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TMI Blog1956 (9) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... ) were to pay to the decree-holder Durgaprosad a sum of ₹ 8,61,000/-and several other sums in certain instalments. Payments were made from time to time, but some of these were not certified by the decree-holder and the judgment-debtors' attempt to have these uncertified payments recorded as certified failed except with regard to three of them. Eventually, a sum of ₹ 3,32,372-10-0 remained due under the decree with interest as provided therein. 3. On March 14, 1933, Durgaprosad's son Keshardeo, who had been given in adoption to another branch of the Chamaria family, brought a suit against his natural father Durgaprasad for recovery of certain monies and, three days later, on March 17, 1933, the said suit was compromised between the said parties whereby the above decree of Title Suit No. 61 of 1923 (the outstanding dues whereunder, at the time, were as stated above, a sum of ₹ 3,32,372-10-0 with interest) was assigned to Kesherdeo. 4. On April 1, 1933, the Certificate Officer of Howrah attached the aforesaid decree of Title Suit 61 of 1923 in execution of a certificate against Durgaprasad for arrears of income-tax, amounting to ₹ 3,86,000/-. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4, was not even-tually pressed and it was dismissed. The judgment-debtors appealed to the Privy Council against this Court's above order, refusing their prayer for recording adjustment and full satisfaction, on June 3, 1940. The appeal was dismissed by the Privy Council, subject to one direction, namely, that the payment of ₹ 1,60,000/- should be certified and recorded under the terms of Order XXI Rule 2 of the Code of Civil Procedure, the direction being made without prejudice to the rights which any party may have in the matter on grounds to which their Lordships' attention has not been called . On April 26, 1941, the payment of ₹ 1,60,000/-was noted as certified by the executing court, as prayed for by the judgment-debtors. 7. In the meantime events were moving fast at the other end. The assignee Keshardeo, whose claim had been rejected by the Certificate Officer on April 28, 1934, as aforesaid, filed Title Suit No. 111 of 1934 in the First Court of the Subordinate Judge of Howrah on December 5, 1934. The suit was filed apparently under Order XXI Rule 63 of the Code of Civil Procedure and therein prayers were made, inter alia, for a declaration that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at interest on the amount of ₹ 1,60,000/- which the Privy Council ultimately directed to be recorded as certified should cease on and from May 28, 1934. The executing court, however, did not accept that contention and held, by its order, dated September 11, 1942, that interest would cease only from October 10, 1936, when the money was attached. The judgment-debtors' appeal, (F. M. A. No. 233 of 1942), against this decision was dismissed by this Court, but the decree-holder Keshardeo's appeal, F. M. A. No. 242 of 1942, was allowed and, on June 22, 1943, this Court ordered that interest would cease only from July 4, 1941, when the money was actually received by the Civil Courts for being made over to Keshardeo. The ultimate result was that the judgment-debtors were made liable to Keshardeo for interest on the above sum of ₹ 1,60,000/- up to July 4, 1941 in other words, they got effective credit for this sum against the decree only on and from July 4, 1941, although they had actually made the payment to the Secretary of State on May 28, 1934. In the above circumstances, the present suit was instituted by the appellants on May 15, 1944, for, inter alia, a declaratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of dismissal the present appeal has been preferred by the plaintiffs. 11. The appeal has been pressed only with regard to the claim of ₹ 98,584-13-0, mentioned in item No. (c) of paragraph 26 of the plaint, as set out hereinbefore, and representing the interest on the sum of ₹ 1,60,000/- (which was deposited by the plaintiffs in the Howrah Collectorate on May 28, 1.934) which the plaintiffs had to pay to the assignee decree-holder Keshardeo. Mr. Gupta has confined his appeal to that item of claim only and that also on the ground of tort alone. The case of contract has not been urged before us as, apart from other infirmities of the alleged contract, it is difficult to discover in it any contract of indemnity which was essential to support the plaintiffs' claim under that head. We would, therefore, confine our discussion Only to the appellants' claim for the above amount as founded on tort, or, in other words, to their said claim as made by way of damages for tort. 12. The appellants' arguments may now be conveniently set forth. The suggested links in the chain are as follows : (i) that the attachment of the decree of Title Suit No. 61 of 1923 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the sum of ₹ 1,60,000/- was received and realised by judicial process, that is, by execution through court, and the judicial order of execution intervening, the damages claimed were too remote,--and not certainly the direct and proximate result of any act of the Government so as to be attributed to any tort on the part of the Government or the Secretary of State -- and, in the absence of malice or want of reasonable and probable cause, at any rate, no claim for damages would lie; and (e) that, in the circumstances of this case, no actionable delay, default or neglect can be pleaded, at any rate none had been established or proved by the plaintiffs and that the payment of ₹ 1,60,000/-was voluntary and there was no demand for its return either to the plaintiffs themselves or to anybody else on their behalf, so as to support any case of detention of money, and the plaintiff's conduct throughout would also debar them from claiming any damage on the ground of tort or in equity as against the defendant respondent. 14. In the course of argument, various authorities were placed before us and the discussion covered a wide field. The substance of the matter, howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lasted almost till the institution of the present suit and even thereafter (vide Paragraph 22 of the plaint). 17. The inevitable conclusion would thus be that this appeal would fail and it is liable to be dismissed. 18. We proceed now to discuss in some detail the true legal position, arising upon the rival contentions of the respective parses, and how, in the light thereof, our above conclusion can be supported in the facts of the present case. In doing so, we shall state first the general principles of law, applying to claims of the present type, and then study their effect on the appellants' present claim. 19. The State's liability to be sued for its own acts or acts of its officers or subordinates in the discharge of their official duties has often been the subject of much discussion. These acts may be conveniently grouped under two general heads, namely (i) acts, done in pursuance of ventures which a private individual may as well undertake, lor example, mercantile operations and the luxe, and (ii) acts, done in the exercise of Governmental powers which cannot be lawfully done except under sovereign authority or delegation thereunder. Acts of the former class ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in cases where the decision had to be made as a matter of course or where it is ex parte in the sense that the person, sought to be affected thereby, was not a parly to the proceeding in which the decision was given and, possibly also, where the decision was not final or binding, so far as the party sought to be affected thereby, was concerned. These exceptions, however, are in the nature of apparent exceptions which do not affect the rule. Further, for a payment, voluntarily made and never demanded back, no damage can be claimed either for detention or otherwise. 21. In India, the principles governing the State's liability to be sued in regard, to its acts vis-a-vis its subjects, were first authoritatively slated by the Court in their broad aspects in the case of Peninsular and Oriental Steam Navigation Co. v. Secretary of State for India, 5 Bom HCR App 1 D), usually known and cited as the P and O Case. This case was decided by the Supreme Court, Calcutta, about a century back but it is always been accepted as the leading case on the subject. It has no doubt been supplemented, from time to time by judicial pronouncements on particular matters or questions, not falling direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not arise for consideration in the P and O Case (D) and Sir Barries Peacock only made some general and incidental observations to stress the fundamental distinction in the position of the State in regard, to the above two classes of acts. Later on, the State's liability for acts done or purported to be dune in the exercise of governmental or Sovereign powers came up for consideration on a number of occasions before the different High Courts and a distinction was drawn between acts which are acts of State, in the strict sense of the term, that is, acts done or purported to be done in the exercise of Sovereign powers, not seeking justification under municipal law, and acts done by or on behalf of the State as the Sovereign authority under the sanction or purported sanction of some municipal law. In the former class of cases the immunity was always held to be absolute; in regard to the latter class of acts, the State was held liable only if the act was done under its orders or wan ratified by it or if there was unlawful detention of land, goods, chattels or money of the subject. When again the act was the act of a State officer under the sanction or purported sanction of some part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated as follows: The Crown in India was liable to be sued in respect of acts which in England could be enforced only by a petition of right. As regards torts of its servants in exercise of Sovereign powers the Company was not and the Crown in India was not liable unless the act had been ordered or ratified by it. 22. On the other question, namely, about remoteness of damages and the bearing of an intervening judicial decision on that question, the law is staled in general terms by Lord Justice Scrutton in the case of (1924) 2 KB 517 at p. 565 (A) and the relevant passage has already been quitted by us. Exceptions to this Rule arise where the decision had to be given as a matter of course (vide Bhupendra Nath Chatterjee v. Sm. Trinayani Debi, 48 Cal WN 348 at p. 354; (AIR 1944 Cal 289 at p. 295) (S), citing Kissorymohun Roy v. Hursook Dass, 17. Ind App 17) (PC) (T)) or where the person affected, was not a party to that decision (vide Joykalee Dassee v. Representative of Chandmalla, 9 Suth WR 133 (U) and Ramanathan Chetty v. Mira Saibo Marikar ; vide also and, possibly also, where the decision was not final or binding, so far as the party, sought to be affected thereby, wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xecution, approached the Certificate Officer in the meantime and offered him the sum of ₹ 1,60,000 in full satisfaction of the decretal claim of about ₹ 4,00,000 and this offer was. accepted by the Certificate Officer on condition of immediate payment of the said sum of ₹ 1,60,000 by the judgment-debtors. In the circumstances we cannot but regard this payment of ₹ 1,60,000 to the Certificate Officer or through him to the Secretary of State as anything but a voluntary payment as the judgment-debtors were under no compulsion at the time in any sense of the term to make any payment to the attaching decree-holder, the Secretary of State. Notices had been directed to be issued to them before issue of execution and they had ample opportunity to object to the execution by the Secretary of State if they had so liked. Instead, they made tile payment as aforesaid in the Certificate Case and actually applied on June 21, 1934, before the executing Court for recording adjustment and full satisfaction of the decree by reason of the said payment. That application, as we have seen above, was eventually disallowed, but the Privy Council directed part satisfaction to be enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground of unlawful attachment, it is necessary to examine that aspect of the matter, but we do not think that the claim can succeed on that ground either. The attachment was made by the Certificate Officer who was, of course, acting judicially at the instance of the Income-tax-Officer through the Collector, How-rah. The latter again in sending the Certificate for execution was acting under statutory powers for performance of statutory duties (vide Section 46 of the Indian Income-tax Act). The Certificate Officer was acting judicially and no question of damages would arise, so far as he is concerned, even if the order of attachment was unlawful. As to the Income-tax Officer's and the Collector's acts also in seeking execution of the Certificate and obtaining the attachment for that purpose from the Certificate Officer, the Secretary of State cannot be made responsible as those Officers were obviously acting under statutory powers and not strictly as agents of the Secretary of State. In this view no question of ratification by the Secretary of State would also possibly arise. But, even assuming that the Income-tax Officer's and the Collector's action in sendin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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