9911796707
TMI Blog1962 (4) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... ,714/- each for the months of April and May. Subsequently thereto there were disputed raised by the appellant that the Excise authorities had defaulted in performing certain of the obligations undertaken by them, in the matter of the supply of liquor etc. and there was correspondence relating to it. There appear to have been attempts by the authorities to remedy the situation but apparently the appellant was not satisfied with the steps taken, with the result that he stopped his sales of liquor and thereafter served a notice under section 80 of the Civil Procedure Code dated September 2, 1952 on Government making a claim for damages for alleged breach of certain of the stipulations. After receipt of this notice the Collector of Excise directed the suspension of the appellant's licence under section 36 of the Punjab Excise Act, 1914 and thereafter proceeded under section 39 of that Act to take over the management of the vend-shops which theretofore were under the management of the appellant. As the appellant did not pay the monthly installments due from and after June, 1952 the Collector also took steps for the recovery of these installments. The appellant then filed a suit No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipally on the point that the suit was not maintainable because of the non-compliance of the terms of section 80 of the Civil Procedure Code, we did not hear learned Counsel about the merits of the appellant's complaint regarding breach of contract on the part of the State and the relief of which the appellant would be entitled on that basis. 5. We shall therefore confine ourselves to the statement of the facts necessary for deciding the point regarding the suit not being maintainable because of non-compliance with the requisites of section 80 of the Civil Procedure Code. The section runs : 80. No suit shall be instituted against the Government 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 has been delivered to, or left at the office of - (a) in the case of a suit against the Central Government except where it relates to a railway, a Secretary to that Government; (b) ................................................. (c) ................................................. and, in the case of a public officer, delivered to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplying with the requirements of section 80. 10. We do not consider that there is much substance in the first objection we have set out above. If the plaint which is being considered by the Court has been preceded by a notice which satisfied the requirements of section 80, Civil Procedure Code, then the fact that before the plaint then under consideration, there had been another plaint which had been filed and withdrawn cannot, on any principle, be held to have exhausted or extinguished the vitality of the notice issued. 11. We consider it necessary to concentrate mainly upon the second of the objections raised, viz. that there was substantial disconformity between the plaint filed by the appellant and the notice under section 80 which was relied on in paragraph 20 of the plaint. It is necessary for this purpose to analyse somewhat closely the allegations and reliefs in the plaint, as well as in the notice to see how far the disconformity and variance pleaded by the respondent had been made out. We shall begin with the plaint. After reciting the auction dated February 25, 1952 under which the vend-licence was leased to the appellant for the year 1952-53 and the material terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which the plaintiff had lost ₹ 931/8/-. Paragraph 10 complained that the Government had not taken steps to suppress illicit distillation which had caused loss, though the loss was neither quantified not any claim made under that head, while paragraphs 11 to 13 challenged the legality of the action taken by the Excise authorities in suspending the licence and in taking over the vend-shops under their management. In paragraph 16 the plaintiff claimed a refund of ₹ 21,460/- which had been deposited into the Treasury at the time the licence was granted to the appellant and finally in paragraph 19 the plaint made a claim that by reason of government having broken the contract the plaintiff had lost a profit every month of ₹ 5,052/- for the unworked period of the year of the licence, i.e. from July 1, 1952 to March 31, 1953 which totalled ₹ 45,471/6/-. These several heads added up to ₹ 1,09,653/11/- and the plaint went on to state : The plaintiff is thus entitled to a total refund and compensation of ₹ 1,09,653/11/- the details of which are given in Schedule 'B' (which set out the details of the computation by which the figures which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Excise VIII credited in the treasure at Sunder Nagar amounts to ₹ 74,935/8/3. I hereby make demand of the said amounts payable to may client which may either be paid direct to him or to me without delay . 15. The question now for consideration is how far and to what extent there is a variance between the plaint and the notice. At the outset it might be pointed out that as at a very early stage of the suit the appellant withdrew the relief for a permanent injunction, which was not claimed in the notice and the question of this extra relief need not therefore be considered. 16. It would have been noticed that the plaint claim was reduced to ₹ 74,935/8/3 obviously because that was the figure that was claimed in the notice of suit. In the notice however how the total of ₹ 74,935/8/3 was arrived at, in what manner the several items claimed were to be related to this figure were not set out. Nor can those details be inferred or gathered from the detailed Dagduas which accompanied the plaint on the basis of which the several items claimed in the plaint were derived. There is one other matter which requires mention in this connection. There were two items of loss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and proper construction of section 80, Civil Procedure Code the authority on whom the notice is served has a right to be informed what the claim of the party is in respect of each of the several heads. It is, no doubt, true that a notice under section 80 is not a pleading and need not be a copy of the plaint and that no particular or technical form is prescribed for such a notice, still having regard to the object for which section 80 has been enacted we consider that the details which it contains should be sufficient to inform the party on whom it is served of the nature and basis of the claim and the relief sought, and in so stating the position we are merely reproducing the terms of the section. No doubt, a notice has to be interpreted not pedantically but in the light of commonsense without one being hypercritical about the language but the question is whether in the notice before us there is substantial information conveyed on the basis of which the recipient of the notice could consider the claim of the would-be plaintiff and avert the suit. For the reasons already stated this question can only be answered in the negative. 18. Mr. Sastri invited out attention to the decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amount claimed under each of the several heads of items claimed it would have been possible for the government to have considered whether it was worth their while to settle with the plaintiff by agreeing to pay the sum demanded. This they had never an opportunity by reason of form of the notice, and the manner in which the relief claimed was stated. 22. The only item regarding which it could be said that there is a quantification in the notice would be that relating to the claim for the refund of ₹ 21,460/- being the amount of advance deposit made before the licence was granted, but the plaintiff's claim in this regard is barred under the terms of section 40 of Punjab Excise Act which runs : 40. When a license, permit or pass is cancelled or suspended under clause (a), (b), (c), (d) or (e) of section 36 or under section 37, the holder shall not be entitled to any compensation for its cancellation or suspension nor to the refund of any fee paid or deposit made in respect thereof. 23. The result therefore would be that the entire claim in the suit must fail reason of the combined effect of section 80, Civil Procedure Code and section 40 of the Punjab Excise Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The licence, my client has been and would be willing to carry out his part as relates to auction conditions if the Government gives immediate redress in the terms above noted and arrange supplied in pilfer-proof bottles. Otherwise, treating the contract determined he will be forced to take the matter to law courts in which event the Himachal Government will be liable in addition to the damages; to costs and expenses that may accrue for the stated steps. 25. When one comes to the plaint however, the entire basis or rather the cause of action is changes. By that date the contract had been terminated, the licence having been suspended and afterwards the Collector had taken over the management of the shops under section 39 of the Punjab Excise Act. There was, therefore, a radical difference between the state of circumstances when the impugned notice was issued and when the plaint was filed which is reflected in the allegations made in the two documents and the reliefs claimed in each. In summary, the notice was based on the breach of stipulations in a contract which had not been broken and was still subsisting. In that sense, it would be the items claimed in respect of each breach ..... X X X X Extracts X X X X X X X X Extracts X X X X
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