P L D 1964 Dacca 1 (PLP)

"In such a case it will be immaterial whether the liabilities accrued before or after the partition." As we could not agree with the decision in this case which was a decision of another Division Bench, we had to refer the case to the Full Bench, pointing out that Chagla, C. J. in the case of. The Union of India v., Chinubhai Jeshingbhai and others (A I R 1953 Bom. 13) held "The test that must be applied is an artificial test and the test maybe either if the contract had been entered into on 15‑8‑1947, whether it would have been a contract for the purposes of the Dominion of Pakistan, or, if the Dominion of Pakistan had been in existence when the contract was entered into, whether it would have been a contract for the purposes of Pakistan. It is difficult for us to understand how it is possible to argue that when a State or a Dominion enters into contract In respect of property or goods belonging to it, it is not a con tract for the purposes of that State or Dominion. Sir Jamshedji contends that `for the purposes' must be construed to mean a contract which enures for the benefit of a particular Dominion. In our opinion, that is not at all proper test. Once it is con ceded that property belongs to a particular State or Dominion and the State or the Dominion enters into a contract with a third party in respect of that property or goods, then the contract in its very nature is for the purposes of that State or Dominion. Article 8 introduces a legal fiction and converts by that legal fiction a contract which was originally entered into by the Governor‑General‑in‑Council to a contract for the purpose of one Dominion or the other." This view of Chagla, C. J. has been approved of by the Supreme Court of India in the case of Union of India v. M/s. Chaman Lal Loon & Co. (A I R 1957 S C 652), where it has been held that a contract is an executed contract if both the parties to a contract have executed their respective part, but if one party executes his part of the con tract and the other party is still to execute his part, then it is an executory contract and there is no distinction between such a contract and the contract which is still to be executed by both sides. It has been further held that the test to determine the true position is not the benefit accrued but as laid down by Chagla, C. J. in the case reported in A I R 1953 Bom. 13.

14. The Full Bench accepted our view and laid down the test as quoted above with an observation that in case, it is to be determined with reference to the facts of that case, whether the liability is that of one Dominion or the other on the basis of the test laid down. This Full Bench decision has been reported in 3 D L R page

74. After this decision on the point referred to the Full Bench, the case has again been taken up by us for final disposal.

15. In view of the Full Bench decision, the dispute whether the liability is that of Indian Union or that of Pakistan has been set at rest, because the contract the plaintiff entered into with reference to the test laid down in the Full Bench decision relying on the decision of Chagla, C. J. in the case of Union of India v. Chtnubhai jeshingbhai and others and approved of by the Supreme A Court of India in the case of Union of India v. M/s. Chaman La Loon & Co., it cannot be said that it is not exclusively for the Dominion of Pakistan. So, we hold that Dominion of Pakistan is not liable for any amount due to the plaintiff on account of the aforesaid contract in view of the fact that the Burma Refugee Organisation since the Partition has fallen within the territory which formed part of the Dominion of Pakistan and the adminis tration of this Organisation had been taken over by the Government of Pakistan after the Appointed Day.

16. Now, coming to the claim of the plaintiff as detailed in Schedule A of the plaint at page 431, Part 11 of the paper‑book, it has practically been admitted in Exh. 81 (the list of the outstanding liabilities of the Burma Refugee Organisation), the plaintiffs twenty‑seven bills were also admitted and the amount claimed in Schedule A is almost admitted except in few items where it is few rupees more or a few rupees less. But the learned Subordinate Judge allowed the claim in Schedule A on the basis of the bills of the plaintiff passed by the Chief Refugee Adminis trator and this was not challenged before us. Therefore, we accept the claim of the plaintiff in respect of Schedule A as decreed by the trial Court.

17. Now coming to the claim of the plaintiff in Schedule B of the plaint, it appears that the plaintiff claims Rs. 92,260‑6‑0 as per Bill No. 11 dated 4‑10‑44 and Rs. 6,63,959‑6‑0 on account of Bill No. 111, dated 4‑10‑

44. The total amount of these two claims comes up to Rs. 7.56,219‑12‑

0. Out of this total amount the plaintiff claims Rs. 3,78,109‑14‑0 in his half share. The remaining half share, according to the plaintiff, belongs to one Habibur Rahman Singh, his partner. Besides this amount of Rs. 3,78,109‑14‑0 he also claims his advance money of Rs. 5,

500. Therefore, the grand total comes up to Rs. 3,83,609‑14‑

0. But from Exh. 109 at pages 249‑50 of Part II of the paper‑book it appears that out of Rs. 92,260‑6‑0 on account of Bill No. 11 dated 4‑10‑44, only Rs. 89,130‑3‑0 was passed. Out of Rs. 6,63,959‑6‑0 on account of Bill No. 111 dated 4‑10‑44, (Vide Exh. 110‑A at page 253, Part II of the paper‑book) only Rs. 6,52,466‑3‑9 pies was allowed (Vide Exh. 110 at page 252, Part II of the paper‑book) and out of this amount plaintiff's share is Rs. 3,26,233‑2‑

0. Therefore, on account of Schedule B, his total claim is half of Rs. 89,130‑3‑0 which comes up to Rs. 44,565‑1‑6 pies, and half of Rs. 6,52,466‑3‑9 pies which comes up to Rs. 3,26,233‑2‑0 and his advance money of Rs. 5,500 is to be added thereto, and the total amount of his share will come up to Rs. 3,76,298‑3‑6 pies. Out of this amount, the plaintiff himself admitted in paragraph 10 of his plaint, that he has received Rs. 43,000 from the Government of India through Mr. P. N. Roy, a solicitor for Soleman Chowdhury, his creditor, on 13‑3‑45 and a sum of Rs. 15,608‑2‑0 was paid to Kedarnath Kanailal (another creditior of the plaintiff) on 20‑5‑46/21‑5‑46 through the Sub- ordinate Judge, 1st Court, Alipore and further the Government of India paid a sum of Rs. 5,500 through the Chief Refugee Administrator on 22‑3‑47, against the dues of the plaintiff shown fn the account of Burma Refugee Organisation. Thus the total amount paid to the plaintiff comes up to Rs. 64,108‑2‑

0. It is con ceded by the plaintiff himself that the learned Subordinate Judge by mistake has not deducted this amount of Rs. 64,108‑2‑0 from the amount of his claim. If this amount is deducted from the amount found to be due out of the amount claimed in Schedule B then the amount in Schedule B will come to (Rs. 3,76,298‑3‑6 minus Rs. 64,108‑2‑0 Rs. 3,12,190‑1‑6 pies in place of Rs. 3,83,609‑14‑0.

18. Now coming to the claim of the plaintiff in Schedule C of the plaint, there is no dispute as regards this claim as it has been admitted in the list of the outstanding liabilities of the Burma Refugee Organisation (Vide Exh. 81, item No. 17 at page 420) and we accept the claim as proved.

19. Now coming to Schedule D, almost all of the items were admitted in Exh. 81 (the list of outstanding liabilities of B. R. O. under the signature of D. B., Roy, Accounts Officer (at page 431 of Part II of the paper‑book) except Bill No. CVII dated 7‑9‑44, for a sum of Rs. 1, 654 and we shall deal with this item later on. All other items have been proved with reference to Exh. 81, the list of outstanding liabilities of the Burma Refugee Organisa tion and they are items Nos. 16, 20, 21, 22, 23, 25 and 13 respec tively in Exh. 81.

20. Now coming to Bill No. CVII dated 7‑9‑44, it is support ed by Exh. 117 (a) at page 222, Part II of the paper‑book and it is endorsed by A. L. Chowdhury, S. O. Camp 4 and 5 dated 7‑9‑44, with the remark "The work was completed in my presence. We, therefore, accept this amount of the bill, so we accept claim of the plaintiff in respect of Schedule D of plaint."

21. Now coming to Schedule E, it is a fact that the plaintiff has not been able to establish his claim. In paragraph 9 of the plaint it has been stated that on the 14th of November 1944, the plaintiff received a notice from the Chief Refugee Administrator asking him to stop all kinds supply to the camp forthwith. He also received another notice about the same time from the same authority directing him to remove his staff as also his belongings from Subirnagar and Mahimaganj by the 17th of November 1944. It is stated that the time limit therein made it impossible for the plaintiff to make arrangement for removal of the huge stocks accumulated by him and as a result the plaintiff suffered a loss of Rs. 15,250 as detailed in items I to 3 of Schedule E. It is further stated in that paragraph that the said Burma Refugee Organisation also failed and neglected to take delivery of the balance of the clothing contracted to be supplied by the plaintiff and his partner Habibur Rahman Singh, as a result of which the advances given by plaintiff to various merchants were forfeited and the plaintiff suffered damages in various other ways and the total loss on account of this is estimated at Rs. 1,96,694‑11‑0 as per Schedule E, item 4.

22. First of all we must say that the plaintiff has not been able to establish his claim, because there is no evidence as to what his stock was which he could not remove for want of time or within the time limited in the notice, which according to the plaintiff, made it impossible for him to make arrangement for removal of huge stock accumulated by him as a result of which he suffered a loss of Rs. 15,250 , as detailed in items 1, 2 and 3 of Schedule E. But unfortunately the learned Subordinate Judge allowed this claim of Rs. 15,250 not the basis of any evidence of actual loss suffered by the plaintiff but on the basis of his previous supply and he observed in his judgment at page 146 of the paper book, Part I "P. W. 2 F. Karim has deposed in support of the plaintiff and he had stated that on account of the abrupt notice given to the plaintiff by the C. R. A. to stop all kinds of supply and do all sorts of construction, the plaintiff had to leave behind a large quantities of vegetables and a large number of livestocks and bamboos and mats and all unfinished construc tions quite abruptly. I see no reason why P. W. 2 F. Karim will depose falsely in favour of the plaintiff. The evidence of F. Karim plus the documentary evidence I have referred above, leave no room for doubt that the plaintiff suffered loss to the extent of Rs. 15,250 as claimed as per items Nos. 1, 2 and 3 of Schedule E, and I hold that this amount is also due to the plaintiff from the B. R. O." As regards the documentary evidence, the learned Subordinate Judge referred to Exhs. 2(19) and 2(81). According to him these two Exhibits will show that the plaintiff had to supply 560 maunds of all kinds of vegetables including onion per week, the value of which was Rs. 8,400 Exh. 2(82) will show that the plaintiff had to supply 42 maunds, 12 seers of vegetables, fish etc. per week value of which was Rs. 631 ; Exhs. 2(26) and 2(27) will show that the plaintiff had to supply 65,E maunds of vegetables and onions per week, price of which was Rs. 631‑8‑0 Exhs. 2(57) and 2(58) will show that the plaintiff had to supply 30 mds. 32 seers of vegetables and onions per week value whereof was Rs.‑459 ; Exhs. 2(24), 2(57) and 2(58) will show that he had to supply 29 maunds 24 seers of milk at the rate of Rs. 22 per maund per week the value of which was Rs. 1624, Exhs. 2(82), 2(57) and 2(58) will further show that the plaintiff had to supply 4 maunds of fish at the rate of Rs. 80 per maund per week, value of which was Rs. 320 Exhs. 2(82), 2(57) and 2(58) will show that the plaintiff had also to supply about 1000 eggs per week at the rate of ‑2/ annas each value of which was Rs. 250 and Exh. 2(57) and 2(58) will further show that the plaintiff had to supply chira, chhola and china badam per week the value of which was Rs.

132. The plaintiff had to supply spices i.e. jira, gol marich etc. of 25 seers at the rate of Rs. 100 per week value whereof was Rs. 62‑8‑0 Exhs. 2(90), 2(81), 2(57) and 2(58) will further show that 140 maunds 20 seers of beef at the rate of Rs. 40 were used to be supplied per week value of which was Rs. 5,480 Exhs. 2(26) and 2(27) will show supply of 5 maunds of live goats at the rate of Rs. 60 per week value whereof was Rs.

300. Thus from the above Exhs. appears that the price of weekly supply of vegetables, meats and other food‑stuffs was Rs. 18,748‑15‑

0. After deducting the price of eggs and fish for one day the plaintiff has claimed Rs. 13,250 as per items 1 and 2 of Schedule E for five days loss approximately, although the price of weekly supply as stated above was Rs. 18,748‑15‑

0. From these the learned Subordinate Judge was under the impression that at least one week's supply was in the stock though actually there is no evidence as to the actual stock at the time when the plaintiff was served with a notice to stop supply and to leave the place. One may feel that the plaintiff had certain stock as he used to supply, but there is no evidence as to what is the extent of the stock and what is the loss he has actually incurred. Therefore, there cannot be any decree on the hypothetical basis or on the basis of the previous supply for the amount of Rs. 15,250 as claimed by the plaintiff. So we are unable to agree with the learned Subordinate Judge to grant this amount on account of the loss the plaintiff is alleged to have suffered. He might have suffered some loss, but in the absence of any evidence of the actual loss and the extent of the loss suffered, we cannot grant him any decree.

23. Now coming to the last item of Schedule E, i.e., the claim of the plaintiff on account of the loss and damage sustained on account of non‑delivery of clothings and outfits, the loss claimed is estimated at Rs. 1,96,694‑11‑0 . In the absence of any evidence the learned Subordinate Judge has not allowed this claim, we think, very rightly. Further, it appears that the plaintiff in support of his claim has referred to the certified copy of deposition of B. K. Mukherjee before the Alipore Tribunal where S. K. Ghosh and others including the plaintiff himself were on trial, but he was acquitted (Vide Exh. 32, page 346 at page 352, Part II of the paper‑book, line about 20‑40). Further, the plaintiff has referred to his own deposition at the page 101, line about 51‑54, Part I of the paper‑book. Even if the deposition of B.K. Mukherjee is an evidence under section 33 of the Evidence Act, it does not prove anything of the claim put forward by the plaintiff on account of the loss he has suffered for non‑delivery of the clothings and outfits. In his deposition the plaintiff himself admitted that due to the failure and negligence of the Chief Refugee Administrator to take delivery of the clothings and outfits he has suffered the loss : "I suffered a total damage of Rs. 1,96,694‑1‑0 as stated in item No. 4 of Schedule (E). I claim this amount." This is only a claim and no substantial evidence has been adduced to substantiate the actual loss suffered to support his claim. Then the plaintiff referred to Exhs. 57, 58, 60 and

67. Exh. 57 is a receipt for Rs. 11,328 granted by Adbul Rashid to the plaintiff on the 1st of August 1944, and Exh. 56 is also a receipt for Rs. 209,250 granted by Enamul Haque to the plaintiff on 3rd August 1944. Exh. 58 is also receipt for Rs. 1100 granted by Abdul Rashid to the plaintiff on 8th August 1944, Exh. 60 is also a receipt for Rs. 13,000 granted to the plaintiff by Ganeshmull Nimchand on 15th August 1944, and Exh. 67 is also a receipt for Rs. 25,277‑8‑0 granted by Mahiuddin Ahmed and Manik Miah to the plaintiff on 16th August 1944. The plaintiff referred to these exhibits to show that he made advance payments to different shop‑keepers and dealers for the purpose of purchasing clothes and outfits. But if one looks to Exh. 75, a certified copy of the decree in Suit No. 213 of 1945 of the High Court of Calcutta dated 24th April 1945, which was long after these receipts of the year 1944, he will be convinced that all these amounts have already been settled up between the plaintiff of that suit, namely, the present plaintiff and the defendants, namely, Habibur Rahman Singh, a partner of the plaintiff; Ganesbmul Nimchand, and Mahiuddin and Manik Miah, who are defendants of that suit, and the said decree is based on a solenama decree between the parties. All these persons referred to above with reference to Exhs. 56, 57, 58, 60 and 67 were provided for in the said solenama and the plaintiff washed his hands off towards the claim on account of the clothings and outfits on receipt of Rs. 40,000 in cash from his partner Habibur Rahman Singh, who undertook to receive the clothings and outfits from those persons to whom advances were made and from whom receipts were taken. Therefore, apart from any other consideration, in the absence of any evidence as to how much loss the plaintiff has suffered on account of non‑delivery of the clothings and outfits, it is quite clear that he has got no claim on account of these clothings and outfits as he has settled up his claim with his partner Habibur Rahman, and he is not entitled to claim any damages from the Government on account of the loss suffered for non delivery of the clothings and outfits.

24. This amount of Rs. 1,96,694‑11‑0 claimed by the plaintiff as damage on account of non‑delivery of clothings and his claim for interest on account of the money due are the subject matters of his cross‑objection. Therefore, so far as this claim for Rs. 1,96,694‑11‑0 is concerned, the cross‑objection must be dismiss ed. We shall deal with the question of interest later on.

25. As to the limitation raised by the appellant, it is not disputed that limitation is three years plus two months for notice under section 80 of the Code of Civil Procedure. As per plaintiff's allegation, cause of action arose on various dates from 13th March 1944 and the suit was filed in forma pauperis on 15‑7‑49, beyond the period of limitation. According to the plaintiff, the period of limitation has been extended by part‑payment and acknowledgment under section 19 of the Limitation Act. As to the part‑payment, it is the undisputed case of the plaintiff in paragraph 10 of the plaint as well as in evidence that out of his outstanding dues the Chief Refugee Administrator, Burma Refugee Organisation, made payment of Rs. 43,000 on 13‑3‑45, to Mr. P. N. Roy, solicitor for Soleman Chowdhury, a judgment creditor of the plaintiff (Vide Exh. 30 page 342 Part II of the paper‑book, at page 446), another sum of Rs. 15,608‑12‑0 on 20‑5‑46 to Kedar Nath Kanailal (Vide Exhs. 34 and 36, page 153, Part II of the paper‑book) another creditor of the plaintiff through the First Subordinate Judge, Alipore, and the third sum of Rs. 5,500 on 22‑3‑47, to the plaintiff (Vide Exhs. 36 and 36(a) page 154‑55, Part I( of the paper‑book). It appears from the exhibits referred to above that all these payments were made out of the outstanding dues of the plaintiff against the llbrma Rafugee Organisation. The last mentioned two payments save the limitation not only as part‑payment but also as acknowledg ment.

26. Further, it appears from Exh. 82 (a momo. of statement dated 22‑12‑47 of outstanding liabilities of the Burma Refugee Organisation to different contractors including the plaintiff at page 157‑60 Part II of the paper‑book, prepared by the Chief Refugee Administrator, D. B. Roy) that Burma Refugee Organisation admitted the outstanding claim of the plaintiff. Exh. 83 (certified copy of deposition of D. B. Roy, at page 358 Part II of the paper book) shows that D. B. Roy was the Account Officer of Burma Refugee Organisation. Exh. 32, at page 346, Part II (deposition of B. K. Mukherjee) show that D. B. Roy was the Account Officer of Burma Refugee Organisation. This Exh. 82 is memo. written by the Account Officer, Burma Refugee Organisation to the Secretary, Government of East Bengal showing the out standing claim against the Burma Refugee Organisation for the period prior to 15‑8‑

47. So also is Exh. 81 (page 419 Part 11 of the paper‑book), the statement of outstanding liabilities of the Burma Refugee Organisation prepared by D. B. Roy, Account Officer, dated 2‑5‑

48. Signature of D. B. Roy is Exh. 81(a) at page 431, Part I1 of the paper‑book. So also are the Exhs. 34 and 35 at page 153, Part II of the paper‑book. All these Exhs. constitute acknowledgment within the meaning of section 19 of the Limitation Act. In the case of Benode Behary Mukerjee v. Raj Narain Mitter (I L R 30 Cal. 699), it has been held that in order to satisfy the requirement of section 19 of the Limitation Act though a promise to pay need not be made out, it is necessary, when the right is debt, that an unequivocal and unqualified admission of debt or part of it or of the subsisting relationship of debtor and creditor should be established.

27. In the case of Andiappa Chetty v. Alasinga Naidu (I L R 36 Mad. 68), ft is observed at page 70 "section 19 of the Limitation Act is so worded as to suggest that where there is an acknowledgment of liability in respect of a right and it is sought to use such acknowledgment for starting a fresh period of limitation, the right acknowledged must be of the same description as the right which is the subject of the suit."

28. These part payments and acknowledgments in writings, we think, are sufficient to save the claim of the plaintiff from limitation. An acknowledgment that some money is due is g sufficient to take the case out of the statute as to all that is due. Therefore, we hold, in agreement with the learned Subordinate Judge, that the claim of the plaintiff is not barred by limitation.

29. Another technical objection was raised by Mr. Syed A. B. Mahmud Hossain, the learned Government Pleader, that the suit was defective as it was originally filed in the name of the Dominion of Pakistan represented by the Governor‑General of Pakistan and then it was amended by describing as the Federation of Pakistan on 17‑8‑54, and it was further amended by describing it as the Islamic Republic of Pakistan on 1‑12‑56, when the suit was long barred by limitation. In other words, the contention of the learned Government Pleader is that the suit as framed was not properly constituted and when it was properly constituted it was out of time. We are unable to accept this contention. It is a misdescription and it does not affect any period of limitation. In support of this view we can refer to the decision of this Court in the case of S. Ahmed Mian v. Federation of Pakistan and another (3), where it was held "That where the plaintiff misdescribed the name of the defen dant in a suit but in substance the name of the defendant was there and the mistake was only a clerical mistake and the defen dant was not misled thereby; then that can be amended at any time without any prejudice to the plaintiff; and for the ends of justice the defendants cannot be allowed to take advantage of such an accidental slip of the plaintiff on a mere technical ground". In that case it was further held "that in suits by or against the Governor‑General in whose name contracts are expressed to be entered they should be instituted in the name of `The Federation of Pakistan' ".

30. Therefore, the decree passed by the learned Subordinate Judge is to be modified to this extent that Rs. 86,669‑12‑6 (Rs. 64,108‑2‑0 already paid by the Government of India out of the plaintiff's claim in Schedule B plus Rs. 7,311‑10‑6 claimed in Bills Nos. 11 and 111, dated 4‑10‑44, in excess of the amount passed and plus Rs. 15,250 claimed as damage as per items Nos. 1‑3 of Schedule E) will be deducted from the amount decreed by him and the suit is to be decreed in part for Rs. 5,91,997‑4‑

0. Rs. 6,78,667‑0‑6 minus Rs. 86,669‑12‑6).

31. Now coming to the question of interest, there is much to be said on either side. The Government of Pakistan is no doubt made liable under Article 8 of the Rights, Property and Liabilities Order, 1947, under the Independence Act by legal fiction, but as a matter of fact, the plaintiff also supplied goods for which money is due. So, we think he should be given some interest and we propose to grant interest as the rate of 2 % per annum from the date of institution of the suit on 15‑7‑49, up to the date of the decree of this Court which will amount to Rs. 40,533‑8‑0 only and at the rate of 6 %. from the date of the decree of this Court till the date of realisation and the cross‑objection is to be allowed in part to this extent.

32. The result, therefore, is that with the modification as indicated above, the appeal and the cross‑objection are allowed in part with proportionate costs and the suit is decreed in part with proportionate costs.

33. The suit and the cross‑objection were filed by the plaintiff in forma pauperis. The entire court‑fees payable in the suit and in the cross‑objection are to be realised by the Govern ment from the plaintiff out of the decretal amount. SATTAR, J.‑I agree with my Lord, the Chief Justice. S. B./K. S. A. Appeal partly allowed.