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Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Chatterjee, J.
Acts
  • Insolvent Act, (11 & 12 Vic, c. 21),
  • Sec. 70 of the Contract Act
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Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Judges
  • Chatterjee, J.
Acts
  • Insolvent Act, (11 & 12 Vic, c. 21),
  • Sec. 70 of the Contract Act
See more information ...
Smart Summary

Analytical Summary of the Opinion delivered by Chatterjee, J.

Factual and Procedural Background

This opinion addresses a preliminary challenge to the validity of a notice served under Section 80 of the Code of Civil Procedure. The central factual matrix, as stated in the opinion, is that the plaintiff, Mr. Bhupal Chandra Dutt (Proprietor, Art Press), performed Government printing work at the request of the Manager, Government of India, Central Forms Stores, presented bills (two specified bills), and alleges non-payment despite acceptance of the bills by the Manager. A notice dated 11 August 1945, signed by Messrs. Charu Chandra Bosu, was served on the Secretary, Government of India (Labour Department) purportedly under Section 80, informing the Government that the client intended to file a suit after two months.

The Governor-General in Council challenged the suit on grounds that the Section 80 notice was not in conformity with the statutory requirements. The specific objections to the notice were: (a) the plaintiff's place of residence was not specified (the notice used the business address), and (b) the cause of action stated in the plaint differed from the cause of action as described in the notice. Counsel for the Government relied on a Division Bench decision (Hiralal Murarka v. Mangtulal Bagaria) to argue that absence of a proper Section 80 notice (or absence of an averment of service in the plaint) requires dismissal of the suit under Order VII, Rule 11. The Court elected to try the validity of the notice as a preliminary issue.

Legal Issues Presented

  1. Whether the notice dated 11th August 1945, addressed by Messrs. Charu Chandra Bosu to the Secretary, Government of India (Labour Department), was in conformity with Section 80 of the Code of Civil Procedure.
  2. Whether defects alleged in the notice — specifically (a) omission of the plaintiff's place of residence (use of business address) and (b) an asserted difference between the cause of action in the notice and that in the plaint — render the notice invalid and therefore deprive the Court of jurisdiction to entertain the suit under Order VII, Rule 11.
  3. Whether notices under Section 80 must be construed strictly (to the level of pleadings) or whether a liberal/common-sense construction is permissible provided the notice substantially informs the Government of the nature of the claim.

Arguments of the Parties

Arguments for the Governor-General of India in Council (Counsel: Mr. H.K. Bose)

  • Reliance on the Division Bench decision in Hiralal Murarka v. Mangtulal Bagaria: where no notice in terms of Section 80 has been given and there is no averment in the plaint that such notice was delivered, the Court must dismiss the suit under Order VII, Rule 11.
  • The notice in this case is defective because the plaintiff's place of residence was not specified — the address given in the notice was that of the Art Press (business address), not expressly the personal residence.
  • The cause of action stated in the plaint differs from the cause of action as described in the notice: there is no explicit mention in the notice of the plaintiff's claim under Section 70 of the Contract Act nor an explicit allegation that the Manager was the agent of the Defendant.

Arguments for the Plaintiff (Counsel: Mr. Sen)

  • The Division Bench decision relied upon does not stand for the proposition that a suit must be dismissed where a notice has in fact been given and the plaint contains an averment that such notice was served; a court cannot reject a plaint under Order VII, Rule 11 when it contains an averment that a Section 80 notice has been served.
  • The notice, while not drafted in the cleanest language, substantially fulfills the object of Section 80 by informing the Government of the nature of the claim and giving the Government an opportunity to investigate or settle, and therefore should be held sufficient.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Hiralal Murarka v. Mangtulal Bagaria Held that a Court must dismiss a suit under Order VII, Rule 11 when no Section 80 notice has been given and there is no averment in the plaint that such notice was delivered or left; decisions on the merits are not res judicata in a subsequent suit. The Court regarded this Division Bench decision as binding on the judge for the proposition that if the notice is not in conformity with Section 80, the suit must be dismissed. It prompted the Court to decide the validity of the notice as a preliminary issue.
Bhagchand Dagadusa v. Secretary of State for India in Council Lord Sumner held that Section 80 is express, explicit and mandatory; it is not merely procedural and admits of no exceptions; it imposes an obligation on the Court not to entertain a suit unless there is a valid notice. The Court relied on this authority to emphasize the mandatory character of Section 80 and the consequence that, in the absence of a valid notice, there is no properly instituted suit to be tried.
Bhagchand v. Secretary of State and Vellyan Chettiar v. Governor of Madras Privy Council judgments referenced in relation to construction of Section 80 (context provided in the opinion). The Court observed that these Privy Council judgments do not militate against a liberal construction of notices under Section 80 in the circumstances of the present case.
Jehangir M. Cursetji v. The Secretary of State for India in Council Held that a notice is sufficient if it informs authorities generally of the nature of the suit; notices should not be construed too strictly or as pleadings and need not set out all details. Cited to support the proposition that Section 80 notices must be given a liberal construction and that the notice in the present case was sufficient to inform the Government of the nature of the claim.
Secretary of State v. Hargovandas Narottamdas Shah Supportive authority for the view that Section 80 notices should not be too strictly construed. Used to reinforce the Court's adoption of a broad/liberal approach to sufficiency of notice.
Secretary of State v. Nagorao Tanko Deshmukh Supportive authority for liberal construction of notices. Relied upon to confirm that the notice need only substantially inform the Government of the nature of the suit.
Jones v. Nicholls Observed that courts should import common sense into interpretation of notices of this kind and interpret them in light of common sense. Cited to support interpreting the notice in a common-sense and broad manner rather than with overly technical strictness.
Prasaddas Sen v. K.S. Bonnerjee and Chandulal Vedilal v. Government of the Province of Bombay Authorities adopting a broad view of what constitutes a sufficient Section 80 notice. Invoked to support the proposition that if the defendant can readily approach the plaintiff for negotiation or tender of amends, a broad view of notice sufficiency is permissible.
Secretary of State v. Chimanlal All that is needed is that the plaintiff be described so that he can be identified without difficulty, enabling the Government to deal with him. Applied to hold that stating the plaintiff's business address (Art Press) was sufficient for identification and did not amount to fatal omission of place of residence.
Re: Howard Brothers; In re Hurruck Chund Golicha Authorities interpreting the word "reside" (under the Insolvent Act) as including occupation for purpose of trading; business occupation can amount to "residence" for statutory purposes. Used to support the view that a business address can be treated as a sufficient statement of residence for purposes of identification in a Section 80 notice.
Sheikh Mohammad Zia v. United Provinces A Division Bench held that defects in a notice which are mere technicalities should not operate to defeat a suit. Cited to support the conclusion that technical defects in the notice should not lead to dismissal where the defendant is not prejudiced and the Government's opportunity to investigate has not been frustrated.

Court's Reasoning and Analysis

The Court began by identifying the narrow preliminary question: whether the Section 80 notice dated 11 August 1945 complied with statutory requirements. The Court recognized two competing lines: (a) authorities establishing the mandatory nature of Section 80 (including Bhagchand Dagadusa) and a Division Bench decision (Hiralal Murarka) holding that absence of Section 80 notice or of an averment of its service in the plaint requires dismissal under Order VII, Rule 11; and (b) authorities and counsel's submissions favouring a liberal, common-sense construction of notices which requires only that the notice substantially informs the Government of the nature of the claim.

The Court explained the legal significance of Section 80: notice is a condition precedent to instituting a suit against the Crown or a public officer; in the absence of a valid notice there is no properly instituted suit and the Court lacks jurisdiction to try issues arising from the action. The mandatory character of Section 80, as laid down by Lord Sumner, was acknowledged by the Court and required the judge to dismiss the suit if the notice were found not to conform to the statutory requirements.

The Court then examined the two specific attacks on the notice as raised by the defendant: (1) that the notice failed to state the plaintiff's place of residence (using a business address instead), and (2) that the cause of action in the notice differed from the cause of action pleaded in the plaint (no explicit reference to Section 70 of the Contract Act or to agency in the notice). The notice text and the plaint were compared: the bills listed in the notice corresponded to bills annexed to the plaint; the plaint alleged that the plaintiff had purchased the Art Press and had executed orders at the Manager's request and submitted bills which were accepted but unpaid.

Applying the legal principle that the object of Section 80 is to give the Government adequate warning of the claim so as to permit investigation or settlement, the Court held that notices should receive a liberal and pragmatic construction. The Court relied on several authorities (Jehangir Cursetji, Hargovandas Shah, Nagorao Deshmukh, Jones v. Nicholls, among others) to justify reading the notice in a common-sense way and to avoid treating notices as though they were pleadings requiring all particulars and legal labels.

On the specific point of identification, the Court held that a plaintiff must be described so as to be identified without difficulty; a business address used in the notice where the plaintiff carries on business does not amount to a fatal omission of "place of residence." The Court referred to authorities interpreting "reside" in related statutory contexts to include occupation for trading and quoted case law holding that technical defects should not defeat a suit if the defendant is not prejudiced.

Considering these factors and the lack of demonstrated prejudice to the Government, the Court concluded that the notice "substantially" conformed with Section 80 because it fulfilled the statutory object of informing the Government of the nature of the claim and enabling investigation or negotiation.

Holding and Implications

Core Ruling: The Court decided the preliminary issue in favour of the Plaintiff — the 11th August 1945 notice was held to be substantially in conformity with Section 80 of the Code of Civil Procedure and therefore the suit was not to be dismissed on that ground.

Direct consequences and orders given in the opinion:

  • The preliminary issue on the validity of the notice was decided for the plaintiff.
  • The Defendant (Governor-General in Council) was ordered to pay to the Plaintiff one day's costs of hearing as of a defended suit on scale No. II, certified for two Counsel.
  • The suit was directed to proceed to be heard on the merits.

Broader implications: The opinion applies and relies on existing precedents concerning the mandatory character of Section 80 and the permissible liberal construction of notices; the judgment does not purport to lay down a new precedent beyond applying these principles to the facts before the Court.

Show full summary ...

    Bhupal Chandra Dutt v. The Governor-General Of India In Council

    The Judgment of the Court was delivered by

    Chatterjee, J.:— In this case an issue has been raised — Is the notice dated the 11th August, 1945, addressed by Messrs. Charu Chandra Basu to the Secretary, Government of India, Labour Department, in conformity with Sec. 80 of the Code of Civil Procedure?

    2. Mr. H.K Bose, Counsel for the Governor-General of India in Council, has drawn my attention to a judgment of a Division Bench of this Court in Hiralal Murarka v. Mangtulal Bagaria(1). In that case McNair, J. and Gentle, J., have taken the view that the Court must dismiss a suit under Or. 7, r. 11, when no notice in terms of Sec. 80 has been given to a public servant and no averment is made in the plaint that such notice has been delivered or left. The learned Judges have held that any decision on the merits is not res judicata in a subsequent suit. Counsel for the Plaintiff, Mr. Sen, contends that this case is no authority for the proposition that a suit must be dismissed when a notice had in fact been given and there is an averment in the plaint to that effect.

    3. In my view Mr. Sen is right when he contends that a Court cannot reject a plaint under Or. 7, r. 11, when it contains an averment that a notice under Sec. 80 has been served. Under Or. 7, r. 11(d) the plaint shall be rejected where the suit appears from the statement in the plaint to be barred by any law.

    4. Where the notice is not in conformity with the mandatory requirements of the statute, the Court has no jurisdiction to try the case. Notice is condition precedent to the institution of the suit. The language of the section is “No suit shall be instituted against the Crown or against a public officer — until the expiry of two months after notice in writing has been given.” In the absence of a valid notice the position is as if no action has ever been brought. There is no properly instituted suit to be tried. The Court cannot adjudicate any issue arising out of the suit. The Court is really debarred from entertaining the suit instituted without compliance with Sec. 80.

    5. I have decided to try the issue as to the validity of the notice as a preliminary issue. On the authority of the above decision which is binding on me, I am bound to dismiss the suit, if I hold that the notice is not in conformity with the requirements of Sec. 80. Lord Sumner in Bhagchand Dagadusa v. Secretary of State for India in Council(2) held that Sec. 80 is express, explicit and mandatory and it admits of no implications or exceptions. He rejected the contention put forward before the Judicial Committee that the section deals with mere procedure. Sec. 80 imposes a statutory and unqualified obligation upon the Court not to entertain a suit, unless there is a valid notice.

    6. The notice in this case has been attacked on two grounds: (a) The name, description and place of residence of the Plaintiff have not been stated and (b) the cause of action pleaded in the plaint is different from the cause of action stated in the notice.

    7. The notice in question is in following terms:—

    11th Aug., 1945.

    “The Secretary,

    Government of India,

    (Labour Department)

    Dear Sir,

    We address you on behalf of our client Mr Bhupal Chandra Dutt, Proprietor, Art Press of No. 20, British Indian Street, Calcutta under the following circumstances:—

    We understand from our client that under instructions from the Manager, Government of India, Central Forms Stores of No. 166, Dharmatolla Street, Calcutta, our client did Government printing works and submitted his bills to him. The particulars of the said bills are as follows.—

    (1) Bill No. B/418/43 dated 21st September, 1913, for Rs. 1919-11-0.

    (2) Bill No. B/825/44 dated 7th December, 1914, for Rs. 3021-9-0.

    The bills were duly accepted by the Manager, Central Forms Store, but no payment has as yet been made inspite of repeated requests made by our client.

    In the circumstances, we have been instructed by our client to inform you that our client intends to file a salt for the recovery of his dues mentioned above against the Governor-General in Council after the expiration of 2 months from the receipt hereof.

    Please treat this as a notice under Sec. 80 of the Civil Procedure Code.

    Yours truly,

    Sd.— Charu Chandra Bosu”.

    8. The Plaintiff is described in the notice as “Mr. Bhupal Chandra Dutt, Proprietor, Art Press of No. 26, British Indian Street, Calcutta.” Mr. Bose attacks the notice on the ground that the place of residence has not been specified and he points out that the address given is really that of the Art Press of which the Plaintiff is the proprietor. Secondly, he contends that the cause of action stated in the plaint is different. In paragraph 1 of the Plaintiff the Plaintiff states that on the 30th June, 1943, he purchased the business known as the Art Press with all its assets and goodwill. In paragraph 2 it is alleged that the Defendant through its agent the Manager, Central Forms Stores, had placed various orders with the Art Press. In paragraph 3 the Plaintiff states that he notified the Manager of his purchase of the said Press and he was from time to time requested by the Manager to execute the pending orders and that he never intended to do the work gratuitously — In subsequent paragraphs the Plaintiff states that he duly executed the orders and submitted bills. Copies of the bills are annexed to the plaint. The Plaintiff states that he executed all the orders as requested by the Manager as the agent of the Defendant and that the Defendant had the benefit of the work done by him. The bills referred to in the plaint are the bills mentioned in the notice. The Plaintiff makes a claim for the total amount of the bills and states in the plaint that no objection was ever raised as to the correctness of the bills. It is urged that in the notice there is no express mention of the case made under Sec. 70 of the Contract Act nor of the case that the Manager aforesaid was the agent of the Defendant.

    9. In my opinion the notice is substantially in conformity with Sec. 80. The notice could have stated the requisite details in cleaner language. The object of serving notice under Sec. 80 is to give the Government sufficient warning of the case which is going to be instituted against it so that the Government may, if it so wishes, settle the claim without litigation or afford restitution without recourse to a Court of law. The Government in my opinion was in this case given an opportunity of investigating the alleged cause of complaint. A liberal construction should be put upon the section. The notice is sufficient if it substantially fulfills its object in informing the Government or the public officer of the nature of the suit to be filed. In my opinion the Privy Council judgment in Bhagchand v. Secretary of State and Vellyan Chettiar v. Governor of Madras(3) do not militate against this view.

    10. In Jehangir M. Cursetji v. The Secretary of State for India in Council(4) the Government was sued for damages for defamation. The notice was attacked on the ground that it did not allege malice, although in the plaint the Plaintiff charged malice against the officers of the Government. Tyabji, J., held that the notice was sufficient, as the notice informed the authorities generally of the nature of the suit which was intended to be filed against them. Such notices must not be too strictly or too narrowly construed. They must not be construed as if they were pleadings and they need not set out all the details or facts of the case which the Plaintiff intends to prove. The same view has been taken in Secretary of State v. Hargovandas Narottamdas Shah(5) and in Secretary of State v. Nagorao Tanko Deshmukh(6).

    11. In Jones v. Nicholls(7), Pollock, C.B, observed that the Court should import a little common sense into notices of this kind. The Court should look at the wording of the notice and interpret it in the light of common sense. The same view has been taken in Prasaddas Sen v. K.S Bonnerjee(8) and Chandulal Vedilal v. Government of the Province of Bombay(9). In the Calcutta case Rankin, C.J, held that if the Defendant has no real difficulty in approaching the Plaintiff for the purpose of making a tender of amends or otherwise negotiating with him, it is open to the Court to take a broad view as to the sufficiency of the notice. In the Bombay case Beaumont, C.J, observed that the object of the notice is to give the Government or the officer concerned notice of the claim which is going to be made against them and to give them reasonable time in which to consider their re-actions.

    12. There has not been in this case any violation of the spirit and intention of Sec. 80.

    13. All that is needed is that the Plaintiff must be described in such a manner that he can be identified without any difficulty so that the Government may deal with him, if it is so advised, Secretary of State v. Chimanlal(10). It will be pushing technicality to absurd limits if the Court has to dismiss a suit because the Plaintiff has described himself in the aforesaid manner in the notice. “He is a business-man and he carries on business at No. 20, British Indian Street. There is nothing to indicate that he does not reside there. Take the case of a firm or a corporation. It would be sufficient to state in the notice the business address. The words “reside” or “residence” should be construed according to the intention of the legislature. The residence of an incorporated trading company is its principal place of business. The word “reside” in the Insolvent Act, (11 & 12 Vic, c. 21), when applicable to traders, was held to include occupation for the purpose of trading, whether or not accompanied by sleeping or dwelling. In Re: Howard Brothers(11) and In re Hurruck Chund Golicha(12). In Sheikh Mohammad Zia v. United Provinces(13) a Division Bench of the Allahabad High Court (Collister and Allsopp, JJ.) observed that defects in a notice which are sheer technicalities should not operate to defeat a suit. The Defendant, in my opinion, cannot be and has not been prejudiced in any way. The suit is substantially one for the amount due for work done by the Plaintiff at the request of the Defendant's Manager and there is no real variation between the notice and the plaint which would justify the dismissal of the suit.

    14. I decide the preliminary issue in favour of the Plaintiff. The Defendant must in any event pay to the Plaintiff one day's cost of hearing as of a defended suit on scale No. II, certified for two Counsel. The suit will now be heard on the merits.

    N.D.R

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    Comments

    Bhupal Chandra Dutt v. The Governor-General Of India In Council
    (Jul 6, 1948)