MURADALLY SHAMJI Vs. BNLANG

JUDGEMENT

(1.) On the 26th of September 1911 the plaintiff in this suit was adjudicated insolvent and an order was made vesting his estate in the Official Assignee. The plaintiff thereafter applied for his discharge and on the 2nd of October 1912 an order was made in the following terms:-"It is ordered that the insolvent s discharge be with protection suspended for one year and that he be discharged as from the 2nd day of October 1913". In 1916 and 1917 the plaintiff acquired a saddlery business. On the 22nd day of January 1918 the Official Assignee considering that no final order of discharge had been made took possession of the plaintiff s stock-in-trade and then restored possession and allowed the plaintiff to continue his business on condition of his making payments for the benefit of his scheduled creditors. On the 7th of March 1918 the Official Assignee threatened to retake possession and on the 8th of March the plaintiff filed this suit to recover the sums which he had paid to the Official Assignee as he says under coercion, for damages for the alleged trespass and for an injunction to restrain the threatened trespass.

(2.) A preliminary objection has been taken that the suit is not maintainable as the plaintiff has not given notice as required by Section 80 of the Code of Civil Procedure.

(3.) There is no question but that the Official Assignee is a "public officer" entitled to such a notice: Joosub Haji v. N. W. Kemp (1902) I.L.R. 26 Bom 809; 4 Bom. L.R. 920. It is sought, however, to take this out of the operation of the section as one of the relief-s claimed is for an injunction to restrain a future act of trespass. Section 80 is as follows:- No suit shall be instituted against the Secretary of State for India in Council, or against a public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing, etc.