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Judges
  • Suhrawardy
  • Costello, JJ.
Acts
  • section of the Code of Civil Procedure.6.
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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Suhrawardy
  • Costello, JJ.
Acts
  • section of the Code of Civil Procedure.6.
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Smart Summary

Structured Summary of the Opinion (Costello, J.)

Factual and Procedural Background

Three suits were originally brought against certain receivers in which the plaintiffs claimed general accounts. Before conclusion, the plaintiffs' claims against two sets of receivers were adjusted to their satisfaction, leaving the Court of first instance to decide only in respect of one set of receivers — Babus Brindaban Chandra Basak and Purna Chandra Sarkar — and 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. An appeal was preferred to the Court of the District Judge of Dacca, which reversed the Subordinate Judge. This opinion arises from a subsequent appeal to the present Court.

Key procedural timeline stated in the opinion:

  • Suit instituted: 1 February 1924.
  • Written statement filed: 16 June 1924.
  • Issues framed: 19 July 1924 (no issue framed on the notice under S. 80).
  • Defendants first raised the notice point by application: 11 February 1926.
  • Trial began: 23 March 1927 (defendants' evidence taken; the notice question was seriously canvassed only after evidence had been taken).
  • The plaintiffs' relief had, by the time of hearing, become barred by limitation (more than three years had elapsed from when the receiver ceased to function).

Legal Issues Presented

  1. Whether a receiver appointed by the Court is a "public officer" within the meaning of Section 2 of the Code of Civil Procedure (CPC) and therefore entitled to the notice prescribed by Section 80 of the CPC as a condition precedent to suit.
  2. Whether the defendants' failure to raise the objection of non-receipt of notice under Section 80 at an earlier stage amounts to waiver (or estoppel) and therefore prevents them from relying on that objection at the late stage when it was first seriously pressed.
  3. A subsidiary point (not determinative of liability): the proper mode of taking accounts (this point was said not to materially affect the question of the receiver's liability).

Arguments of the Parties

Appellants' Arguments (as described in the opinion)

  • The appellants (the party described as making the waiver contention before the Additional District Judge) contended that the respondents delayed in taking the plea that notice under Section 80 was required and that such delay operated as a waiver of the privilege, thereby precluding the respondents from relying on the absence of notice.
  • It was argued that the defendants should have taken the objection at the earliest possible opportunity and specifically pleaded it; failure to do so and raising it only at a late stage (after evidence and after limitation issues arose) amounted to waiver and caused prejudice to the plaintiffs.

Respondents' Arguments (as described in the opinion)

  • The respondents contended that as receivers they were "public officers" under the definition in Section 2 of the CPC and therefore were entitled to the notice provided by Section 80 of the CPC; the absence of such notice should bar the plaintiffs' suit.
  • When the point was raised before the lower Courts, the Subordinate Judge and the Additional District Judge accepted, in principle, that a receiver is entitled to the S. 80 notice (subject to the factual and equitable circumstances).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sm. Radharani Dassya v. Puma Chandra Sarkar, A.I.R. 1930 Cal. 737 Cited as a direct authority supporting the proposition that a receiver is a public officer for the purpose of Section 80 of the CPC. The Court referred to this decision as a pertinent and apparently direct authority on the proposition, but the present Court did not find it necessary to express a definite opinion on the underlying question because the appeal could be decided on the respondents' waiver.
Manindara Chandra Nundi v. Secretary of State, [1907] 34 Cal. 257 Principle that a defendant may be held to have waived the right to claim non-receipt of notice or may be estopped from pleading it if conduct warrants such a conclusion. Cited by the Court as authority supporting the view that the defendant (or respondent) may have waived the notice objection; the Court relied on this reasoning to support its conclusion on waiver.
Bholanath Roy v. Secretary of State, [1913] 40 Cal. 503 Held that 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. Used to reinforce the Court's conclusion that late assertion of the S. 80 objection, where it prejudices the plaintiff, can amount to waiver and preclude reliance on the objection.
Murari Lal v. E.V. David, AIR 1925 All. 241 On its facts, held that the right to notice under Section 80 CPC cannot be treated as waived merely because the receiver did not object until a late stage, especially where there was no prejudice to the plaintiff. The Court distinguished this authority on its facts: Murari Lal allows late objection where no prejudice results, but in the present case the Court found prejudice (statute-barred relief) and therefore held Murari Lal inapposite to the facts before it.

Court's Reasoning and Analysis

The Court identified two principal points argued on appeal but determined that the first — whether notice under Section 80 CPC was a condition precedent because receivers are public officers — was dispositive. The judges summarized the reasoning of the lower Courts: the Subordinate Judge held that a receiver is a public officer within Section 2 and thus entitled to Section 80 notice; the Additional District Judge agreed in principle but nevertheless found the respondents had forfeited that right by their conduct.

The present Court observed that there had been a recent decision (Sm. Radharani Dassya v. Puma Chandra Sarkar) that appears to support the proposition that a receiver is a public officer; however, the Court explained that it was not necessary to decide definitively whether a receiver is a public officer for the purposes of S. 80 because the respondents had, in the Court's view, so conducted themselves as to lose the privilege afforded by Section 80.

The Court then examined the factual chronology and procedural conduct:

  • The defendants did not mention the notice objection in their written statement filed on 16 June 1924, and issues were framed on 19 July 1924 without any question framed on entitlement to notice under S. 80.
  • The defendants first applied to the Court on 11 February 1926 to urge that they were entitled to notice; the order on that application (recorded as "Defendant 2 has filed a further written statement") did not show whether the plaintiffs had notice of the application or had been given an opportunity to answer that new and vital plea.
  • The trial only began on 23 March 1927; evidence was taken (including the defendants' evidence) and only after evidence had been taken was the question of S. 80 notice seriously contested.
  • By the time the suit came on for full hearing, any relief which the plaintiffs might have had against the defendants had become barred by the statute of limitation (more than three years had elapsed from when the receiver had ceased functioning).

Applying principles of waiver and estoppel as recognized in English authorities and in prior decisions of this Court, the judges held that a plea that constitutes a clear bar (such as want of notice under S. 80, if available) must be taken at the earliest possible opportunity and specifically pleaded. Because the respondents raised the point only at a much later stage and in circumstances that prejudiced the plaintiffs (precluding a fresh suit because of limitation), the respondents were held to have waived the privilege. The Court distinguished Murari Lal v. E.V. David on the ground that in Murari Lal there was no prejudice to the plaintiff, whereas in the present case there was clear prejudice.

The Court therefore resolved the appeal on grounds of waiver and procedural unfairness, and expressly declined to express a final view on the underlying substantive question (whether a receiver is, as such, a public officer for the purposes of S. 80), because that question was unnecessary to the disposition of the appeal.

Holding and Implications

Holding: The Court dismissed the appeal. The opinion concludes: "We accordingly dismiss this appeal with costs." (Final line: "Appeal dismissed.")

Implications:

  • Direct effect: The appeal was dismissed and costs were awarded (the Court ordered dismissal with costs).
  • Substantive question avoided: The Court explicitly did not express a definite opinion on whether a receiver is a public officer for the purposes of Section 80 CPC because it resolved the case on waiver/estoppel grounds given the specific procedural facts and prejudice to the plaintiffs.
  • No new broad precedent on the substantive issue was established by this judgment because the Court's decision rested on waiver; the Court relied on existing authorities on waiver and distinguished Murari Lal where appropriate.

Judge(s): Costello, J. (opinion), with Suhrawardy, J. concurring ("I agree").

Show full summary ...

    Purna Chandra Sarkar v. Radharani Dassya And Others

    Costello, J.:— 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 set of receivers, namely Babus Brindaban Chandra 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 of the CPC, 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 of the CPC, a receiver is a public officer and as such is entitled to notice as prescribed by the provisions of Section 80 of the CPC, and he was of opinion that these provisions not being complied with, the plaintiff's suit ought to fail.

    3. 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 of the CPC, 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 S. 1, that consequently he was entitled to the privilege conferred on a public officer by Section 80 of the CPC. 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 Section 80 of the CPC. I refer to the case of Sm. Radharani Dassya v. Puma Chandra Sarkar . A.I.R 1930 Cal. 737 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 of the CPC. 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.

    4. 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 Section 80 of the CPC. 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 S. 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 S. 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 S. 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 cases we think that even upon the assumption that the Courts below were right in thinking that the receiver is entitled to a notice under S. 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 S. 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 S. 80. The appellants contend from this that the effect that delay was to cause the privilege, if it existed, to be waived.”

    5. 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 reason-able 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 Code of Civil Procedure.”

    6. 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.”

    7. 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”

    8. 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 even 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.

    9. 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 plaintiffs 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 S. 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 S. 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 Affer 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 Jon 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.”

    10. 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 . AIR 1925 All. 241. On the facts of that case it was held that the right to such notice under Section 80 of the CPC, 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.:— I agree.

    K.N/R.K

    11. Appeal dismissed.

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    Comments

    Purna Chandra Sarkar v. Radharani Dassya And Others
    (Jul 23, 1930)