Case: S. N. Dutt Vs. Union Of India

it is not. No amount of common sense will put the name of the plaintiff there, if it is not there. 10. 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 relevant 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 and A Railway Administration. In the plaint, the description of the plaintiff was in these terms:- Surendra Nath Dutta sole proprietor of a business carried on under the name and style of S. N. Dutt and Co. of Krishnagar. P. S. Krishnagar, District Nadia. 11. 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 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 Aredshir Wadias case, 76 Ind App 85: AIR 1949 PC 143 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 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. 12. 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. 13. 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, 1957 All LJ 299 and Secretary to State v. Sagarmal Marwari, AIR 1941 Pat 517 . 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.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The defect in the present case is in regard to the name, it being not disputed that there is no other defect in the noticeIt 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 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 thereIt 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. Duttbut 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 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 suingBut 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 firmIn 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