AMAR NATH DOGRA versus UNION OF INDIA

J.-This appeal, l'Y special leave, is directed against the judgment of the Judicial Commissioner, Himachal Pradesh affirming a decree of the Senior Sub-Judge, l\iandi dismissing the appellant's suit.

p. 659

The facts giving rise to this appeal are briefJy as follows. There was a public auction on :F'ebrua.ry 25, I ~52 at Mandi in Himachal Pradesh for tho grant of a monopoly vend-licence to sell by retail country-liquor for the year April!, 1952 to March 31, · 1953. The appellant was the highest bidder for Rs. 1, 28, 600/-and his bid was accepted. In accordance with the terms and conditions of the auction, 1/6 of the amount of the bid had to be deposited by him within a month. This sum amounting to Rs. 21,460/· was so deposited. The appellant who had started working his licence made payments of the monthly instalments of Rs. 10,714/- each for the months of April and May. Subsequently thereto there were disputes raised by the appellant that the Excise authorities had defaulted in performing certain of the obligations undertaken by them, in the matter of the supply of liquor etc. and there was correspondence relating to it. There appear to have been attempts by the anthorities to remedy the situatlon but apparently the appellant waa not satisfied with the steps taken, with the result that he stopped his sales of liquor and thereafter servf>d a nDtice under s. 80 of the Civil Procedure Code dated September 2, 1952 on Govern· ment making a claim for damages for alleged breach of certain of the stipulations. Aft~r receipt of this notice the Collector of Excise directed the BUSpPDBion o{ the appellant's licence under 8. 36 the Punjab Excise Act, 1914 and thereafter proceeded under s. 39 of tha,t Act to take over the management of the venq-shops which theretofore were under the management of tho appellant. the appellant did not pay the monthly instalmE>nt~ due from a.nd after June, 1952 the Collector also to0k steps for the recovery of these instalments. The appPI1ant then filed a suit No. 345 of 1952 t.he file of the Sub-Judge of Mandi on November 1952 (alongwith rertain others in whose names one other liquor licence had been taken and who were evidently simi1ar1y situated) for a. permanent junction r<:'stra.ining the State of Himachal Prade~h from re11.lising the balance of the licence-fees due from him. Several technical objections wE>re raised to the maintainabibty of that suit and thereafter the suit was withdrawn on !fay 12, 1953, with liberty granted under 0. 23 r. I. Civil Procedure Code file a fresh suit. In pursuance of this liberty the suit out of which the appeal before us arises, was instituted in the Court of the District Judge, Mandi on May 5, 1953, which was substantially one for damages for breach of contract.

pp. 659–660

The Union of India against whom the suit was brought, raised several defences both on the merits as well a.s of a technical Jlature., the latter being mainly two: (l) that the suit was bade for ·want of a proper notice under s. 80 of the Civil Procedure Code, and (2) that the suit was barred under the Punjab Land Revenue Act as applied Himachal Pradesh as weH as under the Punjab Excise Act, 1914 and the Rules made thereunder. The .learned District Judge upheld the technical objections raised but also recorded his findings on the merits and the findings on most of the items of claim were against the appellant. The appellant's suit was dismissed. An appeal was thereupon taken by the appellant to the Judicial Commissioner, Himachal P.radesh who substantially agreed with every one of the findings of th9 learned District Judge both on the technical objections to the suit as well as on the merits in so far as they were against the appellant. He fut·ther rever:sed the finding on one of the items of the claim which the trial-Judge had found in appellant's fa.vout'. The appeal was accordingly dismissed. The appellant thereafter applied tor a certificate of fitiness under AL"t. 133 ( l}(b) for preferring an appeal to this C->urt but the same having been rejected, he applied for and obtained special leave from thi'i Cl)urt and that is how the appeal is now befort: us.

pp. 660–661

It would be seen from the above narration that what may be termed the merits of the appellant's claim for damages could arise for considera. tion only if the suit was maintainable. As we were clearly of the opinion that the appeal must fail principally on the point that the suit. was not maintainable because of the non-compliance of the terms of s. 80 of the Civil Frocedure Code, we did not hear learned Coun~el about the merits of the appellant's complaint regarding breach of contract on the part of the State and the relief to which the appellant would be entitled on that basis.

p. 661

We shall therefore confine ourselves to the statement of the facts necessary for deciding the point regarding the suit not being maintainable because of non-compliance with the requisites of s. 80 of the Civil Procedure Code. The section runs:

p. 661

•'80. No suit shall be instituted against the Government or against a public officer in respect of any act purporting to be done by such public offic~r in his official capac.:ity, until the expiration of two months ne.xt after notice in writing has been delivered to, or Jeft at the office of- ( a) in the case of a bUit al!ainst the Central Government except where it relates to a railway, a Secretary to

pp. 661–662

that Government; (b) .................................................... .

p. 662

(o) ...................................................... . attdJ in the case of a public officerJ delivered to bim or left at his office, stating the cause of action, the name, description and p1ace of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delive-

p. 662

red or left." That to the suits to which s. 80 applies compliance with it is mandatory and that a suit which does not satisfy its terms is liable to be dismissed is not in dispute. The submission which learned Counsel pressed for our acceptance was that there had been a substantial compliance with its terms and it is to this point that we shall address ourselves.

p. 662

As required by the Jast portion of s. 80 reading "the plaint shall contain a statement that such notice has been so delivered or left", the appellant stated in paragraph 20 of his plaint: '(The plaintiff delivered a notice under s. 80, Civil Proced· ure Code containing the requisite particulars to the defendant through the Collector. Mandi on September 4, 1952 and through the Chief Secretary on September 3. 1952. A previous suit for injunction was withdrawn on May 12, 1953 with permission to bring a fresh suit on payment of costs which was deposited on ~lay 13, 1953 per Challan No. 17 of 1953. Copy of the order is attached herewith". The Union of India in the written statement filed by it plc~dcd that this notice did not comply with D~grd J.mn

pp. 662–663

.. .. the requirements of s. 80 and the ·.·. objection was

p. 663

of formula. red thna: . · ~ · ·

p. 663

''A fresh notice w~ . necessary for the institution of this suit • . The plaintiff has failerl to serve such notice under s. 80, Civil · Procedure Code. The notice montioneci in

p. 663

paragraph 20 of the plaint was not valid; it · was d efective a.ncl not ae<.·ording to Jaw. The · prosent suit, · more-over is a.t variance with the notice. The suit shall therefore be dcemeu to b.e without notice and n.ot ma.intaina.blc." '

p. 663

This plea. raised for consideration three matt. era: (1) that "·here after a. notice under s. 80 Civil Procedure Code a suit is instituted but that suit is withdrawn with liberty to file a freJ;h ~nit, it~ the requ ireme nt of s. 80, Ch•il ProcedurE> Co<.le that ther(\ shoulJ be a fre sh notice before the st•cond suit is in~t.ituted . . (2) that the allegat.ions in the plaint and the reJit'fs clnimed in it were at varian· ce with the cause of n.ction and · elit-fo stated in the notice issued under s. SO, a.nd. ( 3) that the notice it.qe}f was defective a~ not complying with the requirements of a. 80. ·

p. 663

\Yt· do n ut .conAiller that there ·is much su')stnnce .in tho firot ohje(•tiou we havt' out abov~. If tho }'W.ii.t wLi<·h i~ being considerf.d by the Conrt ha~J bevn prc>C·edNl hv a notice whi~h a:1tisfics the requireml-~nttJ •~f SO, Civil Procedur~ Codo. then th~· fact tJu.t bcf·)re the pl~.int then un(ler rnnsid<'r· ati·.Jtl, th~;re h~Hl bc~n another t•!aint wLil"·h :Lti been filed and withdrawn oanuot, a.ny prinoiJJl~. be held to have exhausted or ~xt.ingnishod the vitality o( the notice iRatwd. . ·

p. 663

We considt•r it n cut:Jsa.ry to concentrate mainly upon tll., ~t,conrl of tho objections r1t.ised, \'iZ . th11t th3ro wu.s tJuhsta.nt.ial diaconformity bctwe~n the plaint filed by the appellant and the notice under

pp. 663–664

s. 80 which was relied on in paragraph 20 of the "· plaint. It is necessary for this purpose to analyse somewhat closely the allegations and reliefs in the plaint, as well as in the notice to see how far the disconformity and variance pleaded by the respon .. dent. has been made out. We shall begin with the plaint. After reciting the auction dated February 25. Ifl52 under which the vend-licence was leased to the appellant for the year 1952-53 and the material terms and conditions of the auction, the plaint alleged in paragraph 2 that the defendant had broken the contract which entitled the plaintiff to file a. suit for damages. The several heads of claim which went to make up the total of the damages for which a decree was prayed werP- set out in paragraphs 3 to 20. The first head of claim was in relation to loss of profits stated to have arisen on account of inadequate ~upply of liquor. This was stated in paragraph 3 where tho allegation wa8 made that there ha.d been a deficient supply of 632 gallons during the months of May and June, 1952 on account of which the plaintiff lost Rs. 5,112/8/· in the profits that he would ha.l"e derived if the supp1y had been properly made. While paragraph 4 dealt with the non supply of certain special varieties of liquor during the months of April, May and June, paragraph 5 complain('d that there had been a supply of kerosenio and unwholesome liquor whirh had been declared unfit for human consumption by th~ order of the authorities. The damages claimed on this account W('r.., computed in paragraph 18 of the plaint at Rs. 4;22:2/-, being the sum paid into the Treasury by way of exciseduty in respect of liquor which bad been declar-ed unfit for human consumption. A claim was made in tho later paragraph for the refund of this sum. In paragraph 6 an allegation waR made that, the plaintiff had bid at the figure of over one lakh and twenty thousands rupees because of the condition inserted in the terms of the auction that liquor would be snpplied in pilfer-proof bottles with metal covers and because of the non-fulfilment of this condition he had lost Rs.-/8/- per bottle which totalled up toRs. 26, 400/- on the total number of bottles that would have been supplied to him if the oontra.ot had gone on for the full year. In addition, under the sa.me head there was a further c]a.im in paragraph 8 for Rs. 1,047 flO/-, stated to be the loss caused by the · government charging a price based on the supply in pilfer-proof bottles though the supplies were made in ordinary containers. Paragraph 7 made a claim for a sum ofR8. 5,008/11/ stated to be the price of deficient quantity of liquor supplied because of the supply in. under· sized bottles. P~ra.graph 9 contained a complaint that it was a terms of the contract that empty bottles would be bought baok but that this h,ad not beAn done, as a result of which the plA-in· tiff ha.d lost Rs. 931/8/-. Paragraph 10 complainPd that the Government had not t~ken steps to suppr· ese iJJicit distillation which had caused loss, though the loss was neither quantified nor any claim made under that head, wbile paragraphs II to 13 challenged the legality of the artion taken by the Excise a.nthorities in ~uspending the licence and in taking over the vend-shops under their management. In paragraph 16 the pJaint.iff c]aimed a refund of Rs. 21,460/ .. which had bt-·en deposited into the Treasury at the time t.he licenr.e was granted to the appellant. nnd rinalJy in paragraph 19 the p]aint made a claim that by reason of government having broken the contract the plaintiff had lost profit every month of Its. 5. 052/ for the unworked r.eriod of the year of thP licence, i. e. from July 1, 1952 to March 31, 1953 which totalled R~. 45,471/6/-. These several heads added up to Rs. 1,09,653/llfand the plaint went on to state:

pp. 664–665

''The plaintiff is thus entitlt:d to a total refund and compensation of Rs. l,09,653fll/t.he details of which are given in Schedule •B' (which set out the details of the computation by which the figures which we have stated above were arrived at). The plaintiff confines his claim for damages and refund of the amounts paid by and due to him to the extent of Rs. 74,935/8/3 out of the items as may be found due to him."

pp. 665–666

Fina1ly, a.fter making a claim for a decree for this sum the plaint prayed in paragraph 22:

p. 666

''In addition to the grant of the ancillary re1ief of the defendent being permanently restrained from recovering any ]icenee fee or any othf"r duPs from the plaintiff."

p. 666

We shall now turn to the notice of suit which was relied on by the appellant as complying with s. 80 Civil Procedure Code. The notice was by a lawyer who had been instructed to serve the Collector of Mandi and the Chief Secretary, Himachal Pradesh with the notice under s. 80, Civil Procedure Code. After stating t.hat the appellant had been the snccessfuJ bidder at the auction and recitin~ certain of th~ terms of the contract, it stated:

p. 666

"Whereas my client has all along, beginning from April 1, l95:J. onwards, been complying with the obligations under the agreement regarding auction of the said licenses, the Government of Himachal Pradesh has miser- ~· ably failed in honouring and implementing

p. 666

the conditions thereunder''. This was followed by an enumeration of the contraventions and these were : (1) that standard sized bottels were not maintained by ware-house contractors, (2) Liquor was being l:lUpplied in bottles with paper capsules instead of in pilfer-proof bottleP with metal lids, (3) that month after month in respect of urgent demands the quantity liquor required was either inadequately supplied or not supplied at all. These complaints were followed by an exhortation to government to be alive to its obligations and liabilities and the notice proceeded, and this is the important paragraph:

pp. 666–667

HI am hereunder detailing the items and

p. 667

the details which have mounted the damages ' in the above respects as at present accrued ·and would request the Himachal Government to arrange for immediate payment thereof. The loss accrued to L. Amar N ath Dogra in respect of quota unsupplied or when supplied though inadequately in under sized bottles, regarding miscellaneous Excise VIII charged on supplies in ordinary bottles and for not maintaining and enf arcing Buy Back system of empty bottles; together with the return of two months of advance deposits and deposit regarding Uuty and Misc. Excise VIII credit. ed in the treasury at Sunder Nagar · amounts to Rs. 74,935/8/3.

p. 667

I hereby make demand of the said amounts payable to my client which may either be paid direct to him or to me without

p. 667

delay". The question now for consideration is how far and to what extent there is a varianre between the plaint and the notice. At the outset it might be pointed out that as at a very early stage of the suit the appellant withdrew the relief for a permanent injunction, which was not claimed in the notice and the question of this extra relief need not therefore be considered.

p. 667

It would have been noticed that the plaint claim was reduced to Rs. 74,935/8/a obviously because that was the figure that was claimed in the notice of suit. In the notice however how the total of B.s. 74,935/8/3 was arrived at, in what manner the Revera.l items claimed were to he relat· ed to this figure not s~t out. Nor cc..n tboAe details be inferred or gathered from lhe detailed statements whieh accompanied thn plaint on the basis of which the several items claimed in the plaint were derived. There is one other matt~r which requires mention in this connection. There were two items of loss claimed in the plaint which had and could have absolute1y no place in the notice because they arose only after the Government suspended the licence and later cancelled it and touk over the vend-shops under Go·;ernment's own management. These items were : ( 1) Joss on the yearly quota of liquor worked out at Rs. 26,400f·, and(~) the losR of profit for the unwork~d peri<Jd i.e., from July 1, 1952 onwards which was worked out to Hs. 45,471/6/-. If these two items are deducted from the total Rs. 1,09,653/11/·, there would be a balance of only ks. 37_, 782/fi/-, whereas with reference to the same items of complaint a sum of Rs. 74, 935/8/3 was claimed in the notice. .Besides, there is one item which figures both in the notice as well as in the plaint regarding which tho amount is certain and that is in re]ation to the claim for the refund of Rs. 21,460/- being the amount of initial deposit of l/6th of the bid amount which had been paid into the Treasury by the appellant in March, 1952. If this were deducted from Rs. 37,782/5/it would leave a sum of Rs. 16,322/5/- as against Hs. 53,4 75/8/3 which could be the sum which was the subject of c1aim by the appellant in his notice in respect of his three items of complaint, viz., t.he failure to supply standard sized bottles, failure to observe the buy·hack system and non·supply of Jiquor in pilfer-proof bottles. It would therefore be apparent from these oaloulations that there is a complete variance between the claim made in the notice and the claim in the plaint. We desire to make it clear that what we have here is not a case where a claim for a definite sum in the notice is later reduced in the plaint, but one where there is no possibility of establishing any relationship bet. ween the claim made in the suit and that in the notice which precedes it. On the notice the claim under one head, might for all one knows, be for an infin.itemally small sum while the otl:ler was exag· gerlted beyond what is found \n the plaint, and hence there is no means of identifying the claim for any particular sum in the plaint with that for which a claim was being made in the notice.

pp. 667–669

There is one other aspect from which the same matter could be viewed. In the notice served by the appellant there were several heads of claim, though they all arose out of a single contract and we consider that on a reasonable and proper construction of a. 80, Civil Procedure Code the authority on whom the notice is served has a right to be informed what the claim of the party is in respect of each of the several heads. It is, no doubt, true that a notice under a. 80 is not a pleading and need not be <-opy of the plaint and that no particular or technical form is prescribed for such a notice, sti11 having regard to the object for which s. 80 has been enacted we consider that the details which it contains should be sufficient to inform the party on whom it is served of the nature and basis of the claim and the relief sought, and in so stating the position we are merely reproducing the terms of the section. No doubt, a notice has to be interpreted not pedantically but in the light of commonsense without one being hypercritical about the language but the question is whether in tho IJotice before there is substantial information conveyed on tho basis of which the recipient of the uotico could consider the claim of tho would-be plaintiff and avert the suit. For the reasons all'ea.dy Hta.ted this question can only be answered in the negative.

p. 669

Mr. Sastri invited our attention to the decision of this Court in State of Madras v. 0. P. Agencies ( in which Das, C. J.) speaking for the Court, said:

p. 670

"The object of s. 80 is manifestly to give the Government or the public' officer sufficient notice for the case which i.s proposed to be brought against it or him so that it or he may consider the position and decide for itself or himself whether the claim of the plaintiff should be accepted or resisted. In order to enable the Government or the public officer to arrive at a decision it is necessary that it or he should be informed of the nature of the suit proposed to be filed against it or him and the facts on which the claim is founded and

p. 670

the precise reliefs asked for." Reliance was also placed on a later passage where the learned Chief Justice extracted a passage from the judgment of this Court reported as Dhian Singh Sobha Singh v. Union of India which read:

p. 670

uThe Privy Council no doubt laid down in 54 Ind. App. 338 : (Air 1927 PC 176) that the terms of this section should be strictly ' complied with. That does not however mean that the terms of the notice should be scrutinized in a pedantic manner or in a manner

p. 670

completely divorced from commonsense." On this line of reasoning this Court held that the notice before them sufficiently complied with the_.. terms of s. 80. It must, however, be pointed out that this conclusion was reached on the notice which gave the details of the several heads of claim which were there made. With reference to the notice then before the Court the learned Justice observed, after setting out the several paragraphs of the notice in which the details were set out:

p. 670

S.c.

p. 670

uTherefore, on a fair reading of the it may be said that the fact of the contract for the payment of the go down rent, quantity of goods stared the rate at which period for which the cll71im was made and failure of the first defendant to pay thn are sufficient]v stated so as to enable the defendant, wh.ich is the appellant before to know that the plaintiff's claitl" was and whether t.he claim should he conceded

p. 671

resisted~'. It is precisely these details that are lacking in present case. No doubt, there is a general complaint that Government have not conformed to the tract, but these are itemised in the paragraphs the notice which we set out. If the notice gone on to state the amount claimed under each the several head8 of items claimed it would been possible for the government to have considered whether it was worth their w bile to settle with plaintiff by agreeing to pay the sum demanded. This they had never an opportunity by reason form of the notice, and the manner in which re1ief claimed was stated.

p. 671

The only item regarding which it could be that there is a quantification in the notice be that relating to the claim for -the refund Rs. 21.,460/- being the amount of advanee deposit made before the licence was g:·anted., hut the tiff's c]aim in this regard is barred und<>r the of s. 40 of Punjab .Excise .Act which runs:

p. 671

"40. When a license, permit or pass is cancelled or suspended under clause (a), (b), (c), (d) or (e) of section 36 or unrler section 37, the holder shall not Le entitled to any pensation for itfl canceUation or suepension nor to the refund of any fee paid or deposit ~ade in respect thereof."

p. 671

The result thP-refore would be that the entire claim in the suit must fail reason of the combined effect of s. 80, Civil Procedure Code and s. 40 of the Punjab Excise Act.

p. 672

With reference to s. 80, Civil Procedure Code there is one further snbmisRion of Mr. Sa.stri to which it is neuessary to ad vert. He urged that whatever other defects there might be in the notice dated September 2, 1952, there was a literal compliance with requirements of 80 and that in consequance the Court was bound to treat it as valid. In this connection he pointed out that the only requirements of s. 80 relevant to the present context were that the notice shonld state the course of action and the relief which was claimed. His argument was that the contr!:tct was single and entire and as the notice had stated that t.here had been a breach thereof, and had gone on to enumerate the several stipulations which were claimed to have been broken, the requirement that the eause of action should be stated had been complied with. Next was the requirement that the relief claimed should be stated and this also satisfied as the notice claimed damages by way of compensation and had set out the amount so claimed. He pointed out that in regard to the cla.im for da.ma.ges the plaint had totalled up the jtetns to reach the figure of Its. 1 ,09 653/ll/- but had confined the c1aim to Rs. 74,935/8/3 which had been the figure at which damages had been computed in the notice and the ar~ument therefore was tha,t t.he Court would have jurisdiction to ga·ant the relief at least in respect of those items of the claim which were common to the notice and the plaint. We consider that the validity of the notice now impugned cannot be sustained on the basis sug~ested. It would be uoticed that when the notice dated September 2, 1952 was issued the Collector had not suspended or cancelled the licence and that the claim set out in the notice

pp. 672–673

-·-was on the basis of seeking relief for branches of stipulations in a subsisting contract. This was made clear by the paragrar.hs that follow that

p. 673

which we have extracted earlier. These run: ~·

p. 673

('Under the conditions and circumstances disclosed, my client could not be forced to pay in the fees etc. as accrued without first 1naking good tu them by you the damages and losses that have resulted hereto before on account of the Government not fulfilliug

p. 673

the material conditions. It is therefore ~ requested that no untoward action be proposod by the Government in that behalf, for it would. otherwise be unwarranted, illt>gal and unjustified.

p. 673

The licence, my client has been and would

p. 673

be willing to carry out his part as relate8 to ~ auction conditions if the Government. gives immedu~tc redress in the terms abovenoted, and arrange supplied in pilfer·proof bottles. Otherwise, treating the contract determined he will be forced to take the matter to law courts in which event the Himachal Govern. ment will be liable in addition to t.he da-

p. 673

mages; to costs and expenses that ma.y ' accrue for the stated st~ps.''

p. 673

When one comes to the plaint however, the ·entire J basis or rather the canst> of action is changed. By that da.te the contract had been terminated, the licence having been suspended and afterwards the Collector had taken over the management of the shops under s.39 of the Punjab Excise Act. There wa3, thertfore a radical difference between the state of circumstances when the impugned notice was issued and when the plaint was filed which is reflected in the allegations made in tbA two documents a.nd the reliefs claimed in each.

p. 673

In summary, the notice based on the breach of stipulations in a contract which had not been broken and was still subsisting. In that sense, it would be the items claimed in respect of each breach that would constitute a cause of action in the technical sense and it was on their account that the sum of Rs. 74,935/8/3 was claimed aa damages. In the plaint, however, the c~_use of action was different. By that date the alle~ation was that tho contract had been broken by the government repudiating it and taking over the shops after cancelling the licence. The cause of action then was the breach of the entire contract and the items set out in the plaint were the heads of claim under which the damages were computed. In view of these circumstances we have no hesitation in holding that even on a very narrow and strict v~ew of s. 80 there was no complianc3 with its terms.

p. 674

The result therefore is that the entire claim in the suit must fail for the reasons we have in dicated earlier. The appeal, therefore, fails and is dismissed. In the circumstances of this caee we considered that the parties should bear their own costs in this appeal.

p. 674

AppPnl dismil18ed. --

p. 674