Case: Amar Nath Dogra Vs. Union Of India

are itemised in the paragraphs of the notice which we have set out.If the notice had gone on to state the amount claimed under each of the several heads of items claimed it would have been possible for the government to have considered whether it was worth their while to settle with the plaintiff by agreeing to pay the sum demanded. This they had never an opportunity by reason of the form of the notice, and the manner in which the relief claimed was stated.18. The only item regarding which it could be said that there is a quantification in the notice would be that relating to the claim for the refund of Rs. 21,460/- being the amount of advance deposit made before the licence was granted, but the plaintiffs claim in this regard is barred under the terms of S. 40 of the Punjab Excise Act which runs :"40. When a licence, permit or pass is cancelled or suspended under clause (a), (b), (c), (d) or (e) of section 36 or under section 37, the holder shall not be entitled to any compensation for its cancellation or suspension nor to the refund of any fee paid or deposit made in respect thereof."19. The result therefore would be that the entire claim in the suit must fail by reason of the combined effect of S. 80, Civil Procedure Code and S. 4{) of the Punjab Excise Act.20. With reference to S. 80, Civil Procedure Code there is one further submission of Mr. Sastri to which it is necessary to advert. He urged that whatever other defects there might be in the notice dated September2, 1952, there was a literal compliance with the requirements of S. 80 and that in consequence 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 should state the cause of action and the relief which was claimed. His argument was that the contract was single and entire and as the notice had stated that there 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 cause 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 claim for damages the plaint had totalled up the items to reach the figure of Rs. 1,09,653/11/- but had confirmed the claim to Rs. 74,935/8/3 which had been the figure at which damages had been computed in the notice and the argument therefore was that the Court would have jurisdiction to grant 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 suggested. It would be noticed 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 was on the basis of seeking relief for breaches of stipulations in a subsisting contract. This was made clear by the paragraphs that follow that which we have extracted earlier. These run:"Under the conditions and circumstances disclosed, my client could not be forced to pay in the fees etc. as accrued without first making good to them by you the damages and losses that have resulted hereto before on account of the Government not fulfilling the material conditions, it is therefore requested that no untoward action be proposed by the Government in that behalf, for it would otherwise be unwarranted, illegal and unjustified."The licensee, my client has been and would be willing to carry out his part as relates to the auction conditions if the Government gives immediate redress in the terms abovenoted, and arrange supplies in pilferproof bottles. Otherwise, treating the contract determined he will be forced to take the matter to law courts in which event the Himachal Government will be liable in addition to the damages; to costs and expenses that may accrue for the stated steps."21. When one comes to the plaint however, the entire basis or rather the cause of action is changed. By that date 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 was, therefore 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 the two documents and the reliefs claimed in each. In summary, the notice was based on the breach of stipulations in a contracts 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 as damages. In the plaint, however, the cause of action was different. By that date the allegation was that the 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 view of S. 80 there was no compliance with its terms.22. The result therefore is that the entire claim in the suit must fail for the reasons we have indicated earlier.

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

Explanation:
0[ds]It would have been noticed that the plaint claim was reduced to Rs. 74,935/8/3 obviously because that was the figure that was claimed in the notice of suit. In the notice however now the total of Rs. 74,935/8/3 was arrived at in what manner the several items claimed were to be related to this figure were not set out. Nor can those details be inferred or gathered from the detailed statements which accompanied the plaint on the basis of which the several items claimed in the plaint were derived. There is one other matter which requires mention in this connection. There were two items of loss claimed in the plaint which had and could have absolutely no place iii the notice because they arose only after the Government suspended the licence and later cancelled it and took over the vend-shops under Governments own management.. These items were: (1) loss on the yearly quota of liquor worked out at Rs. 26,400/-, and (2) the loss of profit for the unworked period. i.e., from July 1, l952 onwards which was worked out to Rs. 45,471/6/- If these two items are deducted from the total Rs. 1,09,653/11/- there would be a balance of only Rs. 37,782/5/-. 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 the amount is certain and that is in relation to the claim for the refund of Rs. 21,460/- being the amount of initial deposit of with 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 Rs. 53,475/8/3 which would be the sum which was the subject of claim by the appellant in his notice in respect of his three items of complaint viz. the failure to supply standard sized bottles, failure to observe the buys-back system and non-supply of liquor in pilfer-proof bottles. It would therefore be apparent from these calculations that there is a complete variance between the claim made in the notice and the claim in the plaint. We desire to mane 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 between the claim made in the suit and that in the notice which precedes it. On the notice she claims under one head, might for all one knows, be for an infinitesimally small sum while the other was exaggerated beyond what is found in the plaint, and hence there is no means of identifying the claim for any particular nun in the plaint with that for which a claim was being made in the notice.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 S. 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 S. 80 is not a pleading and need not be a copy of the plaint and that no particular or technical form is prescribed for such a notice, still 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 common sense without one being hypercritical about the language but the question iswhether in the notice before us there is substantial information conveyed on the basis of which the recipient of the notice could consider the claim of the would-be plaintiff and avert the suit.For the reasons already stated this question can only be answered in theone comes to the plaint however, the entire basis or rather the cause of action is changed. By that date 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 was, therefore 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 the two documents and the reliefs claimed in each. In summary, the notice was based on the breach of stipulations in a contracts 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 as damages. In the plaint, however, the cause of action was different. By that date the allegation was that the 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 view of S. 80 there was no compliance with its terms.The result therefore is that the entire claim in the suit must fail for the reasons we have indicated earlier.