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
561 Vidyadhar Makajan and T M Sen for the respondent
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 section N Dutt is the sole proprietor of the business known as section 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 section N Dutt  Co obtained an order from the military authorities for the supply of 10000 baskets of mangoes to be delivered at Sealdah Railway Station every day from May 24 1944 for ten days at the rate of 1000 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 181944 the Divisional Superintendent Sealdah informed the Station Master at Jiaganj that contractor section 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 at Jiaganj
In consequence the mangoes were spoilt 71 562 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 Submitted a claim for damages for over Rs 84000 to the Chief Commercial Manager and the General Manager of the Railway
Subsequently on November 4 1944 he gave two notices under section 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 Its 84000 as damages
The suit was resisted by the Governor General in Council now represented by the Union of India
Among other defenses 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 section 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 hold 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 section 80 were defective inasmuch they had been issued by section N Dutt and Co and not on behalf of the appellant
There was then an appeal by section N Dutt before the High Court
The High Court agreed with the Subordinate Judge that the notices under section 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 this Court by petition for special leave which was granted and that is bow the matter has came up before us
563 The main point therefore that arises in this appeal is whether the notices in question were in conformity with section 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 section 80
As far back as 1927 the Privy Council in Bhagchand Dagadusa vs Secretary of State for India in Council 1 had to consider the true application of section 80 and held that section 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
Vellayan Chettiar vs Government of the Province of Madras 2
In that case the suit was brought by two plaintiffs but the notice was given by only one of them
The Privy Council hold that this could not be done and observed that  section 80according 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 vs Pestonji Ardeshir Wadia the Privy Council had again to consider the scope of section 80
In that case the notice bad been given by two trustees
Before however the suit could be brought one of the trustees 1 1927 LR 54 IA 138 2 1947 L R 74 IA
3 1949 L R 76 I A 85
564 died and was replaced by two other trustees
The suit was brought by the three trustees only one of whom had given the notice while two had not
The Privy Council again reiterated that the provisions of a 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 section 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 Sobha Singh and another vs The Union of India 1 where the following observations occur The Privy Council no doubt laid down in BhagChand Dogadusa vs Secretary of State LR 54 IA 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 vs Nicholls   150 We must import a little common sense into notices of this kind 
Beaumont C J also observed in Chandulal Vedilal vs Government of Bombay ILR 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 vs C P Agencies 2 
The question in that case was whether the cause of action had been stated as required by section 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 notice with the person who brings the suit
1   795
2 AIR 1960 S C 1309
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
Where the matter for example concerns the relief or the cause of action it may be necessary to use common sense to find out whether section 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 gain said 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 section 80 has been complied with
Now the relevant part of the two notices was in these terms Under instructions from my client Messrs section 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 Surrendra Nath Dutta sole proprietor of a business carried on under the name and style of section N Dutt  Co of Krishnagar P section Krishnagar District Nadia
It will be immediately obvious that the notices were in the name of Messrs section N Dutt and Co while the suit was filed by section N Dutt claiming to be the sole proprietor of Messrs section N Dutt and Co It is urged on behalf of the appellant that the reason why the 566 suit was filed in the name of section N Dutt as sole proprietor of Messrs section N Dutt and Co was that no suit could have been filed in the name of Messrs section N Dutt and Co as that was not a firm that was merely the name and style in which an individual namely section N Dutt was carrying on the business
The question therefore that immediately arises is whether section 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 section N Dutt is the sole proprietor of Messrs section N Dutt and Co and is carrying on business in that name and style but that does not mean that these notices were by section N Dutt
Any one reading these notices would not necessarily come to the conclusion that Messrs section 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 section N Datt 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 section 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 section N Dutt and Co could give a valid and legal notice in that name and style on behalf of an individual section N Dutt
As was pointed out by the Privy Council in Peslon Ardeshir Wadias 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 section N Dutt and Co is not a firm it is merely the name and style in which an individual namely section N Dutt is carrying on business and though the individual may in certain circumstances be sued in name and style he would have no right to sue in that none
There fore 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 1 1949 LR 76 IA 85
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 an 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 section 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 section N Dutt and Co was merely the name and style in which an individual namely section 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 section N Dutt gave himself out as a partner of Messrs section N Dutt and Co thus suggesting that section 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 section 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 cir cumstances the notice was considered to be valid under section 80
These cases are Kamta Prasad vs Union of India 1 and Secretary of State vs Sagarmal Mar wari 2
In view of what we have said above we cannot agree with the view taken in these oases 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


Summary:
The appellant was the sole proprietor of a business styled section N Dutt SE Co He gave a notice under section 80 of the Code of Civil Procedure to the respondent in the name of section 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 section N Datt  Co The suit was dismissed on the ground that the notice was defective as it was issued by section N Dutt  Co and not the plaintiff
The appellant contended that the notice was valid as section N Dtitt carried on business and that no suit could have been filed in the name of section 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 section 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 section N Dutt
A defect in the notice as to the name of the plaintiff has to be viewed strictly
Bhagchand Dagadusa vs Secretary of State for India in Council 1927 LR 54 IA 338 Al
Velayan Chettiar vs Government the Province Madras 1947223 and Government of the Province of Bombay vs Pestonji LR Wadia 1949 LR 76 IA 85 referred to
Dhian Singh Subha Singh vs TheUnion of India  and The State of Madras vs C P Agencies AIR  distinguished
Kamta Prasad vs Union of India and Secretary of State vs Sagarmal Marwari AIR 1941 Pat
517 disapproved