Case Note & Summary
The appellants, M/s Disha Constructions and its partners, filed a suit for recovery of Rs. 9,15,550/- with interest against the State of Goa and the Executive Engineer, Public Works Department, for unpaid balance of construction work of a School Auditorium. The work was completed on 30/09/2006 and a completion certificate was issued on 03/10/2006. The plaintiffs were paid Rs. 18,12,000/- out of the total Rs. 24,26,000/-. They sent a notice on 16/12/2008 demanding the balance of Rs. 6,05,000/- within 15 days. The suit was filed on 24/10/2009. The trial court refused to register the plaint on two grounds: (1) want of notice under Section 80 CPC to Defendant No. 2 (Executive Engineer), and (2) the suit was barred by limitation as it was filed beyond one year from the date of completion. The High Court held that notice under Section 80 CPC is required only when the suit is against a public officer in respect of an act done in official capacity; here the suit was against the Government, and notice to the Executive Engineer was not mandatory. On limitation, the court held that the suit against the Government is governed by Article 112 of the Limitation Act, 1963, which provides a period of three years from the date the debt becomes due, and not Article 1 which provides one year. The cause of action arose on 30/09/2006, and the suit filed on 24/10/2009 was within three years. The appeal was allowed, the order of the trial court was set aside, and the trial court was directed to register the suit and proceed in accordance with law.
Headnote
A) Civil Procedure - Notice under Section 80 CPC - Suit against Government - Section 80, Code of Civil Procedure, 1908 - Notice under Section 80 CPC is required to be given to the Government or a public officer only if the suit is against such public officer in respect of an act done in official capacity; where the suit is against the Government, notice to the public officer is not mandatory. The trial court erred in holding that notice to Defendant No. 2 was necessary. (Paras 7-9)
B) Limitation - Suit against Government - Article 112, Limitation Act, 1963 - The suit for recovery of money from the Government is governed by Article 112 of the Limitation Act, 1963, which provides a period of three years from the date the debt becomes due, and not Article 1 which provides one year. The trial court's finding that the suit was barred by limitation was incorrect. (Paras 10-12)
Issue of Consideration
Whether notice under Section 80 of the Code of Civil Procedure, 1908 was required to be given to Defendant No. 2 (Executive Engineer) and whether the suit was barred by limitation.
Final Decision
The appeal is allowed. The order of the trial court dated 24/10/2009 is set aside. The trial court is directed to register the suit and proceed in accordance with law. No order as to costs.
Law Points
- Notice under Section 80 CPC is not required to be given to a public officer when the suit is against the Government
- Limitation for suit against Government is three years under Article 112 of Limitation Act
- 1963
Case Details
2010 LawText (BOM) (09) 113
First Appeal No. 13 of 2010
Shri M. B. Da Costa, Senior Advocate with Shri J.A. Lobo, Advocate for the Appellants; Shri. M. Salkar, Additional Government Advocate for the Respondents
M/s Disha Constructions, a partnership firm, and its partners Mr. Govindan Ravindran and Mr. Rajesh Ravindran
State of Goa through the Chief Secretary and The Executive Engineer, Works Division V, Public Works Department, Panaji, Goa
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Civil appeal against order of trial court refusing to register plaint for want of notice under Section 80 CPC and being barred by limitation.
Remedy Sought
Appellants sought registration of their suit for recovery of Rs. 9,15,550/- with interest from the respondents.
Filing Reason
The trial court refused to register the plaint on grounds of lack of notice under Section 80 CPC to Defendant No. 2 and the suit being barred by limitation.
Previous Decisions
The trial court had refused to register the plaint under Stamp No. 1525.
Issues
Whether notice under Section 80 of the Code of Civil Procedure, 1908 was required to be given to Defendant No. 2 (Executive Engineer) when the suit was against the Government?
Whether the suit was barred by limitation?
Submissions/Arguments
Appellants argued that notice under Section 80 CPC was not required to be given to Defendant No. 2 as the suit was against the Government, and the suit was within limitation as Article 112 of the Limitation Act, 1963 provides three years for suits against the Government.
Respondents supported the trial court's order.
Ratio Decidendi
Notice under Section 80 CPC is required to be given to the Government or a public officer only if the suit is against such public officer in respect of an act done in official capacity; where the suit is against the Government, notice to the public officer is not mandatory. The suit against the Government is governed by Article 112 of the Limitation Act, 1963, which provides a period of three years from the date the debt becomes due, and not Article 1 which provides one year.
Judgment Excerpts
Section 80 of Civil Procedure Code deals with notice and subsection (1) thereof, inter alia, provides that save as otherwise provided in sub section (2), no suit shall be instituted against the Government or against public officer in respect of any act purporting to be done by such public officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to the Government or to such public officer.
The suit against the Government is governed by Article 112 of the Limitation Act, 1963, which provides a period of three years from the date the debt becomes due, and not Article 1 which provides one year.
Procedural History
The appellants filed a suit (Stamp No. 1525) for recovery of money against the State of Goa and the Executive Engineer. The trial court refused to register the plaint on 24/10/2009 on grounds of want of notice under Section 80 CPC to Defendant No. 2 and the suit being barred by limitation. The appellants filed First Appeal No. 13 of 2010 before the High Court of Bombay at Goa against that order.
Acts & Sections
- Code of Civil Procedure, 1908: Section 80
- Limitation Act, 1963: Article 112, Article 1
