TaxTMI 
TaxTMI 
2006 (9) TMI 534
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....ranch Canal (for short "SRBC"), defendant No.2 in the Suit, issued notice inviting tenders from pre-qualified bidders of eligible source countries, which included India, for the work of excavation, lining and construction of structures of SRBC. It was a time bound project supported by credit loans from the International Development Association and International Bank for Reconstruction and Development. 3. The tender of the contractor being the lowest, he was awarded the work valued at Rs. 8,42,93,617/-. A formal agreement was executed. Time for completion of the work was thirty six months from the date of handing over of the site. Clause 57 of General Conditions of Contract laid down the procedure for resolution of disputes. It reads thus: "57. RESOLUTION OF DISPUTES: 1) Settlement of claims for Rs. 50,000/- and below by Arbitration. All disputes or differences in respect of which the decision, if any, of the Engineer or Employer has not become final and binding as aforesaid, shall on the initiative of either party in dispute be referred to the adjudication as follows: a) Claims upto a value Superintending Engineer a) Claims upto a value of Rs. 10,000/- S.R.B.C. Circle No.II....
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....arbitration agreement between the parties and the fact that there was no claim for any specified amount in the petition, the suit as filed by the contractor was not maintainable. The Court, however, clarified that it would be open to the contractor to amend the plaint in accordance with law, if so advised. 6. In the light of the said order, on 17.1.1993, the contractor filed three applications in the pending suit: (i) I.A. No.1/1993 \026 under Order VI Rule 17 C.P.C. for amendment of the plaint; (ii) I.A. No. 2/1993 - for production of documents by the defendants; (iii) I.A. No.3/1993 - for dispensing with notice under Section 80 of C.P.C. All the applications were opposed by the defendants on merits of the claims made in the application seeking amendment of the plaint. No objection with regard to the maintainability of the applications was raised. However, in the penultimate paragraph of reply to I.A. No. 3/1993, it was stated that since time was required to examine the claims, "issue of notice under Section 80 C.P.C. was necessary and was not superfluous". All the three applications were allowed by the subordinate Judge vide docket order dated 2.2.1993. Order passed in I.A. No.3....
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....amount to introducing a totally new cause of action and change the nature of the action. It is, thus, pleaded that the High Court has failed to take into consideration the settled principles of law on both the issues. 11. Per contra, Mr. Reddy has contended that though the suit filed initially was styled as a petition under Sections 8 and 20 of the Arbitration Act on account of vague language of the arbitration agreement but in fact it was a civil suit. Learned counsel has also submitted that having failed to take any objection with regard to the maintainability of the suit for want of notice under Section 80 C.P.C. and further having failed to challenge the orders passed by the Trial Court, allowing the applications filed under Section 80(2) and Order VI Rule 17 C.P.C., and having participated in proceedings before the Trial Court, the defect, if any, stood waived and the State is now estopped from raising such objections. Relying on Ghanshyam Dass and Others Vs. Dominion of India and Others , learned counsel has submitted that Section 80 C.P.C. being merely a part of the adjective law, dealing with procedure alone, it should be interpreted in a manner so as to subserve and advan....
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.... 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). (3) No suit instituted against 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 \026 (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." 13. From a bare reading of sub-section (1) of Section 80, it is plain that subject to what is provided in sub-section (2) thereof, no suit can be filed against the Government or a public officer unless requisite notice under the said provision has been served on such Government or public officer,....
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....ch Government or public officer. The provision mitigates the rigours of sub-section (1) and empowers the Court to allow a person to institute a suit without serving any notice under sub-section (1) in case it finds that the suit is for the purpose of obtaining an urgent and immediate relief against the Government or a public officer. But, the Court cannot grant relief under the subsection unless a reasonable opportunity is given to the Government or public officer to show cause in respect of the relief prayed for. Proviso to the said sub-section enjoins that in case the Court is of the opinion that no urgent and immediate relief should be granted, it shall return the plaint for presentation to it after complying with the requirements of sub-section (1). Sub-section (3), though not relevant for the present case, seeks to bring in the rule of substantial compliance and tends to relax the rigour of sub-section (1). 16. Thus, from a conjoint reading of sub-sections (1) and (2) of Section 80, the legislative intent is clear, namely, service of notice under sub-section (1) is imperative except where urgent and immediate relief is to be granted by the Court, in which case a suit against ....
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....ing the defect in terms of subsection (1) of Section 80. Although we do not approve of the manner in which the afore-extracted order has been made and the leave has been granted by the subordinate Judge but bearing in mind the fact that in its reply to the application, the State had not raised any specific objection about the maintainability of the application on the ground that no urgent and immediate relief had either been prayed for or could be granted, as has now been canvassed before us, we are of the opinion that having regard to the peculiar facts and the conduct of both the parties it is not a fit case where the matter should be remanded back to the subordinate Judge for re-consideration. We find it difficult to hold that the order passed by subordinate Judge on contractor's application under Section 80(2) C.P.C. was beyond his jurisdiction. Accordingly, we decline to interfere with the finding recorded by the High Court on this aspect of the matter. The High Court has held that having participated in the original proceedings, it was not now open to the State to raise a fresh issue as to the maintainability of the suit, in view of waiving the defect at the earliest point of....
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....is therefore essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit." 21. Having briefly noted the principles governing amendment of pleadings, we may advert to the facts of the present case. 22. Incidentally, the order passed by the subordinate Judge allowing the amendment application has not been filed but learned counsel appearing for both the parties have stated before us that it was identical to the one passed in the Application under Section 80(2) C.P.C. (I.A. No. 3 of 1993), extracted above. Before the High Court it was argued on behalf of the State and so before us that since the amendment prayed for had the effect of changing the nature and character of the suit, it could not be allowed. However, we find that though the submission has been noted but somehow in the impugned judgment the High Court has altogether omitted to deal with the aspect of amendment of the plaint and stra....