‘REPORTABLE’ IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.4495-4496 OF 2019 (Arising out of SLP (C)Nos. 30945-30946 of 2015)

Y. SAVARIMUTHU                            Appellant(s)

VERSUS

STATE OF TAMIL NADU & ORS.                     Respondent(s)

J U D G M E N T

R. F. NARIMAN, J.

Leave granted.

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.   

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

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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.   

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

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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.   

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

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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.

The learned Additional District Judge by his judgment

dated 29.06.2007 found that there was substantial compliance

of section 80 CPC, given the fact that the notice dated

14.01.2000  was  clearly  sent  to  the  three  authorities  in

question and served on them.  Further, the cause of action

and reliefs claimed were also substantially set out both in

the notice as well as in the letter dated 29.01.2000 already

referred to hereinabove.   

After citing case law, the learned Additional District

Judge found that there was a substantial compliance with the

provisions of section 80 CPC.  On merits, ultimately, the

appellant was awarded a sum of Rs.87,01,200/- together with

interest at the rate of 6 per cent per annum.

Being dissatisfied with the judgment of the learned

Additional District Judge, both the appellant as well as the

State filed appeals.  These appeals were disposed of by the

High Court in which the High Court found that the provision

of Section 80 CPC was mandatory and that “full particulars”

as mentioned by the said provision was not given in the so-

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called  notices that  were sent  under  section  80,  and,

therefore,  allowed  the  appeal  of  the  State  on  the

preliminary ground itself and stated that the Suit as filed

would not be maintainable as it was filed without complying

with the provisions of section 80 CPC.   

Learned counsel appearing on behalf of the appellant

has submitted, based on the legal notice together with the

letters sent by the appellant, that substantial compliance

with section 80 CPC has been made in the present case as was

correctly found by the learned Additional District Judge.

The High Court went in error in not adverting to substantial

compliance of Section 80 but acted as if section 80 was a

rigid  provision  which,  like  the  Laws  of  the  Medes  and

Persians,  could  not  be  bent  at  all.   He  cited  certain

judgments to show that, by the 1976 amendment to the Code of

Civil Procedure,  section 80(3)  was added  making it  clear

that so long as the State was put on notice and properly

served, and so long as the cause of action and the prayer in

the Suit was substantially communicated, this must be held

to be sufficient compliance with the provision.

On the other hand, learned counsel appearing on behalf

of the State has argued before us that it is clear that

there was no notice at all issued under Section 80 CPC for

the reason  that none  of the  three notices/letters  relied

upon  by  the  appellant  had  stated  that  they  were  under

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Section 80 CPC.  He has also argued that these notices were

issued prior to the disposal of the Writ Appeal which was

still pending, as a result of which, the object of giving a

notice,  that  is  for  the  Government  to  settle  the  claim,

could not have taken place as it is well-known that the

Government can never settle claims which are sub-judice.  He

has also argued that none of the notices were issued after

the  Writ  Appeal  was  dismissed,  which  alone  could  have

qualified as notices, if at all, before filing the present

Suit.  He has also buttressed his submissions with reference

to certain decisions of this Court.

Section 80 CPC is set out as follows:

“80.Notice.-  

(1) Save as otherwise provided in sub-section (2), no suits  shall  be  instituted  against  the Government(including  the  Government  of  the  State  of Jammu & Kashmir) or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of-

(a)  in  the  case  of  a  suit  against  the  Central Government,  except  where  it  relates  to  a  railway,  a Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government  or  any  other  officer  authorised  by  that Government in this behalf;

(c)  in  the  case  of  a  suit  against  any  other  State Government,  a  Secretary  to  that  Government  or  the Collector of the district;

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and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name,  description  and  place  of  residence  of  the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.”

(2)  A  suit  to  obtain  an  urgent  or  immediate  relief agianst the Government (including the Government of the State  of  Jammu  &  Kashmir)  or  any  public  officer  in respect of any act purporting to be done by such public officer  in  his  official  capacity,  may  be  instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the caes may be, a resaonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the Court shall, if it is satisfied, after heairng the parties, that no urgent or immediate relief need  be  granted  in  the  suit,  return  the  plaint  for presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted agianst the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall  be  dismissed  merely  by  reason  of  any  error  or defect in the notice referred to in sub-section (1), if in such notice-

(a)  the  name,  description  and  the  residence  of  the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left  at  the  office  of  the  appropriate  authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.”

Even at a time when Section 80(3) was not available,

this Court in Dhian Singh Sobha Singh & Another v. Union of

India, (1958) SCR 781 made it clear that Section 80, which

must be strictly complied with, cannot be construed in a

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pedantic manner completely divorced from common sense.

“We  are  constrained  to  observe  that  the approach of the High Court to this question was not well founded. The Privy Council no doubt laid down in Bhagchand Dagadusa v. Secretary of State [(1927) L.R.54  I.A.  338]  that  the  terms  of  this  section should  be  strictly  complied  with.  That  does  not however mean that the terms of the notice should be scrutinized  in  a  pedantic  manner  or  in  a  manner completely divorced from common sense. As was stated by Pollock C. B. in  Jones v.  Nicholls  [(1844) 13 M.&W. 361, 363; 153 E.R. 149, 150] "We must import a little  common  sense  into  notices  of  this  kind." Beaumont C.J. also observed in Chandu Lal Vadilal v. Government of Bombay [I.L.R. [1943] Bom.128] : "One must construe section 80 with some regard to common sense and to the object with which it appears to have  been  passed..........."  If  the  terms  of  the notice in question be scrutinized in this manner it is abundantly clear that the relief claimed by the appellant was the re-delivery of the said two trucks or in the alternative payment of Rs.3,500 being the value  thereof.  The  value  which  was  placed  by  the appellants  on  the  trucks  was  the  then  value according to them - a value as on August 1, 1942, the date on which the delivery of the trucks ought to  have  been  given  by  the  respondent  to  the appellants. The appellants could only have demanded that sum as on the date of that notice. They could not sensibly enough have demanded any other sum. If the respondent had complied with the terms of that notice then and there and re-delivered the trucks to the appellant, nothing further needed to be done. If on  the  other  hand  instead  of  re-delivering  the trucks it paid to the appellant the value thereof then also it need not have paid anything more than Rs.3,500 to the appellant, on that alternative. If, however,  the  respondent  failed  and  neglected  to comply  with  the  requisitions  contained  in  that notice the appellants would certainly be entitled to recover from the respondent the value of the said trucks  in  the  alternative  on  the  failure  of  the respondent to re-deliver the same to the appellants in  accordance  with  the  terms  of  the  decree ultimately passed by the Court in their favour. That date  could  certainly  not  be  foreseen  by  the appellants  and  it  is  contrary  to  all  reason  and common sense to expect the appellants to have made a claim  for  the  alternative  value  of  the  said  two trucks as of that date. The respondent was and ought

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section  is  the  advancement  of  justice  and  the securing of public good by avoidance of unnecessary litigation” (See Bihari Chowdhary  v.  State of Bihar (1984) 2 SCC 627).  In Butchiraju (Vaddadi) v. Doddi Seetharamayya (AIR 1926 Mad 377) the suit was for a sum of money which had not become payable on the date of the suit but became payable since.  Viswanatha Sastri, J. (as His Lordship then was) held that the Court could pass a decree for the recovery of money. Reliance was placed on a Full Bench decision in A.T. Raghava  Chariar  v.  O.M.  Srinivasa  Raghava  Chariar (ILR (1917) 40 Mad 308) and a few other cases.  Here, in all fairness, it may be mentioned that in Rangayya Naidu  (Mylavarapu) v.  Basana  Simon  (AIR  1926  Mad 594),  Spencer,  J.  has  held  that  if  a  suit  is premature at the date of institution, though not at the date of decision, a decree cannot be granted and the only course in such cases is to dismiss the suit with liberty to bring a fresh suit upon a proper cause  of  action.   It  is  pertinent  to  note  that Butchiraju  case  was  decided  on  5-10-1925  while Rangayya Naidu case was decided on 7-10-1925 but the former  decision  though  of  a  prior  date  was  not brought  to  the  notice  of  the  Court  deciding  the latter case.”

In Ghanshyam Dass and Others v. Dominion of India and

Others, (1984) 3 SCC 46, this Court went into the amendment

made by the Law Commission and stated:  

“17. Section 80 of the Code is but a part of the Procedure Code passed to provide the regulation and machinery,  by  means  of  which  the  courts  may  do justice between the parties.  It is therefore merely a part of the adjective law and deals with procedure alone and must be interpreted in a manner so as to subserve and advance the cause of justice rather than to defeat it.  In Sangram Singh v. Election Tribunal, Kotah  (1955)  2  SCR  1 Vivian  Bose,  J.  in  his illuminating language dealing with the Code of Civil Procedure said :

It  is  procedure,  something  designed  to facilitate justice and further its ends: not a penal enactment for punishment and penalties; not a  thing  designed  to  trip  people  up.   Too technical a construction of sections that leaves no  room  for  reasonable  elasticity  of interpretation  should  therefore  be  guarded

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against (provided always that justice is done to both sides) lest the very means designed for the furtherance of justice be used to frustrate it.

18. Our laws of procedure are based on the principle that “as far as possible, no proceeding in a court of law  should  be  allowed  to  be  defeated  on  mere technicalities”.   Here,  all  the  requirements  of Section 80 of the Code were fulfilled.  Before the suit was brought, the Dominion of India received a notice of claim from Seth Lachman Dass.  The whole object of serving a notice under Section 80 is to give the Government sufficient warning of the case which is going to be instituted against it (sic so) that  the  Government,  if  it  so  wished,  (sic can) settle  the  claim  without  litigation  or  afford restitution without recourse to a court of law.  That requirement of Section 80 was clearly fulfilled in the facts and circumstances of the present case.

19. It is a matter of common experience that in a large majority of cases the Government or the public officer  concerned  make  no  use  of  the  opportunity afforded by the section.  In most cases the notice given under Section 80 remains unanswered till the expiration of two months provided by the section.  It is also clear that in a large number of cases, as here, the Government or the public officer utilised the  section  merely  to  raise  technical  defences contending either that no notice had been given or that the notice actually given did not comply with the requirements of the section.  It is unfortunate that  the  defendants  came  forward  with  a  technical plea  that  the  suit  was  not  maintainable  at  the instance of the plaintiffs, the legal heirs of Seth Lachman Dass, on the ground that no fresh notice had been given by them.  This was obviously a technical plea  calculated  to  defeat  the  just  claim. Unfortunately, the technical plea so raised prevailed with  the  High  Court  with  the  result  that  the plaintiffs  have  been  deprived  of  their  legitimate dues for the last 35 years.

20.  The  Law  Commission  in  the  Fourteenth  Report, Volume 1 on the Code of Civil Procedure, 1908 at p. 475 made a recommendation that Section 80 of the Code should be deleted.  It was stated as follows:

The  evidence  disclosed  that  in  a  large majority of cases, the Government or the public officer made no use of the opportunity afforded

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by the section.  In most cases the notice given under  Section  80  remained  unanswered  till  the expiry of the period of two months provided by the section. It was also clear that in a large number of cases, governments and public offices utilised  the  section  merely  to  raise  technical defences  contending  either  that  no  notice  had been given or that the notice actually given did not comply with the requirements of the section. These  technical  defences  appeared  to  have succeeded in a number of cases defeating the just claims of the citizens.

21. The Law Commission in the Twenty-Seventh Report on  the  Code  at  pp.21-22  reiterated  its  earlier recommendation for deletion of Section 80 and in the Fifty-Fourth Report at p.56 fully concurred with the recommendation made earlier.  In conformity with the recommendation of the Law Commission, Section 80 has undergone substantial changes.  By Section 27 of the Code of Civil Procedure (Amendment) Act, 1976 which was brought into effect from February 1, 1977, the existing Section 80 has been renumbered as Section 80(1) and sub-sections(2) and (3) have been inserted. Sub-section (2) as inserted has been designed to give an urgent and immediate relief against the Government or the public officer with the leave of the court. But the court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit.  Proviso to sub-section (2) enjoins that the court shall, if it is  satisfied,  after  hearing  the  parties  that  no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

xxx               xxx              xxx

23. By sub-section (3), Parliament has brought in the rule  of  substantial  compliance.   The  present  suit would  be  directly  covered  by  sub-section  (3)  of Section 80 so introduced if the suit had been brought after  February  1,  1977.   Unfortunately  for  the plaintiffs, Section 97 of the Amendment Act provides that the amendment shall not apply to pending suits and the suits pending on February 1, 1977 have to be dealt with as if such amendment had not been made. Nevertheless the courts must have due regard to the change in law brought about by sub-section (3) of

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that  it  was  by  registered A.D.  and  served  upon  the

authorities.  There is also no dispute that the cause of

action is sufficiently set out in the said notice, which is

the illegality of the partial termination of the contract on

16.12.1999.   It  was  also  made  clear  that  though  a  Writ

Appeal at that point of time was going to be filed against

the Writ Petition dismissal, yet this would be a notice to

take “appropriate legal action” against the State.  There is

no doubt, whatsoever, that more than two months have elapsed

from the date of this notice, after which the Suit has been

filed.   In  fact,  the  Suit  was  filed  long  after,  on

12.09.2002.  Quite apart from this, on 29.01.2000 also, the

letter  of  the  appellant  made  it  clear  to  the  Divisional

Engineer that not only is the partial termination bad in law

but that the payments due for work would have to be made.   

It  is  clear,  therefore,  that  there  is  sufficient

compliance with the provisions of Section 80 CPC as has been

introduced by the Amendment Act introducing section 80(3)

into  the  Statute  book.   The  respondents’  argument  that

section 80 is not expressly referred to and that the legal

notice and letters were written prior to the disposal of the

Writ Appeal have no legs to stand on.  This is for the

reason that a notice does not have to state the section

under which it is made so long as the ingredients of sub-

section (3) of section 80 are met.  It is admitted that

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there was no need for any legal notice before filing the

Writ  Appeal.   The  notice,  therefore,  that  was  sent  on

14.01.2000, was only under Section 80 CPC in the event the

Writ Appeal failed and a Suit would have to be filed.   

We  are,  therefore,  of  the  view  that  the  learned

Additional District Judge’s judgment was correct.  In this

view of the matter, we set aside the  impugned  judgment of

the High Court and remit the matter to the High Court to

dispose of the two appeals on merits.  Further, considering

this is a Suit of the year 2002, we request the High Court

to take up these appeals and dispose of the same at the

earliest.   

The appeals stand disposed of accordingly.

……………………………………………………………., J. [ ROHINTON FALI NARIMAN ]

……………………………………………………………., J. [ VINEET SARAN ]

New Delhi; April 30, 2019.

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