1. Government contractor — Partial termination of contract — Civil suit for declaration and recovery — Dispute over compliance with Section 80, Code of Civil Procedure. (Para 2 , 3 , 4 , 5 )
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2019 Supreme(SC) 610
SUPREME COURT OF INDIA
Rohinton Fali Nariman, Vineet Saran, JJ.
Y. Savarimuthu – Appellant(s)
Versus
State of Tamil Nadu and Others – Respondent(s)
Civil Appeal Nos. 4495-4496 of 2019 (Arising out of SLP (C) Nos. 30945-30946 of 2015)
Decided On : 30-04-2019
Advocates appeared:
For the Appellant(s) : Mr. M. A. Chinnasamy, AOR
For the Respondent(s): Mr. Vijay Kumar, AOR
For the Appellant(s) : Mr. M. A. Chinnasamy, AOR
For the Respondent(s): Mr. Vijay Kumar, AOR
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.
Headnote:Civil Procedure Code, 1908 – Section 80 – Notice – Service and validity – Section 80 cannot be construed in a pedantic manner completely divorced from common sense – This is a legal notice sent by a Lawyer of appellant to authorities concerned – It was by registered A.D. and served upon authorities – Cause of action was sufficiently set out in notice which is illegality of partial termination of contract – More than two months have elapsed from date of notice after which sit has been filed – There is sufficient compliance with provisions of Section 80 – Notice does not have to state section under which it is made so long as ingredients of sub-section (3) of Section 80 are met – Impugned judgment of High Court set aside and matter remitted to High Court to dispose of appeals on merits. (Paras 11, 15, 16 and 17)
Facts of Case:
Present appeals relate to whether a notice under Section 80 of Code of Civil Procedure has been given to State of Tamil Nadu in terms of the Section or in substantial compliance thereof.
Findings of Court:
There is sufficient compliance with the provisions of Section 80 CPC as has been introduced by Amendment Act introducing section 80(3) into Statute book. Respondents’ argument that Section 80 is not expressly referred to and that legal notice and letters were written prior to disposal of Writ Appeal have no legs to stand on. This is for the reason that a notice does not have to state section under which it is made so long as ingredients of subsection (3) of Section 80 are met.
Result : Appeal disposed of.
Legal Category Hierarchy
Table of Contents
2. Whether notice under Section 80, Code of Civil Procedure requires strict adherence to form and express mention of the section or allows for substantial compliance. (Para 9 , 10 )
3. Section 80 is procedural and must be interpreted to advance justice; substantial compliance is sufficient if the government is put on notice of the cause and relief. (Para 12 , 13 , 14 , 15 , 16 , 17 )
4. A notice under Section 80, Code of Civil Procedure is valid if it substantially indicates the cause of action and relief, regardless of whether the section is expressly cited. (Para 14 , 17 )
5. High Court judgment set aside — Matter remitted to High Court for disposal on merits. (Para 18 , 19 )
6. Does a notice under Section 80 CPC need to expressly mention the section number to be valid?
No. A notice does not have to state the specific section under which it is made, provided the essential ingredients of substantial compliance—namely the identification of the plaintiff, the cause of action, and the relief claimed—are met. (Para 17 )
7. What is the objective of Section 80 of the Code of Civil Procedure?
The objective is to advance justice and secure the public good by avoiding unnecessary litigation, giving the government sufficient warning of a proposed suit so it may reconsider its decision or settle the claim without recourse to court. (Para 13 , 14 , 15 )
8. How should courts interpret the requirements of Section 80 CPC regarding defects in the notice?
Courts should not interpret Section 80 in a pedantic manner divorced from common sense. Under Section 80(3), a suit shall not be dismissed for mere errors or defects if the plaintiff is identifiable and the cause of action and relief are substantially indicated. (Para 12 , 14 )
9. Is a notice served while a related writ petition or appeal is pending valid for a subsequent civil suit?
Yes. A notice sent during the pendency of a writ appeal can serve as a valid Section 80 notice for a future suit in the event the appeal fails, as it puts the government on notice of the potential legal action. (Para 17 )
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
