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

The brief facts necessary for present purposes are these: The appellant, S. N. Dutt, is the sole proprietor of the business under that name and style at Krishnagore in the district of Nadia in 1944. On May, 17, 1944, S. N. Dutt and 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 at Jiaganj. In consequence the mangoes were spoilt 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. 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 Rs. 84,000/- as damages2. This suit was resisted by the Governor-General in Council, 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 defective3. 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 as 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 this Court by petition for special leave which was granted; and that is how the matter has come up before us.

Reasoning: 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