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2024 (8) TMI 332 - SCH - CustomsMaintainability of suit filed by the plaintiff claiming damage for malicious prosecution against the Directorate of Revenue Intelligence and their Officer - suit is filed within the period of limitation prescribed for such suits or not - Section 132 135 of the Customs Act, 1962 - HELD THAT - In EXECUTIVE ENGINEER, IRRIGATION DIVISION, PURI VERSUS GANGARAM CHHAPOLIA 1983 (10) TMI 291 - SUPREME COURT OF INDIA it is clearly specified that suit against the Government or public officer to which the requirement of a prior notice under Section 80 CPC is attracted, cannot be validly instituted until expiration of period of two months next after the notice in writing has been delivered to the authority concerned in the manner prescribed. In STATE OF GUJARAT VERSUS KOTHARI AND ASSOCIATES 2015 (10) TMI 2806 - SUPREME COURT the Court has clearly held that the notice under Section 80 should have been issued before the suit became time barred. In the present matter, the time for filing the suit admittedly expired on 11.04.2008 and only thereafter the suit came to be re-filed after issuing the notice under Section 80 CPC. The High Court erred in declaring that the suit was maintainable. The view is found to be unacceptable and is set aside and quashed. In other words, it is declared that the suit is barred by time. With such declaration, the appeal stands allowed.
Issues involved:
- Suit for damage for malicious prosecution against Directorate of Revenue Intelligence and their Officer - Maintainability of the suit within the period of limitation - Requirement of notice under Section 80 of the Civil Procedure Code (CPC) - Interpretation of provisions of Section 155(2) of the Customs Act Analysis: 1. The main issue in this case is whether the suit filed by the plaintiff for malicious prosecution against the Directorate of Revenue Intelligence and their Officer is maintainable within the period of limitation. The suit was filed on the 365th day of the plaintiff's acquittal, which theoretically falls within the one-year limitation period for such suits. 2. However, the defendants argued that the suit was not maintainable as it was filed without issuing a notice under Section 80 of the CPC, which is mandatory when suing the Government or a public officer. The notice under Section 80 was issued after the suit was filed, leading to a re-filing of the suit on a later date. 3. The High Court referred to Section 155(2) of the Customs Act to support the maintainability of the suit, but the Supreme Court emphasized that the suit's maintainability should have been assessed in light of Section 80 of the CPC, which mandates issuing a notice before filing a suit against the Government or a public officer. 4. Precedents such as Bihari Chowdhary & Anr v. State of Bihar and State of Gujarat v. Kothari & Associates were cited to highlight the importance of issuing a notice under Section 80 before filing a suit. The Court reiterated that the suit should have been re-filed after issuing the notice under Section 80 and waiting for the two-month period to expire. 5. The Supreme Court held that the suit was not maintainable as it was filed without the necessary notice under Section 80 of the CPC before the expiration of the limitation period. The High Court's decision declaring the suit as maintainable was overturned, and it was ruled that the suit was time-barred. Consequently, the appeal was allowed, and pending applications were closed.
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