MARUTI SAVALARAM KUMTEKAR Vs. NAMDEV CO-OPERATIVE SOCIETY

JUDGEMENT

(1.) This is an application filed against an order of the learned Subordinate Judge, Poona, made in the course of the trial of suit No. 1809 of 1928 dismissing the claim as against defendant No. 4 in that suit. Defendant No. 4 was originally the Namdev Co-operative Society, and the ground for the dismissal of the suit against the Society was that the notice requisite for suing them under Section 70 of the Bombay Co-operative Societies Act, 1925, had not been served. The provision of the section is:- No suit shall be instituted against a society or any of its officers in respect of any act touching the business of the society until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

(2.) Admittedly, nothing in the shape of a formal notice was served in this case. Mr. Desai has argued that, in the first place, such a notice was not necessary, and in the second, that something nearly as good was done complying substantially with the requirements of the section.

(3.) The section is one of those similar to Section 80 of the Civil Procedure Code, and it has been held in Bhagchand Dagadusa V/s. Secretary of State for India ( p. 357 ) :- Section 80 is express, explicit and mandatory, and it admits of no implications or exceptions. A suit in which (inter alia) an injunction is prayed is still a suit within the words of the section, and to read any qualification into it is an encroachment on the function of legislation.