KOTECHA BROTHERS Vs. BILESHWAR KHAND UDYOG

JUDGEMENT

(1.) This is the plaintiff's First Appeal against the Judgment and decree dated 31.12.1979 passed by the Civil Judge (S.D.), Jamnagar in Civil Suit No.82/74 whereby the plaintiff's Suit was dismissed.

(2.) Hereinafter in this judgment the present appellant will be referred to as 'the Plaintiff' and the respondent as 'the defendant'. The defendant is a Co-operative Society carrying on business of manufacture and sale of sugar. This Co-operative Society is actually named as Shri Bileshwar Khand Udyog Khedut Sahakari Mandli Ltd. This defendant Society entered into a contract for purchasing 13 Twill 106 bales from the Plaintiff at the rate of Rs.515.00 per 100 gunny bags, one bale containing 300 Nos. of gunny bags. According to the plaintiff, the defendant Society took delivery of 30 bales in truck and out of Rs.46,409.00, Rs.42,200.00 had paid paid by defendant on 8.4.74. Thereafter, another consignment was sent to the defendant - Society of 35 bales in the truck and against a sum of Rs.54,133.00 the defendant paid Rs.57,000.00 on 10.4.74 towards the account (Khata) maintained by the plaintiff in regular course of business and 41 bales out of 106 bales remained to be taken delivery by the defendant.The plaintiff informed the defendant telegraphically that the remaining bales were despatched and the defendant was asked to send a sum of Rs.12,500.00- by telegraphic transfer. The defendant replied by telegram for balance "Await our Truck. Do not despatch- Khand Udyog." The plaintiff waited and received a telegram from the defendant that Twill not upto mark for despatch, await for instructions. Thus, there was some dispute between the parties about the quality of the Twill and this dispute resulted into the question about the payment of Rs.12,725.00. For recovery of this amount of Rs.12,725.00the plaintiff filed the present Suit in the Court of Civil Judge (S.D.), Jamnagar being Civil Suit No.82/74. The defendant filed written statement resisting the Suit and traversing the claim of the plaintiff on several grounds including the ground that the Civil Court had no jurisdiction to try the suit in view of the provisions contained in S.96 of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as 'the Act') and also that the Suit had been filed against the Co-operative Society without giving any notice as required under S.167 of the Act and was, therefore, liable to be dismissed.

(3.) On the basis of the pleadings of the parties, the trial court framed as many as 13 issues including issue No.6 as to whether the Civil Court had the jurisdiction to try the suit and issue No.7 as to whether the notice to defendant under the Act was mandatory. So far as issue No.6 is concerned, the trial court has decided this issue in favour of the plaintiff and has held that the Court had the jurisdiction to try the suit, but issue No.7 was decided against the plaintiff and it was held that the giving of the notice under S.167 of the Act was mandatory and whereas the Suit had been filed without giving any such notice under S.167 of the Act, the Suit was required to be dismissed and accordingly the Suit was dismissed.