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TMI Blog2014 (10) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... rmation assert the same truth or agree to assert the same falsehood at the same time, neither can be estoppel against the other. Therefore, whilst it cannot be disputed, that the authorities issuing the NSC were required to ensure, that the same was issued to only such persons who were eligible in law to purchase the same, yet in terms of the mandate of Rule 17 extracted hereinabove, the vires whereof is not subject matter of challenge, it is not possible for us to accept, that the rule of estoppel could be relied upon at the behest of the Appellant, for any fruitful benefit. It is indeed true, that the NSC was purchased in the name of M/s. Bhagwati Vanaspati Traders. It is also equally true, that M/s. Bhagwati Vanaspati Traders is a sole proprietorship concern of B.K. Garg, and as such, the irregularity committed while issuing the NSC in the name of M/s. Bhagwati Vanaspati Traders, could have easily been corrected by substituting the name of M/s. Bhagwati Vanaspati Traders with that of B.K. Garg. For, in a sole proprietorship concern an individual uses a fictional trade name, in place of his own name. The rigidity adopted by the authorities is clearly ununderstandable. The post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to as, NSC) bearing number 6NS/06DD 387742, by investing a sum of ₹ 5,000/-. The above NSC was to mature on 28.4.2001. The maturity amount payable on 28.4.2001 was ₹ 10,075/-. 2. Since M/s. Bhagwati Vanaspati Traders was not paid the amount due on maturity, B.K. Garg made repeated visits to the office from where the NSC was purchased. He was informed, that an NSC could only be issued in the name of an individual, and that, the NSC taken in the name of M/s. Bhagwati Vanaspati Traders, was not valid. He was also informed, that the matter had been referred for advice to the Post Master General, Bareilly, and that, the question of payment of the maturity amount would be considered only after the receipt of inputs from Bareilly. Having waited for a substantial length of time, and realizing that no further action had been taken at the hands of the Respondent, B.K. Garg visited the office of the Post Master General, Bareilly. At Bareilly he was informed, that the matter had been referred to the Director General (Post), Department of Posts, New Delhi, and that, he would have to await the decision of the Director General (Post). Having waited long enough, without any fruit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Respondent had placed reliance on a decision rendered by this Court in Post Master, Dargamitta HPO, Nellor v. Raja Prameeelamma (1998) 9 SCC 706, wherein this Court had held as under: But as this contract was contrary to the terms notified by the Government of India and this was due to inadvertence of the staff. In my opinion it does not become a contract binding the Government of India being unlawful and void. As such this is not a case of deficiency in service either in terms of the law or in terms of the contract as defined in Section 2(1)(g) of the Consumer Protection Act, 1986. (emphasis is ours) During the course of hearing, learned Counsel for the Respondent, in addition to the judgment extracted hereinabove, placed reliance on a recent decision rendered by this Court in Arulmighu Dhandayadhapaniswamy Thirukoil, Palani, Tamil Nadu v. Director General of Post Offices, Department of Posts and Ors. (2011) 13 SCC 220, and drew our attention to the following conclusions recorded therein;- 18. This Court in Raja Prameeelamma case (1998) 9 SCC 706, held that even though the certificates contained the terms of contract between the Government of India and the holder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NSC purchased by him on 28.4.1995. The deprivation of the Appellant, according to learned Counsel, was based on a pure determination of the legal rights of the Appellant. 6. The first contention advanced at the hands of the learned Counsel for the Appellant was based on the decision rendered by this Court in Tata Iron Steel Company Ltd. v. Union of India and Ors. (2001) 2 SCC 41, wherefrom learned Counsel invited our attention to the following observations: 20. Estoppel by conduct in modern times stands elucidated with the decisions of the English Courts in Pickard v. Sears 1837 6 Ad. El. 469, and its gradual elaboration until placement of its true principles by the Privy Council in the case of Sarat Chunder Dey v. Gopal Chunder Laha (1891-92) 19 IA 203, whereas earlier Lord Esher in the case of Seton Laing Company v. Lafone 1887 19 Q.B.D. 68, evolved three basic elements of the doctrine of Estoppel to wit: Firstly, where a man makes a fraudulent misrepresentation and another man acts upon it to its true detriment: Secondly, another may be where a man makes a false statement negligently though without fraud and another person acts upon it: And thirdly, there may be ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conduct. Estoppels by conduct, or, as they are still sometimes called, estoppels by matter in pais, were anciently acts of notoriety not less solemn and formal than the execution of a deed, such as livery of seisin, entry, acceptance of an estate and the like, and whether a party had or had not concurred in an act of this sort was deemed a matter which there could be no difficulty in ascertaining, and then the legal consequences followed (Lyon v. Reed (1844) 13 M W 285 (at p. 309). The doctrine has, however, in modern times, been extended so as to embrace practically any act or statement by a party which it would be unconscionable to permit him to deny. The rule has been authoritatively stated as follows: 'Where one by his words or conduct willfully causes another to believe the existence of a certain state of things and induces him to act on that belief so as to alter this own previous position, the former is concluded from averring against the latter a different state of things as existing at the same time.' (Pickard v. Sears (supra)). And whatever a man's real intention may be, he is deemed to act willfully 'if he so conducts himself that a reasonable man w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking to refund for any amount erroneously paid or paid in excess (emphasis supplied), question of there being any estoppel in our view would not arise. In this context correspondence exchanged between the parties are rather significant. In particular letter dated 30.11.1990 from the Assistant Development Commissioner for Iron Steel and the reply thereto dated 8.3.1991 which unmistakably record the factum of non-payment of JPC price. (emphasis is ours) Based on the aforesaid observations it was the emphatic contention of the learned Counsel for the Appellant, that the rule of estoppel would come to the aid of the Appellant, inasmuch as, the Appellant having been consciously permitted to purchase the NSC, could not be denied the benefit of the maturity amount by asserting, that there was some irregularity in the purchase of the NSC. 7. It is not possible for us to accept the applicability of the principle of estoppel in the facts and circumstances of this case. No representation is ever shown to have been made to the Appellant. It was the Appellant's individual decision to purchase the NSC. It is not shown, that a fraudulent representation was made to the Appellant. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prietary business. The provisions of Rule 10 of Order XXX which make applicable the provisions of Order XXX to a proprietary concern, enable the proprietor of a proprietary business to be sued in the business names of his proprietary concern. The real party who is being sued is the proprietor of the said business. The said provision does not have the effect of converting the proprietary business into a partnership firm. The provisions of Rule 4 of Order XXX have no application to such a suit as by virtue of Order XXX Rule 10 the other provisions of Order XXX are applicable to a suit against the proprietor of proprietary business insofar as the nature of such case permits . This means that only those provisions of Order XXX can be made applicable to proprietary concern which can be so made applicable keeping in view the nature of the case. (emphasis is ours) Based on the observations recorded in the aforesaid judgment, the second contention advanced by the learned Counsel for the Appellant was, that in sum and substance, a sole proprietorship concern allows the fictional use of a trade name on behalf of an individual. It was contended, that truthfully only one individual is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, when the authorities have issued a certificate which they could not have issued, they cannot be allowed to enrich themselves, by retaining the deposit made. This may well be possible if the transaction is a sham or wholly illegal. Not so, if the irregularity is curable. In such circumstances, the postal authorities should devise means to regularize the irregularity, if possible. 10. It is not possible for us to deny relief to the Appellant, based on the judgments rendered by this Court in Raja Prameeelamma case (supra) and Arulmighu Dhandayadhapaniswamy Thirukoil case (supra), in view of the fact that, the matter was never examined in the perspective determined by us hereinabove. In neither of the two judgments, the amendment of the NSC was sought. The instant proposition of law, was also not projected on behalf of the certificate holders, in the manner expressed above. 11. There was seriously no difficulty at all in the facts and circumstances of the present case, to regularize the defect pointed out, because M/s. Bhagwati Vanaspati Traders, is admittedly the sole proprietorship concern of B.K. Garg. The postal authorities should have solicited the change of the name in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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