International Meditek Private ... vs Union Of India & Ors.
1999 Latest Caselaw 879 Del

ORDER

Vikramajit Sen, J.

1. This is a suit for recovery filed against the Union of India, the Director General of Health Services and Dr. Ram Manohar Lohia Hospital. The suit states that certain medicines had been supplied by the Plaintiff to the Defendants the price of which had not been received by the Plaintiff. A resolution of these disputes does not fall for decision at this stage since the learned counsel for the Defendants has pressed the present application under Order 7, Rule 11(d), for the rejection of the plaint. The grounds urged are that in their Written Statement the Defendants have raised a preliminary objection that the notice contemplated by Section 80 of the Code of Civil Procedure had not been served by the Plaintiff and, therefore, the suit was not maintainable.

2. The relevant averments in the plaint are to be found in para 10, which is reproduced below :

"That despite the supply of the goods by the plaintiff and receipt thereof by the defendant No. 3 for the total value of Rs. 1,81,93,947.80, the defendants failed to make any payment there against as promised by them. On the 14th of July, 1983, the plaintiff herein, through their Advocates, issued a Notice under Section 80 of the Code of Civil Procedure to the defendants calling upon them to pay the said amount of Rs. 1,81,93,947.80 together with interest thereon at the rate of 15 per cent per annum commencing 30 days after the supply till the date of realisation. A copy of the said notice under Section 80 of the Code of Civil Procedure is filed herewith."

3. The notice dated 14.7.1983 referred to was not filed with the plaint. The List of Documents and List of Reliance mentioned in the Index has been scored out, leading to the conclusion that although it was intended that this Notice be filed alongwith the plaint, it was subsequently decided not to do so. The Defendants have filled an affidavit sworn by Dr. J.P. Singh, Medical Superintendent, Dr. Ram Manohar Lohia Hospital, New Delhi wherein it was deposed that no notice had been received. However an affidavit of 21Shri B.M. Sahni, Dy. Director Administration in the Directorate General of Health Services along with which a notice dated July 14, 1983 issued by its Advocate to the Defendants has been filed. This notice, however, has been issued on the instructions of M/s. Serge Metal Pvt. Limited, which the learned counsel for the Plaintiff states is a sister concern of the Plaintiff.

4. The averments pertaining to the issue of the notice under Section 80 of the Code of Civil Procedure has also been reiterated in para 17 of the plaint and in the corresponding paragraph of the Written Statement. These statements have been categorically denied.

5. The suit has been pending for one and a half decades now. A Crl. Misc. Petition under Section 340 of the Cr. P.C. was filed in which it was stated that against Sr. Nos. 8077-8078 the notice from M/s. P.H. Parekh & Co.(presumably a notice to which I have adverted above) has been shown as having been received. Since no notice was received from the Plaintiff, the affidavit of Dr. J.P. Singh is obviously not incorrect, as was sought to be made out by the Plaintiff in these proceedings.

6. In reply to the Defendants' application under Order 7, Rule 11(d) it is now been stated as follows:

"Contents of para 1 are denied. It is stated that the suit was instituted after sending a notice dated 19.11.1985 on the Defendants under Section 80 of CPC under postal receipt Nos. 4507, 4508 & 4509, all dated 6.12.1985 to Director General Health Service, Nirman Bhavan, New Delhi, Medical Superintendent, Dr. Ram Manohar Lohia Hospital, New Delhi and Secretary, Ministry of Health and Family Welfare, New Delhi respectively and a copy of the said notice was filed along with the plaint. A copy of the said notice dated 19.11.1985 is annexed hereto and marked as Annexure "A".

7. Learned counsel for the Defendants has submitted that whereas the plaint mentions the issuance of a notice dated 14.7.1983, the notice now being produced bears the dated 19.11.1985 and the postal receipt is dated 6.12.1985. It is further submitted that this receipt shows that the stamps affixed were for Rs. 3.05 whereas the minimum stamp required a that time was Rs.3.55. It was emphasised that the notice has been filed after a lapse of 12 years, and that, palpably, this document has been manufactured and forged in order to save the suit from dismissal.

8. It would be fair to assume that having realised the mistake of relying on the notice dated 14.7.1983, which was issued by the counsel for the Plaintiff to the Defendants but on behalf of M/s. Serge Metal Pvt. Ltd., that particular notice was not filed alongwith the plaint although it was mandatory so to do as envisaged in Order 7, Rule 14 of the Code of Civil Procedure, it being a necessary pre-condition for filing a suit against the Union of India. The Notice under Section 80 of the CPC would therefore be one of the document upon which the Plaintiff sues.

9. From the facts narrated above I am inclined to accept the arguments put forward by the learned counsel for the Defendants that the notice dated 19.11.1985 appears, prima facie, to have been fabricated. However, a final decision on this issue need not be returned for the reasons elaborated below.

10. I have already reproduced the averments contained in the plaint in respect to the notice under Section 80 of the Civil Procedure Code. In reply to the present application a fresh notice dated 19.11.1985 has now been set up and reliance on the notice dated 14.7.1983 has been given up. I am not, at this stage, required to go into the authenticity of the notice dated 19.11.1985 since it has not been referred to in the plaint. It is a well established principle of law that evidence can only be led in order to support the averments contained in the plaint. Therefore, even though mutually contradictory and self-destructive statements have now been made on behalf of Plaintiff, it is clear that no notice dated 14.7.1983 under Section 80, as pleaded in the plaint, is in existence or is relied upon. The language of Section 80 CPC clearly prohibits institution of any suit unless a notice is issued to the Government.

11. In Ebrahim bhai Vs. State of Maharashtra & Ors., a plaint was rejected even where it was filed prior to the expiry of the two months period envisaged under Section 80. In the case at hand there is no notice in existence as has been pleaded in the plaint. The notice of 14.7.1983, as mentioned above, has not only been issued on the instructions of a party other than the Plaintiff, but the sum claimed is also totally different to that claimed in the present suit.

12. This order will also has the effect of bringing to an end a stillborn lis which was pending in this court for 15 years.

13. In these circumstances I accept the application of the Defendants filed under Order 7, Rule 11(d) and reject the plaint; all pending applications are also dismissed. There shall, however, be no order as to costs.