STATE OF A.P. AND ORS. versus M/S. PIONEER BUILDERS, A.P.

Citation: [2006] SUPP. 6 S.C.R. 571 · Decided: 25-09-2006 · Supreme Court of India · Bench: H.K. SEMA · Disposal: Case Partly allowed

Judgment (excerpt)

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STATE OF A.P. AND ORS. 
A 
v. 
MIS. PIONEER BUILDERS, A.P. 
SEPTEMBER 25, 2006 
[H.K. SEMA AND D.K. JAIN, JJ.] 
B 
Code of Civil Procedure 1908; 
Section 80-Notice under-Non issuance of-No urgent and immediate 
relief either prayed for or could be granted in the suit-No objection to C 
maintainability taken at the earliest point of time nor such a plea raised in 
the written statement or additional written statement filed in the suit-Held, 
knowing fully well about non-issue of notice under Section 80 C.P.C and 
having participated in the original proceedings, it was not open to raise a 
fresh issue as to the maintainability of the suit as it will be deemed to be D 
having waived the objection. · 
The tender of the respondent being the lowest, it was awarded the work 
valued at Rs.8,42,93,617/- by the Superintending Engineer, Srisailam Right 
Branch Canal (for short "SRBC"). Since only 50% of the allotted work could 
be completed by the due date, the respondent, apprehending expulsion, tiled a E 
· petition under Sections 8 and 20 of the Indian Arbitration Act, 1940 read 
wish Section 26 and Order VII Rule I of the Code of Civil Procedure (for 
short "C.P.C"), registered as an original suit. Notice was issued to the 
respondent expelling them from the contract on the ground that they had failed 
to maintain the rate of progress as per the approved programme. The 
respondent filed an application seeking interim injunction, restraining the F 
defendants from encashing the bank guarantees furnished by them towards 
mobilization advance and as performance guarantee. The suit was resisted by 
the defendants mainly on merits though it was averred that "the plaintifrs 
suit is not maintainable either in law or on facts", No separate reply to the 
application was filed. However, the application was dismissed by the subordinate G 
Judge. Aggrieved, the respondent preferred appeal to the High Court. While 
dismissing the appeal, the High Court observed that having regard to the 
language of the arbiratim1 agreement between the parties and the fact that 
there was no claim for any specified amount in the petition, the suit as filed 
571 
H 
572 
SUPREME COURT REPORTS [2006] SUPP. 6 S.C.R. 
A by the respondent was mot maintainable. The Court, however, clarified that it 
would be open to the respondent to amend the plain in accordance with law, if 
so advised. The respondent filed three applications tin the pending suit viz. 
under Order VI Rule 17 C.P.C. for amendment of the plaint; for production 
of document; by the defendants; for dispensing with notice under Section 80 
B C.P.C., respectively. 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 maintainbility of the applications was raised. 
However, in the penultimate paragraph of reply to the third application, 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 
C three applications were allowed by the subordinate Judge. The order passed 
reads as follows: "Heard both counsels. I don't find any tenable ground to 
refuse I.he relief asked for, allowed". The orders passed in the said 
applications were not challenged. Instead two additional written statements 
were filed on behalf of the defendants. On the basis of the pleadings, as many 
as eighteen issues were framed. None of the issues pertained to 
D 
E 
maintainability of the suit. After trial, the suit was decreed in respect of some 
of the claims made by the respondent with interest from the date of the filing 
of the suit. However, some of the claims made by the responent were rejected. 
Appeals and cross appeals were filed. The High Court has dismissed all the 
appeals. Hence, the present appeals. 
It was contended by the appellants that Section 80 C.P.C. being 
mandatory and in the absence of any prayer for an urgent and immediate order, 
the Trial Court was not justified in dispensing with the requirement of issue 
of notice under that Section. The provisions of sub-Section (2) of Section 80 
C.P.C. were not attracted on the pleaded facts and, therefore, in the absence 
F of requisite notice under sub-section (l) of Section 80, the Trial Court could 
not entertain the suit. It was also contended that the petitions filed by the 
respondent initially under Sections 8 and 20 of the Arbitration Act 

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