Surendra v. Jagat

Varma, J.:— This is an appeal on behalf of defendant no. 3 in a suit by the plaintiff for realization of a certain sum of money as the price of seeds supplied to the defendants under different contracts as the defendants were running the Victoria Mills. The trial Court dismissed the suit on the ground that notice under section 80 of the Civil Procedure Code was not served on defendant no. 3 although he was a receiver appointed by a Court in charge of the Victoria Mills. It also held that the plaintiff had no cause of action against the other defendants. On appeal before the Additional District Judge it was held by him that the suit was maintainable and notice under section 80 of the Civil Procedure Code was not necessary. He accepted the finding of the trial Court about the non-liability of the other defendants.

In order to appreciate the points raised by Mr. P.R Da's it is necessary to give a few more facts. The defendants have got a mill in the town of Bhagalpur known as the Victoria Mill Company. They manufacture different kinds of oil. The business of the mill according to the plaintiff, is carried on through the manager, Mr. C.S Ghosh. The plaintiff used to supply seeds and it is for the price of the seeds that he has sued the defendants. In the year 1932 there was a suit for partition of the ancestral property of the defendants including the mill in question, amongst the four brothers, and the Court by its order dated the 8th of September, 1933, appointed defendant no. 3 to be the receiver of the properties which were the subject-matter of partition. The mill was placed in his charge as the receiver. The business of the mill was carried on by the defendant as receiver through the manager, Mr. C.S Ghosh. The lower appellate Court points out, while dealing with the question of notice under section 80, that it was true that the transactions in respect of which the suit was filed were subsequent to the appointment of defendant no. 3 as the receiver of the mill. The order appointing him is Exhibit C in the case. By this order he was appointed the receiver and was enjoined to work the mill and manage the business to his best skill and ability, to submit monthly accounts, and to see that the cash and assets of the mill were not affected in any way. He was to get 25 per cent, of the net profits as remuneration as receiver and was to deposit the rest of the profits if any, to be distributed amongst the parties at the time of partition. After referring to the evidence in the case, the lower appellate Court points out that, although defendant no. 3 was appointed receiver of the mill all its business used to be carried on by a manager, Mr. C.S Ghosh. All the letters appear to have been written by the manager Plaintiffs witness no. 1 said that he had no information before the institution of the suit that Babu Surendra Nath Chatterji was appointed the receiver by the court in a partition suit. The lower appellate Court also points out that the letters that were addressed by the manager to the plaintiff did not appear to show that the manager was writing on behalf of the receiver. In these circumstances the lower appellate Court held that the order appointing defendant no. 3 as receiver was not an order which would operate as an order in rem.

The lower appellate Court has relied upon the case Reoti Mohan Das v. Jitendra Mohan Ghosh in which their Lordships of the Judicial Committee held that in a case of a suit against a public officer it is only where the plaintiff complains of some act purporting to have been done by him in his official capacity that a notice under section 80 of the Civil Procedure Code is enjoined and the failure to pay a claim by a public officer cannot be said to be an act purporting to be done by him in his official capacity. Therefore, the lower appellate Court found that the failure to pay the dues of the plaintiff by defendant no. 3 did not amount to an official act and consequently it was not necessary for the plaintiff in the present case to serve a notice under section 80 of the Civil Procedure Code upon him. The lower appellate Court also refers to the decision of this Court in Sri Sri Joti Prasad Singh Deo Bahadur v. Samuel Henry Sedden. The case there also turned upon the question whether the claim was against the receiver with regard to acts which purported to have been done by the receiver in his official capacity. Chatterji, J. in his judgment observed that non-payment of the royalty could not be said to be an official act done by the receiver and consequently the suit was not bad for want of a notice on the receiver. The lower appellate Court referred to the cases relied upon by the trial Court: Jagdish Chandra Deo v. Devendra Prasad Bagchi Bahadur. Bhag Chand Dagadush v. Secretary of State for India in Council; and Purna Charan Sarkar v. Radharani Dassya; and held that these cases did not apply to the facts of the present case.

Mr. P.R Das appearing for the appellant has urged that the receiver is a public servant, that the provisions of section 80 of the Civil Procedure Code are mandatory as was held in Bhag Chand Dagadusa's case, and that on the provisions of section 80 it had to be established that the cause was an official act and the receiver was personally liable. In the present case, Mr. Das urges that although the suit was filed against defendant no. 3 in his personal capacity, by an amendment of the plaint on the 25th of June, 1941, defendant no. 3 was described as a receiver and therefore it attracted the provisions of section 80. section 80 of the Civil Procedure Code runs as follows:—

“No suit shall be instituted against the Crown or against a public officer in respect of any act purporting to be done by such officer in his official capacity until the expiration of two months next after notice in writing has been delivered to, or left at the office of (a) in a case of a suit against the Central Government, a Secretary to that Government, (b) in a case of a suit against the Crown representative the Political Secretary, (c) in a case of a suit against the Provincial Government, a Secretary to that Government or the Collector of that district and (d) in a case of a suit against the Secretary of State, a Secretary to the Central. Government or the Political Secretary and a Secretary to the Provincial Government where the suit is instituted and in a case of a public officer delivered to him or left at his office, 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 statement that such notice has been so delivered or left.”

In the present case there is no doubt that defendant no. 3 was appointed a receiver and a receiver appointed by a court of law is a public officer. The question that we have to consider is whether the suit was against him in respect of any act “purporting to be done” by him in his official capacity. Now, the expression “purporting to be done” was the subject-matter of consideration, in Koti Reddi v. Subbiah. On account of a difference between two Judges of a Division Bench the case was referred to a Full Bench. Both the referring Judges were of opinion that the acts done by the defendant came within the words “any act purporting to be done by such public officer in his official capacity” but the point for decision that was referred to a Full Bench was, “whether in consequence of his want of bona fides defendant no. 1 forfeited his right to notice before suit under section 80, Civil Procedure Code”. Sadasiva Aiyar, J. in his judgment, while referring to this expression pointed, out that “the verb ‘purport’ is defined in the Concise Oxford Dictionary as ‘convey’, ‘state’, ‘profess’, ‘be intended to seem’; and the Latin root signifies ‘carry forth’. The synonym ‘profess’ has as two of its definitions ‘pretend’ and ‘openly declare’. He said “I therefore think that the expression ‘any act purporting to be done by such public officer in his official capacity’ found in section 80, Civil Procedure Code; means ‘any act of a public officer which is intended by him to carry’ forth or convey to the minds of all persons who become aware of that act the impression that he did the act in his official capacity and not as an ordinary private individual, and which has the effect of conveying such an impression by its seeming or appearance”. Later on, he observes “An act done by public officer would ‘purport’ to be an act done in his official capacity, not only if it was properly and rightly done by him in such capacity and within his powers., but also if it has such a reasonable resemblance (though a false or pretended resemblance) to a proper and right act that ordinary persons could reasonably conclude from the character of the acts and from the nature of his official powers and duties that it was done in his official capacity. But if the act done is so outrageous and extraordinary that no reasonable man could detect in it any resemblance to any act which the powers of such on officer could allow him to do on the facts as represented and declared by such officer, his mere allegation that he did the act in his official capacity would not suffice.” Spencer, J. also observed, “I think that the word ‘purporting’ covers a profession by Acts or by words or by appearance of what is true as well as of what is not true”. On the materials to which the lower appellate Court has referred, there is nothing to indicate that defendant no. 3 purported to act in his official capacity. In this view, of the matter I am of opinion that no notice under section 80 of the Civil Procedure Code was necessary.

As the only point urged on behalf of the appellant, has failed I would dismiss, this appeal with costs. The cross-objection filed on behalf of the plaintiff was evidently filed under a misapprehension of facts and it was not seriously pressed before us. I would, therefore, dismiss the cross-objection, but there will be no order as to costs.

Shearer, J.:— I agree.

Appeal and Cross-objection dismissed.

H.R.K