similar comments. These three cases have really no bearing on the question, now before me when I am resting my decision on the theory of strict compliance as opposed to substantial compliance with the statute, and I prefer to leave them here without any further discussion, The Assam Case -- 'Union of India v. Murlidhar Agarwalla', AIR 1952 Assam 141 (J) is certainly no authority against my point of view, it rather supports my line of reasoning.

In -- 'Governor General in Council v. Sankarappa', : AIR1953Mad838 again Ramaswami J. held that service of the Section 80 notice on the Member-in-Charge, Railway Board, was goodservice under the law but, as the learned Judge there applied, in effect, the theory of substantialcompliance, which I have chosen not to examine in this case, I would not say anything on the validity or otherwise of the line of reasoning, adopted in this Madras, case. I would not also, for the same reason, made any comments on the other cases, cited in this Madras judgment : AIR1953Mad838 or in the Punjab judgment .

31. I hold, therefore, that the Section 80 notice was duly served in the present case and the defence contention to the contrary cannot be accepted and I conclude that the plaintiff company is entitled to a decree in respect of the fist consignment.

32. Three more findings, however, are necessary to assess the amount to which the plaintiff company will be entitled and for which a decree is to be passed in its favour.

33. The first relates to the value of the first consignment at the relevant time. This was stated in the plaint to be Rs. 7,235/- (Rupees seven thousand two hundred and thirty five). The defence was that this value was excessive and highly exaggerated. There was, however, no express issue on this point and the learned Subordinate Judge does not appear to have come to any finding on this question of valuation. It is necessary that this question should be determined.

34. The question of interest has been answered by the learned Subordinate Judge in favour of the plaintiff. I do not think, however, that that will be just or proper in the circumstances of this case. To say the least, award of interest where there is no statute or contract, sanctioning it or providing for it, depends on the discretion of the Court. That discretion will be rightly exercised in this case by refusing interest to the plaintiff when it appears likely that the first consignment would have met the fate of the second and shared only the small distribution under the 'B' scheme, having regard to the prevailing state of confusion at the time in the Tea Ware-houses. I would, accordingly, refuse the plaintiff's claim of interest on this ground and, in that view of the matter, it is unnecessary for me to discuss in this case the scope and effect of the Privy Council decision -- 'B. N. Rly. Co. v. Ruttanji Ramji on the time limits of the rule, laid down therein.

35. The third question relates to the paymentof freight of the first consignment which has beenfound against the plaintiff by the learned Subordinate Judge. I am inclined to accept that findingand deduct this amount of freight from the plaintiff's account.

36. I, would, therefore, allow this appeal in part, set aside the decree of dismissal, passed by the learned Subordinate Judge, so far as the first consignment is concerned, and send the case back to him for assessment of the price of that consignment so that a proper decree may be given to the plaintiff in the light of this judgment after deduction of the freight, due to the Railway Administration. The plaintiffs claim for interest is disallowed as also his claim in regard to the second consignment and the learned Subordinate Judge's decree of dismiss so far as this second consignment is concerne(sic) maintained.

37. There will be no order for costs in this appeal. The plaintiff, however, will be entitled to proportionate costs in the trial Court.

Sen, J.

38. I agree.


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