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Purna Chandra Sarkar Vs. Radharani Dassya and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1931Cal175
AppellantPurna Chandra Sarkar
RespondentRadharani Dassya and ors.
Cases ReferredMurari Lal v. E.V. David. On
Excerpt:
- .....of the privy council against the decision given by page, j. and patterson, j., whereby those learned judges had decided on the authority of certain cases cited before them that the receiver was in fact entitled to a notice under section 80, civil p.c. that decision is particularly pertinent to the present proceeding because in fact it was given in an appeal which arose out of a. suit in which the parties to the present suit were also parties.3. it is to be observed however that the judgment of page, j., is based on certain cases which were cited in the course of the judgment. those cases, though analagous to the present case, are by no means direct authorities for the proposition that a receiver is a public officer within the meaning of s. 80, civil p.c. when the matter was before.....
Judgment:

Costello, J.

1. This is an appeal from a decision of the Additional District Judge of Dacca whereby he reversed the decision of the Subordinate Judge, 2nd Court of Dacca. Originally there were three suits brought against certain receivers in which the plaintiffs were claiming general accounts. Before the conclusion of the matter however the claim of the plaintiffs as against two set of receivers was adjusted to the satisfaction of the plaintiffs and accordingly the Court of first instance was only called upon to give judgment in the case of one sot of receivers, namely Babus Brindaban Chandia Basak and Purna Chandra Sarkar and that in respect of the period commencing 23rd June 1920 and ending on 7th February 1921. The learned Subordinate Judge decided all the issues against the plaintiffs; and it is against that judgment that an appeal was preferred to the Court of the District Judge of Dacca.

2. Only two points have been taken before us and the determination of the first one is in our opinion sufficient to decide this appeal. The second point has reference only to the mode of taking accounts and does not materially affect the question of the liability of the receiver. The main point is the question whether or not it was obligatory upon the plaintiffs as a condition precedent to the institution of the suit to give notice to the defendants on the basis that, as they were receivers they were 'public officers' under the provision of Section 2, Civil P. C, and whether or not the absence of such notice necessarily precluded the plaintiffs from succeeding in the suit. The learned Subordinate Judge decided that having regard to the definition contained in Section 2, Civil P. C, a receiver is a public officer and as such is entitled to notice as prescribed by the provisions of S. 80, Civil P. C, and he was of opinion that these provisions not being complied with, the plaintiff's suit ought to fail. The learned Subordinate Judge also referred to certain authorities which appeared to him to support this view of the matter and he based his conclusion upon the fact that in his opinion there was close analogy between the position of a receiver and that of a common manager. When the matter came before the Additional District Judge on appeal, he agreed with the learned Subordinate Judge that a receiver before being sued was entitled to a notice under Section 80, Civil P. C, and as no notice had been given to the defendants in the present suit, but for certain circumstances in the case, that would of itself have debarred the plaintiffs from succeeding with their claim. At the time when this matter was before the lower Courts there was apparently no decision of any of the High Courts which in terms decided that a receiver appointed by the Court in a suit came within the definition of a public officer contained in Section 2, that consequently he was entitled to the privilege conferred on a public officer by S. 80, Civil P.C. Since the judgment was given in the lower appellate Court however there has been a decision of this Court which seems to constitute a direct authority for the proposition that a receiver is a public officer for the purpose of S. 80, Civil P.C. I refer to the case of Sm. Radharani Dassya v. Purna Chandra Sarkar : AIR1930Cal737 which was an application to this Court for leave to appeal to the Judicial Committee of the Privy Council against the decision given by Page, J. and Patterson, J., whereby those learned Judges had decided on the authority of certain cases cited before them that the receiver was in fact entitled to a notice under Section 80, Civil P.C. That decision is particularly pertinent to the present proceeding because in fact it was given in an appeal which arose out of a. suit in which the parties to the present suit were also parties.

3. It is to be observed however that the judgment of Page, J., is based on certain cases which were cited in the course of the judgment. Those cases, though analagous to the present case, are by no means direct authorities for the proposition that a receiver is a public officer within the meaning of S. 80, Civil P.C. When the matter was before the Court on the application for leave to appeal to the Privy Council, the learned Chief Justice gave a judgment which at the first glance may be taken to confirm the decision given by Page, J., but a closer examination of the proceedings before the Court presided over by the Chief Justice shows I think that decision goes very little beyond saying that upon the assumption that a receiver as such is entitled to notice under Section 80, the fact that he has ceased to be the receiver does not render the giving of notice unnecessary on that account. It is a somewhat remarkable phenomenon that no one till very recently seems to have thought of raising the question of the necessity of serving notice on a receiver under Section 80. That section has been in existence from 1908 yet it does not appear ever to have been suggested before the case I have first mentioned that a receiver as such ought to be afforded the protection under Section 80. Speaking for myself and also I think for my learned brother, I must say that I 'was somewhat startled to hear it argued that receivers must be treated as public officers within the meaning of S. 80. But for the purposes of this appeal however we do not think it necessary to express any definite opinion of our own . upon the point because in the view which we take with regard to the peculiar circumstances and the facts of the present eases we think that even upon the assumption that the Courts below were right in thinking that the receiver is entitled to a notice under Section 80, the defendants in the present suit have so conducted themselves in these proceedings as to lose the privilege afforded by S. 80. That brings me to the reasons given by the learned Additional District Judge for coming to the conclusion that the absence of a notice under Section 80 did not put the plaintiffs out of Court. The learned District Judge said thus:

The appellants further contend that whereas the suit was lodged on 1st February 1924 it was not until 11th January 1926 that the respondents took the plea that they were entitled to notice under Section 80. The appellants contend from this that the effect that delay was to cause the privilege, if it existed, to be waived.

4. Then later on he said:

I am further inclined to think that under the circumstances which I have enumerated and set out categorically it is not reasonable for the respondents to have taken the plea of the non-receipt of notice so long after the institution of the suit, It seems to me that if I were to allow the contention of the respondents, I should be defeating the spirit which I deem to lie behind the section of the Civil Procedure Code.

5. Towards the end of the judgment having pointed out that the Court has already investigated some of the matters which were alleged against the receiver Purna Chandra Sarkar and come to the conclusion that he was wanting in economy and had not acted like a prudent manager, he continued:

The Court further entertained a distinct suspicion although it had not specifically found that the conduct of the receiver might be viewed in much more serious light.

6. Having pointed out that the learned District Judge said:

For that reason on the grounds of equity, I am of opinion that the appeal must be allowed subject to certain provisos.

7. We also are of opinion that in the circumstances of this case it would not be just to allow the technical objection of lack of notice to be raised and to prevail. It is necessary to consider certain dates in connexion with the matter. The suit was instituted on 1st February 1924. The written statement was filed on 16th June 1924 and in that written statement nothing whatever was said 'Or wen hinted about this question of notice, and on 19th July 1924 issues were framed between the parties on the basis of the plaint and the written statement as it stood at that stage. No issue was framed on the question whether or not the defendants as receivers were entitled to notice. Some two years after the institution of the suit, that is to say, on 11th February 1926, the defendants made an application to the Court in which for the first time they urged that the defendants were entitled to a notice of some kind and that no notice had been given.

8. Nothing was said in terms that the defendants were contending or were proposing to contend that they were entitled to notice as prescribed by the somewhat strict provisions of S. 80. The order made on that application was in these terms: 'Defendant 2 has filed a further written statement.' It does not appear from that order whether or not the plaintiff's had notice of the application made by the defendant nor does it appear whether or not they were informed that there was an application to the Court. But it is clear from the terms of the order itself that the Court did not give the plaintiffs a proper opportunity of making answer to the further and very vital plea which the defendants were then for the first time setting up. At any rate no issue was framed even upon the question whether the defendants were entitled to some notice, still less was there any issue framed on the basis of whether the defendants were entitled to notice under Section 80. The trial of the suit did not begin till some fifteen months afterwards, that is to say on 23rd March 1927, and it appears from the relevant order in the order sheet that the defendants' evidence was taken, and it was only after evidence had been taken that the question of notice under Section 80 was for the first time seriously canvassed between the parties. It is true that in the judgment of the Court of first instance it appears that this question was set down as issue 17. But it was obviously not one of the original issues framed between the parties. It is to be observed that by the time the suit actually came on for hearing any. relief which the plaintiffs might have had against the defendants had become barred by reason of the operation of the statute of limitation as in fact more than three years had elapsed from the time when the receiver had ceased to function. We are of opinion, having regard to what I have said, that the learned Additional District Judge was right in coming to the conclusion that it is not reasonable for the respondents to have taken the plea of want of notice so long after the institution of the suit. In fact the contention of the appellants before 'him, that is to say, the present respondents, was that the defendants by their delay waived their objection and this must be given effect to. There is ample authority for saying that where a plea of this kind, which is a clear bar, is taken, it must be taken at the earliest possible opportunity and it must be specifically pleaded. There are English authorities on this point in analogous cases and there are two authorities of this Court where this view has been taken. I refer to the case of Manindara Chandra Nundi v. Secretary of State [1907] 34 Cal. 257. At p.'281 of the report Mookerjee, J., states:

The question still remains whether, as urged by the appellant, the defendant has not waived the notice, or whether the defendant is not estopped by his conduct from pleading the want of notice at the trial. In my opinion this question ought to be answered in favour of the plaintiff.

9. Then in Bholanath Roy v. Secretary of State [1913] 40 Cal. 503 (which was decided by Mookerjee, and Beachcroft JJ.,) in the circumstances of that case the defendant was debarred from relying on lack of notice on the ground that the defendant must be deemed to have waived whatever rights he had; we hold in the circumstances of the case now before us that as this question was raised at such a very late stage of the proceedings and indeed only at a time when the plaintiffs would have been precluded from bringing a further proceeding against the defendants they had waived their privilege of notice which they were entitled to take. The learned advocate who for the appellants before us had argued this case with cogency invites us to take the view that we should decide the case on the authority of Murari Lal v. E.V. David. On the facts of that case it was held that the right to such notice under Section 80, Civil P. C, cannot be considered as waived if the receiver does not take objection to the absence of notice till a late stage of the proceeding. There are however observations in the judgment which seem to indicate that this view of the matter was taken because in the circumstances of that particular case there was no prejudice to the plaintiff by reason of the objection having been taken at a later stage. That is not the situation in the matter now before us for, as I have already pointed out, the raising of this question at a very late stage did prejudice the plaintiffs in that if the plaintiffs were to bring a fresh suit, they would be barred by the statute of limitation. We accordingly dismiss this appeal with costs.

Suhrawardy, J.

10. I agree.


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