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1939 Supreme(Cal) 73
CALCUTTA HIGH COURT
Lort-Williams, J., Lord Williams, J.
Bando and Co. Ltd. - Appellant
Versus
Corporation of Calcutta - Respondent
Decided On : 17-02-1939
The judgment establishes that provisions such as Section 538 of the Calcutta Municipal Act generally do not apply to suits arising ex contractu.
Headnote:
Notice - Suit Maintainability - Section 538, Calcutta Municipal Act - Section 538, Municipal Act for the Town of Calcutta 1863, Section 357, Calcutta Municipal Consolidation Act 1876, Section 427, Calcutta Municipal Consolidation Act 1888, Section 634, Calcutta Municipal Act 1899 - The court discussed the interpretation of Section 538 of the Calcutta Municipal Act and its predecessors, emphasizing that the limitation or qualification applies to the Corporation, its officers, servants, and persons acting under their direction. The court also referred to the Public Authorities Protection Act 1893 and the case law to establish that such provisions generally do not apply to suits arising ex contractu.
Fact of the Case:
The plaintiffs claimed a sum for work done, material supplied, retention money, and compensation for alleged breaches of contracts. The defendants denied the claim, arguing that the suit was barred by limitation due to the absence of notice under Section 538, Calcutta Municipal Act.
Finding of the Court:
The court found that the suit for money alleged to be payable under contracts for work done and material supplied and for compensation for breaches of those contracts does not come within the provisions of Section 538, Calcutta Municipal Act.
Issues: The main issue was whether the suit was maintainable in the absence of notice under Section 538, Calcutta Municipal Act.
Ratio Decidendi: The court analyzed the interpretation of Section 538 and its predecessors, as well as the applicability of the Public Authorities Protection Act 1893 and relevant case law to establish that such provisions generally do not apply to suits arising ex contractu.
Final Decision: Judgment for the plaintiffs upon the issue of suit maintainability with costs.
JUDGMENT
Lort-Williams, J. - The plaintiffs claim a sum of Rs. 7,43,690-3.5 for work done and material supplied and in respect of retention money and security deposits, under several contracts, and for compensation for loss sustained owing to alleged breaches of those contracts. The defendants deny that anything is due to the plaintiffs and plead inter alia that the suit is barred by limitation owing to the absence of notice u/s 538, Calcutta Municipal Act. It is admitted by the plaintiffs that no such notice was given. A number of issues have been raised, the first being: "Is the suit maintainable in the absence of notice under the provisions of Section 538, Calcutta Municipal Act?" Both parties have asked me to try this issue as a preliminary issue under Order 14, Rule 2, Civil P.C., and for the purposes of this issue, the facts alleged in the(plaint and the contracts, copies of which are contained in Ex. 1, are admitted. Section 538, Calcutta Municipal Act, so far as it is relevant is as follows:
(1) No suit shall be instituted against the Corporation or any Municipal officer or servant, or any person acting under the direction of the Corporation or any Municipal officer or servant in respect of any act purporting to be done under this Act or under any rule or bye-law made there under, until the expiration of one month next after written notice has been delivered or left at the Municipal office or the residence of such officer, servant or person....
(2) Every such suit shall be commenced within four months next after the accrual of the cause of action, and the plaint therein shall contain a statement that a notice has been delivered or left as required by Sub-section (1).
2. It has been argued by the learned Advocate-General on behalf of the defendant Corporation, firstly, that the meaning of the Section is that notice is required of every suit brought against the Corporation or any Municipal officer or servant, and secondly, that the present suit has been instituted in respect of acts purporting to be done under the Calcutta Municipal Act. The first contention depends mainly upon the punctuation of the Section. It is argued that the limitation or qualification "in respect of any act purporting to by done under this Act" does not apply to the corporation or any Municipal officer or servant but only to persons, "acting under the direction of the Corporation or any Municipal officer or servant." The argument is unsound for the following reasons: " In an Act of Parliament there are no such things as brackets any more than there are such things as stops:" Duke of Devonshire v. O'Connor (1890) 24 Q.B.D. 468, Lord Esher, M.R.: I see no reason why this rule should not apply to acts of the Bengal Legislature as it was applied to Article 48, Limitation Act, in Lewis Pugh v. Ashutosh Sen A.I.R.(1929) P.C. 69 where, at page 100, Lord Warrington of Clyffe remarked that, "if the Article is read without the commas inserted in the print, as a Court of law is bound to do, the meaning is reasonably clear." In previous Acts regulating the activities of the Corporation or its predecessors there were Sections analogous to Section 538. Thus, Section 226, Municipal Act for the Town of Calcutta 1863, provided that:
No action shall be brought against the Justices, or any of their officers, or any person acting under the direction of the Justices, for anything done or intended to be done under the powers of this Act until the expiration of one month next after notice in writing shall have been delivered, &c....
3. Section 357, Calcutta Municipal Consolidation Act 1876, provided that:
No suit shall be brought against the commissioners, or any of their officers, or any person acting under their direction, for anything done, or purporting to be done, under this Act until the expiration of one month, &c....
4. Section 427, Calcutta Municipal Consolidation Act 1888, provided that:
No suit shall be brought against the Commissioners, or any of their officers, or
