JASWANT CHAND S MEHTA SOLE PROPRIETOR MADRAS HEAVY CHEMICALS MADRAS Vs. UNION OF INDIA OWNING SOUTHERN RAILWAY

JUDGEMENT

(1.) THE plaintiff in O.S.No.7647 of 1973, VII Assistant City Civil Court, Madras is the appellant in this second appeal. That suit was laid against the respondent herein for the recovery of a sum of Rs.5,883-95 comprised of Rs.4,993-95 towards the value of goods short delivered and interest thereon at six per cent per annum from 24-10-1970 to 24-10-1973, amounting to Rs.890 and for future interest at six per cent per annum from the date of plaint till the date of realisation.

(2.) THE circumstances under which the appellant sought the recovery of the amounts as aforesaid are under: A consignment of 111 drums and 1 bag of sodium nitrate was entrusted by the State Trading Corporation of India with the railway at Wadi Bunder to be carried to Salt Cotaurs as per railway receipt No.588574 dated 31-8-1970. When the appellant was the owner of the goods sought to obtain delivery, it was found that there was a shortge of 17 quintals and the appellant also obtained from the respondent herein a shortage certificate to that effect on 10-9-1970. THEreupon, a claim was lodged by the appellant with the respondent but the respondent did not accede to that claim, which resulted in the issue of a notice by the appellant on 9-8-1973, under S.80, C.P.C. Even thereafter, the respondent did not meet the claim of the appellant and subsequently, the appellant instituted the suit for the recovery of the amounts as stated earlier, charging the respondent with negligence resulting in loss caused to the goods belonging to the appellant.

(3.) IT would be necessary at this stage to refer to the decision of the Supreme Court in Ghan-shyamdas v. Dominion of India, A.I.R. 1984 S.C. 1004. In terms of an escalation clause in a contract for the supply of charcoal, the contractor made a demand for payment at the enhanced rate, which was refused by the military authorities and the contractor served a notice under S.80, C.P.C. Before the suit could be instituted, the contractor died and his three sons brought the suit claiming escalated amounts and an objection was raised that the notice given by the father would not ensure to the benefit of the sons. Though the trial court did not accept this objection and granted a decree, the High Court held that the notice given by the father was not sufficient compliance with S.80, C.P.C. and dismissed the suit. However, the Supreme Court pointed out that S.80, C.P.C. is but a part of the procedure and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it and that the whole object of S.80, C.P.C. is to give the Government sufficient warning of the case to be instituted against it and to enable the Government if it so wished, to settle the claim without litigation and if that requirement is fulfilled, that would suffice. In so holding, the Supreme Court, in paragraph 22 of its judgment, overruled the prior decision in S.N.Dutt v. Union of India, A.I.R. 1961 S.C. 1449. Apart from this, the Supreme Court has also taken into consideration the legislative acceptance of the concept of substantial compliance as embodied in S.80(3), C.P.C. inserted by S.27 of the Civil Procedure Code (Amendment) Act, 1976. The Supreme Court was aware that S".80(3), C.P.C. would apply only to suits instituted after 1-2-1977 and that suits which were pending on that day had to be dealt with, as if the amendment under S.80(3) was not made and despite that, the legislative acceptance was relied upon as justifying the conclusion that substantial compliance would suffice and the notice under S.80, C.P.C. must be construed with regard to commonsense in the background of the object with which that section had been enacted. On the facts of this case, it is clearly seen that the principle laid down by the Supreme Court in Ghan-shyamdas v. Dominion of India, A.I.R. 1984 S.C. 1004 would apply and the Courts below were, therefore, in error in non-suiting the appellant on the ground that the notice issued under ExA7 under S.80, C.P.C. was invalid. No other point was urged.