N C MAITRA Vs. DESH BANDHU GUPTA

JUDGEMENT

(1.) A somewhat unique question of law that has arisen in this case is whether a suit for damages for defamation or libel can be instituted without serving a notice under section 80, Civil Procedure Code, against a representative of the Central Government nominated on the governing body of a recognised Stock Exchange under section 4 (2) (iii) of the Securities Contracts (Regulation) Act 1956 (No. 42 of 1956) (hereinafter called the Regulation Act) in respect of contents of some communication by such a nominee to some office bearer of the Stock Exchange. In other words, the question is whether such a nominee of the Central Government is a public officer within the meaning of clause (h) of sub-section (17) of section (2) of Code and while sending such a communication the representative of the Central Government purports to act in his official capacity or- not.

(2.) The facts leading to the filing of this revision petition lie in a rather narrow compass. Respondent No. 5, Delhi Stock Exchange Association Ltd. (hereinafter referred to as the Exchange) is a recognised Stock Exchange under the Regulation Act. Respondent No. 3, Shri N.C. Sen, Distiller, Punjab Distilling Company Khasa (Amritsar) is admittedly a member of the Exchange. According to Mr. Sen, Desh Bandhu Gupta, respondent No. 1 (hereinafter called the plaintiff) had sold 300 shares of Hindustan Gas to Mr. Sen and bought for Mr. Sen 200 shares of Hyderabad Allwyn Co. Mr. Sen was complaining that the plaintiff had failed and neglected to deliver 500 new shares to Mr. Sen for nearly 2 years since the shares had been purchased and that the dividents had already accrued thereon. Prafulla Kumar Roy, Advocate, Calcutta, gave some notice to the plaintiff in that respect. Mr. Sen sent complaint in writting to Mr. N.C. Maitra, petitioner in connection with his said complaint against the plaintiff. D.O. letter dated 2nd February 1965 was sent by the petitioner in his capacity as Deputy Director of Stock Exchange to Shri Bharat Bhushan, President of the Exchange, wherein details of the complaint made by Mr. Sen were given. Mr. N.C. Maitra, Deputy Director of the Exchange concluded that D.O. letter with the following passage :- "Even up to this date, the shares in question have not been delivered to Shri Sen. If the facts reported to me as above arc correct in substance, this will only corroborate the apprehension of the said complainant-investor that he had been duped in the j above transaction and his funds misappropriated by M/s. Desh Bandhu Gupta. The matter thus appears to be very serious and warrants . immediate action by your Exchange. I shall be grateful if you will kindly send a report about this case as early as possible at my Calcutta office address." Again on March 16, 1965 the petitioner wrote an official letter in his capacity as Deputy Director of Exchange to the Secretary of the Exchange regarding the complaint from Shri N.C. Sen wherein certain remarks were made to which the plaintiff has taken exception. The said letter ended with the following passage ; "The facts that a responsible member of the Exchange who is also represented in the Board of Directors of your Exchange could make payment of a part of the claim on dividend accounts for a transaction which is reported to have taken place about 3 years back and has not delivered the shares are clear evidence for immediate processing of the complaint by your Exchange and for taking such disciplinary action as the circumstances should warrant. While therefore no part of the complaint should on any account be deemed to have been settled, as a first step, it is requested you .should immediately impress the member on the need for delivery of the shares in question or to make payment of Rs. 5,000.00 as requested for in the present letter under reference. It is further requested that action taken on receipt of this letter be intimated to me immediately." Taking an exception to the remarks made by the petitioner in his above said communication, the plaintiff filed a suit against the petitioner (defendant No. 1), Shri Prafulla Kumar Roy, (defendant No. 2), Shri N.C. Sen (defendant No. 3), Shri Bharat Bhushan (defentant No. 4) and Exchange (defendant No. 5 (for the recovery of Rs. 10,500.00 as damages for having defamed him by writting and publishing certain passages occurring in the above-mentioned letters and in certain other matters detailed in the plaint. In his written statement defendant No. 1 took up a preliminary objection to the effect that the suit against him was barred by section 80, Civil Procedure Code, as the plaintiff had not served any notice upon the petitioner as required by that provision. It was prayed in the written statment that the suit was liable to be dismissed for want of compliance with the mandatory provisions of section 80 of the Code. In reply to the said objection it was pleaded by the plaintiff in his replication that the petitioner had no such capacity as a Government Officer and that whatever might have been his responsibilities at the Calcutta Stock Exchange, he had none of the nature at the Delhi Stock Exchange. On that basis it was averred by the plaintiff in his said replication that defendant No. 1 had not acted in his capacity as a Government Officer while sending the relevant communication. The plaintiff pleaded that defendant No. 1 was only one of the Directors of the Delhi Stock Exchange and had no powers beyond that. It was added in the replication that the functions of the petitioner were not and could not be his duties as a public officer in the Government of India. The above said contentions of the parties gave rise to the following-preliminary issue :- 1. Whether any notice was essential to be served on defendant No. I under section 80, Civil Procedure Code . before filing the present suit ? If so, what is the effect of non-service of such notice ? Four other preliminary issues were framed by the trial Court with which we are not concerned in the instant case. By order dated 7th December 1965 the Court of Shri V.K. Kaushal, Sub-Judge 1st Class, Delhi, held on the above mentioned issue that the petitioner was working as one of the Directors of the Exchange when he wrote the letter in question which was alleged to be defamatory and that the petitioner's actions which were alleged to be defamatory were performed by him while acting as such a Director. Relying on a judg ment of the Allahabad High Court in Muhammad Ekram Khan and another v. Mirza Muhammad Bakar and other, the Sub Judge held that the petitioner was not acting in his official capacity as Deputy Director in the Ministry of Finance when he wrote the alleged defamatory letter. In fact, it has been held by the trial Court that the petitioner was at the relevant time only a member of the Exchange. On that basis the preliminary issue was decided in favour of the plaintiff and it was held that the Court was competent to try the suit without there having been any notice under section 80 of the Code. Aggrieved by the said judgment of the trial Court in the first preliminary issue N.C. Maitra, defendant No. 1 has filed this petition for revision of those orders.

(3.) It is settled law that the provisions of section 80 of the Code are mandatory and non-compliance with the same is fatal to the suit which falls within the mischief of that section in-so-far as the defendent who was entitled to get a"notice under that section is concerned.