SURENDRA NATH CHATTERJI Vs. JAGAT NARAIN SAROGI

JUDGEMENT

(1.) This is an appeal on behalf of defendant 3 in a suit by the plaintiff for realization of a certain sum of money as the price of seeds supplied to the defendants under different contracts as the defendants were running the Victoria Mills. The trial Court dismissed the suit on the ground that notice under Section 80, Civil P.C., was not served on defendant 3 although he was a receiver appointed by a Court in charge of the Victoria Mills. It also held that the plaintiff had no cause of action against the other defendants. On appeal before the Additional District Judge it was held by him that the suit was maintainable and notice under Section 80, Civil P.C., was not necessary. He accepted the finding of the trial Court about the non-liability of the other defendants.

(2.) In order to appreciate the points raised by Mr. P.R. Das it is necessary to give a few more facts. The defendants have got a mill in the town of Bhagalpur known as the Victoria Mill Co. They manufacture different kinds of oil. The business of the mill, according to the plaintiff, is carried on through the manager, Mr. C.S. Ghosh. The plaintiff used to supply seeds and it is for the price of the seeds that he has sued the defendants. In the year 1932 there was a suit for partition of the ancestral property of the defendants including the mill in question, amongst the four brothers, and the Court by its order dated 8 September 1933, appointed defendant 8 to be the receiver of the properties which were the subject-matter of partition. The mill was placed in his charge as the receiver. The business of the mill was carried on by the defendant as receiver through the manager, Mr. C.S. Ghosh. The lower appellate Court points out, while dealing with the question of notice under Section 80, that it was true that the transactions in respect of which the suit was filed were subsequent to the appointment of defendant 3 as the receiver of the mill. The order appointing him is Ex. C in the case. By this order he was appointed the receiver and was enjoined "to work the mill" and manage the business to his best skill and ability, to submit monthly accounts, and to see that the cash and assets of the mill were not affected in any way. He was to get 25 per cent, of the net profits as remuneration as receiver and was to deposit the rest of the profits, if any, to be distributed amongst the parties at the time of partition. After referring to the evidence in the case, the lower appellate Court points out that, al. though defendants was appointed receiver of the mill all its business used to be carried on by a manager, Mr. C.S. Ghosh. All the letters appear to have been written by the manager. Plaintiff's witness 1 said that he had no information before the institution of the suit that Babu Surendra Nath Chatterji was appointed the receiver by the Court in a partition suit. The lower appellate Court also points out that the letters that were addressed by the manager to the plaintiff did not appear to show that the manager was writing on behalf of the receiver. In these circumstances the lower appellate Court held that the order appointing defendant 3 as receiver was not an order which would operate as an order in rem.

(3.) The lower appellate Court has relied upon the case in Reoti Mohan V/s. Jatendra Mohan in which their Lordships of the Judicial Committee held that in a case of a suit against a public officer it is only where the plaintiff complains of some act purporting to have been done by him in his official capacity that a notice under Section 80, Civil P.C., is enjoined and the failure to pay a claim by a public officer cannot be said to be an act purporting to be done by him in his official capacity. Therefore, the lower appellate Court found that the failure to pay the dues of the plaintiff by defendant 8 did not amount to an official act and consequently it was not necessary for the plaintiff in the present case to serve a notice under Section 80, Civil P.C., upon him. The lower appellate Court also refers to the decision of this Court in Joti Prasad Singh V/s. Samuel Henry Seddon A.I.R. 1940 Pat. 516. The case there also turned upon the question whether the claim was against the receiver with regard to acts which purported to have been done by the receiver in his official capacity. Chatterji J. in his judgment observed that non-payment of the royalty could not be said to be an official act done by the receiver and, consequently, the suit was not bad for want of a notice on the receiver. The lower appellate Court referred to the cases relied upon by the trial Court: Jagdish Chandra V/s. Debendra Prasad , Bhag Chand V/s. Secy. of State and Radharani Dassya V/s. Purna Chanddra Sarkar and held that these cases did not apply to the facts of the present case. Mr. P.R. Das appearing for the appellant has urged that the receiver is a public servant, that the provisions of Section 80, Civil P.C., are mandatory as was held in Bhag Chand V/s. Secy. of State , and that on the provisions of Section 80 it had to be established that the cause was an official act and the receiver was personally liable.