-1- IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 13 OF 2010 1. M/s Disha Constructions, a partnership firm, duly registered under the Partnership Act, Lalita Niwas H.N. 399, Baman Bhat, Merces Ilhas, Goa through its partners 2. Mr. Govindan Ravindran 3. Mr. Rajesh Ravindran, both major in age, businessmen residing at H.N. 130, Kavale Wado, Carazanlem, Tiswadi, Goa …... Appellants V e r s u s 1. State of Goa through the Chief Secretary, with office at Alto Porvorim, Bardez, Goa. 2. The Executive Engineer Works Division V Public Works Department Panaji, Goa ….. Respondents 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. CORAM: N.A. BRITTO, J. Date : 17/09/2010 JUDGMENT -2- Heard. 2. The Appellants are the Plaintiffs in the Suit under Stamp no. 1525 and hereinafter shall be referred to as “the Plaintiffs”. 3. The Plaint has not been registered for want of notice under section 80 of the Civil Procedure Code against Defendant no. 2, and because it is filed beyond the period of limitation, against Defendant no. 1. 4. Some undisputed facts may be stated to dispose of the present appeal. 5. The Defendant no. 1 had floated a tender. The Plaintiffs had entered into an agreement with Defendant no. 2 on behalf of Defendant no. 1 for the construction of a School Auditorium for Fr. Agnelo High School under M.P.L.A.D. Scheme. On completion of the work on 30/09/2006 Defendant no. 2 issued a certificate of completion dated 03/10/2006. Out of total amount of Rs. 24,26,000/-, the Plaintiffs were paid Rs.18,12,000/-. The Plaintiffs by their letter dated 16/12/2008 called upon Defendant no. 2 to pay the balance amount of Rs. 6,05,000/- within 15 days which had remained unpaid from 30/09/2006. The Plaintiffs claimed that the cause of action arose on 30/09/2006 when all the works were completed and again on 27/04/2009 when the period of two months expired. The suit was filed on 24/10/2009 for recovery of a sum of Rs. 9,15,550/- with interest at 18% from Defendant no. 1, -3- with costs and advocates fees. 6. Two points arise for my consideration. 7. First, is whether the notice under section 80 of Civil Procedure Code was required to be given to Defendant no. 2, the Executive Engineer? The learned trial court has come to the conclusion that notice was required to be given to him as all the acts were performed by him and it is he who was liable to pay for the work carried out by the Plaintiffs and thus issuing notice under section 80 of Civil Procedure Code to Defendant no. 2 was certainly in compliance of the said provision. 8. 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 or left at the Office of :- (a) ...... (b) ...... (c) in the case of suit against any other State Government, a Secretary to that Government or the Collector of the district, and, in the case of public officer, delivered to him or left at his 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. -4- 9. Admittedly, there is no averment in the Plaint that any notice was served on Defendant no. 2 except to say that Defendant no. 2 was part and parcel of the department of Defendant no. 1. The learned Senior Counsel on behalf of the Plaintiffs has submitted that the Plaintiffs were not claiming any relief against Defendant No.2, as could be seen from the prayer clause, but they had sought recovery of money only from Defendant no. 1. 10. Contending that notice was also required to be given to Defendant no. 2, he being a Public Officer who had infact entered into the Agreement on behalf of the Government and was otherwise required to pay the amount claimed by the Plaintiff against Defendant no. 1, the learned Additional Government Advocate has placed reliance on the case of B.S. Yadava Vs. Prabhudayal ( AIR 1992 M.P. 203) wherein the learned Single Judge of that court held that law envisaged that notice under section 80 has to be delivered to the Officer concerned. That was a case where the suit for damages was filed against the State of Madhya Pradesh and the Appellant was the Tahsildar who had demolished the construction. 11. Since the suit was filed by the Plaintiffs against Defendant no. 2 in his official capacity, in my opinion, the Defendant no. 2 was certainly required to be given a notice, as required under section 80 of the Civil Procedure Code and in absence of the same, the suit filed against him had to be necessarily considered as bad in law for want of notice. However, that cannot be said to be fatal to the entire case of the Plaintiff because the Plaintiff's suit was essentially for recovery of money and as could be seen -5- from the prayer clause (a) it was filed against Defendant no. 1. A similar view was held by the Apex Court in Ram Kumar V/s State of Rajasthan ( AIR 2008 (10) S.C.C. 73). 12. Second, as far as the Defendant no. 1 is concerned, there is no dispute that the suit was for the recovery of money and according to the Plaintiff the cause of action had arisen, as pleaded by the Plaintiff, on 30/09/2006 and being so, the suit against Defendant no. 1 had to be filed before 30/09/2009 that is to say before the expiry of three years, that being the period prescribed, for filing a suit for recovery of money. There is no dispute that the suit was in fact filed on 24/10/2009. There is also no dispute that the Plaintiff had sent notice to Defendant no.1, on 19/02/2009 which was received by Defendant no. 1 on 27/02/2009. If two months are computed from 27/02/2009, the Plaintiffs were required to file the suit on 27/04/2009. 13. The learned Senior Counsel submits that two months time is to be computed from 30/09/2009 and as such the Plaintiffs had time to file the suit till 30/11/2009, and as the suit which was filed on 24/10/2009, was within time. The learned Additional Government Advocate, on the other hand, submits that the Plaintiffs would have got benefit of exclusion of two months in case they had sent notice before the expiry of period of limitation i.e. before 30/09/2009 and not otherwise. The learned Additional Government Advocate also submits that for that purpose the Plaintiffs had to file an Application u/s 5 of the Limitation Act, 1963. The learned Senior Counsel submits that in case the submission of the learned Additional Government Advocate is to be -6- accepted, it will lead to absurd results. The learned Senior Counsel has placed reliance on Shri Amar Chand Inani V. The Union of India ( AIR 1973 (1) S.C.C. 115). 14. In Amar Chand Inani (Supra), the Advocate had sustained an injury on 01/01/1958. The suit was filed for damages on 02/03/1959 as 01/03/1959 was holiday. Notice under section 80 of Civil Procedure Code was sent on 29/12/1958. Obviously, the suit was filed before two months of sending of notice, The Apex Court therefore, held that it was not open to the Plaintiffs to wait till 29/12/1958 for delivery of notice and say that till the expiration of two months from that date, no suit could be filed and that the suit was, therefore, within the period of limitation though filed after one year and two months from the date when the injury was caused. Section 80 only prescribes a condition precedent for institution of the suit and has nothing to do with the period of limitation for a suit except under section 15(2) of the Act, the period of notice can be deducted in calculating the period of limitation. 15. Amar Chand Inani is of no help to the Plaintiff. I am unable to accept the second submission of learned Additional Government Advocate that the plaintiffs were required to make an application under section 5 of the Limitation Act. It is to be noted that there is clear distinction between section 15(2) and section 5 of the Limitation Act. Section 15(2) provides for exclusion of the period, of notice required to be given whereas section 5 provides for condonation of delay. Averments under section 15(2) cannot be dealt with as one u/s 5. The exclusion of time under section 15(2) is mandatory but the -7- Courts power under section 5 is discretionary. Nevertheless, the Plaintiffs could have shown in the plaint itself, what time was required to be excluded and how the suit filed was within time. 16. Subsection (2) of Section 80, Civil Procedure Code permits the period of notice to be excluded in all suits of which notice is required by law to be given. However, the period of notice can be excluded only when it is sent before the expiry of the period of limitation and the period of notice would expiry beyond the period of limitation. 17. In the case at hand, the notice was served on 27/02/2009. Period of two months expired on 27/04/2009. The period of limitation expired on 30/09/2009. The plaintiffs had served the notice well within the period before the time could expire. The Plaintiffs cannot be entitled for two months from 30/09/2009. The Plaintiffs could have filed the suit within two months from 27/02/2009 but did not choose to do the same and waited until three years expired for filing the Suit. The Suit filed by the Plaintiffs as against Defendant no. 1 was, therefore, clearly time barred and, therefore, the conclusion arrived at by the learned trial court could not be faulted. 18. I, therefore, find that there is not merit in this appeal and accordingly, the same is hereby dismissed. N.A. BRITTO, J. ars