RAM SHANKER Vs. STATE OF U P

JUDGEMENT

(1.) -This appeal is filed against the judgment and decree of the lower appellate court dated 2.8.2006 whereby appellant's first appeal was dismissed and the judgment of the trial court has been affirmed.

(2.) THE plaintiff appellant filed the suit for permanent injunction to restrain the defendants-respondents from recovering certain sum of Rs. 93,000 and odd through proceedings started on the basis of a recovery certificate issued to the Collector. THE prayer was also made for accounting of the entire deposits made by the plaintiff in the defendant bank and its adjustment towards the loan taken by him from the said bank. THE plaintiff alongwith his brother took loan of Rs. 47,000 from the defendant bank for purchase of a tractor. THE tractor was purchased and some time it remained in joint possession in the name of plaintiff and defendant No. 4. THEreafter on the basis of a compromise between the brothers, the whole liability was fastened upon the plaintiff to make repayment of the loan amount to the defendant bank. During the course of time the said tractor is said to have been taken out of the possession of plaintiff by defendant No. 4 and thereafter its possession was taken by the bank, but it was not auctioned so that the proceeds of sale money may be adjusted towards the minus balance in the plaintiffs loan account. Later on a recovery certificate was issued by the defendant bank for the aforesaid sum of Rs. 93,000 and odd. THE suit was filed thereafter without giving notice under Section 117 of the U. P. Cooperative Societies Act. THE suit was contested by the defendant society and the plea of its non-maintainability for want of mandatory notice under Section 117 of the Cooperative Societies Act and provisions of Section 70 of the said Act was also taken. It was further pleaded that inspite of filing the suit the recourse should have been had for getting a reference to the arbitration by the Registrar of Cooperative Society.

(3.) THE aforesaid provision requires the plaintiff that before he goes in a suit and present his claim in a Court in respect of a dispute relating to an act involving constitution, management or business of the society, prior notice of two months must be given by the plaintiff by delivering it to the Registrar which should specifically state the cause of action, name, description of place of residence of the plaintiff and the relief which he claims and the plaint shall also contain statement that such notice has been so delivered or left with the Registrar. Admittedly, in the present case no such notice has been given. THEre is also no statement of such fact contained in the pleadings of the plaint. THE requirement of such notice as per the aforesaid language of the Section, appears to be mandatory and it cannot be said that it is just directory in the nature as has been submitted by the learned counsel for the appellant. THErefore, if for want of such notice the courts below have found the suit as barred for cognizance, the findings so recorded are wholly sound and are not challengeable in this appeal.