Non-service of statutory notice under Section 80 of the C.P.C. is waivable if no objection is raised in the defendants' written statement, allowing the suit to be maintained.

JUDGMENT :

A.C. Behera, J.

This 2^nd appeal has been preferred against the confirming judgment.

2. The appellants(State and Executive Engineer) in this 2^nd appeal were the defendants before the trial court in the suit vide T.S. No.04 of 1992 and appellants before the 1^st appellate court in the 1^st appeal vide T.A. No.04 of 1993.

The respondent in this 2^nd appeal, i.e., company was the sole plaintiff before the trial court in the suit vide T.S. No.04 of 1992 and respondent before the 1^st appellate court in the 1^st appeal vide T.A. No.04 of 1993.

3. The suit of the plaintiff-company vide T.S. No.04 of 1992 before the trial court against the defendants was a suit for declaration.

The case of the plaintiff-company before the trial court in nutshell against the defendants was that, the plaintiff being a registered construction company had entered into an agreement with the defendants vide Agreement No.56/G2/C.E.C. (Roads) L.S.84-85 for construction of a H.L. Bridge over river Vansadhara river near Gunupur in the district of Rayagada in order to complete such construction works within 36 calendar months starting from 25.01.1985 by furnishing Bank guarantees for Rs.8,85,000/- as security of such work, but due to non-completion of construction works within the above stipulated period for some unforeseen natural obstacles beyond control, the time period of completion was extended by the defendants in two phases up to 30.06.1992 on the application of the plaintiff-company.

Out of all the running bills of such construction works submitted by the plaintiff, only forty two numbers of running bills were passed in favour of the plaintiff by the defendants, but, the defendants did not clear the 44^th, 45^th and 46 numbers of running bills of the plaintiff. During that time, the cost of construction materials and wages of the labourers were increased. For which, the plaintiff incurred extra expenditures for the construction of works with the knowledge of the defendants. Therefore, the plaintiff submitted bills for his extra expenditures due to increase of the rates of construction materials and wages of the laourers, but, the said bills were also not cleared by the defendants. Instead of clearing the pending bills, surprisingly, as per letters dated 27.01.1992 and 29.01.1992 respectively, 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 for the delay in construction works by the plaintiff, i.e., for non-completion of the same in due time.

4. For which, without getting any way, the plaintiff approached the civil court by filing the suit vide T.S. No.04 of 1992 against the defendants praying for a declaration that, the rescission/cancellation of its contract through Letter Nos.1165 dated 27.01.1992 and letter No.1312 dated 29.01.1992 respectively issued by the plaintiff are illegal, invalid, inoperative and non-existent in the eye of law and to declare that, the plaintiff is entitled to get refund of his security deposit, i.e., Rs.8,85,000/.

5. The defendants contested the suit of the plaintiff-company by filing their joint written statement denying the averments made by the plaintiff in the plaint taking their stands inter alia therein that, the works programme for each month for each item relating to construction was planned by the defendants and the defendants had given such plan to the plaintiff, to which, the plaintiff agreed to follow, but later, the plaintiff did follow the same. For which, the defendant no.2 issued instructions to the plaintiff time and again through several letters fo