1. The State of Orissa represented by Collector, Sambalpur and also the Block Development Officer, Naktideul in the district of Sambalpur have preferred this appeal as against the judgment and decree passed against them by the Subordinate Judge, Berhampur (presently Civil Judge, Senior Division), in Money Suit No. 106 of 1977 as per the impugned judgment passed on 6-9-1980, while plaintiff is the respondent in this appeal.

2. Plaintiff as the Manager and Proprietor of Pratibha Prakash Bhawan, a Publisher and Printers and Govt. order suppliers was holding its business at Berhampur. On 14-3-1974 he received the order in the district of Sambalpur from defendant No. 2, for supply of Office stationery i.e some categories of printed forms by transporting the same through Ramdas Motor Transport Ltd., Berhampur and thereafter on 25-8-1974 he submitted the bill i.e the cost of the printed forms calculating it at Rs. 11,500/-. Instead of making payment, the Defendant No. 2 made correspondence with the plaintiff as per its letter dated 11-10-1974 mentioning that 1600 numbers of Fly Leafs and 500 numbers of D.C Bill forms were not received by it and that the articles supplied were in excess than the order supplied and further that the rate quoted in the bill is on the higher side. Plaintiff reiterated his contention relating to supply of the entire stock as per the bill and requested for payment. The long drawn correspondence between the parties when did not enure any result nor any payment was made by the Defendant No. 2, therefore, plaintiff issued notice under Section 80 of the Code of Civil Procedure, 1908 (in short ‘C.P.C’) as against the defendants and claimed for the aforesaid bill amount. Defendants did not respond to that notice nor made payment and, therefore, plaintiff instituted the suit for recovery of Rs. 11,500/- along with damage of Rs. 4,140/- at the rate of 12% for blocking of his capital. Thus he made a total claim of Rs. 15,640/- with pendente lite and future interest.

3. Defendants filed a joint written statement. In substance their plea was that no order was placed in the manner stated in the plaint, the order was not taken from the Defendant No. 2 by following due procedure and in any event the supply of the articles is not against indent or contract inasmuch as the printed forms not ordered were also supplied and there was shortage of the above noted two articles of forms i.e Fly Leafs and D.C Bill form. They also advanced the plea that the suit is not maintainable in the Court of Subordinate Judge, Berhampur because the cause of action arose in the district of Sambalpur and that plaintiff is not entitled to the reliefs claimed.

4. On the basis of the aforesaid pleading, the trial Court framed the following issues:

1. Is there any cause of action for the suit?

2. Is the plaintiff entitled to suit amount?

3. Whether the price charged is high and supplies made at usual fair price and whether the defendants are liable for unindented goods?

4. Are the defendants or any defendant liable for interest?

5. Whether the suit is maintainable?

6. If defendant No. 1 is a necessary party,

7. To what relief?

5. In support of his case, each of the parties examined one witness. Plaintiff examined himself as P.W No. 1 and the Official staff from the Office of the Defendant No. 2 was examined as D.W No. 1. Plaintiff relied on several documents marked Exts. 1 to 14. Out of them, Ext. 1 is the original order placed on 14-3-1974 by the Defendant No. 2 with the Plaintiff and Ext. 1.a is the terms of contract. Ext. 2 is the receipt granted on 1-5-1974 regarding transporting the articles through the carrier and Exts. 3 to 8 and 10 to 14 is the correspondence between the parties. Ext. 9 is the office copy of the notice under Section 80, C.P.C of the plaintiff having been sent to the defendants. From the side of the Defendant, Ext. A is the copy of the order submitted by the plaintiff and Exts. B to F is the correspondence made between the parties.

6. On discussion of the oral and documentary evidence, learned Subordinate Judge held that there is no evidence on record that plaintiff supplied the articles in the absence of any order, therefore, shortage in supply of articles or the objection on the ground of quoting higher rate by the plaintiff is not proved by the defendants. Accordingly, he answered Issue No. 3. Similarly, he held that notwithstanding Ext. 1.a not containing the signature of Defendant No. 2 but that document being a part of contract between the parties, the stipulation of payment of interest mentioned therein on the failure of making payment of the bill amount is attractable against the defendants and accordingly they are liable to pay interest at the rate of 12% for not making payment of Rs. 11,500/-. He answered the Issue No. 4 accordingly. In view of the aforesaid decision on Issue Nos. 3 and 4, learned Subordinate Judge recorded the finding that plaintiff is entitled to the amount claimed in the suit and accordingly decided Issue No. 2. In deciding Issue Nos. 1, 5 and 6, learned Subordinate Judge held that there is cause of action for the suit, defendant No. 1 is a necessary party in view of the provision in Section 80, C.P.C and the suit is maintainable. He found that the suit is not barred by law of limitation inasmuch as after deducting the statutory period of limitation occupied in issuing notice under Section 80, C.P.C if the limitation is calculated, then the suit was instituted within a period of three years. In view of such finding on the other issues, learned Subordinate Judge decided Issue No. 7 by granting a decree for Rs. 15,640/- with pendente lite and future interest at the rate of 6% per annum on Rs. 11,500/-.

7. While challenging the aforesaid decree, the appellant raised the following contention:

(i) The trial Court had no territorial jurisdiction to decide the issue because the cause of action arose at Sambalpur.

(ii) Defendant No. 2 being functioning under Urban Development Department of Government of Orissa, therefore, statutory notice under Section 80, C.P.C cannot be held to be sufficient when that has been issued to the Defendant No. 2 alone and not even to the Defendant No. 1.

(iii) Ext. 1 was signed by the Defendant No. 2 on 14-3-1974. The bill, Ext. 4 was sent on 25-8-1974 and the letter of demand, Ext. 5 was issued on 6-9-1974. Therefore, the suit should have been instituted within a period of 3 years which expired by 5-9-1974. Therefore, a suit filed on 23-11-1977 is clearly barred by time.

(iv) Finding of the trial Court that there was no protest to the shortage in the list of articles supplied and the bill submitted is factually incorrect because that is made out from the plea in the written statement and the letter of the plaintiff dated 21-10-1974, Ext. B.

(v) The grant of damage is as against any proof of damage.

In reply, respondent argued that:

(i) So far as the question of jurisdiction is concerned, the cause of action having arose in part at Sambalpur and in part at Berhampur the trial Court had jurisdiction. Apart from that in course of hearing of the suit, no such plea was raised in the written statement nor any evidence was adduced and besides that the appellant has not claimed any prejudice for the Subordinate Judge, Berhampur exercising the jurisdiction.

(ii) Service of notice under Section 80, C.P.C on the Collector has been pleaded by the plaintiff and not denied by the defendants. In the district of Sambalpur since the Collector represents the State, therefore there is no defect in serving notice under Section 80, C.P.C

(iii) The course of transaction and correspondence between the parties, from Ext. 13 series it is apparent that the defendants admitted the claim on the bill amount and, therefore, provision under Section 18 of the Limitation Act is applicable and the period of limitation of 3 years is to be counted accordingly. In that view of the matter the suit is not barred by law of limitation.

(iv) So far as the allegation of shortage in supply is concerned, though such plea was raised in the written statement, but no satisfactory evidence in that respect was adduced by the defendants. On the contrary evidence of the plaintiff proved the correct and complete supply of the articles as per the Indent Order. Therefore, there is no flaw in that factual finding.

(v) For non payment of the amount in the bill ip-so-facto that proves substantial loss to the plaintiff and no further proof was required to claim damage at the rate of 12% on the bill amount.

8. The evidence on record stands consistent to the claim of the plaintiff about the contract entered into between the plaintiff and defendant No. 2. The claim of the defendants regarding receipt of less number of stationery is not found to have been substantiated on record and in that respect Ext. B does not dispute the claim of the plaintiff that goods as per the order were consigned by the plaintiff and were received in the office of the defendant No. 2. Therefore, to that extent the factual finding of the trial Court needs no further deliberation. When the situation stands thus, contention of both the parties, as noted in the preceding paragraph, is to be considered accordingly.

9. Defendants challenge the impugned judgment on the ground that learned Subordinate Judge (Civil Judge, Sr. Division), Berhampur, had no territorial jurisdiction to entertain the suit and grant a decree. According to the defendants, case of the plaintiff is that the transaction was entered into between the parties at Sambalpur when the order was placed by defendant No. 2 and was accepted by the plaintiff and non-payment was occasioned from Sambalpur, and therefore all the relevant facts situation giving rise to cause of action arose within the jurisdiction of the Courts at Sambalpur. That argument of the defendants has been countered by the plaintiff stating that, as a part of the transaction the forms were printed at Berhampur, they were sorted, packed and despatched from Berhampur and therefore, part of the cause of action also arose at Berhampur. On perusal of the evidence on record, this Court finds that contentions of both the parties are correct. Therefore, that leads to the situation that so far as relating to transaction of placing the order and supply of the materials, the cause of action arose both within the jurisdiction of the Courts at Sambalpur and Berhampur. In such a case the provision in Section 20 of the Code of Civil Procedure, 1908 (in short, ‘the Code’) takes care of the situation. That provision authorises the plaintiff either to institute the suit at the place where the defendants or any of the defendants (if they are more than one) are residing or the places in which the cause of action wholly or in part arises. Therefore, in this case since part of the cause of action arose at Berhampur within the territorial jurisdiction of the Subordinate Judge, therefore impugned judgment cannot be said to be without jurisdiction. In that respect this Court finds no relevancy of the case of Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, in as much as that was a case involving provision in Section 11 of the Suit Valuation Act relating to limits of the pecuniary jurisdiction of the first appellate Court. The first contention of the defendants/appellants thus fails.

10. The claim of the plaintiff is attacked on the technical plea that notice under Section 80 of the Code was not validly served on the competent authority. In that context, the averment in the plaint that the notice under Section 80 of the Code was served on the Collector has remained uncontroverted. Clause (c) of sub-section (1) of Section 80 of the Code is the relevant provision in that respect and that is quoted below for ready reference:

“(c) In the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district.”

In view of the above quoted provision of law, service of notice on the Secretary to the Urban Development Department of the Govt. of Orissa is not essential when the notice was served on the Collector of the district. Therefore, this Court finds no merit in the second contention of the appellants.

11. The next issue is on limitation. Admittedly the letter of demand was made on 6-9-1974, but the suit was instituted on 24-11-1977, i.e, after about three years two months and eighteen days. As has been held by the Apex Court in the case of Boota Mal v. Union Of India ., AIR 1962 SC 1716, once the period of limitation starts on, that does not stop and while calculating the period of limitation, equitable consideration is out of question. In the case of Hiralal v. Badkulai, AIR 1953 SC 225, the Apex Court has held that acknowledgment of the dues gives rise to further cause of action to extend the limitation accordingly. Section 18 of the Limitation Act provides that, before expiration of the period of limitation for institution of a suit or application in respect of any property or right, if the person so liable makes an acknowledgement acknowledging the liability, then the fresh period of limitation as per the Articles provided in the Limitation Act is to be compounded from the time when the acknowledgment was signed. In this case Ext. 13 is the letter which was written by the defendant No. 2 on 6-8-1976 acknowledging the due claimed under the Bill with an assurance to make payment of the same after passing of the Budgets, which was expected to be passed by 23-8-1976. From the date of demand on 6-9-1974 the period of limitation was to expire on 5-9-1977. Therefore, the acknowledgement made in Ext. 13 on 6-8-1976 is within the prescribed period. Therefore, the period of limitation is again countable from 6-8-1976 for a further period of three years in the claim of recovery of the bill amount. Thus the suit which was instituted on 24-11-1977, is found to be within the period of limitation. Therefore, that contention of the defendants/appellants also fails.

12. The ultimate submission which was made by the defendants/appellants, is that the claim of damage in the shape of interest is not maintainable. The claim of damage @ 12% per annum is not proved and therefore the award of amount towards the damage is not sustainable in the eye of law. Plaintiff/respondent argued that blocking the capital for so long ipso facto proves the damage which the plaintiff suffered and no further evidence is required. On perusal of the pleading and the evidence on record, in that context, this Court finds that the claim of damage by the plaintiff is not sustainable in view of the deficiency of pleading and lack of proof. It is the settled position of law that a pleading should consist of the material facts. When a person is claiming damage, he has to specifically plead the manner in which he suffered the loss to justify the damage in the manner it is claimed. In that respect, in the plaint nothing has been indicated as to why the plaintiff made a claim of damage. All that has been stated in paragraphs 5 and 7 of the plaint is that plaintiff charged interest by way of damage @ 12% per annum from the date of submission of bill till payment. He assessed the damage at Rs. 4,140/- (Rupees Four thousand One hundred forty) from 25-8-1974 to 25-8-1977. In his deposition also plaintiff as P.W No. 1 did not state how he sustained the damage. As noted above, plaintiff/respondent argued that non payment of the Bill for so long ipso facto proves the damage. That contention would have been appreciated and accepted if such a case would have been pleaded by the plaintiff or if his evidence should have been in that manner while being examined as P.W No. 1. Plaintiff's claim for damage is on the basis of an endorsement on the back of the Indent Order, Ext. 1. The printed portion mentioning the conditions includes the Condition No. 6 by stating that 12% interest shall be charged if the Bill is not cleared within a period of fifteen days. Plaintiff cannot charge interest because he is not undertaking a trade for profit by advancing loans. On the other hand he would have been within his legitimate limitations if he could have claimed for damage for blocking of his capital and the rate of damage being substantial at the rate of 12%. Such a case, as noted above, being not made out by the plaintiff at any stage, therefore, blocking of the capital by non payment of the claimed amount in the Bill does not entitle him to automatically get a decree for damage @ 12%, as has been claimed by him and decreed by the Court below. Therefore, this Court finds that on the basis of the pleading of the parties and existing evidence on record, plaintiff is not entitled to a sum of Rs. 4,140/-, which he has claimed as damage. However, this Court does not interfere with the judgment in awarding the future interest @ 6% on the bill amount, i.e, Rs. 11,500/- (Rupees Eleven thousand five hundred).

13. In the result, the decree for Rs. 15,640/- is modified to a decree of Rs. 11,500/- (Rupees Eleven thousand Five hundred) with pendente lite and future interest @ 6% per annum on that decretal dues and the decree for Rs. 4,140/- (Rupees Four thousand One hundred Forty) towards the damages is set aside.

The appeal is allowed accordingly in part. Parties are directed to bear their respective costs of litigation so far as this forum is concerned. Hearing fee is assessed at the contested scale.

Appeal partly allowed.