JUDGMENT
Untwalia, J.
1. This is an appeal by the Second defendant, the State of Assam, against judgment and decree of the court of the 3rd Additional Subordinate Judge, Patna, passed in a money suit filed by the plaintiff in which the first defendant was the Dominion of India and the third defendant was the India General Navigation and Railway Co, Ltd. and River Steam Navigation Co. Ltd. The suit was for a decree for Rs. 9136/12/-and the court below has decreed the suit in part for a Bum of Rs. 4063/9/- only. There is no cross-objection by the plaintiff.
2. Shortly stated, the plaintiff’s case is that a consignment of 111 bags of chhanti masoor weighing 252 mds. 21 seers was booked by Patna Government Grain Stockists’ Association from Patna Steamer Ghat to Sylhet Ghat through the third defendant on 20-7-46. The consignment was booked to self arid the bill of lading was endorsed in favour of the plaintiff’s firm, Rameshwardass Pannalal. and thus the plaintiff became the holder of the said bill of lading in due course and the owner of the consignment in question.
The plaintiff was informed that the consignment was seized or requisitioned by the Deputy Commissioner of Sylhet on or about 9-8-46. The plaintiff claimed compensation for the above seizure or requisition of the consignment but the same was not paid and the plaintiff had some correspondence with some authorities of the Assam Government but with no effective result and, therefore, after service of notice under Section 80 of the Code of Civil Procedure, the suit was filed for the relief stated above on account of compensation for non-delivery of the consignment in question.
3. The third defendant, namely, the India General Navigation and Railway Co, Ltd. and River Steam Navigation Co. Ltd. filed a written statement and inter alia stated therein that the consignment in question was requisitioned by the order of the then Additional Deputy Commissioner of Civil Supplies Department of the Government of Assam on 2-9-46 as per his memorandum order No. 11238 of the date. On 3-9-46 an officer of the department of Civil Supplies of the Government of Assam insisted and finally took delivery on behalf of the said Government of the consignment from this defendant which it could not resist. This defendant, it is said, had no option but to surrender the said consignment to the Government of Assam on account of the said seizure order and the subsequent demand for delivery. Under the terms of the contract, it was absolved from the liability for the said seizure and is not liable for the claim of the plaintiff.
4. The second defendant put in a written statement and its defence, inter alia, is that the suit as framed is not maintainable and that Patna court had no jurisdiction to try the suit inasmuch as the cause of action did not arise at Patna. The consignment in question arrived at Sylhet Ghat on 31-7-46 and, as no claimant could be found for over 15 days, the matter was brought to the notice of the District Magistrate, Sylhet, who, in exercise of the powers vested in him under the provisions of Assam Government Notification No. SDA. 221/45/5 dated 9-4-1945, issued a requisition order dated 2-9-1946 to seize the said goods.
At the time of taking delivery, some 18 bags were found damaged and in all 244 mds. and odd were received and made over to the Government registered dal dealer, M/s. Surangamal Kanailal Surana, for distribution to the different ration shops. The said dealer subsequently credited Rs. 4063/9/- being the price of dal less demurrage charge into the Sylhet treasury under chalan No. 962 dated 12-9-46 under the head “Revenue Deposit’. Lastly it was stated in paragraph 12 of the written statement that the plaintiff is not entitled to any relief against this defendant.
5. A written statement was also filed on behalf of the first defendant, namely, the Dominion of India and pleas were more or less formal, namely, that the plaintiff had no cause of action against this defendant and this defendant has been unnecessarily impleaded as defendant in the suit,
6. The learned Subordinate Judge framed three issues in this case. The first issue was as to whether the court had jurisdiction to entertain and try this suit and this issue was answered in favour of the plaintiff. The second issue was as to whether the suit was barred by limitation and Sections 16 and 17 of the Defence of India Act. This was also answered in this term that the suit was not barred. The third issue was as to whether the plaintiff was entitled to recover the claim; if so, from which of the defendants and to what extent. Under this issue, the learned Subordinate Judge held that, as the goods were seized and a sum of Rs. 4063/9/- was deposited in the Sylhet treasury being the price of the seized goods, the third defendant is not liable for the claim of the plaintiff and, as the seizure was effected by the Province of Assam, first defendant is also not liable for the same.
He, however, decreed the suit of the plaintiff for a sum of Rs. 4063/9/- against the second defendant overruling the contention on its behalf that this defendant was not liable because the seizure was effected by an officer of the place which now forms part of Pakistan. The reasoning of the learned Subordinate Judge is that the officer acted thus on behalf of the then Province of Assam and the present State of Assam is the representative of the then Province of Assam and hence this defendant is liable for the claim of the plaintiff to the extent indicated above.
7. Mr, Lalnarain Sinha, learned Government Advocate appearing for the State of Assam, has not pressed the second issue decided against the appellant but has contended that the first and the third issues have been wrongly decided against the State of Assam. His contention was that the seizure of the consignment in question by the Government of Assam in 1946, that is, before partition, is an actionable wrong irrespective of the question whether the seizure was wrongful or rightful and therefore under Article 10(4) of the Indian Independence (Rights. Property and Liabilities) Order, 1947, the liability on and from 15-8-1947, the date of partition, is a liability of the Province of East Bengal (Pakistan) as the cause of action arose wholly within the territories which now form part of East Bengal (Pakistan).
His submission was that the carrier took the goods to Sylhet and the Assam Government seized or requisitioned the goods rightly or wrongly and therefore the cause of action for claiming compensation against the Assam Government arose wholly at Sylhet where the goods were seized. In this view of the matter, apart from the State of Assam not being liable under Article 10(4) of the Order mentioned above, the courts at Patna had no jurisdiction to try the suit. Therefore both the issues have been wrongly decided against the appellant.
8. Mr. Baldeo Saliay, learned Counsel for the plaintiff respondent, could not contend that the cause of action did not wholly arise at Sylhet. But he submitted on the basis of Lachha Ram v. Virii AIR 1921 All 66 and on the basis of Section 21 of the Code of Civil Procedure that the appellate court should not interfere with the judgment of the trial court in this case on the point of jurisdiction as it has caused no prejudice to the appellant and as there has been no failure of justice if it is found that the appellant is liable to pay the claim of the plaintiff in law.
On the second question he submitted that the State of Assam did not deny its liability to pay the claim of the plaintiff in its written statement and did not plead that the State of East Bengal (Pakistan) was liable for the same. His further submission oil this question was that this claim was not an actionable wrong within the meaning of Article 10 of the Indian Independence (Rights, Property and Liabilities) Order. 1947 but was ‘other finance obligations’ of the Province of Assam within the meaning of Article 9 of the said Order and therefore the State of Assam was liable to pay this claim.
9. It is clear, in this case, and as stated above the learned counsel for the plaintiff respondent could not combat this position, that no part of the cause of action arose at Patna for the claim in question but the cause of action wholly arose at Sylhet where the goods were seized or requisitioned by the authorities of the Province of Assam in 1946. In that view of the matter, the Patna Court had no jurisdiction to try this suit. But, in order to decide whether as a result of this there has been a failure of justice or not within the meaning of Section 21 of the Code of Civil Procedure and whether this Court should interfere with the judgment of the trial court or not. it is necessary to decide the main question itself–as to whether the State of Assam is liable for the claim of the plaintiff. I would, therefore, proceed to consider this question. I do not accept the contention of Mr. Baldeo Sahay that there is no such plea in the written statement of defendant No. 2. It is clearly stated in the written statement that defendant No. 2 is not liable for the claim of the plaintiff.
10. Ext. A/2 is the Notification No. SDA. 221/ 45/5 dated 9-4-1945 which empowered the Government to requisition or seize the consignment in question. I would reproduce here the whole notification which runs as follows :
“The 9th April 1945 No. SDA. 221/45/5. In exercise of the powers conferred by Clause (f) of sub-rule (2) of Rule 81 of the Defence of India Rules, the Governor of Assam is pleased to make the following order, namely:
When any consignment of food-stuffs or of Cotton Textiles or of any other commodity, in respect of which an order under Clause (a) Sub-rule (2) of Rule 81 of the Defence of India Rules has been passed by the Central or Provincial Government, shall arrive at any Railway station, Steamer Ghat or out-station in Assam and shall remain unclaimed and consequently undelivered for a period of fifteen clays by reason of the failure of the consignee or his representatives to appear and take delivery, then on the day following the expiry of this period the Station Master, sub-agent or other person in charge of such railway-station, steamer ghat, or out station shall notify the District Magistrate of the District with particulars of such consignment; and the District Magistrate shall take over such consignment as if it were seized by him under Clause (f) of the aforesaid sub-rule and have such consignment disposed of according to the provisions of Sub-rule (3c) of the aforesaid Rule.
Provided that no such consignment or the sale proceeds thereof shall be delivered to the consignee or any person claiming on his behalf unless the dues on account of freight, demurrage or other charges due to the Railway, steamer or other transport authority in respect of such consignment are paid by the consignee.
Sd. K. W. P. Marar,
Secretary to the Government of Assam,
Department of Supply.”
The order by which the consignment was requisitioned is an enclosure to Ext. B at page 23 of the paper book. The said order dated 2-9-46 reads as follows :
“Whereas it appears from a report of the Inspector of Supply Sylhet and the Sub Agent I.G.N. and Railway Co. Ltd. Sylhet that a consignment of 111 bags of Chatti Masurdal covered by invoice No. 5/86 of 20-7-46 arrived at Sylhetghat Steamer Station on 31-7-46 and remained undelivered for a period over 15 days due to absence of any claimant.
I hereby requisition the above consignment of 111 bags of Masurdal under provisions of Assam Government Notification No. SDA. 221/45/5 dated 9-4-45 and direct that the Sub-Agent should make over the above consignment to the S. I. Supply who will receive delivery and make over to M/s. (Surangmal Kanailal Surana for storage until further orders about value to be paid and mode of disposal.
Sd. J. Dumbrack
Addl. Deputy Commissioner Sylhet.
Memo No: Sd/1238 dt. 2-9-46.
Copy to Sub-Agent I. G. N. and Railway Co. Sylhet. Forwarded by Sd. Illegible. Head Asst. Supply P.B.. 2-9″.
11. During the course of argument of this appeal, a controversy arose as to whether this requisition or seizure was legal or illegal. Mr. Baldeo Sahay contended that the requisition was under Rule 75A of the Defence of India Rules and therefore the Provincial Government, namely, the Assam Government was under an obligation to pay compensation to the plaintiff and, this being a statutory obligation, it came within the phrase ‘other financial obligations’ mentioned in Article 9 of the 1947 Order referred to above. I am unable to accept this contention. Firstly, this requisition was not under Rule 75A. It was a requisition by virtue of the Notification (Ext. A/2) quoted above which in this case was issued by the Governor of Assam in exercise of the powers conferred by Clause (f)
of Sub-rule (2) of Rule 81 of the Defence of India
Rules. Secondly, Rule 75A (1) provides
“If in the opinion of the Central Government or “the Provincial Government it is necessary or expedient so to do for securing tbe defence of British India, public safety, the maintenance of public order or the efficient prosecution of the war, or for maintaining supplies and services essential to the life of the community, that Government may by order in writing requisition any property, moveable or immoveable, and may make such further orders as appear to that Government to be necessary or expedient in connection with the requisitioning :
X X X X X X ”
12. It would be noticed, therefore, that the (requisition in this case on the ground of the property remaining undelivered for a period of over 15 days due to absence of any claimant was not under Rule 75A(1) of the Defence of India Rules and therefore there was no question of paying any compensation under Sub-rule (4) of that rule.
13. Then again a question arises as to whether notification (Ext. A/2) was legal and whether the requisition was validly made by virtue of the powers conferred in accordance with that notification. Mr. Caldeo Sahay contended that the notification was a legal one and the requisition was legal; therefore, it was not a wrong done by the Province of Assam. This, therefore, not being a wrongful act was not an actionable wrong. Mr. Government Advocate submitted that it is not necessary to decide as to whether the seizure or the requisition was legal or illegal and/ or whether the compensation which ought to have been paid to the plaintiff was a statutory compensation for wrongful or rightful seizure because, in his submission, in all events it was an actionable wrong and the matter was covered by Article 10 of the 1947 Order and not by the phrase ‘other financial obligations’ occurring in Article 9.
In my opinion, the contention of the learned I Government Advocate is sound, and on the date of partition namely. 15-8-1947 the claim of the plaintiff was an actionable wrong irrespective of the question whether the notification (Ext. A/2) was legal or illegal and/or whether the seizure was legal or illegal. So far as the payment of statutory compensation is concerned I have already held that Sub-rule (4) of Rule 75A is not attracted. But I am also inclined to accept the view that, even if it be held that the payment was a payment of statutory compensation, yet it was an actionable wrong because failure to pay compensation entitled the plaintiff to bring an action and to claim compensation. Therefore, in my opinion, looked at from any point of view, the claim of the plaintiff was an actionable wrong and was covered by Article 10 (4) of the Indian Independence (Rights, Property and Liabilities) Order, 1947 and not by phrase ‘other financial obligations’ in Article 9.
14. According to “Words and Phrases”, Permanent Edition, of West Publishing Company, the word ‘wrong’ means “any deprivation of right, breach of contract, or injury done by one person to another.” It also means —
“an invasion of right to the damage of the party who suffers it. It consists in the injury done and not commonly in the purpose or mental or physical capacity of the person or agent doing it. It may or may not have been done with bad motive; the question or motive is usually a question of aggravation only.”
It has also- been stated in that book that
” ‘wrong’ is merely privation of right, for which remedy is restoration of right by specific delivery of restoration of subject-matter in dispute to legal owner, or, if that is impossible or inadequate remedy, by making pecuniary satisfaction in damages.”
15. It has been held in Nilima Sarkar v. Governor General in Council, 86 Cal LJ 98, at p. 102
“….. that the phrase ‘financial obligations’ in Article 9 must be read ejusdem generis with loans and guarantees. The phrase I think must be held to mean financial obligations of the nature of loans and guarantees.”
In State of West Bengal v. Serajuddin Batley, 1954 SCR 378 : (AIR 1954 SC 193) it has been observed at page 383 (of SCR): (at p. 194 of AIR) that
“The loans and guarantees there referred to meant, it would seem, the special kinds of contracts relating to the State loans and state guarantees. In that context ‘financial obligations’ would mean obligations arising out of arrangement or agreements relating to State finance such as distribution of revenue, the obligation to grant financial assistance by the Union to any State or the obligation of a State to make contributions and the like.”
It has been also observed on the same page a little above that the expression has to be construed ejusdem generis and so construed it implies an obligation in the nature of an obligation in respect of loans and guarantees incurred or undertaken by the State.
16. I would now refer to a case of State of Tripura v. Province of East Bengal, AIR 1951 SC 23 where it has been held at page 27 (column 1) that
“There is no reason, accordingly, why the words ‘liability in respect of an actionable wrong, should be understood in the restricted sense of liability for damaees for completed tortious acts. We consider that the words are apt to cover the liability to be restrained by injunction from completing what on the plaintiffs case was an illegal or unauthorised act already commenced.”
It may be advantageous to quote a passage from the judgment of B. K. Mukherjea, J. (as he then was) at page 39 which runs thus:
“The word ‘wrong’ in ordinary legal language means and signifies ‘privation of right’. An act is wrongful if it infringes the legal right of another, and actionable’ means nothing else than that it affords grounds for action in law.”
In Karnaphuli Jute Mills Ltd. v. Union of India, AIR 1956 Cal 71 it was held that even the claim for compensation for requisition of buildings and premises of the mill and factory could not come under the phrase ‘other financial obligations’ mentioned in Article 9 of the Indian Independence (Rights, Property and Liabilities) Order, 1947.
17. Article 8 of the Order deals with contracts and all rights and liabilities arising therefrom. Article 9 deals with loans, guarantees and other financial obligations of the like nature. They may arise out of contracts but they are special kinds of obligations provided in Article 9 of the Order. Article 10 of the Order provides for distribution of
“any liability in respect of an actionable wrong other than breach of contract.”
It will be noticed, therefore, that any liability in respect of all kinds of actionable wrong other than breach of contract is provided in Article 10. Claim for damages for breach of contract is also actionable wrong. So is claim for damages for tortious acts. Over and above, there are other kinds of actionable wrongs which are envisaged under Article 10. In my opinion, immediately before the date of partition, that is, 15th August, 1947 when the plaintiff did not get his compensation, statutory or otherwise, for legal or illegal requisition or seizure of his grains by the Province of Assam, it was a liability outstanding in respect of an actionable wrong, against the Province of Assam and by virtue of Clause (4) of Article 10 of the said Order the liability as from the date of partition was a liability of the Province of East Bengal (Pakistan), In that view of the matter, the plaintiff’s suit must fail.
18. In the result, I would allow the appeal, set aside the decree of the court below and dismiss the plaintiff’s suit. But, on the facts and in the circumstances of the case, I would direct the parties to bear their own costs throughout.
Misra, J.
19. The facts of the case have been fully set out in the judgment of my learned brother and it is not necessary for me to recapitulate them. I would, however, explain the merits of the plaintiffs case with regard to his claim for compensation under Article 10 (4) of the Indian Independence (Rights, Property and Liabilities) Order, 1947. That Article provides for the distribution of liabilities between the two dominions of India and Pakistan. In so far as the Government of Assam is concerned, Clause (4) of that Article provides thus :
“Where immediately before the appointed day the Province of Assam is subject to any such liability as aforesaid, then, if the cause of action arose wholly within the territories which, as from that day, are the territories of East Bengal, the liability shall, as from that day, be a liability of the Province of East Bengal.”
The reference in the expression “such liability” in Clause (4) is to Clause (1) of that Article which runs :
“Where immediately before the appointed day the Governor-General in Council is subject to any liability in respect of an actionable wrong other than breach of contract, that liability shall ……”
Then there is provision for the distribution of liability where the liability was that of the Governor-General in Council, that of the Province of Bengal or that of the Province of the Punjab. Mr. Lal Narain Sinha has contended that the right of the plaintiff in the present case arises under a claim which can be said reasonably to have been based on an actionable wrong. If that is so, it is the State of East Bengal, which is a part of the Dominion of Pakistan, that would be bound in law to repay the plaintiff and not the Government of Assam.
20. The Court below did not accede to this contention. It took the view that the seizure of the goods was made by an officer of Sylhet, which territory, no doubt, forms part of East Bengal, but since that officer at the time of seizure purported to act as the officer of the Government of Assam, as it was then constituted, the State of Assam must still be held liable as it is the representative of the then Province of Assam. Mr. Lal Narain Sinha, appearing for the appellant, the State of Assam, has urged that the Court below lost sight of Article 10 of the aforesaid Indian Independence Order and took an erroneous view of the rights and liabilities of the State of Assam and the Province of East Bengal.
It is accordingly necessary to decide what exactly is the nature of the present liability. If it is an actionable wrong other than breach of contract, it is beyond controversy that the State of Assam cannot be held liable and the plaintiff misconceived his remedy in bringing this suit against the State of Assam. If”, however, the correct position is that the plaintiff’s claim is not based on actionable wrong or that the liability incurred by the Government of Assam as a result of the seizure of the goods by one of its officers, and its subsequent requisition for distribution to the population, through one of the licensed agents of that Government, amounted to a contractual liability to pay compensation, the State of Assam would still be liable and not the Government of East Bengal.
If the matter were res integra, it might be necessary to enter into a detailed discussion of what is meant by actionable wrong. Since this expression was considered by their Lordships of the Supreme Court in AIR 1951 SC 23, it is now relevant only to construe that decision. In that case the Provincial Legislature of the State of Bengal in 1944 passed an Act, viz., the Bengal Agricultural Income-tax Act. It purported to bring under charge the agricultural income of every ruler of an Indian State within the Province of Bengal.
In pursuance of that Act, the Income-tax Officer, Dacca Range, sent a notice to the Manager of the Zamindari Estate known as Chakla Roshanabad belonging to the Tripura State which lay outside the bounds of that State but within the Province of Bengal. The Maharaja of Tripura instituted a suit on 12-6-1945, against the Province of Bengal and the Agricultural Income-tax Officer, Dacca Range, in the Court of the first Subordinate Judge, Dacca, in which he challenged the validity of the notice as also the proposed assessment on the ground that the Provincial Legislature of Bengal had no authority to impose any tax on any income of an Indian State or ex-ruler and, further, also that the Income-tax Officer, Dacca Range, had no authority or jurisdiction to issue notice to the Manager of the State outside British India. There was also a prayer for perpetual injunction restraining the defendants from taking any steps for the assessment of agricultural income-tax.
The suit was pending in the Court of the Subordinate Judge at Alipore to which it happened to be ultimately transferred when the partition of India came into effect on 15-8-1947. On 9-12-1947. the Province of East Bengal filed a petition in the Court of the learned Subordinate Judge to be brought on record as a defendant in place of the province of West Bengal which took no interest in the litigation. The Province of East Bengal was substituted as a defendant in place of the Province of West Bengal on 13-12-1947, and a preliminary issue was framed on the question of jurisdiction. The learned Subordinate Judge held that by virtue of the provisions of the Indian Independence (Legal Proceedings) Order, 1947, read with Section 9 of the Indian Independence Act, 1947, the Court had jurisdiction to try the suit against the new Province.
The Province of East Bengal.. …. filed an application in revision under Section 115, Code of Civil Procedure, in the High Court at Calcutta against the order of the learned Subordinate Judge and the High Court allowed the application setting aside the order of the Subordinate Judge. An appeal was preferred by the State of Tripura which was disposed of by the Supreme Court.
The appeal was allowed and the order of the High Court of Calcutta, holding that the learned Subordinate Judge had no jurisdiction to try the suit against the Province of East Bengal, was set aside by a majority judgment. Fazl Ali, J., however, recorded a dissentient judgment. For the purposes of the present issue, it is sufficient to refer to the fact that the expression, “actionable wrong” was interpreted by Patanjali Sastri, j. as being wide enough to cover the liability to be restrained by injunction from completing what on the plaintiff’s case was an illegal and unauthorised act already commenced.
Since the plaintiff made a case that the Province of Bengal had no power to legislate with regard to the income of the ruler of an Indian State, he evidently challenged the validity of the legislation and, therefore, the proceedings started by the Agricultural Income-tax Officer were in pursuance of an Act void and ultra vires and, therefore, wrong. If it was wrong, the injury complained of by the plaintiff sought to be prevented by the issue of an injunction was actionable wrong. In that case one of the arguments was whether the mere initiation of a proceeding could be regarded as a wrong done to the plaintiff thus giving him a cause of action.
Patanjali Sastri. J, held, as I have stated above, that it was not necessary that the wrong should be complete before the plaintiff would have a cause of action. B. K. Mukherjea, J. came, in my opinion, to a slightly different conclusion. In the opinion of his Lordship the act of the Province of Bengal complained of by the plaintiff was not at all, according to the technical rule of English Law, a tort but was certainly an actionable wrong, as it could be sued upon in a Court of law and remedied in an effective manner. The expression “actionable wrong” in the context of the order was thus explained further :
“In my opinion, there can be an actionable wrong which does not arise out of a breach of contract and at the same time does not answer to the description of a ‘tort’ as it is under-stood in English Law …….”
Further on.
“In the English law ‘tort’ is a species of civil injury and so is a breach of contract; but it is not quite correct to say that the two together exhaust all forms of actionable wrongs known to English law…….”
Fazl All, J., who delivered a dissentient judgment, however, held that the expression “actionable wrong” was understood ia English Law as interchangeable with the term “tort”. In that view of the matter, it was held by the learned Judge that the Act impugned by the plaintiff in that case would not amount to a tortious act and as such was not an actionable wrong. As a necessary corollary, the liability for that act could not be fastened upon the Government of East Bengal and the High Court of Calcutta had decided the point correctly in holding that the Court at Ali-pore was not competent to try the suit against the Province of East Bengal. Mr. Baldeva Sahay has relied upon the narrow meaning of the expression “actionable wrong” which would give a cause of action to the plaintiff and Mr. Lal Narain Sinha has contended that the expression “actionable wrong” should be wide enough to cover every case where there is a failure to fulfil any obligation laid upon the defendant.
The above decision, however, does not on its facts apply to the present case because it rested upon the answer to the question as to whether the issue of a notice by the Agricultural Income-tax Officer under an Act passed by the Legislature of West Bengal, which was ultra vires so far as the plaintiff was concerned, in itself would constitute a wrong, even if the tax were actually levied it might constitute a wrong if the Act were found to be void and ultra vires with regard to the properties of the plaintiff. There are, however, observations in that judgment, as I have mentioned above to show that the expression “actionable wrong” might include any liability incurred by the defendant. Patanjali Sastri, J. observed to that effect at page 27. The passage is :
“Indeed, the words ‘other than breach of contract’ used in Article 10(1) make it plain that the expression ‘actionable wrong’ is used in a wider sense which would have included breach of contract but for those limiting words”.
It may, however, be pointed out that this observation is to be understood in the light of the context in Article 10 (1), and it does not necessarily follows that it is so in all cases. Mukherjea, J. in fact made it out to be a category excluding contract but including tort and other forms of wrong for which the remedy would be in terms of liquidated damages as in an action against a trustee by the beneficiary for misappropriation of the trust property.
It appears to me that whenever the expression “actionable wrong” is used it amounts to the invasion of a right and it is only in that sense that a tort is a wrong, but to say that the right founded upon a contract in case of the failure of one of the contracting parties to discharge the liability under the contract is also a wrong, would not be strictly accurate. The right to damages under a contract, in the event of the failure by any of the parties to it, to fulfil it, is not the invasion of a right although it may give rise to a cause of action.
For instance, when a debtor borrows money from a creditor stipulating to pay back the amount on the due date and fails to repay the amount, it cannot be called an invasion of a right, because the right to realise the amount from the debtor or even by an action is inherent in the contract itself and is contemplated by the parties. The entire right of the creditor consists not only in being repaid according to the terms of the contract but also to realise the amount by a regular action, as I have said.
Failure to fulfil that obligation by the debtor. therefore, is not the invasion of that right unlike the case of a tort when the plaintiff’s right to damages comes into existence by the invasion of that right by the defendant, which amounts to a wrong in the sense that the defendant should not in law have done what he actually did resulting in injury to the plaintiff. It is in that sense that the definition of a wrong given in the various text books on tort or the law lexicons is to be understood. In the present case, if the seizure of the goods of the plaintiff by the Government of Assam and its subsequent requisitioning were legal acts, in my opinion, mere failure to pay the proper amount of compensation would not amount to the invasion of the plaintiff’s right. If the act of the Assam Government can be held in law to be illegal, then it must be taken as constituting a wrong and, consequently, an actionable wrong, as a suit could be founded upon such right by the plaintiff.
21. The above discussion, however, does not necessarily lead to the conclusion that the plaintiff is entitled to realise the amount of compensation in regard to his goods from the Government of Assam. The only right reserved after the coming into force of the above Order (Indian Independence (Rights, Property and Liabilities) Order, 1947), to hold the State of Assam liable in respect of a cause of action arising in a territory which forms part of the Dominion of Pakistan after the partition of India, would be the rights founded upon the breach of contract in regard to which alone the liability of the Government of Assam is affirmed even after the partition.
22. Mr. Baldeva Sahay has urged that an officer of the Government of Assam, as it was constituted on the date of the seizure of the goods, having incurred the liability, it was a financial obligation and in terms of Article 9 (d) of the aforesaid Order such an obligation would continue to be the liability of the Province of Assam. Article 9 (d) runs thus :
“9. All liabilities in respect of such loans, guarantees and other financial obligations of the Governor-General in Council or of a Province as are outstanding immediately before the appointed day shall, a.s from that day,
X X X X X X
(d) in the case of liabilities of any Province other than Bengal, or the Punjab, continue to be liabilities of that Province.”
This matter, however, is covered by the authority of the Supreme Court in the case of 1954 SCR 378 : (AIR 1954 SC 193} as my learned brother has pointed out. S. R. Das, J, observed in. that judgment that in that context “financial obligations” would mean obligations arising out of arrangement or agreements relating to State finance such as distribution of revenue, the obligation to grant financial assistance by the Union to any State or the obligation of a State to make contributions and the like. Mr. Baldeva Sahay, however, has contended that even according to his Lordship the illustrations given were not exhaustive as it was observed further in that judgment that it was not necessary or desirable to attempt an exhaustive definition of the expression “financial obligations”.
It was left to the Court in. seizin of a case to decide whether a particular obligation which was the subject matter of discussion fell within the expression “financial obligations” in terms of Article 9. It was held, however, on the facts of that case, that the liability to pay rent under a lease of a building let out to the defendant (the Government of West Bengal) was not a financial obligation within the meaning of Article 9 for which, in terms of that Article, the liability was placed upon the Province of East Bengal.
Accordingly, the decree of the learned Judge, on the original side of the Calcutta High Court, in favour of the plaintiff affirmed by a Division Bench of that Court, on the appellate side, was upheld by the Supremo Court as well. Accordingly, Clause (d) of Article 9, while lays down that in the case of liabilities of any Province other than Bengal or the Punjab the same shall continue to be the liability of that Province, which is a provision of a positive character, would he of no avail to the plaintiff. The question, however, still remains as to whether the liability to compensate for requisitioning of the goods can be looked upon as a liability of that category.
If the present liability is to be construed ejusdem generis, as is contended by Mr. Lal Narain Sinha, it is clear that it would not be a financial obligation and as such Article 9 would not cover this case so as to make the State of Assam liable. In my opinion, the observation of their Lordships of the Supremo Court, although not exhaustive in character, lays down the test that in order that an obligation could be characterised as a “financial obligation” in terms of Article 9, it must be of a nature which would be ejusdem generis with the illustration given in the judgment of the Supreme Court, and the contention of Mr. Baldeva 3 Sahay to the contrary cannot be accepted.
23. The next contention advanced by the learned counsel for the respondent is that the requisitioning of the goods was under Rule 75A of the Defence of India Rules. In view, however, of the decision of Mitter, J. of the Calcutta High Court reported in AIR 1956 Cal 71 that the claim for compensation for requisition would not be classed under other “financial obligations” mentioned in Article 9 and that it was an actionable wrong other than breach of contract within the meaning of Article 10(1); and for the cause of action in respect of such compensation which arose within the territories which from 15-8-1947, formed part of the Dominion of Pakistan, the Dominion of India was not liable, learned counsel did not press this point, as in that case the liability of the Government requisitioning the commodity to pay compensation would be a statutory obligation as provided by the Defence of India Rules, Rule 75A(4). The only question that now remains to be considered is the true nature of the requisition of the goods,
24. Learned counsel for the appellant has contended that even if the seizure of the goods be held to be lawful under the powers conferred on the Deputy Commissioner of Sylhet under the Assam Gazette notification dated 11-4-1945 (exhibit A-2), the procedure of law was not followed for the disposal of the goods. To understand this point properly, it is necessary to quote the above notification:
“The 9-4-1945. No. SDA. 221/45/5. In exercise of the powers conferred by Clause (f) of Sub-rule (2) of Rule 81 of the Defence of India Rules, the Governor of Assam is pleased to make the following order, namely :
When any consignment of food-stuffs or of Cotton Textiles or of any other commodity, in respect of which an order under Clause (a) of Sub-rule (2) of Rule 81 of the Defence of India Rules has been passed by the Central or Provincial Government, shall arrive at any Railway Station, stemnerghat or cuts tat ion in Assam and shall remain unclaimed and consequently undelivered for a period of fifteen days by reason of the failure of the consignee or his representatives to appear and take delivery, then on. the day following the expiry of this period the Station Master, sub-agent or other person in charge of such railway station, steamerghat or outstation shall notify the District Magistrate of the District with particulars of such consign. ment; and the District Magistrate shall take over such consignment as if it were seized by him under Clause (f) of the aforesaid sub-rule and have such consignment disposed of according to the provisions of Sub-rule (3c) of the aforesaid Rule :
Provided that no such consignment or the sale proceeds thereof shall be delivered to the consignee or any person claiming on his behalf unless the dues) on account of freight, demurrage or other charges due to the Railway, Steamer or other transport authority in respect of such consignment arc paid by the consignee.”
It is not denied that the Chhanti masoor covered by the consignment was a commodity covered by Clause (a) of Sub-rule (2) of Rule 81 of the Defence of India Rules. It is also clear that the consignment arrived at the Sylhet Steamerghat and remained unclaimed for a period of more than 15 days and, accordingly, the Deputy Commissioner of Sylhet took over the said consignment as if it were seized by him under Clause (f) of the aforesaid Sub-rule (2) of Rule 81, Since, however, the notification itself lays down that such consignment shall be disposed of by the District Magistrate according to the provisions of Sub-rule (3c) of the aforesaid rule, it is relevant to quote Sub-rule (3c) as well. It runs thus :
“Any articles seized under the authority of any order made under Clause (f) of Sub-rule (2) shall be conveyed -without delay before a Magistrate who may give such directions as to their temporary custody as he thinks fit, so however that where no prosecution is instituted for a contravention of the order in respect of the articles seized within a period in his opinion reasonable, the Magistrate shall direct their return to the person from whom they were seized; and subject to the foregoing provisions of this sub-rule, the provisions of the Code of Criminal Procedure, 1898, shall, so far as they may be applicable, apply to any search or seizure under the authority of any such order as they apply to any search or seizure under Chapter VII of that Code”
According to the provisions of this sub-rule, the Magistrate was bound to direct the return of the consignment to the person from whom it was seized. Learned counsel for the appellant contended that there is nothing in the record of the case to show that such an endeavour was made by the District Magistrate. The obvious thing to do was to return it to the I. G. N. and R. Co. Ltd. and R. S. N. Co. Ltd., from whom the goods were seized. There was no difficulty in doing that because the goods were seized at their ghat as the aforesaid company was the bailee of the goods.
Assuming, however, that the Assam Government thought it proper to trace out the consignee whose whereabouts were not known, something should have been brought on record to show that an effort was made to find out the consignee. In the circumstances, the requirement of Sub-rule (3C) was not fulfilled and the sale of the goods through the agency of Messrs Surangmal Kishanlal Surana for distribution among the people of the locality was not a legal act. The order of the Deputy Commissioner; of Sylhet under exhibit A-2 was that the above consignment of 111 bags of masoor dal was requisitioned and he directed that the sub-agent should make over the above consignment to the S. I. Supply who would receive the delivery and make it over to the sub-agent for storage until further orders about the value to be paid and the mode of disposal.
It was legal only to the extent of storage, but the subsequent order for the sale of the commodity to the consumers of Sylhet was not valid and justified. Learned counsel for the respondent, as I have mentioned above, at one stage contended that it wag requisitioned under Rule 75A of the Defence of India Rules, but finding it difficult to support the contention gave it up and contended that the sale of the commodity was legal all the same and the act of the Deputy Commissioner on behalf of the Government of Assam could not be characterised as unlawful.
It is true, no doubt, that there is a provision in the aforesaid notification (exhibit A-2) itself for the delivery of the consignment or the sale proceeds thereof which contemplates that the sale of the commodify was also regarded as a perfectly legal procedure in regard to the goods seized under the powers conferred under the notification in question. In that view of the matter, the sale of the goods might be regarded as a legal act and not wrong.
Learned counsel for the appellant, however, has contended that since the disposal of the goods is specifically to be made in terms of Sub-rule (3C) of Rule 81 of the Defence of India Rules, the requirement of that section must be shown to have been fulfilled and only in the event of failure to find out the person from whom the goods were seized, could arise the contingency of sale thereof. It is no doubt true that under Rule 75A there might be requisition. Since, however, there is no evidence to that effect, it must be held that the sale of the commodity was resorted to either in ignorance of or in disregard of the provisions of Sub-rule (3C) of Rule 81. In my opinion, there is substance in this contention,
If it were the case of seizure and requisition under Rule 75A. I have already stated that the obligation to pay the value of the goods to the person entitled could have been statutory liability under Sub-rule (4) of Rule 75A, and if it is looked upon as an act of selling the goods and depositing the value thereof in terms of exhibit A-2, there appears to be a failure to comply with the requirement of Sub-rule (3C) of Rule 81 and the act must be held to be wrongful, and as such in terms of Article 10 of the Indian Independence order that would be an actionable wrong other than contract and the liability for compensation or damages would be that of the Province of East Bengal and not that of the Government of Assam.
25. It is, however, necessary to look at the question from another angle as well. Let it be assumed that the wording of exhibit A. 2 is such that it contemplates seizure and sale of the goods and the plaintiff, admittedly, not having put up a claim within time for delivery of goods, the Deputy Commissioner was justified in ordering the sale thereof and deposit of the sale proceeds in the Treasury to be payable to the rightful person subject to the payment of charges due to the Steamer Company.
The act of sale would undoubtedly be lawful in that case and there would be nothing wrongful in the act of the Government of Assam. If that is so, mere failure to pay the value of the goods lying in the Treasury cannot be characterised as actionable wrong. The written statement filed on behalf of the Government of Assam, the respondent, does not also make out the case of wrongful seizure, but after setting out the facts and circumstances in which the consignment was seized and disposed of, the defendants set out in paragraph 9 of their written statement that the plaintiff was liable to pay the dues to the I. G.N. and R. S. Co. on account of freight, demurrages and other charges.
In the circumstances, the liability of the State of Assam can only be of a quasi contractual character. Learned counsel for the appellant has contended that the question of contractual liability cannot arise in the circumstances as there was not agreement between the parties to enter into any contract. The argument appears to me to be misconceived. In the matter of quasi contract there is no agreement either express or implied between the obligor and obligee but the law imports such an agreement as a matter of fiction. Quasi contract has been defined as follows : “It is an obligation not agreed by, but similar to that agreed by contract, and is independent of the consent of the person bound.” Winfield in his book “The Law of Quasi Contracts” defines the terms as follows :
“Liability not exclusively referable to any other head of law imposed upon a particular person to pay money to another particular person on the ground that non-payment of it would confer on the former an unjust benefit.”
In the present case, the Government of Assam had the commodity sold, not being able to trace out the person to whom it could be returned under Sub-rule (3C) of Rule 81, and kept the money in deposit to be paid to the person who might be found entitled to if. It did create some kind of quasi contractual relation between them and it would not be an actionable wrong in the strict sense of the term.
26. Learned counsel for the appellant has, however, contended that even if the liability of the Assam Government be not regarded as actionable wrong, it is in any case, not a contractual liability. Article 10(1) and (4) of the Indian Independence Order excludes only matters of contract from the liability of the Government of East Bengal and the word “contract” must be confined to an “express contract” and it must not be extended to cover a case of any obligation. In the present case, there was no consensus ad idem and the Legislature intended the Government of East Bengal to bear all liabilities except those which were of a contractual character, if the cause of action for the liability arose within the territory which formed part of the Province of East Bengal after partition. In my opinion, the view contended for by learned Counsel is not without force.
27. Mr. Baldeva Sahay has urged that no wrong has been committed by the Government of Assam as there was never any refusal to pay on its part. In paragraph 6, the statement is:
“The said Messrs. Surungamal Kanailal Sura-pa subsequently credited Rs. 4063/9 being the price of the Dal less demurrage charge into the Sylhet Treasury under Chalan No. 962 dated 12-9-1946, under the head Revenue Deposit.”
Paragraph 8 deals with the fact that the claim of the plaintiff is highly exaggerated. Paragraph 9 deals with the fact that the plaintiff is liable to pay dues on account of freight, demurrage and other charges due to I. G. N. and R. S. Co. in respect of the said consignment. Learned counsel for the appellant has, however, urged that there was clear refusal to pay as the opening paragraph of the written statement states that the suit is not maintainable and, further, that the plaintiff had no cause of action against the State of Assam. In my opinion, it is a clear case of refusal to pay whatever might be the ground urged for that refusal. This contention has no force and must be rejected.
28. I have dealt above with the argument advanced by the learned counsel for the parties for the decision of the appeal. It appears to me, however, that this case may be disposed of even on a narrower ground. Article 8 deals with matters of contract. Clause (1) refers to contracts made on behalf of the Governor-General in Council before the appointed day which will be deemed to have been made on behalf of the Dominion of Pakistan, if they relate to purposes exclusively the purposes of the Dominion of Pakistan. The same principle has been formulated in regard to the Province of Bengal and the Province of the Punjab, so that the contractual liability would be of the particular State for whose exclusive purposes, either the part of Bengal or the Punjab, which fell within the Dominion of India or Pakistan, the contract was made. Clause (4) deals with Assam and runs thus :
“(4) Any contract made before the appointed day on behalf of the Province of Assam, being a contract for purposes which, as from that day, are exclusively purposes of the Province of East Bengal, shall, as from that day, be deemed to have been made on behalf of the Province of East Bengal instead of the Province of Assam and all rights and liabilities which have accrued or may accrue under the contract shall, to the extent to which they would have been rights or liabilities of the Province of Assam, be rights or liabilities of the Province of East Bengal.”
Article 9 of the Order, as I have already discussed in detail, relates to loans, guarantees and other financial obligations and Article 10 refers to liability in regard to an actionable wrong other than breach of contract. The three Articles taken together accordingly cover the entire field of distribution of liabilities between the two Dominions and various Provinces of India and Pakistan after the creation of the two sovereign States. Article 10 refers to an actionable wrong other than breach of contract, evidently, because Article 8 is sufficiently wide to cover all rights and liabilities arising out of a contract so that it was not necessary to cover the same ground in Article 10.
But a careful reading of the three Articles makes it clear that the principle underlying clause 8 is the same as the principle underlying Article 10, although in Article 8 reference is to the exclusive purposes of the particular Dominion or of the Province of that Dominion for which a contract may have been entered into in undivided India and Article 10 refers to the accrual of cause of action within the territory which formed part of the particular Dominion or Province after partition. In that view of the matter, if the present liability could be classed as contractual liability incurred by the Province of Assam, it would still be a contract exclusively for the purposes of the Province of East Bengal as the territory of Sylhet, the Deputy Commissioner of which district seized and requisitioned the commodity in question for distribution among the people of Sylhet fell within the territory of East Bengal.
Hence this contract would be one exclusively for tile purposes of the Province of East Bengal and this contract must be deemed to have been made on behalf of the Province of East Bengal, and all rights and liabilities which accrued thereunder must be borne by that State. This is covered by the authority of the decision in the case 1954 SCR 378: (AIR 1954 SC 193) as already mentioned. If, however, the act of the Deputy Commissioner of Sylhet could be construed as illegal and, thus, would constitute an actionable wrong other than breach of contract, even then in terms of Article 10(4) the liability would be that of the Province of East Bengal, as the cause of action arose in Sylhet, as I have already discussed,
29. For the reasons given above, I concur in
the order proposed by my learned brother.