# S. N. DUTT v. UNION OF INDIA

- **Citation:** [1962] 1 S.C.R. 560
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 191 of 1958
- **Bench:** P. B. Gajendragadkar, K. N. vVANCHOO
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-n-dutt-v-union-of-india-2148
- **Pages:** 8

## Headnote

Suit against Government-Notice-Defect as to name of plaintiff-Effect of-Code of Civil Procedure, I908 (Act 5 of I908), s. So.
The appellant was the sole proprietor of a business styled
S. N. Dutt & Co.
He gave a notice under s. So of the Code of
Civil Procedure to the respondent in the name of "S. N. Dutt &
Co.". After the requisite period he filed a suit against the respondent describing the plaintiff as: "Surendra Nath Dutt sole
proprietor of a business carried on under the name and style of
S. N. Dutt & Co.'.'
The suit was dismissed on the ground that
the notice was defective as it was issued by S. N. Dutt & Co. and
not the plaintiff. The appellant contended that the notice was
valid as S. N. Dutt & Co. was merely the name and style in
which S. N. Dutt carried on business and that no suit could have
been filed in the name of S. N. Dutt & Co. as it was not a firm.
Held, that the notice was defective and that the suit had
been rightly dismissed. The person who issued the notice was
not the same as the person who filed the suit. Since S. N. Dutt
& Co. could not file the suit in that name it could not give a
valid and legal notice in that name. A valid notice could have
been given only in the name of S. N. Dutt. A defect in the
notice as to the name of the plaintiff has to be viewed strictly.
Bhagchand Dagadusa v. Secretary of State for Indiain Council,
(1927) L.R. 54 I.A. 338, Al. Ar. Vellayan Chettiar v. Government
of the Province of Madras, (1947) L.R. 74 I.A. 223 and Government
of the Province of Bombay v. Pestonji Ardeshir Wadia, (1949) L.R.
76 I.A. 85, referred to.
Dhian Singh Sabha Singh v. The Union of India, [1958]
S.C.R. • 781 and The State of Madras v. C. P. Agencies, A.LR.
[1960] S.C. 1309, distinguished.
Kamta Prasad v. Union of India, (1957) 55 A.L.J. 299 and
Secretary of State v. Sagarmal Marwari, A.LR. 1941 Pat. 517, disapproved.

## Text

March 27.
560
SUPREME COURT REPORTS
[1962]
S. N. DUTT
v.
UNION OF INDIA
(P. B. GAJENDRAGADKAR and K. N. vVANCHOO, JJ.)
Suit against Government-Notice-Defect as to name of plaintiff-Effect of-Code of Civil Procedure, I908 (Act 5 of I908), s. So.
The appellant was the sole proprietor of a business styled
S. N. Dutt & Co.
He gave a notice under s. So of the Code of
Civil Procedure to the respondent in the name of "S. N. Dutt &
Co.". After the requisite period he filed a suit against the respondent describing the plaintiff as: "Surendra Nath Dutt sole
proprietor of a business carried on under the name and style of
S. N. Dutt & Co.'.'
The suit was dismissed on the ground that
the notice was defective as it was issued by S. N. Dutt & Co. and
not the plaintiff. The appellant contended that the notice was
valid as S. N. Dutt & Co. was merely the name and style in
which S. N. Dutt carried on business and that no suit could have
been filed in the name of S. N. Dutt & Co. as it was not a firm.
Held, that the notice was defective and that the suit had
been rightly dismissed. The person who issued the notice was
not the same as the person who filed the suit. Since S. N. Dutt
& Co. could not file the suit in that name it could not give a
valid and legal notice in that name. A valid notice could have
been given only in the name of S. N. Dutt. A defect in the
notice as to the name of the plaintiff has to be viewed strictly.
Bhagchand Dagadusa v. Secretary of State for Indiain Council,
(1927) L.R. 54 I.A. 338, Al. Ar. Vellayan Chettiar v. Government
of the Province of Madras, (1947) L.R. 74 I.A. 223 and Government
of the Province of Bombay v. Pestonji Ardeshir Wadia, (1949) L.R.
76 I.A. 85, referred to.
Dhian Singh Sabha Singh v. The Union of India, [1958]
S.C.R. • 781 and The State of Madras v. C. P. Agencies, A.LR.
[1960] S.C. 1309, distinguished.
Kamta Prasad v. Union of India, (1957) 55 A.L.J. 299 and
Secretary of State v. Sagarmal Marwari, A.LR. 1941 Pat. 517, disapproved.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
191 of 1958.
Appeal by special leave from the judgment and
decree dated February 13, 1956, of the High Court of
Judicature at Calcutta in First Appeal No. 191 of
1949.
~~
B. Sen and Sadhu Singh, for the appellant.
•
I S.C.R. SUPREME COURT REPORTS
561
Vidyadhar Mah!:t,jan and T. M. Sen, for the respondent.
1961.
March 27. The Judgment of the Court was
delivered by
WANCHOO, J.-This is an appeal by special leave
against the judgment of the Calcutta High Court. The
brief facts necessary for present purposes are these:
The appellant, S. N. Dutt, is the sole proprietor of
the business known as "S. N. Dutt & Co." and carried
on this business under that name and style at
Krishnagore in the district of Nadia in 1944. On May
17, 1944, S. N. Dutt & Co. obtained an order from the
military authorities for the supply of 10,000 baskets
of mangoes to be delivered at Sealdah Railway Station,
every day from May 24, 1944, for ten days at the
rate of 1,000 baskets per day. The military authorities
made arrangements with the Bengal and Assam Railway for the supply of 30 covered wagons at Jiaganj
Railway Station at the rate of three wagons per day
commencing from May 22, 1944 for this purpose, and
this was communicated to the appellant on May 19,
1944. On May 18, 1944, the Divisional Superintendent,
Sealdah informed the Station Master at Jiaganj that
contractor S. N. Dutt would book and load 30 wagons
of mangoes at Jiaganj at the rate of three wagons per
day from May 22, 1944 and directed him to accept
the booking and allot wagons for the said purpose.
The appellant thereupon placed indents with the
Station Master Jiaganj for. the supply of the said
wagons and began to bring to the Jiaganj Railway
Station baskets of mangoes from May 21, 1944. It
appears however that wagons were not supplied regularly, with the result that whatever consignments
reached Sealdah were spoilt and were rejected by the
military authorities. On May 30, 1944, the military
authorities informed the contractor that the contract
had been cancelled on account of the unsatisfactory
nature of the supplies. The result of this was that 5004
further baskets of mangoes could not be despatched,
though they had been stacked at the railway station
\\t Jiaganj. In consequence the mangoes were spoilt
7•
S. N. Dutt
v.
Union of India
WancJzoo ].
S. N. Dutt
v.
Union of India
~Vanchoo j.
562
SUPREME COURT REPORTS
[1962]
and had to be thrown away. The appellant claimed
that he had sustained a heavy loss due to the misconduct, gross negligence and carelessness on the part
of the Bengal and Assam Railway administration.
Consequently he suomitted a claim for damages for
over Rs. 84,000 to the Chief Commercial Manager and
the General Manager of the Railway. Subsequently
on November 4, 1944, he gave two notices under s. 80
of the Code of Civil Procedure to the Secretary to the
Governor-General of India in Council representing the
Bengal and Assam Railway and followed it up by
instituting the suit on July 21, 1945 claiming over
~s. 84,000 as damages.
The suit was resisted by the Governor-General in
Couneil, now represented by the Union of India.
Among other defences with which we are not concerned in the present appeal, it was contended on behalf
of the Union of India (respondent) that the appellant
was not entitled to maintain the suit as the two
notices under s. 80 of the Code of Civil Procedure were
not valid and sufficient, but were defective.
When the matter came to trial before the Subordinate Judge, he held in favour of the appellant on the
question whether there was negligence or misconduct
on the part of the Railway administration; but he dismissed the suit on the ground that the two notices
under s. 80 were defective inasmuch they had been
issued by S. N. Dutt and Co. and not on behalf of the
appellant. There was then an appeal by S. N. Dutt
before the High Court. The High Court agreed with
the Subordinate Judge that the notices under s. 80
were defective and the suit was rightly dismissed.
Further on the merits, the High Court did not agree
with the Subordinate Judge that any misconduct or
negligence had been proved which would entitle the
appellant to any damages except in the matter of one
small consignment. The appeal therefore failed.
Thereupon the appellant applied for a certificate to
appeal to this Court which was refused. He then
came to thfa Court by petition for special leave which
was granted; and that is how the matter has came up
before us.
y
•
)
I S.C.R. SUPREME COURT REPORTS
563
The main point therefore that arises in this appeal
is whether the notices in question were in conformity
with s. 80 of the Code of Civil Procedure; if they were
not, the suit would fail on the ground of non-compliance with that provision. Section 80 inter alia lays
down that "no suit shall be instituted against the
Central Government, until the expiration of two
months next after notice in writing has been delivered
•
to, or left at the office of the Secretary to that Government, 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 a
statement that such notice has been so delivered''.
The defect in the present case is in regard to the
name, it being not disputed that there is no other
defect in the notice; and the question that arises is
whether the defect in name makes the notices ineffective and therefore the suit becomes not maintainable
in view of the bar of s. 80.
As far back as 1927, the Privy Council in Bhagchand
Dagadusa v. Secretary of State for India in Council(')
had to consider the true application of s. 80 and held
that s. 80 was explicit and mandatory and admitted
~ of no implications or exceptions and had to be strictly
complied with and was applicable to all forms of
action and all kinds of relief. In particular, with
reference to the name, the Privy Council had to consider the matter in Al. Ar. Vellayan Ghettiarv. Government of the Province of Madras ('). In that case the
suit was brought by two plaintiffs but the notice was
given by only one of them. The Privy Council held
that this could not be done and observed that
"section 80, according to its plain meaning, requires
that there should be identity of the person who issues
the notice with the person who brings the suit".
Finally, in Government of the Province of Bombay v.
,..~
Pestonji Ardeshir W adia (') the Privy Council had
again to consider the scope of s. 80.
In that case the
notice had been given by two trustees. Before however the suit could be brought, one of the trustees
(<) (1927) L.R. 54 I.A. 338.
(2) (1947) L.R. 74 I.A. 223.
(3) (1949) L.R. 76 I.A. 85.
S. N. Dutt
v.
Union of India
11' anchoo J.
S. "J..T. Dutt
v.
Union of India
Wanchoo ].
564
SUPREME COURT REPORTS
[1962]
died and was replaced by two other trustees. The
suit was brought by the three trustees, only one of
whom had given the notir3 while two had not. The
Privy Council again reiterated that the provisions of
s. 80 were imperative and must be strictly complied
with. It went on to say that "there is no provision
in the Code enabling the trustees to sue in the name
of the trust, as members of a firm may sue in the name
of the firm. In the case of a trust, the plaintiffs are
•
bound to be the trustees and not the trust and where
no notice has been served under s. 80, specifying the
names and addresses of all the trustees, the provisions
of the section have not been complied with and the
suit is incompetent."
Learned counsel for the appellant, however, relies
on Dhian Singh Sabha Singh and another v. The Union
•
of India (1), where the following observations occur:-
"The Privy Council no doubt laid down in BhagChand Dogadusa v. Secretary of State (L.H. 54 I.A.
338) 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 completely divorced
from common sense. As was stated by Pollock C. B.
in Jones v. Nicholls (154 E. R. 149, 150), 'We must "
import a little common sense into notices of this
kind'. Beaumont C. J., also observed in Chandulal
Vedilal v. Government of Bombay (I.L.R. 1943 Born.
128):
One must construe section 80 with some
regard to common sense and to the object with
which it appears to have been passed."
-'-
The next case to which reference was made is
The State of Madras v. C. P. Agencies (2).
The qucs- '
tion in that case was whether the cause of action had
been stated as required by s. 80, and this Court held
that the cause of action had been stated in the notice.
This Court also observed that it was not necessary in
that case to consider the two decisions of the Privy
Council (to which reference has already been made by
us) requiring the identity of the person who issues a •. 1
notice with the person who brings the suit.
~
(1) [1958] S.C.R. 781, 795.
(2) A.LR. (1960) S.C. 1309.
•
•
)
'
1 S.C.R. SUPREME COURT REPORTS
565
It is urged that these observations show that the
strictness which the Privy Council emphasised in
these cases has not been accepted by this Court. It
must however be remembered that the defect with
which this Court was dealing in these cases was in the
matter of cause of action and relief, and this Court
pointed out that it was necessary to use a little
common sense in such circumstances. Whore the
matter (for example) concerns the relief or the cause
of action, it may be necessary to use common sense to
find out whether s. 80 has been complied with.
But
where it is a question of the name of the plaintiff,
there is in our opinion little scope for the use of
common sense, for either the name of the person suing
is there in the notice or it is not. No amount of
common sense will put the name of the plaintiff there,
if it is not there.
Let us therefore examine the notices and the plaint
in this case to see whether the suit is by the same
person who gave the notices, for it cannot be gainsaid
that the identity of the person who issues the notice
with the person who brings the suit must be there,
before it can be said that s. 80 has been complied with.
Now the releva,nt part of the two notices was in these
terms:-
"Under instructions from my client Messrs. S. N.
Dutt and Co. of Krishnagar, I beg to give you
notice that my said client will bring a suit for
damages in the court of the Subordinate Judge of
Nadia at Krishnagar against the B & A Railway
Administration".
In the plaint, the description of the plaintiff was in
these terms:-
·
"Snrrendra Nath Dutta sole proprietor of a business carried on under the name and style of S. N.
Dutt & Co. of Krishnagar, P. S. Krishnagar, District Nadia".
It will be immediately obvious that the notices
were in the name of Messrs. S. N. Dutt and Co., while
the suit was filed by S. N. Dutt claiming to be the sole
proprietor of Messrs. S. N. Dutt and Co. It is urged
on behalf of the appellant that the reason why the
z96r
S. /1l. Dutt
v.
Union of India
H'anchoo ].
I96t
S.N. Dutt
v.
Union oj Tndia
Wanchoo ].
566
SUPREME COURT REPORTS
[1962]
suit was filed in the name of S. N. Dutt as sole proprietor of Messrs. S. N. Dutt and Co. was that no suit
could have been filed in the name of Messrs. S. N.
Dutt and Co., as that was not a firm; that was merely
the name and style in which an individual, namely
S. N. Dutt, was carrying on the business. The question therefore that immediately arises is whether
S. N. Dutt who filed the suit was the person who gave
the notices and the answer is obvious that it is not so.
It may be that S. N. Dutt is the sole proprietor of
Messrs. S. N. Dutt and Co. and is carrying on business in that name and style; but that does not mean
that these notices were by S. N. Dutt. Any one reading these notices would not necessarily come to the
conclusion that Messrs. S. N. Dutt and Co. was merely
the name and style in which an individual was carrying on business. The prima facie impression from
reading the notices would be that Messrs. S. N. Dutt
and Co. was some kind of partnership firm and notices
were being given in the name of that partnership
firm. It cannot therefore be said on a comparison of
the notices in this case with the plaint that there is
identity of the person who issued the notices with the
person who brought the suit. Besides if Messrs. S. N.
Dutt and Co., not being a partnership firm, could not
file a suit in that name and style on behalf of its
members, we cannot see how Messrs. S. N. Dutt and
Co. could give a valid and legal notice in that name
and style on behalf of an individual, S. N. Dutt. As
was pointed out by the Privy Council in Pestonji
A rdeshir W adia' s case (1 ), the case of members of a
firm stood on a different footing, for the members of
a firm might sue in the name of the firm; but in the
present case Messrs. S. N. Dutt and Co. is not a firm;
it is merely the name and style in which an individual
(namely, S. N. Dutt) is carrying on business and
though the individual may in certain circumstances
be sued in that name and style, he would have no
right to sue in that name. Therefore, where an individual carries on business in some name and style
the notice has to be given by the individual in his
own name, for the suit can only be filed in the name
(I) (1949) L.R. 76 I.A. 85.
L '
•
•
'
•
1 S.C.R. SUPREME COURT REPORTS
567
of the individual. The present suit is analogous to
the case of trustees where the suit cannot be filed in
the name of the trust; it can only be filed in the name
of the trustees and the notice therefore has also to be
given in the name of all the trustees who have to file
a suit. Therefore comparing the notices given in this
suit with the plaint, and remembering that Messrs.
S. N. Dutt and Co. is not a partnership firm but
merely a name and style in which an individual
trades, the conclusion is inescapable that the person
giving the notices is not the same as the person
suing.
It was urged on behalf of the appellant that the
Railway Administration knew the position that
Messrs. S. N. Dutt and Co. was merely the name and
style in which an individual (namely, S. N. Dutt) was
trading. But even this in our opinion is not correct
as a fact, for, as pointed out by the High Court, there
are documents on the record which show that S. N.
Dutt gave himself out as a partner of Messrs. S. N.
Dutt and Co., thus suggesting that S. N. Dutt and Co.
was a firm.
That was the reason why a plea was
raised on behalf of the Union of India that the suit
was barred under s. 69 of the Partnership Act as the
firm was not a registered firm.
In this connection learned counsel for the appellant
referred us to certain cases in which in similar circumstances the notice was considered to be valid
under s. 80.
These cases are: Kamta Prasad v. Union
of India (1) and Secretary of State v. Sagarmal Marwari ('). In view of what we have said above, we cannot agree with the view taken in these cases and must
hold that they were wrongly decided.
In this view of the matter, there is no force in this
appeal and it is hereby dismissed with costs.
Appeal dismissed.
(1) (1957) 55 A.L.J. 299,
(2) A.I.R. 1941 Pat. 517.
I96I
S.N. Dutt
v
Union of India
Wanchoo ].