1958 Supreme(Cal) 57

HIGH COURT OF CALCUTTA
A. N. Ray
B. N. ELIAS AND CO. LTD. - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Suit 3014  Of  1955
Decided On : FEBRUARY 25, 1958

Section 18 of the Limitation Act requires proof that a person having a right to institute a suit has by means of fraud been kept from the knowledge of that right.

Headnote:

LIMITATION - Section 18 of the Limitation Act - Fraudulent concealment of right to sue - Plaintiff's knowledge of right to sue - Exercise of right to sue - Indian Independence (Rights, Properties and Liabilities) Order, 1947 - Article 8 - Contract for exclusive purposes of province - Test - Delivery of goods - Passing of property - Ultimate disposal of goods - Section 70 of the Indian Contract Act - Applicability - Reasonable value of goods - Notice under Section 80 of the Code of Civil Procedure - Validity - Fraud as part of cause of action - Jurisdiction of court - Cause of action arising within jurisdiction - Residence of State.

Fact of the Case:

Plaintiff, a supplier of Bone Meal, instituted a suit against the State of West Bengal for recovery of Rs. 31,450/- with interest for Bone Meal sold and delivered to the Government of Bengal between 21st June and 3rd July, 1947. The plaintiff claimed that the price of the Bone Meal was ultimately fixed by the authorities at Rs. 170/- per ton and that the State of Bengal paid other suppliers of similar Bone Meals at the rate of Rs. 170/- per ton. The plaintiff further claimed that the plaintiff submitted bills in the year 1947 and had been pursuing the Application Committee for Investigation into claims against the former Government of Bengal for payment, but the claim was not passed. The plaintiff alleged that by letter dated 14-11-1951, the State of West Bengal admitted the validity of the plaintiff's claim but wrongfully sought to apportion liability to the Government of East Bengal. The plaintiff also alleged that by letter dated 24-9-1953, the authorities of the defendant State disclosed to the plaintiff that the said Bone Meal had in fact been utilised by the defendant and that the same had been received by the defendant. The plaintiff claimed that prior to the receipt of the said letter dated 24-9-1953, the plaintiff had no knowledge nor any means or knowing where the said Bone Meal delivered at its godown had been taken or how the same had been utilised. The defendant denied the plaintiff's claims and pleaded that the plaintiff's claim was barred by limitation and that the Court had no jurisdiction to try the suit.

Finding of the Court:

1. The plaintiff supplied 185 tons of Bone Meal to the Government of Bengal. 2. The price of the said goods was not fixed by the authorities concerned at Rs. 170/- per ton. 3. The goods were supplied for purposes of the Government of West Bengal. 4. The plaintiff supplied the goods in good faith not intending to do so gratuitously and the defendant enjoyed benefit of such supply. 5. The plaintiff's claim is barred by limitation. 6. The notice under Section 80 of the Code of Civil Procedure is invalid. 7. The plaint as framed does not show that this Court has jurisdiction to try the suit. 8. The plaintiff is not entitled to any relief.

Issues: 1. Did the plaintiff supply to the Government of Bengal 185 tons of Bone Meal. 2. Was the price of the said goods fixed by the authorities concerned at Rs. 170/- per ton. 3. Were the goods supplied for purposes of the Government of West Bengal. 4. Did the plaintiff supply the goods in good faith not intending to do so gratuitously and did the defendant enjoy benefit of such supply. 5. Is the plaintiffs claim barred by limitation. 6. Is the notice under Section 80 of the Code of Civil Procedure valid and sufficient. 7. Does the plaint as framed show that this Court has jurisdiction to try the suit. 8. To what relief, if any, is the plaintiff entitled.

Ratio Decidendi: 1. Section 18 of the Limitation Act requires proof that a person having a right to institute a suit has by means of fraud been kept from the knowledge of that right. The plaintiff must be unaware of the right itself by fraud practised on him before he can invoke Section 18. 2. The plaintiff's pleading that the purpose or use of the Bone Meal was fraudulently withheld does not amount to an averment that the plaintiff's right to sue had been fraudulently withheld. 3. The plaintiff was fully aware of its rights and was actively pursuing the same. There is no proper pleading of fraud, nor is there any material to suggest that the plaintiff was by fraud kept from the knowledge of the plaintiff's tights. 4. The plaintiff's claim is barred by limitation. 5. The liability under the Indian Independence (Rights, Properties and Liabilities) Order, 1947, is determined in accordance with Article 8 of the Order. The test is whether the contract is for purposes which as from the appointed late, to wit, the 15th August, 1947, are exclusively purposes of the province of West Bengal or its successor. 6. The goods were delivered to the then province of Bengal at a place which is since within West Bengal. That fact coupled with the passing of the property in the goods to the then province of Bengal conclusively establishes that the goods were for the exclusive purposes of the province of West Bengal. 7. Section 70 of the Indian Contract Act does not apply where goods are delivered pursuant to a request. 8. The notice under Section 80 of the Code of Civil Procedure is invalid as it does not allege fraud which is pleaded in the plaint. 9. The suit fails as the plaintiff has not obtained any leave under Clause 12 of the Letters Patent and does not plead that the whole cause of action has arisen within the jurisdiction of the court.

Final Decision: Suit dismissed.