SUVIDHA REALTORS AND CONSTRUCTIONS PVT LTD. Vs. HUBLI TALUKA AGRICULTURAL PRODUCE CO OPERATIVE MARKETING LTD.

JUDGEMENT

(1.) The petitioner, a company established under the Companies Act had filed O.S.No.51/2009 and it is aggrieved of the impugned judgment/order dtd. 31/1/2020 whereby the trial court held that the suit is not maintainable for want of compliance of statutory/mandatory notice under Sec. 125 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as 'the Act' for short) and consequently returned the plaint to the plaintiff.

(2.) Learned senior counsel Sri.G.V.Chandrashekar, appearing for the petitioner/plaintiff submits that the premise on which the impugned order has been passed is that, although notice under Sec. 125 of the Act was issued by the plaintiff, nevertheless, according to the trial court, the notice was not only required to be given to the Registrar of Co-operative Societies, but also to the defendant-society. The trial court has also considered issuance of notice under Sec. 80 of CPC. Learned senior counsel submits that plain reading of Sec. 125 of the Act contemplates issuance of two months notice to the Registrar and it does not contemplate issuance of notice to the society even if a suit is required to be instituted against the co-operative society or any of its officers in respect of any act touching upon the business of the society.

(3.) Learned senior counsel has drawn the attention of this court to an earlier order passed by the trial court on I.A.No.2 dtd. 29/6/2009. The said application was filed under Order XXXIX Rule 1 and 2 of CPC by the plaintiff seeking to restrain defendant No.1 by an order of ad- interim injunction from holding any re-sale by public auction for the sale of the suit properties until disposal of the suit. At para 18 of the order, it was pointed out that certain facts were recorded after verifying the records. In para 18 of the order dtd. 29/6/2009 on I.A.No.2, the trial court held that, after going through the records, it is found that the plaintiff had earlier presented the suit on 15/12/2008 and there is an order on 20/12/2008 that the plaint was returned to the plaintiff for compliance of the notice and the suit was re-presented on 2/3/2009. It was also noticed that after taking return of the plaint, the plaintiff has issued a notice under Sec. 125 of the Act on 23/12/2008 and thereafter, after completion of two months period as contemplated under Sec. 125 of the Act, the suit was re-presented on 2/3/2009. Learned senior counsel would further submit that the trial court seems to have based its judgment on a decision of this court in the case of Arogyanagar Co-operative Housing Society Ltd. and Another vs Fakiragouda and Another (ILR 2004 KAR 1445).