It is next contended that the name and address of the Plaintiff who is suing is not stated in the notice. The name of the Plaintiff as given in the cause title of the plaint is "C.P. Agencies". Its residence is shown as "Surana Chambers, Sadar Bazar, Nagpur". The name of the partner suing is also shown in the cause title. In paragraph 1 of the plaint it is stated that the Plaintiff is a registered partnership firm. In the notice the name of the intended Plaintiff is stated as "Central Provinces Agencies, Nagpur". It is admitted in the written statement of the Applicant that Defendant No. 2 purchased black gram from Defendant No. 1 and made payments to the "C.P. Agencies" and that there was some correspondence regarding the bills for godown rent between the Defendant No. 1 and the C.P. Agencies to whom a conditional offer was made that the claim for godown rent would be considered if certain conditions were fulfilled; but the C.P. Agencies did not accept the offer. There is really no difference in the name of the Plaintiff as "C.P." is a well-known abbreviation for Central Provinces. The residence at Nagpur given in the plaint is also stated in the notice. All that Section 80 requires is residence and not address, and mention of address in the cause title of the plaint does not render the notice invalid.
IN THE HIGH COURT OF NAGPUR
Decided On: 09.03.1954
Appellants: State of Madras
Vs.
Respondent: C.P. Agencies and Anr.
Vs.
Respondent: C.P. Agencies and Anr.
Hon'ble Judges/Coram:
Mangalmurti and Deo, JJ.
1. This application for revision under Section 115, Code of Civil Procedure which under the Rules of this Court had to be heard by a Judge sitting singly, is referred to a Division Bench for disposal. The reference is either under Rule 9(1) or under Rule 9(2)(b) of Chapter 1 of these Rules. There is no other provision for a reference of this kind.
Unfortunately, there is no order of reference to indicate the rule under which the reference is made; nor are the questions of law of difficulty or importance indicated. If 'the reference is to be regarded as one under Rule 9(2)(b), the decision of this Court which requires reconsideration for the disposal of this case and the grounds for reconsideration have not been stated. The learned Counsel for the non-Applicant No. 1 relies on - 'Wamanrao v. Vidyacharan AIR 1953 Nag 122 (A) in support of his submission that an application for revision does not lie in the instant case. The learned Counsel for the Applicant submits that it requires reconsideration. II this necessitated the reference, it should have made to a Pull Bench under Rule 10 as a Division Bench cannot reconsider the decision of another Division Bench. We therefore desire to point out the desirability of passing an order of reference and compliance with the Rules of this Court in making reference to facilitate proper disposal of the cases referred.
2. The Plaintiff non-Applicant No. 1 instituted a suit against the Applicant, the State of Madras, and the non-Applicant No. 2 Shri M.K. Gopalan, Assistant Marketing Officer of the Applicant, for recovery of Rs. 31,239/8/- claimed as rent, interest on rent and lawyer's charges. The trial Court raised the following preliminary issues and answered them in the affirmative:
(1). Whether the Plaintiff had sent a valid notice to Defendant No. 1 in accordance with Section SO, Code of Civil Procedure, before the institution of the suit?(2). Whether the Plaintiff's suit is not maintainable on account of the non-registration of the Plaintiff firm before the transaction in suit?
3. The Defendant No. 1 has applied for revision of this order. It is contended that the suit should have been dismissed 'in limine' because (a) there was no valid notice under Section 80, Code of Civil Procedure, and (b) the firm was not registered at, the date of the transaction in dispute though it was registered before the institution of the suit. According to the learned Counsel, the lower Court assumed jurisdiction to try the suit on erroneous findings on these two conditions precedent which gave jurisdiction to the Court to entertain the suit.
4. A preliminary objection is taken to the maintainability of this application for revision on the grounds that the order in question which directs the suit to continue is not a final order but is an interlocutory order which can be disputed in an appeal against the decree, and that the findings on which the order is based are findings on the merits of the case and do not give rise to a question of jurisdiction even if they are erroneous. Reliance is placed on - 'Venkatagiri Ayyangar v. Hindu Religious Endowments Board, Madras MANU/PR/0004/1949 : AIR 1949 PC 156 (B), on - 'Wamanrao v. Vaidyacharan (A)' (cit. sup.), to which the learned referring Judge was a party, and on - 'Nandkumar Sinha v. Pashupati Ghosh', MANU/BH/0203/1940 : AIR 1941 Pat 385 (C). The learned Counsel for the Applicant on the other hand relies on - 'Joy Chand v. Kamalaksha Chaudhury MANU/PR/0012/1949 : AIR 1949 PC 239 (D); - 'Narayan v. Sheshrao MANU/NA/0110/1947 : AIR 1948 Nag 258 (FB)(E); - 'Madras Province v. Maharaja of Jeypore MANU/TN/0298/1942 : AIR 1943 Mad 284 (F) and submits that - 'Wamanrao v. Vaidyacharan (A)' (supra) requires reconsideration.
5. Before dealing with this question we propose to examine the case on merits to find if there is a case for interference. This course will obviate an unnecessary reference to a Full Bench.
6. We are of the opinion that the objection about registration is without any substance. Section 69(2), Partnership Act, bars the institution of a suit by or on behalf of an unregistered firm to enforce a right arising from a contract of the firm. It does not bar the firm from entering into the contract. There is considerable divergence of judicial opinion as to the interpretation, of Section 69 (2). One view is that registration is a condition precedent to the institution of a suit and the other view is that a suit by an unregistered firm can be validated by a subsequent registration. It is not necessary for the purposes of this case to examine these conflicting views as the Plaintiff firm was admittedly registered before the institution of the suit.
7. Sub-section (3)(a) of Section 69, Partnership Act, is an exception to sub-s. (2) and excludes from the operation of that sub-section a suit to on force any right or power to realize the property of a dissolved firm. If the contention of the learned Counsel for the Applicant were correct, such a suit would also be barred. In our view, the disability created by sub-s. (2) is with regard to the right to institute a suit and not with regard to the right to enter into a contract. The disability continues while the partnership is in existence: - "Shanmugha Mudaliar v. Rathina Muda-liar MANU/TN/0094/1947 : AIR 1948 Mad 187 (G). Want of registration has been held to be a formal defect and suits have been allowed to be withdrawn with permission to bring a fresh suit on the same cause of action after registration. We are, therefore, of the opinion that the finding of the lower Court on issue No. (2) is correct.
8. The next contention is about the validity of the notice, dated 9-9-1948, under Section 80, Code of Civil Procedure, That section, so far as it is material for the purposes of this case, is:
No suit shall be instituted against the Government...... until the expiration of two months next after notice in writing has been delivered to or left at the office of......... in the case of a suit against a State Government, a Secretary to that Government or the Collector of the District... stating the cause of action, the name, description and place of residence of the Plaintiff and the relief which he claims......
9. In - 'Bhagchand Dagdusa v. Secy. of State MANU/PR/0026/1927 : AIR 1927 PC 176 (H) their Lordships of the Judicial Committee have stated at pp. 184-185:
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........Section 80 imposes a statutory and unqualified obligation upon the Court." Since the conditions of the section were not complied with their Lordships held that the action was "unsustainable 'in limine.
In view of this statement of the law it is not necessary to refer to the decisions of the various High Courts relied on by the learned Counsel for the Applicant. But in dealing with these matters, as stated by Pollock C. B., in - Jones v. Nicholls' (1844) 153 ER 149 at p 150 (I) cited in - Secy. of State v. Nagorao AIR 1938 Nag 415 (J): "We must import a little common sense into notices of this kind." Grille J. stated in the above-cited - 'Nagorao'a case (J)' that the language in -- 'Bhagchand's case (H)' does not preclude the Court from looking at the wording of the notice and interpreting it in the light of common sense. He points out that the object of the notice under Section 80, Code of Civil Procedure, is: to give Government sufficient warning of a case which is about to be brought against it, so that Government may, if it so wishes, compromise the case, or afford restitution if it considers that restitution is due, without recourse being had to a Court of law in which Government might be mulcted in costs." In the light of these observations, we proceed to consider the several objections taken to the notice.
10. The first contention is that the notice is not addressed to Defendant No. 1. The finding of the lower Court is that the notice, though addressed to the Secretary to the Commissioner of Civil Supplies, Government of Madras, was received by the Secretary to the Commissioner of Civil Supplies, Madras, and the Secreary, Civil supplies Food Department, Madras. It is conceded that a notice, if addressed to the Secretary, Civil Supplies Food Department, Madras, would be a validly addressed notice. Apparently the Secretary, Food Department, is also the Commissioner of Civil Supplies. The section does not prescribe any particular form of address. The contents of the notice leave no doubt that it was a notice of suit against the State of Madras and the fact that it was received by the Secretary to that Government concerned is sufficient compliance with the requirement of the delivery of notice of suit against the Applicant. The notice was replied to by the Secretary to Government, Food Department, in the name of the Defendant No. 1. This is Ex. P-12, dated 20-11-1948.
11. It is next contended that the name and address of the Plaintiff who is suing is not stated in the notice. The name of the Plaintiff as given in the cause title of the plaint is "C.P. Agencies". Its residence is shown as "Surana Chambers, Sadar Bazar, Nagpur". The name of the partner suing is also shown in the cause title. In paragraph 1 of the plaint it is stated that the Plaintiff is a registered partnership firm. In the notice the name of the intended Plaintiff is stated as "Central Provinces Agencies, Nagpur". It is admitted in the written statement of the Applicant that Defendant No. 2 purchased black gram from Defendant No. 1 and made payments to the "C.P. Agencies" and that there was some correspondence regarding the bills for godown rent between the Defendant No. 1 and the C.P. Agencies to whom a conditional offer was made that the claim for godown rent would be considered if certain conditions were fulfilled; but the C.P. Agencies did not accept the offer. There is really no difference in the name of the Plaintiff as "C.P." is a well-known abbreviation for Central Provinces. The residence at Nagpur given in the plaint is also stated in the notice. All that Section 80 requires is residence and not address, and mention of address in the cause title of the plaint does not render the notice invalid.
12. The learned Counsel further stated that the description of the Plaintiff as given in the plaint was not to be found in the notice. The description in the notice, according to the learned Counsel, sought to have been "the firm is a registered partnership". We do not agree. The notice sufficiently states that the Plaintiff is a partnership. As already pointed out, a firm need not be registered at the date of the transaction. It need not be registered one when the notice is given. Registration is necessary for the institution of a suit. Notice by an unregistered firm does not become invalid for want of description that it is registered firm.
13. The next contention of the learned Counsel is that the cause of action which is sued upon is not stated in the notice. As we find from the plaint, the Plaintiff's case in substance is that the Defendant No. 2 purchased for the Applicant black gram, ex-godown, from the Plaintiff, and as there was no arrangement made by the Applicant' for storing it, which became necessary on account of difficulty of transport, the Defendant No. 2 agreed to pay godown rent to the Plaintiff. According to the plaint, the Defendant No. 2 had full authority to make purchases and enter into necessary incidental contracts on behalf of Defendant No. 1 and those contracts were acted upon by the Defendant No. 1. He had, therefore, authority to enter into the contract to pay godown rent. The terms of agreement to pay godown rent as stated in the plaint are:
(a) That godown rent shall be paid as per bag per month according to the rates settled between the Plaintiff and Defendant No. 1 at Nagpur and payable at Nagpur. These rates are mentioned in the bills submitted to the Defendant on 15-4-1946.(b) That the Defendant No. 1 shall pay the whole amount of godown rent when all the bags have been despatched and bills for the payment of godown rent are submitted.(c) That interest shall be paid at 6 per cent, per annum.(d) That no godown rent shall be charged for the first two months after the delivery of the goods to Defendant No. 1 ex-godown and that godown rent and interest shall be charged as mentioned in sub-paras (a), (b) and (c) above until the goods are despatched and Railway Receipts are submitted to Defendant No. 2 in his office in token of that fact.
Plaintiff claimed Rs. 27,000/- for godown rent and interest at 6/- per cent, per annum and lawyer's fee.
14. Section 80 requires the intending Plaintiff to give a notice "stating the cause of action".
Cause of action has been compendiously defined to mean every fact which will be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.'Read v. Brown'
Where the question is whether the cause of action in two suits is the same or not, one of the tests that is applied is whether the same evidence would support the claims in both suits; if the evidence required to support the claims is different, then the causes of action are also different.
15. In - 'Jehangir M. Cursetji v. Secy. of State' 27 Bom 189 at p. 206 (P) it was held that notices under Section 80 (under Section 424 of the then Code of 1882)
must not be too strictly or too narrowly construed. They must not be construed as if they were pleadings and that they need not set out all the details and facts of the case which the Plaintiff intends to prove, and that the notice must be considered sufficient if it substantially fulfils its object in informing the parties concerned generally of the nature of the suit intended to be filed.
In - 'Jones v. Bird', (1822) 106 ER 1397 (Q), it was said, with reference to a similar section, that the object of such notices was merely to inform the Defendant substantially of the grounds of complaint. See also - 'Secy. of State v. Perumal Pillai' 24 Mad 279 (R); - 'Venkatakrishnier v. Secy. of State"MANU/TN/0380/1925 : AIR 1926 Mad 408 (S); - 'Kesso-ram Poddar & Co. v. Secy. of State MANU/WB/0002/1926 : AIR 1928 Cal 74 (T); - 'Sourendra Mohan v. Secy. of State MANU/BH/0071/1934 : AIR 1934 Pat 701 (U) and - 'Secy. of State v. Nagorao (J)' (cit. sup.). As pointed out by Pollock C. B., we must import a little common sense into these notices. The term "cause of action" in this section should not be construed in a narrow sense.
16. In the notice in question a claim is made for Rs. 27,000/- as godown rent and interest thereon at 9/- per cent, per annum till realization and lawyer's fees. This means that relief claimed in the notice is claimed in the suit though a lesser rate of interest is claimed. It is not stated in the notice that there was an agreement with Defendant no 2 to pay godown rent and interest and that he had authority to enter into this agreement on behalf of the Applicant. It is however stated that the Plaintiff supplied black gram to the Applicant through its Assistant Marketing Officer, that the gram remained undespatched because the Applicant had not arranged for transport facilities, that there was considerable correspondence on the subject ending with the letter of the Assistant Marketing Officer, dated 28-4-1948, (which was enclosed for ready reference), that the applicent was not making payment on the pretext that they wanted to verify the bills from the Plaintiff's account books, and that the books were taken away by the Anti-Corruption Department which neither returned them in spite of efforts, nor allowed the Plaintiff to inspect them and take copies. The learned Counsel for the Plaintiff contends that though the notice is not drawn up with the formality and accuracy of the plaint, the Plaintiff had stated in the notice all the material facts which constitute its cause of action, in particular, the use of the Plaintiff's godown by the Applicant for a particular period and its liability to pay rent and interest.
17. The Applicant sent the reply Ex. P-12, dated 20-11-1948, to the notice of this suit. Therein the Applicant did not dispute the agreement with the Plaintiff for the supply of gram. All that it says is that the godown rent till the date of despatch was included in the agreed charge of -/8/- per maund and that there was no separate agreement to pay additional rent for the period in excess of two months. This letter manifestly demonstrates that the Applicant understood the claim in the notice in the way it is set out in the plaint. No doubt, the plaint sets out several other facts and details, but they are not strictly the Plaintiff's cause of action; they are more or less evidence in support of the claim. Following the principle adopted in the above decisions, we hold that the ; cause of action as appearing in the plaint is substantially set out in the notice and that the requirements of Section 80, Code of Civil Procedure, are substantially fulfilled. 'Sitaram Bindraban Firm v. Governor-General in Council MANU/NA/0132/1947 : AIR 1947 Nag 224 at pp. 228-229 (V).
18. In - 'Md. Khalil Khan v. Mahbub Ali Mian (O)' (cit. sup.) on which the learned Counsel for the Applicant relied, the Privy Council was not dealing with the question of sufficiency of a notice under Section 80, Code of Civil Procedure, but was discussing the meaning of "cause of action" for the purpose of Order 2, Rule 2 of the Code.
19. The learned Counsel for the Applicant submitted that no decree could be passed on the claim as made in the notice or on the claim as made in the plaint. That is another matter. In considering whether the notice in question was valid or invalid under Section 80, the lower Court was not concerned with the success of the suit as framed. If the Plaintiff is not entitled to succeed without amendment of the plaint and if the amendment is allowed, a question may well arise whether the cause of action as amended was sub- stantially stated in the notice. That question was not before the lower Court in passing the order under revision. On the plaint as it is, the lower Court has, in our view, rightly held that the cause of action disclosed therein was substantially stated in the notice.
20. Since the application fails on merits, it is not necessary to consider whether - 'Vamanrao v. Vaidyacharan (A)' (cit. sup.) was correctly decided.
21. The application for revision fails and is dismissed with costs. Counsel's fee Rs. 200/-.
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