The Orissa High Court ruled that a plaintiff cannot be dismissed for not serving a statutory notice under Section 80 of the CPC if the state did not object to it in their written statement.
The Orissa High Court rejected a Second Appeal, stating that if the Defendant-State did not object to the lack of notice under Section 80(1) of the C.P.C. in their written statement, the plaintiff cannot be denied their case due to not serving a statutory notice before filing the suit. The High Court was reviewing a Second Appeal from the State of Orissa and the Executive Engineer against a Construction Company. Justice A.C. Behera, on the Single-Judge Bench, explained that the main purpose of sending a notice under Section 80(1) of the C.P.C., 1908, is to give the State or its officers a chance to reconsider the situation and possibly settle the plaintiff’s claim without going to court, helping to avoid disputes.
G. Mohanty represented the Appellants. The Plaintiff, a registered construction company, claimed it had a contract with the defendants to build a bridge over the Vansadhara River in Rayagada district. The project was to be completed within 36 months, with a bank guarantee of Rs 8,85,000 as security. However, due to unexpected natural obstacles, the defendants extended the completion time in two phases. Out of all the submitted bills for the construction, three were not paid. The plaintiff incurred additional costs for the work, which the defendants were aware of. Instead of paying the outstanding bills, the defendants canceled the contract and informed the plaintiff that they would use the security deposit to cover some of their losses. In response, the plaintiff filed a lawsuit in civil court, seeking a declaration that the cancellation of the contract was illegal and invalid.
The Trial Court ruled in favor of the plaintiff-company on all issues, granting their suit against the defendants and declaring the defendant’s letter to cancel the contract as illegal. The First Appellate Court rejected the defendants’ appeal, leading them to take their case to the High Court with a Second Appeal. The plaintiff, a private construction company, is up against the State and its officer, the Executive Engineer. Upon reviewing the documents and lower court decisions, it was found that the plaintiff did not serve a notice under Section 80(1) of the C.P.C., 1908 to the defendants before filing the suit, nor did they explain why this notice was not served.
The Bench confirmed that while serving notice under Section 80(1) of the C.P.C. is required, the defendants can choose to waive this requirement. If the defendants waive the notice without objecting in their written statement, the plaintiff cannot be denied their case due to the lack of notice. The Bench noted that if the defendants have waived the notice requirement without raising any issues in their written statement, the court can still hear the plaintiff’s case without the notice under Section 80(1) of the C.P.C., 1908.
The court explained that the main purpose of sending a notice under Section 80(1) of the C.P.C. is to give the defendant a chance to think about the plaintiff’s claim before a lawsuit starts. This allows the defendant to decide if they want to accept the claim or settle it without going to court. If the defendants do not object to the lack of notice in their written statement and no issue is raised about it during the trial, it is considered that they have given up their right to challenge this point.
The court further stated that since the defendants, including the State and its officer, did not raise any objections regarding the notice before the lawsuit was filed, and no related issue was addressed by the trial court, they have waived the notice requirement. The court found no legal reason to change the decisions made by the trial court and the first appellate court, so the second appeal was dismissed.
Cause Title: State of Orissa and another v. M/s. B. Engineers and Builders Private Limited [Case No.- S.A. No.127 of 1995]
