UNION OF INDIA Vs. SATYANARAIN

JUDGEMENT

(1.) THIS is a defendant's appeal against a modifying decree of the lower appeal Court by which the plaintiff's claim for damages for nondelivery of one of the two bales of gunny bags consigned for transport by rail was partly allowed. The facts, which are not in dispute, may be briefly stated On. 7th December 1950, Messrs. Puranmal Dalmia and Co. consigned at Shalimar two bales of gunny bags, each containing 400 pieces, to be delivered to themselves at Baradwar. The plaintiffs, who paid for the bales and obtained the railway receipt, learnt that only one bale bad arrived. They asked for open delivery which was given on 31st December 1950. The second bale was not delivered. On a claim being made by the plaintiffs, the Claims Officer offered to pay to them RS. 558.56, but they refused to accept the amount. Thereupon, after serving the usual notices under section 77 of the Railways Act and section 80 of the Code of Civil Procedure, they initiated this action. The Court of first instance decreed the claim amounting to Rs. 804 -9 -0 in full, but the lower appeal Court reduced it to RS. 767. The defendant has challenged the decree passed in appeal on several grounds.

(2.) IT is urged that the two statutory notices are not valid. While these notices were given by "Nathmal Prahladrai", the suit was also filed by "Shop Nathmal Prahladrai" through the proprietors, Satyanarain and Puranmal. During the pendency of the suit in the first Court, the plaintiffs were allowed to amend the plaint by deleting the name of the shop and showing themselves as the persons suing. The precise defect pointed out is that, in the two notices, the plaintiffs did not show that they intended to sue the Union of India, Having heard the counsel, I am of opinion that this contention must be accepted. The plaintiffs, who are members of a Hindu joint family, carry on business in the name of "Nathmal Prahladrai". In view of Order 30, rule 10, Civil Procedure Code, they may, in certain circumstances, be sued in that name, but they have no right to sue in that name. Either the Karta or manager of a joint family may, in his own name, bring a suit on behalf of the joint family or all the members of the family, acting together, may do so. Also, when a transaction is entered into in the names of two or more managers, they, acting together, are entitled to bring a suit without impleading other members of the family: Kisken Parahad v. Har Narain Singh, 38 IA 45. In view of this position, the present suit could have been brought by the manager of the family in his own name or by the two plaintiffs if the contract was entered into in their names. That being so, the statutory notices had to be given either by the manager in his own name or by the two plaintiffs in their names and not in the name in which they carried on business. One of the two notices was given by "Puranmal for Nathmal Prahladrai, Merchants" and another was given on behalf of "M/S Nathmal Prahladrai".

(3.) THE learned counsel for the plaintiffs relied upon Dhian Singh Sobha Singh v. The Union of India, 1968 SCR 781 :, AIR 1968 SC 274, State of Madras v. C.P. Agencies, AIR I960 SC 1309 and other cases for the view that such notices should be construed liberally and with common sense. In dealing with a similar contention, the Supreme Court observed in S.N. Dutt v. Union of India : AIR 1961 SC 1449: 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 there. In the last mentioned case, one S. N. Dutt, who carried on his business, of which he was the sole proprietor, in the name of Messrs. S. N. Dutt and Co., gave the statutory notices in the name of Messrs. S. N. Dutt and Co. and then filed a suit in his personal name "as sole proprietor of the business carried on under the name and style of S. N. Dutt and Co.". Accepting the submission that the notices were bad, the Supreme Court stated: