Case: Amar Nath Dogra Vs. Union Of India

2. The facts giving rise to this appeal are briefly as follows: There was a public auction on February 25, 1952 at Mandi in Himachal Pradesh for the grant of a monopoly vend-licence to sell by retail countryliquor for the year April 1, 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, 16th 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 authorities to remedy the situation but apparently the appellant was not satisfied with the steps taken, with the result that he stopped his sales of liquor and there after served a notice under S. 80 of the Civil Procedure Code dated September 2, 1952 on government making a claim for damages for alleged breach of certain of the stipulations. After receipt of this notice the Collector of Excise directed the suspension of the appellants licence under S. 36 of the Punjab Excise Act 1914 and thereafter proceeded under S. 39 of that Act to take over the management of the vend-shops which theretofore were under the management of the appellant. As the appellant did not pay the monthly instalments due from and after June, 195, the Collector also took steps for the recovery of these instalments. The appellant then filed a suit No. 345 of 1952 or the file of the Sub-Judge of Mandi on November 26, 1952 (along with certain others in whose names one other liquor licence had been taken and who were evidently similarly situated) for a permanent injunction restraining the State of Himachal Pradesh from realising the balance of the licence-fees due from him. Several technical objections were raised to the maintainability of that suit and thereafter the suit was withdrawn on May 12, 1953, with liberty granted under O. 23, R. 1, Civil Procedure Code to file a fresh suit.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.3. The Union of India against whom the suit was brought, raised several defences both on the merits as well as of a technical nature, the latter being mainly two: (1) that the suit was bad 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 to Himachal Pradesh as well as underthe 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 appellants suit was dismissed. An appeal was thereupon taken by the appellant to the judicial Commissioner, Himachal Pradesh who substantially agreed with every one of the findings of the 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 further reversed the finding on one of the items of the claim which the trial Judge had found in appellants favour. The appeal was accordingly dismissed. The appellant thereafter applied for a certificate of fitness under Art. 133(1) (b) for preferring an appeal to this Court but the same having been rejected, he applied for and obtained special leave from this Court and that is how the appeal is now before us.

Reasoning: 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.