Plaintiff Can’t Be Non-Suited On Ground Of Non-Service Of Statutory Notice U/S. 80 CPC When State Waived It Without Raising Objection in Written Statement: Orissa HC

The High Court was considering a Second Appeal filed by the State of Orissa and the Executive Engineer against a Construction Company.

The Single-Judge Bench of Justice A.C. Behera said, “The main object/purpose of issuance of notice under Section 80(1) of the C.P.C., 1908 by the plaintiff to the State/Government and its officer prior to the institution of suit is only to give the concerned Government or officer an opportunity to reconsider the legal position and to settle the claim raised by the plaintiff, if so advised, without moving for the litigation in order to enable the State and its officer to be responsive to the notice of the plaintiff for the avoidance of a fight in the suit or litigation with the plaintiff or plaintiffs.”

Standing Counsel G. Mohanty appeared for the Appellants.

It was the case of the Plaintiff, a registered construction company, that it had entered into an agreement with the defendants for the construction of a Bridge over river Vansadhara river in the district of Rayagada in order to complete such construction works within 36 calendar months by furnishing Bank guarantees for Rs 8,85,000 as security of such work. However, due to non-completion of construction works due to some unforeseen natural obstacles beyond control, the time period of completion was extended by the defendants in two phases.

Out of all the running bills of such construction works submitted by the plaintiff, three bills were not cleared. The plaintiff incurred extra expenditures for the construction of works with the knowledge of the defendants. Instead of clearing the pending bills, the defendants unilaterally cancelled the agreement of the plaintiff and intimated the plaintiff that they(defendants) shall adjust the security deposit of the plaintiff towards part of their losses. It was in such circumstances that the plaintiff approached the civil court by filing the suit against the defendants praying for a declaration that the rescission/cancellation of its contract were illegal & invalid.

The Trial Court answered all the issues in favour of the plaintiff-company and decreed the suit of the plaintiff-company on contest against the defendants and declared that, letter of rescission of contract issued by the defendant were illegal.The First Appellate Court dismissed the defendants’ appeal and thus, the defendants approached the High Court with a Second Appeal. The plaintiff(respondent in the 2nd appeal) is a private construction company, whereas, the defendants are the State and its officer, i.e., Executive Engineer.

After going through the pleadings of the parties and judgments of the lower Courts, no notice under Section 80(1) of the C.P.C., 1908 was served upon the defendants by the plaintiff before filing of the suit and there was also no averments in the plaint regarding the cause of non-service of the statutory notice under Section 80(1) of the C.P.C. on the defendants before the institution of the suit.

The Bench reaffirmed that though the provision of issuance of notice under Section 80(1) of the C.P.C. is mandatory, but, the same can be waived by the defendant or defendants and if once, the defendant or defendants waived the requirement of the notice under Section 80(1) of the C.P.C. without raising any objection about the same in their written statement, in that case, the plaintiff cannot be non-suited on the ground of non-service of statutory notice on the defendant or defendants prior to the institution of suit.

It was noted by the Bench that if the issuance of notice under Section 80(1) of the C.P.C. before filing of the suit is waived by the defendant or defendants without raising any objection about the same in the written statement, then in that case, there is no impediment for the court to entertain the suit of the plaintiff without notice under Section 80(1) of the C.P.C., 1908.

“In view of the propositions of law settled in the ratio of the above decisions of the Hon’ble Courts and the Apex Court, the main object/purpose of issuance of notice under Section 80(1) of the C.P.C. by the plaintiff to the defendant or defendants before institution of suit is only to give the defendant or defendants an opportunity to reconsider the plaintiff’s claim, i.e., whether the same can be accepted or not and to reconsider the legal position and to make amends or settle the claim of the plaintiff, if so advised, without moving for the litigation with the plaintiff, for no other reason, but, only, in order to avoid the fight with the plaintiff and if the defendants do not raise any objection about the same in their written statement challenging the maintainability of the suit of the plaintiff on the ground of non-issuance of notice under Section 80(1) of the C.P.C., 1908 and if no issue is framed on the said point, then, it will be deemed as per law that, defendant or defendants have waived their right on such point”, the Bench said.

The Bench clarified that when the defendants, i.e., State and its officer have neither raised any objection in their written statement challenging the maintainability of the suit of the plaintiff-company on the ground of non-issuance of notice under Section 80(1) of the C.P.C., 1908 prior to the institution of the suit nor any issue has been framed on that point by the trial court during trial of the suit, then at this juncture, the defendants have waived the requirements of notice under Section 80(1) of the C.P.C.

Finding no justification under law for making any interference with the concurrent findings and observations made by the trial court and 1st appellate court against the appellants/defendants and in favour of the respondent/plaintiff, the Bench dismissed the second Appeal.

Cause Title: State of Orissa and another v. M/s. B. Engineers and Builders Private Limited [Case No.- S.A. No.127 of 1995]

Appearance:

Appellants: Standing Counsel G. Mohanty

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