JUDGMENT: The plaintiff-company has alleged that it is a registered contractor of the defendant-Municipality. The work of renewing filter bed No. 10 at the Head Water Works of the defendant Municipality at Serampore for 1954-55 was entrusted to it. It duty completed that work and its total dues amounted to Rs. 20438-9 annas. It was paid Rs. 4508-6 annas and thus Rs. 5930-3 annas remained due. On 7.4.1955, plaintiff company's proprietor, Anil Ghosh, went to the Municipality to recover the dues and he came to know that the Municipality had deducted Rs. 3281/- out of his dues and only Rs. 2649/- was offered in satisfaction of the total dues. It was stated that such amount had been deducted because of the cost of repairing the motor garage at Howrah Municipal market because such work bad been entrusted to the plaintiff-company. That company carried out the work defectively and so it resulted in damages to tile defendant-Municipality. The plaintiff-company has alleged that such work had been duly completed in January, 1950, and final bill had been paid on 9.2.1951. More than two years after the completion or work of that motor garage, the Municipal Engineer sent a letter making an unfounded allegation that the plaintiff company failed to follow his directions to make the structure strong. The plaintiff's grievance is that the defendant cannot claim any such deduction about two years after the completion of the work of that motor garage. The plaintiff-company made representation to the Municipality. Subsequently, an Administrator was appointed and before him representation was made without any success. The suit is for recovery of Rs. 5830-3 annas. 2. The defendant filed a written statement. The defence is that the suit is not maintainable for want of notice under S. 80 of the Civil Procedure Code and under S. 535 of the Bengal Municipal Act and under S. 538 of the Calcutta Municipal Act. The deduction was rightly made and hence, the plaintiff is not entitled to any relief. 3. The suit has a chequered career. Eventually at the trial the learned Subordinate Judge found that no notice under the aforesaid sections was necessary. The suit was decreed in part for Rs. 2649/- with proportionate costs. The plaintiff preferred an appeal. The Municipality also filed a cross-objection. The cross-objection was dismissed and the appeal allowed. The suit was decreed in full. Hence this appeal by the defendant. 4. The suit was decreed in part for Rs. 2649/- with proportionate costs. The plaintiff preferred an appeal. The Municipality also filed a cross-objection. The cross-objection was dismissed and the appeal allowed. The suit was decreed in full. Hence this appeal by the defendant. 4. Two-fold submissions have been made on behalf of the appellant. It has been contended that the Administrator appointed by the State Government is a public officer within the meaning of the S. 2(17) of Civil Procedure Code and no notice under S. 80 of the Code was given. The plaintiff did not send any notice according to the provisions of S. 535 of the Bengal Municipal Act or according to the S. 538 or the Calcutta Municipal Act. The suit is, therefore, not maintainable. Since no notice under S. 80 of the Code was given, the plaint is liable to be rejected. The case of Raja Jagadish Chandra v. Debendra Prosad in 35 CWN 161 has been cited. The cases of Central Glass Industries Ltd. v. Commissioner, Corporation of Calcutta in ILR 1957(1) Cal. 432 and Shivadhar v. Corporation of Calcutta in 64 CWN 60 have been cited. It has been contended that these decisions will show that a Commissioner is a public officer within the meaning of the S. 2(17) of the Civil Procedure Code and hence, a notice under S. 80 of the Code is necessary for a suit against him. The case of K. C. Deobhanj v. Raghunath in 1959 (1) SCA 168 has been cited to show that in order to be in the service of the Government two essentials of the relationship of master and servant are necessary. The servant must be under the duty of rendering personal service to the matter and the master must have a right to control the servant's work. The S. 554(1)(ii)(cc) of the Bengal Municipal Act deals with the consequences of supersession of the body of Commissioners and says that upon supersession all property vested in the Commissioner shall vest in the State Government. The aforesaid two elements laid down by the Supreme Court arc present. The suit is liable to be dismissed for non service of a notice under S. 80 of the Code. 5. The aforesaid two elements laid down by the Supreme Court arc present. The suit is liable to be dismissed for non service of a notice under S. 80 of the Code. 5. The learned Advocate appearing on behalf of the appellant has also referred to the case of Revati Mohan v. Jatindra Mohan in 38 CWN 517 PC to show that it is not true that S. 80 of the Civil Procedure Code has no application to suits in contract and a claim based upon a breach of contract by a public officer may in many cases entitle him to notice. The case of Bhagchand v. Secretary of State in LR 54 IA 338 has also been cited to show that a notice under S. 80 is mandatory in nature and the service of such notice cannot be dispensed with under any circumstances. The effect of these decisions of the Privy Council was not considered by any of the courts and hence this appeal must be allowed. 6. The learned Advocate appearing for the respondent has contended that the decision of the learned Additional District Judge is correct. No such notice is necessary. In view of the provisions of S.34 of the Civil Procedure Code, interest should be allowed to the poor contractor. 7. In the Bench case of Ranendra Nath v. Dhuliyan Municipality in AIR. 1956 Cal. 203, the effect of the Privy Council decision of Revati Mohan v. Jatindra Mohan was considered. It has been stated that in a case based on contract, no notice contemplated by the provisions of S. 535 of the Bengal Municipal Act is necessary. All the earlier decisions were considered in that case. 8. It may be stated that the learned Advocate appearing on behalf of the appellant also argued about the effect of the appointment of an executive officer according to the S. 67 of the Bengal Municipal Act and by the State Government under S. 67A of the Act. Now, a reference to those sections is not necessary for the disposal of this appeal 9. In the case of Revati Mohan v. Jatindra Mohan, cited on behalf of the appellant, the Privy Council has pointed out that notice under S. 80 of the Civil Procedure Code is necessary, if the act is done by a public officer in his official capacity. In the case of Revati Mohan v. Jatindra Mohan, cited on behalf of the appellant, the Privy Council has pointed out that notice under S. 80 of the Civil Procedure Code is necessary, if the act is done by a public officer in his official capacity. But here there is a distinguishing feature because when the contract was given the Administrator was nowhere in the picture and such Contract was given by the commissioner, of the Howrah Municipal. At a later stage, the Administrator was appointed and so the plaintiff company made representation to him on the allegation that its dues had been illegally withheld. The adjustment was not done by the Administrator but by the Commissioner of Howrah Municipality So. such deduction was not an act purported to be done by him in his official capacity, within the meaning of that section. Moreover at the trial the Commissioners again came into the picture. 10. The learned Advocate appearing on behalf of the respondent has pointed out that the provisions of the S. 554(1)(ii)(cc) of the Bengal Municipal Act and of the S. 57(3)(c) of the Central Provinces and Berar Municipality Act, 1922, are almost similar. In the latter Act, if a committee is dissolved or superseded according to the provisions of Clause (c) of sub-s. (3) of S. 57 of the Act, all property vested in the committee shall, until the committee is reconstituted, vest in the State for the purposes of the Province. Sub-section (2)(a) of S. 554 of the Bengal Municipal Act lays down that the State Government may at any time by order reconstitute the body of Municipal Commissioners by appointment of all the Commissioners for such period, as may be specified in the order. In the case of Municipal Committee, Raigarh V. Ramkaran Ganeshilal in AIR 1958 MP 355 it has been stated on an interpretation of the S. 57(3)(c) of the Central Provinces and Berar Municipality Act that in spite of the vesting of the property in the State, no notice under S. 80 of the Civil Procedure Code is necessary for a suit against the Municipality. 11. Reference may be made to the Bench decisions of Metro General Traders V. Commissioners of Corporations of Calcutta in 69 CWN 584 and of Gowardhan v. Calcutta Municipality in AIR 1970 Cal. 11. Reference may be made to the Bench decisions of Metro General Traders V. Commissioners of Corporations of Calcutta in 69 CWN 584 and of Gowardhan v. Calcutta Municipality in AIR 1970 Cal. 539 to show that a Commissioner of the Corporation of Calcutta is not a Government servant and hence no notice to him is necessary according to the provisions of the S. 80 of the Civil Procedure Code. In both the Bench decisions, the opinion expressed in the aforesaid single Bench decisions of Central Glass Industries Ltd. v. Commissioner of Corporation of Calcutta and Shivadhar V. Corporation of Calcutta and of the case in AIR 1962 Cal. 283 have been dissented from But it may be pointed nut that no one of these is apt on the point. Only the case of Municipal Committee, Raigarh v. Ramkaran Ganeshilal in AIR 1958 M.P. 355 has some bearing on the facts of this case. Tint decision is in the respondent's favour. 12. The Submissions made on behalf of the appellant cannot be accepted. It is held that no notice under S.80 of the Civil Procedure Code is necessary. The suit is also nut bad for Want of notice under S. 535 of the Bengal Municipal Act and under S. 538 of the Calcutta Municipal Act and the suit is maintainable. 13. There is no cross-objection or cross-appeal and the prayer for granting interest cannot be considered. Interest was not allowed by any of the courts below. The appeal be dismissed. There will be no order as to costs. Appeal dismissed.