A notice given under Section 80 of the Civil Procedure Code or Section 78-B of the Railways Act by a firm is valid even if the firm is dissolved before the suit is filed, provided that the plaintiff has sufficiently established the identity of the notice with himself.

ORDER :- The Union of India represented by the General Manager, South Eastern Railway is the petitioner against a concurrent decision of the Courts below in a suit for damages.

2. The plaintiff sued for recovery of Rs. 660.74 which represented the loss of 67 kgs. of betel-nut. The Courts below have concurrently found that there was shortage which duly certified by the Railway Authorities and the claim is justified. The only question which was canvassed in the courts below and negatived is one in relation to the notice under Section 80, Civil Procedure Code. The contention about the insufficiency of notice has been raised by defendant No. 1 on the following basis. The notice under Section 80, Civil Procedure Code is Ext. 2. It was given on behalf of Haji Ebrahim Haji Jamal Noor Mohammad and Co., on 6-11-1964. It was admittedly a registered firm which was dissolved by a deed of dissolution of partnership dated 30-9-1965. That document has been produced in Court and is Ext. 5. The terms of this dissolution deed go to show that the good will of the firm Haji Ebrahim Haji Jamal Noor Mohammad and Co. was given to defendant No. 2. Under Clauses 4 and 5 of the said deed the entire business at Cuttack was given to the plaintiff who commenced to run the business in the name of M/s. Jaffar Haji Ebrahim Jamal. Admittedly the notice was given when the firm was in existence but by the time the suit was filed there had been dissolution. In the plaint it was specifically stated,

"3. That the original firm M/s. Haji Ebrahim Haji Jamal Noor Hohammad and Co. was a registered firm under the Indian Partnership Act and was carrying on business at Cuttack and several other places.

4. That the said firm M/s. Haji Ebrahim Haji Jamal Noor Mohd. and Co. while carrying on business at Cuttack indented a consignment of 29 bags of betel-nut from Mangalore to Cuttack under Invoice No. 313 R. R. No. 003944 dated 15-9-1964 and when the consignment was delivered at Cuttack on or about 17-10-1964 there was a shortage of 67 kgs. of betel-nuts which was due to gross and culpable negligence and misconduct of the Railway staff. The said 67 kgs. of betel-nuts have not been delivered to the said firm M/s. Hazi Ebrahim Haji Jamal Noor Mohd. and Co. in spite of repeated demands. Hence the said firm M/s. Hazi Ebrahim Haji Jamal Noor Mohd. and Co. sent a notice dated 6-11-1964 under Section 80, Civil Procedure Code and under Section 78-B of the Railways Act to the General Manager, South Eastern Railway, Calcutta calling upon him to pay the sum of Rs. 482.40 together with interest @ Re. 1/- P. C. P. M. thereof within the statutory period. The said notice was duly received by the General Manager, South Eastern Railway, Calcutta.

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7. That the said firm having been dissolved in the year 1965 and the present plaintiff having been allotted the Cuttack business the present plaintiff is entitled to the amount in suit and the defendant No. 2 can have no claim whatsoever."

In paragraphs 3 and 4 of the written statement it was stated,

"3. That the averments made in para 4 of the plaint are not admitted and it is submitted that the plaintiff having not served any notice under Section 78-B, I. R. Act or under Section 80, Civil Procedure Code he is not competent to bring the suit against the defendant No. 1.

4. That there is no identity of the person giving notice under Section 80, Civil Procedure Code and the person filing the suit according to the decision reported in AIR 1961 SC 1449........"

One of the issues in the suit was Has the plaintiff served any valid notice on the defendant No. 1 under Section 78-B of I. R. Act and under Section 80, Civil Procedure Code ? The learned Trial Judge held that in the facts of this case identity of the person issuing notice and the person bringing the suit had been sufficiently established and, therefore, the plaintiff could not be non-suited on the basis of the decision of their Lordships of the Supreme Court in AIR 1961 SC 1449. The learned A