BHATTACHARJEE AND CO. Vs. UNION OF INDIA (UOI) AND ANR.

JUDGEMENT

(1.) THE Plaintiffs who have preferred this appeal claim that they were owners of some Salvage Air Straps and materials lying in Makum Depot Area and also of Dunips purchased by the Plaintiffs at a public auction from Messrs. Chawringhee Sales Bureau Ltd. the agents of the Defendant, the Union of India, for that purposes. The Plaintiffs purchased the materials on the 21st September by a cash Bill No. G. 2923. According to the Plaintiffs, there was no time limit fixed for collection of the materials purchased. They collected the purchased materials up to the 12th January, 1948 when the Officer -in -charge of the Makum Ordnance Depot interfered wren their work of collection and stopped the Plaintiffs from salvaging the goods. It was also alleged that the Officer -in -charge of the Ordnance on 19 -1 -1948 took 1,000 pieces of air strip from the dump for the use of the ordnance depot. The Plaintiffs made representations against the prohibitory order and conduct of the officer -in charge but they got no relief from the authorities concerned. The authorities as a matter of fact advertised for sale of 1,200 steel plates under different lots all of which are claimed by the Plaintiffs as goods, purchased by them at the sad auction. Plaintiffs have accordingly sued for recovery of the value of the materials sold by the Defendants as also those appropriated by the Defendant No 2 for the use of the ordnance depot. They assessed their to claim at about Rs. 6,000/ -. Notice under Section 80 of the Code of Civil Procedure was duly served before the Institution of the suit.

(2.) THE Defendant, the Dominion of India, contested the suit on various grounds. It was urged that the suit was barred under Section 69(2) of the Indian Partnership Act as also under Section 175 of the Government of India Act, 1935. The Dominion of India claimed exemption from any liability under the sale effected in favour of the Plaintiffs. At the same time, in paragraph 4 of the written statement, the Dominion of India admitted that the Plaintiffs had purchased the items mentioned in cash Bill No. G 2fl23 dated 21 -9 -1947 but it averred that the Plaintiffs had already collected the materials purchased. The Defendant denied that there was no time limit given for salvaging or collecting the goods. According to the Defendant, fifteen days' time was the period allowed for collecting all the materials purchased, but as the Plaintiffs did not do so inspite of sufficient time having been given to them, they had no further right to collect the materials which they purchased under the said cash bill. Thereafter it was open to the Defendant to refuse permission to the Plaintiffs to collect the materials or to sell the same. They also stated that the receipt given by the Plaintiffs was in full discharge of all obligations arising under the cash, bill in question. The Plaintiffs according to the Defendant admitted the removal of the materials in spite of the warnings of the officer -in -charge. Makum Depot and Continued to collect it till 12 -1 -1948 without any authority whatsoever.

(3.) THE first point concerns the application of Section 69(2) of the Indian Partnership Act as also the validity of the notice under Section 80 of the Code of Civil Procedure It appears that the suit was filed on 28 -11 -1949 and tire firm was actually registered on the 23 -11 -1949. In other words, the Plaintiffs' firm was already registered before the institution of the -suit. Therefore on the face of Section 69(2) of the Indian Partnership Act would be no bar to the institution of the suit and the suit could be in the firm name. But the learned Subordinate Judge was of the view that the notice under Section 80 was sent on 26 -8 -1949 and at that time, the partnership' was not registered. The point has not much substance and has therefore not been seriously pressed before us by the learned Counsel for the Respondent. It appears from the notice that the description of the Plaintiffs given therein was Messrs. Bhattacharjee and Co, Makum Junction, P. O. Makum, District Lakhimpur. Assam. It is pointed out that this description is not identical with the description given in the plaint wherein the Plaintiffs have been described us Messrs. Bhattacharjee and Co. having their place of business at Makum Junction District Lakhimpur. We are unable to find any difference worth the name in the two descriptions of the plain tiffs and therefore we cannot accept the finding of the learned Subordinate Judge that the notice under Section 80 was illegal on account of any misdescription. Section 69(2) of the Indian Partnership Act, though it may be a bar to the institution of the suit in the name of the firm is no bar to the service of the notice under Section 80 of the Code of Civil Procedure of behalf of the Plaintiffs as such, merely because at that time the Plaintiffs were not registered, provided, the description is otherwise substantially correct.