NATIONAL LAW UNIVERSITY, ODISHA

NATIONAL LAW UNIVERSITY ODISHA

SUBJECT: CIVIL PROCEDURE CODE

PROJECT TOPIC- STATE OF ANDHRA PRADESH V. PIONEER BUILDERS

Submitted to:

Mr. Yuvraj Parekh

Submitted by:

Aditi Mohan (18BA004)

Rajnish Suman(18BBA041)

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TABLE OF CONTENTS
TABLE OF CONTENTS……………………………………………………………. 2

RESEARCH METHODOLOGY…………………………………………………….. 3

RESEARCH OBJECTIVE…………………………………………………………… 3

LIMITATIONS……………………………………………………………………….. 3

ABOUT THE PART IN CPC…………………………………………………………. 4

ABOUT THE TOPIC- NOTICES……………………………………………………… 5

CASE ANALYSIS- STATE OF ANDHRA PRADESH V. PIONEER BUILDERS….. 8

COMPARATIVE STUDY……………………………………………………………… 12

LATEST JUDGEMENTS………………………………………………………………. 13

CONCLUSION AND OPINION……………………………………………………….. 14

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NATIONAL LAW UNIVERSITY, ODISHA

RESEARCH METHODOLOGY

This project will be a doctrinal study. The exploration of the topic will be done in a

thoroughly categorical and systematic manner. The principal and auxiliary information used

in the project will be utilized and broken down in an all-encompassing way so as to fit

perfectly to mould the project. The exploration of the project topic “Set-off and

counterclaim” will be done elaborately and discussed logically so as to provide better

coherence and understanding. A uniform citation format will be strictly adhered to in the

research project.

RESEARCH OBJECTIVE

This project is an in-detail case analysis of the State of Andhra Pradesh vs Pioneer builders
which concerns the Sec 80 of the CPC i.e. Notice.

LIMITATIONS

Due to limitation of adequate resources and time, the provision of Notice will be discussed
only as per the laws in India and comparison will be drawn between them.

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ABOUT THE PART IN CPC

The Part IV of the Code of Civil Procedure, 1908 deals with Suits in Particular cases. Section
79 to 82 deals with suits by or against the Government or Public Officers in their Official
Capacity. While sections 83 to 87A deals with Suits by Aliens and by or against Foreign
Rulers, Ambassadors and Envoys. Section 87B deals with Suits against Rulers of Former
Indian States and Section 88 deals with the Interpleaders.

This paper majorly deals with section 80 which comes under the category of “Suits by or
against the Government or Public Officers in their Official Capacity” which talks about the
manner in which notices are to be sent to such people before initiating a suit.

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ABOUT THE TOPIC- NOTICES

When a suit is between two private individuals, there is no need for a notice to be provide to
the defendant. However, when a case involves the government or any public officer in his
official capacity, it is mandatory that a notice under section 80 of the Code of Civil Procedure
is provided to the Defendants. 1

Object of Notices u/s 80 of the Civil Procedure Code:

The object of the notice contemplated by Sec. 80 CPC is to give to the concerned
Governments and public officers opportunity to reconsider the legal position and to make
amends or settle the claim, if so, advised without litigation. The legislative intention behind
that section is that public money and time should not be wasted on unnecessary litigation and
the Government and the public Officers should be given a reasonable opportunity to examine
the claim made against them lest they should be drawn into avoidable litigations. The purpose
of law is advancement of justice. The provisions in Sec. 80 are not intended to be used as
boobytraps against ignorant and illiterate persons.

Contents or Requisites of notice u/s. 80 CPC:

The essential contents or requisites of a notice u/s. 80 CPC are as under-

1. whether the name, description and residence of the plaintiff are given so as to enable the
authorities to identify the person serving the notice.
2. whether the cause of action and the relief which the plaintiff claims are set out with
sufficient particularity.
3. whether a notice in writing has been delivered to or left at the office of the appropriate
authority mentioned in the section; and
4. whether the suit is instituted after the expiration of two months next after notice has been
served, and the plaint contains a statement that such a notice has been so delivered or left.
In construing the notice, the Court cannot ignore the object of the legislature, viz. to give
to the Government or the public servant concerned an opportunity to reconsider its or his
legal position. If on a reasonable reading of the notice the plaintiff is shown to have given
the information which the statute requires him to give, any incidental defects or
irregularities should be ignored.

1
Jatin Chawla, Suit By or Against Government under Civil Procedure Code, 1908, 4 Law Mantra. 2
The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India), § 80(1).

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As per Section 80 (1) of the CPC, a suit cannot be initiated against any Government or any
Public Officer until after the expiration of two months after the written notice has been
delivered to or left at the office of:

i) in case of the suit against the Central Govt., except where it relates to a railway, a
Secretary to that Govt;
ii) in the case of a suit against the Central Govt. where it relates to a railway, the
General manager to that railway;
iii) in the case of a suit against the Govt. of the State of Jammu and Kashmir, the Chief
Secretary to that Govt. or any other officer authorized by that Govt. in that behalf;
iv) in the case of a suit against any other state Govt. a Secretary to that Govt. or the
Collector of the district; and
v) in the case of a public officer, such public officer. 2”

As per section 80 (2), in case there is a need for an immediate or urgent relief, if the court
permits, it is possible to institute a suit without serving the notice. 2

There are three essentials of this section, those are:

1. the person to whom it is addressed to is identified and has received the

“Section 80(3) provides that no suit instituted against the Govt. or Public officer shall be
dismissed merely on ground of error or defect in the notice, if, in such, the name, description
and residence of the plaintiff had been so given as to enable the authority or public officer to
identify the person serving the notice and such notice had been delivered or left at the office
2
The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India), § 80(2).
3
Santanu Dey, Legal Provisions of Section 80 of Code of Civil Procedure 1908, (C.P.C.), India – Notice,
SHARE YOUR ESSAYS, http://www.shareyouressays.com/114371/legal-provisions-of-section-80-of-code-
ofcivilprocedure-1908-c-p-c-india-notice.

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of the authority or public officer and the cause of action and the relief claimed by the plaintiff
had been substantially indicated therein.4”

Errors or defects in notice u/s. 80 CPC-when not fatal?

Every venial error or defect in notice u/s. 80 CPC is not fatal and such venial error or defects
cannot be permitted to defeat a just claim if on a reasonable reading but not so as to make
undue assumptions, the plaintiff is shown to have given the information which the statute
requires him to give, any incidental defects or errors may be ignored.

Apart from the above, Order 27 Rule 5 also provides that the courts should allow a reasonable
amount of time to the government so that they can answer the plaint which would help in
effective communication between the government and the government pleader. However, this
time period should be that of less than two months.

The landmark case of State of Punjab v. M/s Geeta Iron and Brass work6 lays down the need
for and underlying object for notices to be provided under section 80 is to provide an
opportunity to the Government or public officer to consider the legal position and to settle the
claim forwarded by the prospective plaintiff if it appears to be just and proper. It is expected
from the government unlike private parties to consider the matter objectively and make an
appropriate decision in two months after obtaining proper legal advice. It saves public money
and time and is in public interest.

The legislative intent behind this provision is that public money not be wasted for
unnecessary litigation. The section guides the Government or a public officer to negotiate just
claims and to settle them if well‐founded without adopting an unreasonable attitude by
inflicting wasteful expenditure on public exchequer.

4
The Code of Civil Procedure, 1908, No. 5, Acts of Parliament, 1908 (India), § 80(3). 6
1978 AIR 1608.

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CASE ANALYSIS- STATE OF ANDHRA PRADESH V. PIONEER

Facts

In the year 1988, Srisalam Right Branch Canal (Hereinafter referred to as “SRBC”), the
Superintending Engineer issued a notice which invited tenders for the lining, construction and
excavation of the structures of SRBC from the bidders who were pre-qualified from the
eligible source countries, including India. The project was time-bound and supported by loans
on credit from the International Development Association and International Bank for
Reconstruction and Development.

The tender of the M/s Pioneer Builders, Engineers and Contractors (Hereinafter referred to as
“the contractor”) was lowest and hence he was allotted with the work at Rs. 8,42,93,617/-
(Rs. Eight Crores Forty-two Lakhs Ninety-three Thousand Six hundred and seventeen only).
Thereafter, an agreement was executed wherein the time period for the completion of the
work allotted was thirty-six months from the date on which the site was handed over. The
clause 57 of their contract said that all claims that that are above the amount of Rs. 50,000,
shall be settled through a court of competent jurisdiction through a civil suit. Any claim
below the amount of Rs. 50,00 shall be settled through Arbitration according to the
provisions laid down in the Arbitration Act, 1940.

However, by the date decided, only 50% of the work was completed and hence on 24th
March, 1992, under Section 8 and 20 of the Arbitration Act, 1940 and Section 26 and Order 7
Rule 1 of the Code of Civil Procedure, 1908 (Hereinafter referred to as CPC) and prayed that
either the disputes shall be subject to Arbitration and that they should be paid the amount
decided through such arbitration or direct the SRBC to file the agreement before the court and
get a sole arbitrator appointed for the adjudication of the dispute. Apart from this they prayed
that they should be paid the amount payable to them along with the interest at the rate of 21%
per annum from the dare of execution until the payment is actually done.

Thereafter, on 26th March, 1992, SRBC issued a notice to the contractors and expelled them
from the contract as they were unable to work with the rate of progress which was agreed
previously. On the 13th of March 1992, the contractor filed for an interim injunction which
restrained the SRDC from encashing any bank guarantee. The subordinate judge dismissed

5
(2006) 12 SCC 119.

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this application. The contractor then approached the High Court which dismissed the appeal
through the order dated 13th November, 1992 on the basis there was no amount mentioned in
the suit by the contractor, however, they can make amendments to the plaint.

On 17th January, 1993, the contractor filed three further applications in the pending suit which
asked for the amendment of the plaint, production of documents by the defendant and
dispensing with notice under section 80 of CPC. The second- last Paragraph of the
application relating to notice under section 80 said, “issue of notice under Section 80 CPC
was necessary and was not superfluous” All the three applications were passed by the
Subordinate court. Two additional written statements were filed by the SRDC, there was a
trial and some claims of the contractor were accepted and some were rejected.

Thereafter, first appeals were filed in the High Court by both the parties which were
dismissed by the High court and hence both the parties approached the Supreme Court to
solve the matter.

Issues

1. “Maintainability of the amendment application filed under Order 6 Rule 17 of CPC,

Contentions of the Appellant

Mr. Anoop G. Chaudhari, Senior Counsel appeared on the behalf of the Appellants. The
appellants contended that the trial court did not justify itself in dispensing the requirements of
sub-section (2) of section 80 of the CPC since section 80 is a mandatory provision and there
was no prayer for an immediate order. The appellant further contented that the trial court was
not competent to entertain the suit as there was no requisite notice under subsection (1) of
section 80 of CPC. The Appellant also contended that the conversion of the initial petitions
under Section 8 and section 20 of the Arbitration Act, 1940 in to a civil suit by way of
amendment application under rule 17 of order 6 was not appropriate as such a conversion
would lead to the introduction of a completely new cause of action and therefore change the
nature of the original action and hence even the High Court passed an order which was
cintrary to the Principles of Law.

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Contentions of the Respondent

Mr. V.R. Reddy, Senior Counsel appeared on the behalf of the Respondents. The respondents
contended that even though initially the suit was a petition under Section 8 and 20 of the
Arbitration Act 1940, this was because of the language of the arbitration agreement which
was vaguely drafted. However, it was actually a civil suit. The respondent further contended
that the not taking an objection on the maintainability of the suit was a defect on the part of
the trial court and it should be waived. The respondent further argued that the purpose of
section 80 of CPC should not be defeated on a technicality.

Judgment.

On the issue of maintainability of the suit for want of notice under section 80 of CPC, the
Hon’ble Supreme Court said that Since as per section 80 a suit cannot be filed against any
public officer or the government unless there is a requisite notice which has been served on
such a government or the public officer. Section 80 is a statutory provision and is also an
obligation on the court and if it is not complied with, such a suit is not maintainable in the
court. Therefore, for any suit against a public officer or the government, the service of notice
under section 80 is a compulsion. The intention of this section is that the government should
have enough notice off any suit which can be filed against it and so that the government can
decide whether or not to accept the claim. The object if of section 80 is that there should be
an advancement of justice and public good, and unnecessary litigation should be avoided.

The court further said that when sub-sections (1) and (2) are read together, it brings out the
intent of the legislature, that is the service of notice under sub-section (1) is compulsory in all
cases apart from when there is an urgent or immediate relief which has to be granted. In such
a case, a suit filed against any public officer or the government can be instituted, however, the
leave of the court is important. Such a leave should be made before the institution of the suit
without serving any sort of notice whatsoever. Section 80 sub-section (2) does not specify the
method of seeking leave, however, the order which grants the leave should contain the
grounds that are pleaded and the application of mind. Even in such a scenario the court
cannot grant any relief unless it gives the government or the public office enough chances of
showing cause in respect of relief prayed for in the suit.

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The court approved the trial quotes allowance of the application however, the court expressed
its disapproval to the manner in which the trial court made its order and granted the leave.
The court further but refused to interfere with the order passed by the High Court in this
matter as the Hon'ble court believed that the contractors application passed by the subordinate
judge was inside the purview of his jurisdiction.

In the issue of the maintainability of the amendment application, the court said that order six
rule 17 of CPC provides that a quote is competent at any stage to allow anyone of the party
who alter or amend the plant in a manner I'm in the terms that all the amendments that are
made should be necessary in order to determine the actual matter of disputes within the
parties and it should not cause a change in the actual subject matter of the dispute.

The court further said that in the present case at hand the counsels for both the parties have
not filed the and the amendment application allowed by the subordinate judge and the High
Court had not commented in this matter and hence the Hon'ble court remanded this matter
back to the High Court with respect to this issue of maintainability of the suit filed under
Order 6 rule 17 of the CPC.

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COMPARATIVE STUDY

“In the United States, as per the Statute of Limitations of the Federal Torts Claims Act, under
two years after a tort claim accrues, it has to be written and presented to the federal agency
which is appropriate to the case or under a time period of six months after the date of mailng
by way of a registered or certified mail of the denial of the claim which was made by the
agency it was presented to, failing this, any tort claim against the United States of America is
barred. Therefore, it is essential that a plaintiff files a claim with the suitable federal agency
in a span of two years of the accruing of the claim and the action should begin within six
months of the mailing of notice of the denial of the claim. In case the plaintiff does not meet
even one of these conditions, the claim shall be barred forever. In case the appropriate agency
fails to take any action regarding the claim under six months after the claim is presented to
them, it can be deemed that this claim in question was denied. 6” Whereas in India, if a suit is
to be filed against a Government or any public officer, a notice should be provided two
months before the institution of the suit.

LATEST JUDGEMENTS

6 8
28 U.S.C. § 2401(b) (2010).

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1. Hemant Sharma v. State of Himachal9- In this case, an application was filed under
Section 80 (2) o the Code of Civil Procedure, 1908 for seeking a permission to initiate
a suit without following the procedure of Section 80 as they were under a threat to be
evicted from their place of business. This was rejected by the court. As per the Civil
Court, this matter was not of urgent importance and hence it was dismissed. However,
the High Court allowed the application stating that the business was being run with
permissions.

2. Gopal Singh v. Swaran Singh and Ors .10 - In this case, a property was put up for an
auction and the land which was sold was violating the restrictions imposed on the
transfer of the land the suit property was put to auction sale and the purchaser sold the
land in violation of restriction imposed on transfer of land. Therefore, an order
cancelling the auction was passed and the suit property was allotted to the appellant.
Later, a suit was instituted making the state and the state authorities the defendants.
This case was dismissed by the Appellate Court as a notice was not served upon the
state authorities as required by the section 80 of the Code of Civil Procedure prior to
the filing of the suit. The Supreme Court agreed with the Appellate Court and held
that since a notice was not provided as required by the Section 80 of the CPC,
therefore, the suit is not maintainable.

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CONCLUSION AND OPINION

The section 80 of the Code of Civil Procedure, 1908 discusses the notice to be presented
before the institution of any case against the government or any public officers acting in
accordance with his office. The section lays down that is important that before filing any such
suit, a notice should be sent to the person or authority concerned two months before the
institution of such suit. However, if the case is urgent and requires an immediate relief, the
court can admit the case without the statutory notice being provided to the concerned
authority. The reason of this provision is that the government or the public officials against
whom the suit being filed have an opportunity to understand the claim and try to settle it if
possible. Another intention of this provision is to prevent the government’s money to be spent
on litigation and to prevent wasteful expenditure and hence it is very important to have this
provision.

There can be times when the public officials or the Government could have misused this
power to dispose the litigation on the grounds of minor technical errors, the sub- section (3)
was included which said that a suit initiated against the Government or any Public officer
cannot be dismissed on grounds of mistakes in the notice.

This stand has been upheld in many cases like the Geeta Iron and Brass works case, the
pioneer builder’s case, etc. though the courts have been clear on the following of this
provisions, the conditions that are required for a case to be urgent and requiring immediate
relief are not mentioned anywhere thus creating problems for the parties.

9
2019 SCC OnLine HP 1094. 10
(2019) 2 SCC 177.

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