The Governor General in Council vs Amilal and Others

Reuben, J.—This is a petition in revision by the defendants against a decision of the Subordinate Judge, Dhanbad exercising Small Cause Court powers decreeing a suit for damages on account of shortage in a consignment of ghee consigned by the plaintiffs-opposite party.

The circumstances leading to the suit are as follows: 11 tins of ghee weighing 5 maunds and 10 seers were consigned under invoice No. 5 on 14-10-43 at Teghra on O. & T. Railway for conveyance to Kumardubi station on the E.I. Railway for delivery to the plaintiffs, who were the owners and the endorsee consignees. The consignment was delivered at Kumardubi on 2-11.''43. According to the plaintiffs'' case 5 or the 11 tins were received open and there was a shortage of 1 maund 34 seers of ghee. The claim for damages was based on an allegation of wilful negligence, default, misconduct and lack of care on the part of the railway administration. The consignment was sent under risk notes A and B. Separate written statements were filed on behalf of the two railway administrations concerned but a common defence was taken. Liability was denied on the allegation that there was no negligence, wilful or otherwise, on the part of the railways concerned and no misconduct. At the hearing, for the first time, it was contended that the provisions of Section 80, Civil P.C. had not been complied with and so the suit was incompetent. On the facts the Subordinate Judge held that the shortage was due to misconduct on the part of the railway servants. On the point of law, he held that, although the notice u/s 80 was not good and valid, the defendants could not be allowed to take the objection at a time when it was no longer open to the plaintiffs to serve notice in due compliance with the section and institute a fresh suit.

Three points have been argued before me. The first is that, Section 80, Civil P.C. not having been complied with this suit was not maintainable. The second is that the finding of misconduct is speculative and not based on evidence and the third is that the Subordinate Judge erred in law in granting interest prior to the institution of the suit.

Section 80 of the CPC provides:

No suit shall be instituted against the Crown...until the expiration of two months next after notice in writing has been delivered to or left at the office of (a) in the case of a suit against the Central Government, a Secretary to that Government;...stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left

The validity of the notice in the present case is challenged on two grounds. Firstly, that it is addressed to "the Secretary Central Government" instead of the defendants, who according to Clause (a) of Section 79, of the Act is "the Governor-General in Council" and secondly, that whereas there are three plaintiffs in the suit, namely; Amilal Marwari, Kundanlal Marwari and Matilal Marwari, the notice was given by the plaintiff Amilal in the name and style of Manikchand Amilal which is an unregistered firm. On behalf of the opposite party, Mr. A.N. Lall strenuously contended that, the defendants not having denied in their written statement the plea in the plaint that notices u/s 80, had been duly served, cannot be permitted at this stage to raise this objection. For this proposition he relies on the authority of Ramnarain Prasad v. Ramkrishun Prasad AIR 1934 Pat. 354

The question appears to me to be concluded by the decision of their Lordships of the Judicial Committee in AIR 1927 176 (Privy Council) in which their Lordships observe:

On the other hand, the view which has been taken in the other High Courts may be shortly summarized thus. The argument that a statutory provision as to procedure is subject to some exception of cases, where hardship or even irremediable harm might be caused, if it were strictly applied might be used with equal cogency in connection with a code fixing the admissibility of evidence or with a limitation section, recognizing rights but barring remedies. For this however, there is no authority. The Act, albeit a Procedure Code, must be read in accordance with the natural meaning of its words. Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. A suit in which (inter alia) an injunction is prayed is still a suit, within the words of the section, and to read any qualification into it is an encroachment on the function of legislation. Considering how long these and similar words have been read throughout most of the Courts in India in their literal sense, it is reasonable to suppose that the section has not been found to work injustice, but, if this is not so, it is a matter to be rectified by an amending Act. Their Lordships think that this reasoning is right

It may be noted that in that case no independent ground of defence had been raised in the written statement that the provisions of Section 80 had not been complied with. The provisions of this section being express, explicit and mandatory and admitting of no implications or exceptions, it follows that the question of waiving notice u/s 80 cannot arise, and in Secretary of State v. Sagarmal Marwari AIR 1941 Pat. 517 it was held that the defendant was rightly permitted to raise this defence for the first time at the hearing, when more than 2 years had elapsed from the cause of action and a fresh suit would be time barred. Their Lordships explained at page 518 the effect of a failure to raise the point in the pleadings:

It may be conceded that where the applicability of the section depends upon proof of certain facts and the Secretary of State does not deny the facts alleged in the plaint then he would under the ordinary rule of pleadings be held to have waived his objection to the proof of those facts.... But where the facts are admitted by the plaintiff himself and he fails under the express provisions of the statute albiet in a Procedure Code, I do not see how any question of waiver arises

It is in the light of this observation that the decision in Ramnarain Prasad v. Ramkishun Prasad AIR 1934 Pat. 354 must be considered. To my mind, it is not an authority that the defendants can waive the notice which Section 80 of the CPC requires to be served upon them. The correct proposition is that, where the defendant does not in his pleading deny the plaintiff''s plea of due service of the notice u/s 80, the defendant will not subsequently be allowed to adduce evidence to show that the provisions of Section 80 have not been complied with. In the present case, however, the defendants do not rely upon any evidence which they have brought on the record; they rely only upon notice itself, which has been put upon the record by the plaintiffs. The Court, having the notice before it, cannot, if that notice shows that the requirements of the section have not been complied with, ignore this fact for, under the provisions of Section 80, unless the necessary notice has been duly served the Court has no jurisdiction to entertain the suit. If, therefore, the Court finds non-compliance with this section, whether the point has been raised by the defendants or not, the Court must refuse to entertain the suit.

As regards the first ground on which the validity of notice is challenged, I do not think there is any substance in it. The section lays down in distinct terms, the contents of the notice required by it, namely the cause of action, the particulars of the plaintiff and the relief which he claims. It is not necessary that the notice should mention the exact style under which the defendant is to be impleaded. It is sufficient if it is clear against whom the suit is to be filed and, in the case of a suit against the Central Government, this notice is to be delivered to or left at the office of the Secretary to that Government.: The actual style under which the defendant is to be described is necessarily determined by the provisions of Section 79.

In support of the second ground, Mr. Bose relies on Government of Madras v. Vellayan Chettiar AIR 1944 Mad. 544 in which it was held that, when the notice u/s 80 had been given by only one of the two plaintiffs, the provisions of Section 80 had not been complied with. That was a case in which the plaintiffs were the proprietors of a village suing to set aside a decision of a Survey Officer under the Madras Survey and Boundaries Act, 1923. In the present case we are concerned with a joint family firm carrying on a business under the name and style of Manik Chand Amilal, and the notice was given over the signature of plaintiff Amilal signing on behalf of this firm. A similar objection was raised in Secretary of State v. Sagarmal Marwari AIR 1941 Pat. 517 where notice was given in the name of the joint family firm Deokarndas Ganpat Ram but the suit, as finally constituted, was brought in the names of the individual members, including the plaintiffs Sagarmal and Bansidhar. The objection that the provisions of Section 80 had not been complied with-was overruled by their Lordships, holding that the name of the firm in which the plaintiffs carried on their business was known to the Secretary of State. The plaint in this case contains an allegation u/s 80 that notices under that section have been duly served. This plea was not denied, in the written statement, and the defendants cannot now be permitted to deny due service on the allegation of fact that they did not know of the existence of this firm of which the plaintiffs are the members. This point, therefore, must be decided against the petitioners.

As regards the second point. Mr. Bose rightly contends that, as the consignment was made under risk notes A and B, there is no liability on the part of the railway administrations concerned without a finding of misconduct on the part of the railway servants. The onus of proving misconduct is on the party alleging it. What constitutes misconduct was considered in M. and S.M. Ry. Co. Ltd. Vs. Sunderjee Kalidas, where Guha J. held that knowledge on the part of the railway administration or of their servants that an act was likely to cause injury is not sufficient, but it must be shown that the servants were actually responsible for the guilt or wrongful act. Misconduct is not necessarily established by proving even culpable negligence. It is something opposed to accident or negligence, and is the intentional doing of something which the doer knows to be wrong, or which he does recklessly not caring what the result may be.

The facts as found by the Subordinate Judge in the present case are as follows: The consignment was made in unpacked tins and was therefore noted in the risk note as "liable to damage, wastage, leakage in transit," but there is nothing to show that the soldering was old and weak. The Judge did not accept that the soldering was old and weak, or that the tins were themselves old at the time when (14-10-1943) the consignment was booked. The tins were in good condition at Teghra. Prom Teghra the goods went to Mokameh Ghat on the O.T. Railway section, where one tin was found to be open and two were found to be leaking from the joints of the mouth. The note made by the railway authorities at Mokameh Ghat was to the effect that the tins were old and that mouth of one tin was open and 2 tins were leaking from the mouth joints. The Judge did not accept this. The goods were received at Mokameh Ghat by D.W. 2, the Transhipment Clerk of the O.T. Railway, on 25-10-1943. They were made over to D.W. 3 the Transhipment Clerk, E.I. Railway, at Mokameh Ghat. The goods were loaded by him on the 28-10-1948. During these three days the consignment was in a goods-shed, which was the joint goods-shed of the two railways, and is accessible to the Railway clerks and staff. According to this witness 1 tin was open at the mouth and 3 were leaking at the base. From Mokameh Ghat the consignment was brought to Mokameh Junction where goods are sorted for transhipment. The distance between Mokameh Ghat and Mokameh Junction is very short, without any intervening station. The consignment arrived at-about 11 A.M. 29th October and on examination it was found that 3 tins were completely opened at the mouth "and empty and that 2 other tins were open at the mouth and �th empty. It is from this fact that the Judge infers misconduct, saying

At Mokameh Ghat the evidence is that one of the tins only was open at the mouth. By the time it reaches Mokameh Junction a very short distance no less than 5 tins got its mouth open. It will be really surprising that in such a short distance such things could occur, especially in relation to the ghee consignment which is least likely to ferment and force out the lid at the mouth or the soldering joining the same.

I am unable to say that, in the circumstances, this was not a proper inference to draw.

The third point raised by Mr. Bose is sound and must be accepted. In AIR 1938 67 (Privy Council) their Lordships of the Privy Council pointed out that interest for the period prior to the date of the suit may be awarded only if there is an agreement for the payment of interest at a fixed rate, or interest is payable by the usage of trade having the force of law, or under the provision of any substantive law entitling the plaintiff to recover interest. On the above grounds I would modify the decree of the Subordinate Judge by disallowing the claim for interest prior to the filing of the suit. As the petitioners have substantially failed, the opposite party will get costs: hearing fee, one gold mohur.