Professional Documents
Culture Documents
AMITESH TIRKEY
Submission Date:
Section B
Roll No. 25
Semester VIII
Research Methodology
This project work is descriptive& analytical in approach. It is largely based on primary,
secondary & electronic sources of data. Books & other references as guided by faculty of
DPC are primarily helpful for the completion of this project.
Various objectives are to be achieved by this project; which are mentioned below.
Contents
Research Methodology
Objectives of This Project
Various objectives are to be achieved by this project; which are mentioned below.
To understand Notice as under Section 80 of CPC.
To learn to draft a notice as regarding section 125 of CrPC.
INTRODUCTION
Notice Under Section 80(1)
Amendment
NOTICE REGARDING RECOVERY SUIT
Conclusion
INTRODUCTION
Section 80 of the CPC provides for sending a notice to the government or a public officer if
one wants to institute a suit 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 until the
expiration of two months. The object of the notice is to give Secretary of State or the public
officer an opportunity to reconsider his legal position and to make amends or afford
restitution without recourse to a court of law.1 This section has been enacted as a measure of
public policy and the underlying purpose is the advancement of justice and securing of public
good by avoidance of unnecessary litigation. 2Further, it has been intended to alert the
Government or a public officer to negotiate just claims and to settle them if well-founded
Bihar4 has stated that, The object of the section is the advancement of justice and the
securing of public good by avoidance of unnecessary litigation. This project analyses the
Suits between individuals require no notice to be given to the defendant by the plaintiff
before filing of a suit. However as per Section 80 of the Code of Civil Procedure, 1908, no
suit will be instituted against the Government or against a public officer with regards to any
act done by such an officer in his official capacity, until the expiration of two months after the
notice in writing has been delivered to, or left at the office of:
(a) in the case of a suit against the Central Government, except where it relates to a railway, a
2Mulla on the Code of Civil Procedure, J.M. Shelat, 18th edn., LexisNexis Butterworths
3State of Punjab v. Geeta Iron & Brass Works Ltd., (1978) 1 SCC 68.
(c) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief
Secretary to that Government or any other officer authorised by that Government in this
behalf;
(d) in the case of a suit against any other State Government, a Secretary to that Government
(e) in the case of a 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.5
Amendment
The amendment to this section had made some changes in 1976.By the amending act of 1976
section 80 has been extensively amended. Main changes consist of the insertion of sub
section (2) and (3) which are totally new. Sub-section (2) has been inserted to permit the
institution of a suit without notice but subject to the important restriction prohibiting the grant
of relief in the suit whether interim or otherwise except after giving a reasonable
opportunity of showing cause in respect of the relief prayed for in the suit. Sub section (3)
prohibits dismissal of a suit where the notice, has been given, but suffers from certain
technical deficiencies.
It is expected from public authorities that they will let the plaintiff know their stand within
the statutory period or in any case if has chooses to take up litigation. In certain cases the
court may be obliged to draw an adverse presumption if the notice is not acknowledged or
5Civil Procedure, Justice C. K. Thakker (Takwani), 7th edn., Eastern Book Company, Lucknow
telling the plaintiff of its stand and if no stand is taken during trial it may be considered as an
afterthought.6
Civil litigation, especially recovery suits generally termed to be a long drawn battle and
regarded as something best avoided, is not so. The general belief that by filing a recovery Suit
against a Debtor will go on for years at large, is not so, if one knows the real scope of Order
Order 37 CPC is one of the best provisions in the hands of a proposed Plaintiff, wanting to
Rule 1, Sub-Rule 2 makes it applicable to all suits upon bills of exchange, hundies and
promissory notes or the ones in which a Plaintiff seeks only to recover a debt or liquidated
demand in money payable on a written contract, an enactment, where the sum to be recovered
is a fixed sum of money or in nature of any debt except penalty, a guarantee - in respect of a
Rule 2 requires an Order 37 Suit to contain among others, a specific averment that the Suit is
filed under this Order and no relief which does not fall within the ambit of this Rule is
claimed.
Under Order 37, there are two stages of getting the Suit decreed. One is at the stage of Rule
6New India Assurance Co. Ltd v. Delhi Development authority A 1991 Del
298,301
Rule 2(3) states the procedure for appearance of Defendant which is within 10 days from the
service of the summons on him. After entering appearance, the Plaintiff serves on the
Defendant summons for judgment within ten days from the date of service supported by an
Affidavit; verifying the cause of action, amount claimed and that in his belief there is no
Rule 2(6) states that in case the Defendant does not apply for a leave to defend, (a) the
Plaintiff shall be entitled to judgment immediately or (b) the Court may direct the Defendant
to give such security as it may deem fit. Sub-clause 7 states that in case sufficient cause is
shown, the delay in entering an appearance or in applying for leave to defend the Suit may
also be excused.
Rule 2(5) further states that the Defendant may within 10 days from service of such summons
for judgment by Affidavit or otherwise disclose such facts as may be deemed sufficient to
entitle him to defend, apply for leave to defend and it may be granted to him unconditionally
or upon such terms as may appear to the Court to be just. Further, the proviso indicates that
leave to defend shall not be refused unless the Court is satisfied that the facts disclosed do not
The real benefit of an Order 37 Suit is that unless the Defendant is able to demonstrate that he
has a substantial defence in his case, the Plaintiff is entitled to a judgment immediately. This
in laymans language means that the stages of filing a WS within 30 days and not later than
leading evidence, cross-examination by parties, final arguments and then finally the
judgment/decree, in an ordinary Civil Suit gets eliminated. So all that a Plaintiff has to show
is that it is a case which falls within the ambit of Order 37. Once summons is issued, the ball
is in the Court of the Defendant to show that he is entitled to a leave to defend, on grant of
which the Order 37 Suit becomes an ordinary Civil Suit and the Defendant is then directed to
Lets analyze the law laid down by the Supreme Court on the issue.
The crux of the various judgments on Order 37 has been summarized in Sunil Enterprises
and Anr. v. SBI Commercial and International Bank Ltd. wherein the position was
summarized as under:
(a) If the defendant satisfied the Court that he has a good defence to the claim on merits,
reasonable defence, although not a possibly good defence, the defendant is entitled to
defend, that is, if the affidavit discloses that at the trial he may be able to establish a
defence to the plaintiff's claim, the Court may impose conditions at the time of
granting leave to defend the conditions being as to time of trial or made of trial but
moonshine, the Court may show mercy to the defendant by enabling him to try to
prove a defence but at the same time protect the plaintiff imposing the condition that
Deva Tayal said that mere disclosure of facts, not a substantial defence is the sine qua
non.
What is a substantial defence depends upon facts and circumstances of each case.
In Southern Sales and Services and Ors.v. Sauermilch Design and Handels GMBH ,
it has been held that "Unconditional leave to defend a suit shall not be granted unless the
Generally, the Courts are usually reluctant to grant leave to defend especially an
usually in favor of Plaintiff and the Courts are also aware of the delay caused in deciding
a Civil Suit which takes about three to four years, to be finally decided with an option of
for such disposal as expeditiously as possible by prescribing time frame therefore. Where,
the principal reason behind the impugned judgment, in our opinion, grant of leave may be
permissible. The court before passing a decree was entitled to take into consideration the
consequences therefore.
The idea behind a summary suit as stated in the NeebhaKapoors case is speedy remedy.
But one must not forget - justice hurried is justice buried. A grant of leave to defend no
doubt delays the trial but it will be a travesty of justice where a Plaintiff on basis of some
without the evidence and cross of key witnesses gets a decree solely on the basis that he
has been able to make out a prima facie case, that too in most cases before a Trial Court.
The concept of making out a prima facie case exists in Indian jurisprudence in certain
limited cases only, under Article 136 before Supreme Court, under Article 226, 227
before High Courts, etc. This jurisdiction cannot and should not be entrusted upon a Trial
Court which is a Court of First Record. A few years of Trial is better than a scenario
where a decree has been passed without giving proper opportunity to Defendant to put
forth its case. Audi AlteramPartem is one of the basic feature of our Constitution and a
fair hearing should be given to all concerned. In any case, if the case of Plaintiff is
genuine, along with the final judgment and decree he will also be entitled to not only to
pendent elite interest but also the cost of the Suit, for causing delay and also for
In NeebhaKapoors case itself, the Supreme Court did not interfere with the order of
In Defiance Knitting Industries Pvt. Ltd. v. Jay Arts , the Supreme Court held that the
order of the Trial Court and High Court of granting a conditional leave to defend is not
sustainable but since as an interim measure the amount was deposited before the Court,
Supreme Court said that the amount need not be refunded and Trial Court was directed to
although not a possibly good defence. That means prima facie it should appear that there
is a good case on merits. Where there are disputed facts leave to defend, without doubt be
granted.
Also what is a Triable issue has not been defined anywhere and depends on facts and
circumstances of each case. Further, a Defendant has to disclose only such defence as will
entitle him to a leave to defend. Hence the provision does not envisage disclosing the
entire defence and the same is not a pre-requisite for grant of leave to defend.
While considering the scope of Rule 4 in Rajni Kumar vs Suresh Kumar Malhotra , the
Supreme Court said that the expression 'special circumstances' is not defined in the C.P.C.
special circumstance. In an application under Order 37, Rule 4, the court has to determine
the question, on the facts of each case, as to whether circumstances pleaded are so
unusual or extra ordinary as to justify putting the clock back by setting aside the decree;
to grant further relief in regard to post-decree matters, namely, staying or setting aside the
execution and also in regard to pre decree matters viz., to give leave to the defendant to
appear to the summons and to defend the suit. In considering an application to set aside
ex parte decree, it is necessary to bear in mind the distinction between suits instituted in
Order 37 CPC is best suited for cases in which a Defendant does not have a case at all and
the Suit is prolonged for years. Also cases in which loans are taken from Banks and
borrowers disappear with no trace, Order 37 is useful as on the basis of loan documents, it
is easier to get a decree from Court within a short time and then all that is left for a Bank
to do is, to find the Defendant and get the decree executed. Infact, most borrowers, who
otherwise are not scared of recovery agents, often offer settlement once they receive
approach plus balanced view in respect of competing claims is necessary. It further stated
that at a stage when leave to defend is sought, it is enough if he prima facie makes out a
case by disclosing such facts as would disentitle the other side from claiming an order. It
would not be a right approach to say that unless the Defendant at that stage itself
establishes a strong case, he should be granted leave. It further cautioned that leave to
defend sought for cannot also be granted for mere asking or in a routine manner which
will defeat the very object of the special provisions contained in Chapter III-A of the Act.
Registered/AD
Advocate
Amitesh Tirkey
Office 4, Raipur
Date 10/2/2017
TO,
ShriDr. Money Ram
Medical Superintendent,
Dear Sir,
Pursuant to the instructions from and on behalf of my client M/s Roly Poly, through its Legal
Head, Mr. RakeshSinha, I do hereby serve you with the following Legal Notice: -
1- That my client is a firm under the name and style of M/s Roly Poly.
2- That my client is engaged in the business of bakery.
3- That against your valid and confirmed order dated 24 November, 2016 my client did
your job work from time to time on credit basis as you have running credit account in
40,000/- you have been miserably failed to make payment of the said amount due to
my client from you deliberately with malafide intent, hence you are liable to pay the
said principal balance amount of Rs. 40,000/- alongwith interest @ 10 % p.a. from
the date of due till actual realization of the said sum as is generally and customarily
client and my above named client is entitled to recover the same from you.
7- That my client requested you several times through telephonic message and by
sending personal messenger to your office for release of the said outstanding
payment, but you have always been dilly delaying the same on one pretext or the
other and so far have not paid even a single paisa out of the said outstanding
undisputed amount.
I, therefore, through this Notice finally call upon you to pay to my client Rs. 48,000/-.
along with future interest @10 % p.a. from the date of notice till actual realization of the
said amount, together with notice fee of Rs. 500/- to my client either in cash or by
demand draft or Cheque which ever mode suits you better, within clear 15 days from the
date of receipt of this notice, failing which my client has given me clear instructions to
file civil, criminal., suit for recovery and other Misc. proceedings against you in the
competent court of law and in that event you shall be fully responsible for the same.
A copy of this Notice has been preserved in my office for record and future course of action.
Yours faithfully,
Amitesh Tirkey
Advocate
Enclosure: Plaint
Verification
I, RakeshSinha, do hereby verify that the contents from paras 1 to 7 are correct and true to
the best of my knowledge and personal belief and no part of it is false and nothing material
has been concealed therein. Affirmed at Jaipur this 10th Day of February, 2017.
(Signature)
My client
Conclusion
This project has explained what suits against the government and public officials are. The
project starts off by saying what exactly is stated in Section 80(1) which explains how a suit
must be filed. After this, it was felt that there had to be a special emphasis given to the
amendment and how it changed the whole sections pertinent to the above topic. There is also
a mention about the nature and applicability of such suits with a mention about the various
essentials mentioned under Section 80. This project also tries to answer some of the questions
with respect to this topic such as whether notices in this matter are just a mere formality or if
they are mandatory. As this is with respect to government and public officers, this project also
speaks about what happens to acts that are conducted in an official capacity. After concluding
the above topics, this project attempts to elucidate about the various aspects of these types of
suits. It speaks about whether rights granted under this can be waived, the forms in which
notices can be served and also the modes in which these have to be served. As Justice Sen
stated laws can survive only on technicality. Keeping in view with it, this project speaks
about some of the technicality of law, like what happens when there is a technical defection
in the notice, or about the exclusion period of the notice or when there is a need for a
judgment on an urgent basis. Additionally, this project talks about the procedure when writs