IMPORTANT POINTS
(1) Section 80 of CPC cannot be construed in a pedantic manner completely divorced from common sense.
(2) Notice does not have to state section under which it is made so long as ingredients of sub-section (3) of Section 80 of CPC are met.

JUDGMENT :

ROHINTON FALI NARIMAN, J.

Leave granted.

2. The present appeals relate to whether a notice under Section 80 of the Code of Civil Procedure (CPC) has been given to the State of Tamil Nadu in terms of the Section or in substantial compliance thereof.

3. The appellant is a Government Contractor who has executed various works in the National Highways, P.W.D. and Electricity Board. On 15.10.1997, the appellant and respondent No. 2 entered into an agreement for strengthening the existing two-lane pavement of NH7 from a particular kilometer point from Madurai to Kanyakumari. As per the agreement, the work ought to have been completed in 18 months. The site was handed over to the appellant on 20.10.1997, but, in the course of the progress of work, the appellant stated that due to delay caused by the respondents, he was not able to progress and complete the work in time. The immediate reason why the appellant had to knock at the doors of the High Court was an order dated 16.12.1999 passed by the Superintending Engineer partially terminating the contract on the ground that the plaintiff-appellant has not shown sufficient progress in the execution of the said work. The plaintiff-appellant first filed a Writ Petition before the Madras High Court, which, by a judgment dated 24.12.1999, rejected the Writ Petition, stating that an adequate alternative remedy existed in terms of filing of a Civil Suit. This was appealed against by the appellant, which appeal substantially met the same fate by the order dated 10.07.2000, by which the Writ Appeal was dismissed, and it was stated that an adequate alternative remedy existed by way of arbitration.

4. In between the learned Single Judge's judgment and the Division Bench judgment dismissing the Writ Appeal, the appellant sent a legal notice dated 14.01.2000 in which the appellant made it clear that he had completed the work to the extent of Rs. 1,25,00,000/- in spite of delay in approving the pre-level work and fitness of the plant. He also mentioned that the original period of 18 months was extended up to 30.03.2000 for the reason that there was delay on the part of the Department. Despite this, an order of 16.12.1999 was made even before the said extension came to an end, by which the contract was partially terminated. It was for this reason that he stated that it was necessary for him to have gone to the High Court by way of a Writ Petition. It is further stated that the Writ Petition was dismissed on 24.12.1999 and that the appellant had decided to file a Writ Appeal against the said order. Despite this, however, the appellant made it clear that the part-termination, even before the expiry of the extended time, is arbitrary and equally arbitrary is the fresh tender that had been called for without issuing any notice to the appellant for which he would take “appropriate legal actions” as available in law, holding the State liable for all costs and consequences. This legal notice was followed by two other letters, one dated 25.01.2000, and the other dated 29.01.2000. The letter dated 29.01.2000 went on to state that he is challenging the partial termination of the contract and enclosing a list of payments due for the work, which, at that point of time, amounted to a sum of Rs. 88.06 lakhs.

5. Since the Writ Appeal had also been dismissed and since the remedy of arbitration could not be availed of as claims of above Rs. 2 lakhs were not arbitrable, but ought to be decided in a Civil Suit, the appellant filed O.S. No. 2/2002 on 12.09.2002 in the Court of the Special Judge at Virudhunagar. After setting out the fact that the partial termination was bad in law, the appellant prayed for a declaration that the partial termination order dated 16.12.1999 is illegal and void and that a sum of Rs. 3.30 crores with interest of 15 per cent per annum be granted to him as these were the amounts owing to him by the State.

6. The learned Additional District Judge by his judgment dated 29.06.2007 found that th