Mitter, J.

1. The plaintiff in this case was appointed at Cawnpore in theNorth-Western Provinces, in the month of October 1879, as a purchasing agentand gomastah of the Commissariat Department of the Government of India topurchase stores, miscellaneous articles, &c., required for the troopsassembled for the Second Cabul Expedition on a salary of Rs. 100 per month. Hisemployment, which was in the Punjab Province, lasted till the month of October1880.

2. His case is that the Commissariat Department, from timeto time, made advances to him, but that, as a rule, he had to advance money outof his own funds to carry out his duties as such purchasing agent and gomastah.

3. He sues the Secretary of State for India in Council torecover the sum of Rs. 2,52,034-14-5, or such other sum as may be found due tohim on taking of an account of the sums paid to him, and of the sums spent byhim in the course of his employment.

4. The suit was instituted on the 19th of April 1884, on theOriginal Side of this Court, without previous leave being obtained under theprovisions of Section 12 of the Letters Patent. It is stated in the plaint thatthe cause of action accrued in the month of January, 1884, when the authoritiesin charge of the Commissariat Department, after a protracted correspondencebetween the plaintiff and his attorney on the one hand and the said departmenton the other, finally refused to pay the amount claimed by him.

5. The plaintiff states further that it was understood thathis emnleyment was to be subject to the rules of the said department, regardingthe investigation and passing of the bills, and accounts to be submitted by himfrom time to time; that according to the said rules it was his duty to submithis bills and accounts, first, to his immediate superior, the executiveCommissariat officer, who would forward the same with his opinion to theExaminer of Commissariat Accounts; that the said Examiner of CommissariatAccounts, after necessary investigation, would pass the bills for such amountsas to him might seem proper; that the retrenchments made by the latter officerwould be subject to appeal to the Comptroller of Military Accounts, and tofurther appeal to the Government of India; and that the balance, if any, in hisfavour would not become due until the final adjustment of his bills andaccounts thus arrived at.

6. Various pleas have been taken in the defence, but it wasagreed on both sides that two preliminary issues should be decided first, andthat if they were decided in favour of the plaintiff, the question of theexamination and adjustment of accounts should be referred to an officer of thisCourt.

7. These issues are: (1) whether or not this Court hasjurisdiction to entertain the suit; and (2) whether or not it is barred bylimitation.

8. The Ordinary Original Civil Jurisdiction of this Court,regarding suits for recovery of money, is thus defined in Section 12 of theLetters Patent: "That the said High Court of Judicature at Fort William inBengal, in the exercise of its Ordinary Original Civil Jurisdiction, shall beempowered to receive try and determine suits of very description, &c.,&c., &c., &c., (l) if the cause of action shall have arisen eitherwholly, or in case the leave of the Court shall have been first obtained, inpart, within the local limits of the Ordinary Original Jurisdiction of the saidHigh Court; (2) or if the defendant at the time of the commencement of the suitshall dwell or carry on business or personally work for gain within suchlimits."

9. In this case it is admitted in the plaint that the causeof action did not arise wholly within the said local limits. Notwithstandingthis admission it was contended in the course of the argument that the cause ofaction did arise wholly within the said limits, because the money claimed inthe suit was payable in Calcutta. Supposing that it was payable in Calcutta,still the cause of action would not arise wholly there. But it was urged onbehalf of the plaintiff that a cause of action arises wholly in a place wherethe breach of contract, upon which a particular suit is brought, takes place.In support of this contention the case of Muhammed Abdul Kadar v. The EastIndia Railway Co. 1 M. 375 has been cited; but the view taken in this case isin conflict with the whole series of cases involving this point decided by thisCourt see Greeschunder Bonnerjee v. Collins 2 Hyde 79; Indian Carrying Companyv. Mc Carthy Cor. 116. There is not a single case decided by this Court inwhich the view taken by the learned Judges of the Madras High Court--MuhammedAbdul Kadar v. The East India Railway Co. 2 hyde 76--was adopted. It has beenuniformly held here that the words "the whole cause of action" inSection 12 of the Letters

10. Patent mean all things necessary to give a right ofaction, and that in a suit for breach of contract it must be established thatthe contract, as well as the breach thereof, have taken place within the localjurisdiction of the Court. When the law has thus been settled in this Court bya current of decisions, we would not be justified in disturbing it. But in thiscase, as I shall show, in dealing with the question of imitation, there is nofoundation for the contention that the breach of the contract took place inCalcutta.

11. Therefore, under the first head of jurisdiction laiddown in Section 12 of the Letters Patent, the present suit is not cognizable bythis Court.

12. Neither is it cognizable under the second head ofjurisdiction. In discussing this question it is material to consider the natureof the suit and the position and the connection of the defendant with referenceto the claim involved in it.

13. It is enacted in Section 65 of the Act for the bettergovernment of India, 21 & 22 Vic., c. 106, that "the Secretary ofState in Council shall and may sue and be sued as well in India as in Englandby the name of the Secretary of State in Council as a body corporate, and allpersons and bodies politic shall and may have and take the same suits, remediesand proceedings, legal and equitable, against the Secretary of State in Councilof India as they could have done against the said Company, and the property andeffects hereby vested in Her Majesty for the purposes of the Government ofIndia, or acquired for the said purposes, shall be subject and liable to thesame judgments and executions as they would, while vested in the said Company,have been liable to in respect of debts and liabilities lawfully contracted andincurred by the said Company." This section does not constitute the"Secretary of State in Council" a body corporate, but it simply laysdown that that officer and department are to be sued as a body corporate, theobject of the suit being to obtain satisfaction of the plaintiffs claim, if itshould be decreed, out of the Indian Exchequer. A suit of this kind is notreally against any person or any real body corporate. But it is allowed to bebrought against the Secretary of State in Council as a body corporate. In otherwords as a suit cannot be brought without a defendant, a nominal defendant isallowed to be put upon the record to enable the plaintiff to obtain the remedysecured to him by this section. I am supported in this view by the followingobservations of Lord Justice James in Kinloch v. Secretary of State for Indiain Council L.R. 15 Ch. Div. 8. "When you look," says his Lordship, "atthe Act 21 & 22 Vic., c. 106, which put an end to the East India Company,all the property and assets of the East India Company were not transferred toany body corporate which were successors to the East India Company, but werevested in the Crown in trust for the Government of India; and the words theSecretary of State for India in Council, which are mere words providing thatthat officer and department could be capable of suing and being sued, arenothing more in my judgment than words indicating the mode by which theGovernment of India is to sue and be sued ; that is to say, the mode in whichthe Indian Exchequer might itself institute proceedings, and might be made thesubject of proceedings, for the purpose of determining the rights between anyof Her Majestys subjects and that Government. But the Government of India isnot, it appears to me, capable of being a trustee; nor is the Secretary ofState for India in Council (the name by which the Government can be sued) aperson capable of being a trustee any more than the Attorney-General in thiscountry would be, or any other person who sues in certain cases for or onbehalf of the Crown." The words "the Secretary of State for India inCouncil," as observed by his Lordship, indicate the mode by which theIndian Exchequer is to be sued. Further on his Lordship says, referring to thewords "the Secretary of State for India in Council" : "There isno such body known except as a name, as I said before, for suing and being suedon behalf of the Indian Exchequer."

14. This being the nature of the suit contemplated bySection 65 of the Act for the better Government of India, and the defendant onthe record being a mere name used for the purpose of prosecuting the suit, thewords by which the second head of jurisdiction has been defined in Section 12of the Letters Patent are in my opinion inapplicable to it. The same view wastaken by Wells, J., in Rundle v. The Secretary of State in Council 1 Hyde 37.He says: "The words carry on business and personally work for gain donot refer to an institution like the Government of India." He further heldthat the carrying on of the business of the Government cannot be considered tobe carrying on of business within the meaning of the 12th section of theLetters Patent. It is somewhat difficult, nor is it necessary in this case, todefine exactly what may be deemed as "business" within the meaning ofSection 12 of the Letters Patent; but it is clear to me that the business ofgoverning the country is not business within the meaning of Section 12 of theLetters Patent. It may be useful here to cite the case of Nobin Chunder v.Buroda Kant Shaha 19 W.R. 341; and of the Anonymous case 23 W.R. 223 in whichit was held that zamindari business is not business of the kind contemplated inSection 17 of the Code of Civil Procedure; and the cases Sangster v. 5 Ex. 386,and Buckley v. Hann 5 Ex. 43 in which "it was held that clerks inGovernment offices cannot be said by reason of their being so to carry onbusiness within the jurisdiction of the County Courts in which these officesare situate. "That the word" business" in Section 12 of theLatters Patent was used in a restricted sense is also indicated by the words"personally work for gain" to be found in the same section. Thelatter words would be unnecessary if the word, "business" had beenintended to be used in an unrestricted sense.

15. In Subbaraya Mudali v. The Government 1 M.H.C. 286.Scotland, C.J., says: "The words carrying on business can, we think,reasonably be applied to the Government as a deliberative body." Being ofthat opinion he held that a suit brought, against the Government which waslocated within the limits of Madras was properly brought on the Original Sideof the Madras High Court. It seems to me that quite apart from the questionwhether the business of governing the country is business within the meaning ofSection 12 of the Letters Patent, it was overlooked in that case that underSection 65 of 21 and 22 Vic., c. 106, the suit should have been considered asbrought against the Secretary of State for India in Council. If this fact hadbeen present to the mind of the learned Chief Justice of Madras he would havecome to the conclusion that the suit was not cognizable by the High Court;because in another part of his judgment he held that, by Section 12 of theLetters Patent, "a personal attendance to business was intended."This could not have been predicated of the Secretary of State in Council.

16. It has been said that supposing the business ofgoverning the country is not business within the meaning of Section 12 of theLetters Patent, still the Government in this country carries on various trades,such as the trades in opium and salt, and the principal places of business ofthese trades are located in Calcutta. But these trades are not carried on bythe defendant in this case. As already observed, the words carrying on of abusiness or trade are inapplicable to this case. These trades, if they can beproperly called trades, are carried on in one sense by the Government officersin charge of them, but they are so carried on for the benefit of the IndianExchequer. For these reasons I am of opinion that this Court has nojurisdiction to entertain this suit.

17. On the second issue I am also of opinion that theplaintiffs suit fails. It seems to me that the present suit is based upon animplied contract on the part; of the Commissariat Department to pay whatevermoney has been advanced by the plaintiff for the purchase of stores,miscellaneous articles, &c., in the course of his employment as a gomastahand purchasing agent of that department. It is stated in the written statementthat it was understood at the time when the plaintiff was appointed a gomastahand purchasing agent in the Commissariat Department, that he was to be keptsupplied with sufficient funds to effect the purchases of the articles that hemight be required to purchase for the use of the troops. The case for theplaintiff is, that by the rules of the department, subject to which hisappointment was made, he was required to advance funds for these purchases fromtime to time, and that the money so advanced by him would not become due untilhis bills and accounts had been finally adjusted in the mode described in theplaint.

18. Beyond the fact that there are certain rules observed inthe Commissariat Department for investigating and finally passing the accountsof a gomastah, the plaintiff has not adduced any evidence in support of thecase set up by him. It is not necessary to ascertain with any degree ofprecision what these rules are; because it seems to me that their existence hasno bearing upon the question whether it was intended, as alleged by theplaintiff that a purchasing gomastah should be required to advance money whennecessary from his own funds to make the purchases which he would be requiredto make. Upon this point the plaintiff has adduced no evidence at all. Inordinary cases, when an agent is engaged on a small monthly pay without anyfurther remuneration, to make purchases on behalf of his principal, in theabsence of any express contract to the contrary, it would be reasonable to holdthat it is understood that the principal should always keep the agent suppliedwith funds to make the required purchases. But in this-case we have theseadditional facts. From the correspondence and bills filed as exhibits, itappears that the plaintiff was not entitled to charge interest as a matter ofright upon the advances, if any, made by him. No such interest has been chargedin these bills, and in some of these letters the plaintiff intimated to theCommissariat officers that, if his accounts were not settled speedily, he wouldclaim interest. It is further clear upon the materials placed on the recordthat, when the plaintiff was appointed, it was well known to him that the fundsthat would be required for the purchases to be affected by him as Commissariatgomastah and purchasing agent would be considerably large. Under thesecircumstances I think it may be reasonably concluded that the understanding wasthat the plaintiff was to be always kept supplied with funds to affect thepurchases that he would be directed to make.

19. Having regard to this understanding it seems to me that,if on any occasion the plaintiff happened to have advanced money out of his ownpocket to make any of these purchases, he was entitled to demand immediatepayment of it. An agreement under the circumstances set forth above would beimplied on the part of the Commissariat Department to repay immediately themoney advanced by the plaintiff. If the money be not paid immediately therewould be a breach of the contract, which would entitle the plaintiff tomaintain an action for the recovery of the money advanced. In this state ofthings, in an ordinary case, Article 61 of the second schedule of theLimitation Act would be applicable. But it is doubtful whether the money inthis case could be said to have been paid for the defendant who, as alreadyobserved, is a mere name. But if Article. 61 is not applicable, then the suitwould fall under Article 115, which is a sweeping Article providing for allcases of breach of contract not specially provided for in the Act. The suit wasbrought in 1884, that is, more than three years after the termination of theplaintiffs agency, and therefore more than three years after the last supplymade by him as a gomastah and purchasing agent. It is, therefore, barred underArticle 115. Even if we hold that the breach took place when the money wasdemanded, and not paid, still the suit would be barred.

20. In the course of the argument, several letters werereferred to as containing acknowledgments of liability on the part of theGovernment. But I have carefully examined these documents, I do not find anyacknowledgment of liability contained in them which would bring the case withinSection 19 of the Limitation Act. Nor is it shown that the present suit issaved from the bar of limitation by the second para, of Section 20. There isnot a single instance in which a part payment within three years has been madeof an admitted debt.

21. The result is that the plaintiffs suit will bedismissed with costs.

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Doya Nahain Tewaryvs. The Secretary of State for India in Council (08.09.1886 - CALHC)