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80 cpc

(Querist) 15 April 2012 This query is : Resolved 
Respected learned members,

1) One of my client has a money claim against a registered Staff Welfare Society of a National Park.

2) The Director of the said National Park is the Chairman and the concerned DFO is the Member Secretary of the said Staff Welfare Society.

Now my query is:

a) Whether it is necessary to issue 80 CPC notice before instituting money suit against the said Staff Welfare Society?

b) If yes, whom shall the said notices be issued?

The matter is urgent, please guide me accordingly.
Nadeem Qureshi (Expert) 15 April 2012
Dear Arif Sahab
there is no need to send a notice u/s 80 CPC
Civil Procedure Code 1908


80. Notice.


1[(1)] 2[Save as otherwise provided in sub-section (2), no suits 3[shall be instituted] against the Government (including the Government of the State of Jammu & Kashmir)] or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been 4[delivered to, or left at the office of]-

(a) in the case of a suit against the Central Government, 5[except where it relates to a railway], a Secretary to that Government;

6[7[(b)] in the case of a suit against the Central Government where it relates to railway, the General Manager of that railway];

8[(bb) 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;]

(c) in the case of a suit against 9[any other State Government], a Secretary to that Government or the Collector of the district; 10[***]
11[***]

and, in the case of a public officer, delivered to him or left at this 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.

12[(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit:

Provided that the Court shall, if it 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-

(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.]


STATE AMENDMENTS

Madhya Pradesh -(i) After sub-section (3) of Section 80 the following inserted:

"(4) where in a suit or proceeding referred to in Rule 3B of Order 1, the state is joined as a defendant or non applicant or where the Court orders joinder of the State as defendant or non applicant in exercise of powers under Rule 10(2) of Order 1 such suit or proceeding shall not be dismissed by reasons of Omission of the plaintiff or applicant to issue notice under sub-section (1)".

(ii) In sub-section (1) of section 80 for the words "sub-section (2)" substitute "sub-section (2) or (4)". [M.P. Act No. 29 of 1984].

feel free to call
Guest (Expert) 15 April 2012
your claim is against a government staff and not in his official capacity. There is no bar u/s 80 to issue 60 days previous notice. if it is a money claim just issue legal notice to refund the money if there is no reply or payment then file suit for recovery of money.
ajay sethi (Expert) 15 April 2012
legal notice would suffice
M/s. Y-not legal services (Expert) 15 April 2012
yes.. in my opinion also no need to issue notice u/s. 80 of cpc..

legal notice is sufficient..

-tom-
Raj Kumar Makkad (Expert) 15 April 2012
a. No. As the suit is to be filed against a Staff welfare society which do not come within the definition of a State.

b. No question arises.
prabhakar singh (Expert) 15 April 2012
a) Whether it is necessary to issue 80 CPC notice before instituting money suit against the said Staff Welfare Society?
Answer:

NO.

b) If yes, whom shall the said notices be issued?

Answer:
As my first answer is no it does not arise.


REASON BEHIND MY ANSWER:
The society or its' officials say managing body can not be called government.


My suggestion or approach:

Whenever a confusion arises as to a notice ,to be sent or not,I prefer to take safe side,just send the notice that too for two moths but without mentioning any law or section,and only there after file the suit unless the sending notice is expiring your limitation of cause of action and causing the suit time barred.
Jithendra.H.J (Expert) 15 April 2012
I agree with prabhakar singh
V R SHROFF (Expert) 15 April 2012


SEC 80 CPC IS NOT APPLICABLE.

PL READ AS UNDER::

IS THIS APPLICABLE TO STAFF WELFARE SOCIETY, IF IT IS REGISTERED SOCIETY:


It is humbly submitted on behalf of This Defendant as under:
That this Society is a Registered Society, and u/s 164 of the Maharashtra Co-operative Society’s Act 1960 the section read as follows:
“No suit shall be instituted against a society, or any of it’s Office bearers, in respect of any act touching the business of the Society, until the expiration of two months next after notice in writing has been delivered to the Registrar 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.”
No notice as contemplated under section 164 was served prior to institution of suit. Plaint liable to be rejected for wants of notice under section 164

Notice is a mandatory requirement, and in the present suit, there is no averment as to Notice served u/s 164, Mah Co-op Society Act, 1960, and under the circumstances, the present suiot filed by the plaintiff deserved to be rejected

Therefore, it is prayed that the present Suit be rejected in the interest of justice and equity.

PL RECHECK, WHETHER IT IS APPLICABLE IN UR CASE ??
venkatesh Rao (Expert) 16 April 2012
Prabhakar Ji, I can understand oral Hindi but caanot read it.
Guest (Expert) 16 April 2012
Dear Arif,

The society is an autonomous body seemingly under the control of the National Park. Although National Park is a Government Organisation, but the society is an autonomously independent functionary. The Director & DFO may be the ex-officio chairman and Member Secretary, respectively. So, only the Society in individual capacity through the Chairman and Member Secretary is liable to be sued. No notice under CPC 80 may be necessary. However, if you wish to send any notice, you may address the Society, better through both of the dignitaries, the Chairman as well as the member Secretary, but not in their capacity of the Director or DFO.
prabhakar singh (Expert) 16 April 2012
भाई मक्कड़ जी मैं आपके उत्तम विचारों से न मात्र गदगद हूँ वरन अति उतसाहित भी हूँ .
prabhakar singh (Expert) 16 April 2012
My dear venkatesh Rao!
I simply gave you tanks of thanks for your agreement with me.
prabhakar singh (Expert) 16 April 2012
भाई धींगरा जी भी काबिले तारीफ है
prabhakar singh (Expert) 16 April 2012
जलन गुस्से से बुरी चीज होती है. अगर मैं ऐसा कहूं तब धींगरा जी सहमत होंगे क्या??? अथवा कोई और अभिव्यक्ति करना चाहेंगे ??????
Guest (Expert) 16 April 2012
बिलकुल सहमत हूं!


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