Monday, 21 January 2013

Good article on legal notice

The word “notice” is a word of everyday use. Generally, it is self-defined and well known. In fact, it cannot be defined correctly and fully. It simply means and includes an information, intimation or direction, knowledge, etc. the object behind giving a notice is to make aware or to make known the facts of the case or give an opportunity to the other party to reconsider his position before a legal proceeding is started against him.
The word “notice” may denote merely intimation to the party concerned of a particular fact. It seems that the Court cannot limit the words “notice in writing” to only a letter. Notice may take several forms. It must to be sufficient, be in writing and must intimate quite clearly that the award has been made and signed (Parasramika Commercial Company Vs. Union of India, AIR 1970 SC 1654 at 1956)

There is no particular definition for notices. According to Chamber’s 20th Century Dictionary 1961, the word, “notice” stands for intimation, announcement, information, warning a writing etc.” generally, the object of the notice is to give an opportunity to the other to reconsider his position before an action or any legal proceedings is started against him.
“Notice” inter alia means “information”, “knowledge”, or “to know”; and it also stands to signify “observation”, “cognizance”, “attention”, “information”, “intelligence”, “warning”, “announcement” (of something to be done or to occur subsequently), written statement; to refer to; or make mention of.
“Noticeable” means remarkable, conspicuous, attracting notice. Notification means an act of making known or notifying, an act of giving notice of; notice so given; formal notice given under various Act or Parliament. “To notify” means to give to, to inform, or to make known.
The object of the notice is to enable the party to whom the notice is given to settle the points of dispute without going to Court of Law. Thus the principles laid down in Section 106 and other related provisions of Transfer of Property Act to make the tenant aware of the intention of the landlord to terminate the lease [AIR 1955 Pat. 371] and so in Section 80 of the Code of Civil Procedure, 1908.
The purpose of the notice would be completed only when the same is received or it is refused by the addressee and not simply by posting the notice. For a example, a landlord sends a notice to his tenant terminating the tenancy by tendering it in post office and the same is returned with the endorsement “addressee not available at the delivery time”, “addressee not available”, “addressee has left”, or “addressee gone out for long time” then this notice will not be binding on the tenant because he has not received the said notice or he has no knowledge of any notice of his landlord.
The sole purpose of a notice under section 80 of the Civil Procedure Code to the party concerned is to afford him an opportunity to reconsider the position with regard to the claim made and if so advised, whether to settle it or otherwise to make amends without recourse of Courts. The objects underlying the section is to a clear notice of claim to the Government so that it may settle the claim and avoid the impending suit and consequential costs of the suit in the event of claim being decreed. [AIR 1960 SC 1309 State of Madras Vs. C. P. Agencies]. The object of giving the notice under section 80 of the code to Railway administration the defendants, was to inform them that a suit is to be brought against them so that they may, if they so desire, compromise the case or compensate the person concerned without letting him have his recourse to a Court of Law [AIR 1961. 200 Bhagwanlal Vs. Union of India].
The object of the notice under section 80 is to give to the Government or the public servant concerned an opportunity to reconsider its or his legal position and if that course is justified to make, amends or settle the claim out of Court. The section is no doubt imperative; failure to serve notice complying with the requirements of the State will entail dismissal of the suit. But the notice must be reasonably construed. Any unimportant error or defect cannot be permitted to be treated as an excuse for defeating a just claim. In considering whether the provisions of the statute are complied with, the Court must take into consideration the following matters in each case; (1) whether the name, description and residence of the plaintiff are given so as to enable the authorities to identify the person serving the notice, (2) whether the cause of action and the relief which the plaintiff claims are set out with sufficient particulars, (3) whether a notice in writing has been delivered to or left at the office of the appropriate authority mentioned in the section, and (4) whether the suit is instituted after the expiration of two months next after notice has been served, and the plaint contains a statement that such a notice has been delivered or left. In construing the notice the Court cannot ignore the object of legislature viz. to give to the Government or public servant concerned an opportunity to reconsider its or his legal position. If an reasonable reading of the notice the plaintiff is shown to have given the information which the statute requires him to give, any incidental defects or irregularities should be ignored. It is true the terms of Section 80 must be strictly complied but that does not mean that the terms of the notice should be scrutinized in an artificial or pedantic manner [Beohar Rajendra Singh Vs. The State of Madhya Pradesh, AIR 1969 SC 1256: (1969) 1 SCC 789].
Kinds of Notices
According to the Blacks’ Law Dictionary, 7th Edition, pp. 1087, 1088; kinds of notices are as follows:
•         Actual notice – Notice given directly to, or received personally by, a party.
•         Constructive notice – Notice arising by presumption of law from the existence of facts and circumstances that a party had a duty to take notice of, such as a registered deed or a pending law suit; notice presumed by law to have been acquired by a person ad thus imputed to that person (legal notice).
•         Direct notice – Actual notice of a fact that is brought directly to a party’s attention (Positive notice).
•         Due notice – Sufficient and proper notice that is intended to and likely to reach a particular person or the public; notice that is legally adequate given the particular circumstance (adequate notice).
•         Express notice – Actual knowledge or notice given to a party directly, nor arising from any inference, duty or inquiry.
•         Fair notice – (1). Sufficient notice apprising a litigant of the opposing party’s claim. (2). The requirement that a pleading adequately apprise the opposing party of a claim. (3). Fair warning.
•         Immediate notice – 1. Notice given as soon as possible. 2. More commonly, and especially on notice of an insurance claim, notice that is reasonable under the circumstances.
•         Implied notice – Notice that is inferred from facts that a person had a means of knowing and that is thus imputed to that person; actual notice of facts or circumstances that, if properly followed up, would have led to a knowledge of the particular fact in question (implied notice; presumptive notice).
•         Imputed notice – Information attributed to a person whose agent having received actual notice of the information, has a duty to disclose it to that person.
•         Inquiry notice – Notice attributed to a person when the information would lead an ordinarily prudent person to investigate the matter further; especially the time at which the victim of an alleged securities fraud became aware of facts that would have prompted a reasonable person to investigate.
•         Personal notice – Oral or written notice, according to circumstances, given directly to the affected person.
•         Public notice – Notices given to the public or persons affected, by publishing in a newspaper of general circulation (notice by publication).
•         Reasonable notice – Notice that is fairly to b expected or required under the particular circumstances.
•         Record notice – Constructive notice of the contents of an instrument, such as a deed or mortgage that has been properly recorded.
•         Notice doctrine – The equitable doctrine that when a new owner takes a estate with notice someone else had a claim on it at the time of the transfer, that claim may still be asserted against the new owner even if it might have been disregarded at law.
Nature and Scope
Laws pertaining to notices are procedural laws or adjective laws; therefore have to be followed with the greatest possible degree of care and diligence. Law does not excuse mistakes committed in drawing up notices, especially in respect of those which are statutory and mandatory. Mistakes which do not violate or infringe or contravene the provisions of law or affect the cause of action are generally excused.
Classification of Notices
Oral or Verbal Notice, Written Notice
Generally speaking a notice should be in writing because a written notice is easy to prove its contents are certain. However, a notice may be oral or verbal. A verbal notice to quit is sufficient to terminate tenancy unless there is express provision requiring a written notice [Zingu Vs. Ramji Mahadu AIR 1929 Nag. 169].
A notice under section 14(2) of the Arbitration Act, 1940 may be given orally. Section 94 of the Negotiable Instruments Act, 1881 (26 of 1881), says that a notice may be oral or written; may, if written, be sent by post and may be in any form.
Public and Private Notices
Public notices are those notices which are issued on matters in which the members of the general public are likely to be interested or by which the public are likely to be or expected to be affected. E.g. notice of dissolution of a registered firm, a notice to creditors in respect of deceased’s notice.
Private notices pertain to matters affecting or touching individuals. E.g. Notice of claim to a debtor, Notice by tenant to repair.
Actual and Constructive Notice
In the case of actual notice, knowledge of a fact is carried to a party by sending to him or by giving him a notice. Constructive notice is the knowledge which the Courts impute to a person upon a presumption so strong of the existence of the knowledge that it cannot be allowed to be rebutted, whether from his knowing something which ought to have put him upon further inquiry or from his willfully abstaining from inquiry, so avoid notice.
Contractual and Optional Notice
Notice issued in accordance with the terms of a contract is referred to as contractual notice. E.g. Notice for termination of tenancy or lease where the relevant agreement provides for issue of notice.
Where a notice is given not under any law or any contract or agreement and the notice given is not thus bound to give the notice, such notice is referred to as optional notice. E.g. Notice claiming arrears of rent, notice claiming dues on credit accounts and so on.
Reasonable and Defective Notice
Where a notice is not required to be issued under any law but the principles of a natural justice or reasonableness warrant that a notice should be issued, such notice is referred to as “reasonableness notice”. A notice which is inconsistent with the requirements of law and a notice which is not a reasonable notice is referred to a defective notice. Defective notices are sometimes referred to as “invalid notice” or “void notice”.
Composite Notices
A composite notice is a notice issued under separate enactments in a combined form or under two or more sections of the same enactments. For example a notice under section 106 of Indian Railways Act, 1989 read with section 80 of the Civil Procedure Code.
Notice to Admit
A party to an action may serve notice upon the other party to admit any document. Such notice is to be given under Order XII, Rule 2 of the Code of Civil Procedure, 1908. The parties to a suit may, by their solicitors, agree to admit at the trial documents and facts; and such agreement often saves trouble and expose and expense, where there is no ground for disputing them.
Notice to Produce
Any party to an action may call upon the other party to produce any documents referred to in his pleadings or affidavit [Order XI, Rule 16 of the Code of Civil Procedure, 1908]. If one party is in possession of any written instrument which would be evidence for the other if produced, a notice to produce it at the trial may be served either upon him, his solicitor, or agent. The notice must specify the instrument with a particularity sufficient to inform the opposite party what he called upon to produce. It must be served at a reasonable time before trail, so as to enable the party served to make an effectual search, and produce the same at the proper time.
Notification is the act of notifying or giving notice; notice given in words or in writing, anything which communicates information, as a letter, a telegram or an advertisement.
Notice of Assessment
A notice given by a taxing authority such as an officer of the Income Tax Department or of an officer of a municipal Corporation or Panchayat in relation to real property situated within the limits of his Municipality or Panchayat, whereby the tax payer is advised of the assessment of taxes payable by him.
Notice of Accident
The notice of Accidents Act, 1906, requires annual return and notices of accidents in mines and quarries to be given, ad in the case of accidents in factories and workshops notice must be sent to the district inspector, and also in certain events to the certifying surgeon of the district. In case of mines, provision for notice is made by the Coal Mines Act, 1911.
Notice of Dishonour
Sections 91 to 98 of the Negotiable Instruments Act, 1881 deal with this aspect. In relation to bills of exchange, a notice of dishonour is a notice given by the payee or endorsee thereof to all parties other than the acceptor that the bill had been dishonoured upon presentment. The notice of dishonour is given to enable the parties to protect themselves by promptly taking up the bill and proceeding against the party ultimately liable upon it.
Notice to Quit
Notice to be given by a landlord to a tenant or by a tenant to a landlord. A written notice given by a landlord to his tenant, stating that the former desires to repossess himself of the demised premises, and that the latter is required to quit and remove from the same at a time designated, either at the expiration of the term, if the  tenant is In under a lease, or immediately, if the tenancy is at will or by sufferance. The term is also sometimes applied to a written notice given by the tenant to the landlord to the effect that he intends to quit the demised premises and deliver possession of the same on a day named.
Notice of Knowledge and Notice of Fact
Notice and knowledge are not the same thing, although loosely one sometimes talks as if to act with notice and to act with knowledge were indeed the same. A person is said to have notice of a fact either when he actually know that fact or when but for the willful abstention from enquiry or gross negligence he would have known it or when information of the fact is given to or obtained by his agent, under the circumstances mentioned in Section 229 of the Indian Contract Act, 1872
Notice of Appeal
The words “notice of appeal” means the notice to the respondent of the actual date of hearing fixed for the disposal of the appeal [Bachcha Vs. Kameshwar Prasad Singh, AIR 1963 ALL 311 (312-13)].
Requirement of Notice
Generally speaking there is no particular form for any particular notice. Thus, a notice u/s 80 of the Code of Civil Procedure, 1908 (V of 108) or a notice u/s 106 of the Transfer of Property Act, 1882 (IV of 1882) or a notice u/s 106 of the Indian Railways Act, 1989 (24 of 1989), or a notice u/s 43 (1) of the Indian Partnership Act, 1932 (9 of 1932) does not require to be given any particular form. It must, however, be noted in this connection that several forms of notices have been prescribed under the Civil Procedure Code, 1908, and these forms have to be used when there is occasion for issuing such notices.
It is not necessary that the section of a statute under which a notice is issued must be mentioned in the notice for the validity of the notice. Again, a notice which is invalid in the eyes of law would not be valid only because the section of an Act under which it had been issued and had been mentioned in it. In [Sunderlal Vs. Yakoob Ali (AIR 1979 NOC 38 (ALL)], it was held that a mere mention of section 106 in the notice without there being a recital, express or implied, terminating the tenancy of the person to whom the notice had been addressed was not sufficient in law to bring about termination of tenancy.
Service of Notice
This is also an important factor so far notice is concerned. If the notice is not received by the addressee then he cannot be bound by the notice. So to bind the addressee with the contents of a notice it is essential to see that the notice is served on him.
In case of joint tenancy, if the notice is served on one of the joint tenants then it is notice to all the joint tenants [Rotion Vs. Prurshottam Lal. AIR 1965 ALL. 287].
Presumption of Service of Notice
In Hari Charan Singh Vs. Siv Rani, AIR 1981 SC 1284: (1981) 2 SCC 535, the Supreme Court has observed “when a registered envelop is tendered by a postman to the addressee but he refused to accept it, there is due service effected upon the addressee by refusal, the addressee must therefore, be imputed with the knowledge of the contents thereof and, this follows upon the presumptions that are raised under section 27 of the General Clauses Act, 1897 and section 114 of the Evidence Act. The presumptions both under section 27 of the General Clauses Act a well as under section 114 of the Evidence Act are rebuttable but (in the absence of proof of contrary) the presumption of proper service or effective service on the addressee would arise, which must mean service of everything that is contained in the notice. It cannot be said that before knowledge of the contents of the notice could be imputed the sealed envelope must be opened and read by the addressee or when the addressee happens to be an illiterate person the contents should be read over the addressee is det aermined to decline to accept the sealed envelope”.
Modes of Service
There may be direct and indirect modes of service. The following are the direct modes:-
•         Personal service – Delivery of a notice to the person on whom it is to be served constitutes what is known as “Personal Service”. When a personal service is effected, a receipt acknowledging delivery of the notice in writing should be insisted from the addressee.
•         Service by Post – the most commonly adopted mode of service of a notice is “service by post”, i.e., sending a notice to the addressee, addressed at his usual place of abode or the last known place of abode or business, by post. A notice may be sent by –
•         Ordinary post – Dispatch of a notice by ordinary post is not free from risks inasmuch as the notice giver has had left with him nothing to prove service of the notice if the addressee denied of having received the notice.
•         Certificate of Post – A certificate of posting, issued by the post office of dispatch, certifies posting of a letter containing a notice but it is not a guarantee that the letter must have reached the addressee.
•         Registered Post – Sending a notice under registered post places the notice-giver in a better place and surer footing and the law will presume that a notice, sent under registered post, was duly served on the addressee.
•         Statutory mode of Service – When a particular provision of law directs a particular manner as to how a notice has to be served i.e., in a case of a notice u/s 80 of  Civil Procedure Code directing the notice “to be delivered to or left at the office of the Secretary to the Union, Provincial Government. General Manager of a railway or the Collector of a district as the case may be, the notice is to be served in the manner prescribed under the statute.
•         Contractual mode of Service – When an agreement of a contract contains a term as to the mode of service of notice, the notice should be service conforming strictly to such mode.
•         Special mode of Service – Leaving a notice in a conspicuous part of the premises of the addressee.
Indirect mode of service by implication arises when a notice giver sends a notice through a bearer or special messenger or through post office but the addressee refuses to take it. Refusal is by implication good service of the notice on the addressee.

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