BAI CHANCHALBEN v. RAMANLAL KESHAVLAL SHAH — 1980 DIGILAW 26 (GUJ)

S. L. TALATI, J. ( 1 ) THE next question which is required to be considered is in respect of the effect of the suit against defendants nos. 8 and 13 when notice under sec. 167 of the Gujarat Co-operative Societies Act 1961 was not given to the Registrar as provided by that section. The learned Advocate Miss Shah submitted that this section is analogous to sec. 80 of the Civil Procedure Code. Sec. 80 of the Civil Procedure Code before amendment stood as under :80 Notice No suit shall be instituted against the Government including the State of Jammu and Kashmir or against a public officer in respect of any act populating to be done by such public officer in his official capacity until the expiration of two months next after notice in writing has been delivered to or left at the office of (a) in the case of a suit against the Central Government except where it relates to a railway a Secretary to that Government; (b) in the case of a suit against the Central Government where it relates to a railway the General Manager of that railway; * * * * * (bb) in the case of a suit against the Government of the State of Jammu and Kas hmir the Chief Secretary to that Government or any other officer authorised by the Government in this behalf; (c) in the case of a suit against any other State Government a Secretary to that Government or the Collector of the district;* * * * * * and in the case of a public officer delivered to him 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 plaints shall contain a statement that such notice has been so delivered or left. IT was submitted that defendant No. 8 did Not file any written statement and therefore in the trial Court there was no issue regarding notice so far as defendant No. 8 is concerned. Therefore defendant No. 8 waived the notice inasmuch as there was no contention raised in regard to the notice and inasmuch as it was not prayed that a specific issue may be raised there was no issue in the trial Court. Therefore defendant No. 8 waived the notice inasmuch as there was no contention raised in regard to the notice and inasmuch as it was not prayed that a specific issue may be raised there was no issue in the trial Court. It appears that for the first time in the first Appellate Court it was submitted that the suit against defendant No. 8 was not maintainable inasmuch as notice under sec. 167 of the Gujarat Co-operative Societies Act was not given. ( 2 ) A few authorities were cited. The first authority which was cited was GAJA AND OTHERS V. DASA KOERI AND OTHERS REPORTED IN A. I. R. 1964 ALLAHABAD AT PAGE 471. In that case it was observed If the State Government could be said to have waived its objection regarding want of notice by not taking a plea to that effect in a written statement filed by it it can be said with equal reason that the State Government waived it by filing no written statement at all. It was also observed If a notice can be and has been waived by the authority concerned it is not open to any other party to the suit to urge want of notice against the maintainability of the suit ( 3 ) THE second ruling which was referred to was a case PALETI SIVARAMKRISHNAIAH V. EXECUTIVE ENGINEER N. C. CANALS SATHENAPALLI AND ANOTHER REPORTED IN A. I. R. 1978 ANDHRA PRADESH AT PAGE 389. In that case it was held as under :notice under sec 80 is mandatory. Even a mandatory provision can be waived if it is not concerned in public interest but in the interest of the party that waives it. Notice under sec. 80 is meant for the benefit of the party to whom it is intended. It can be waived by the party for whose benefit it is intended. IT was also observed that where objection as to notice was raised in the written statement but no issue was framed on the point and no objection was taken subsequently on this score at any subsequent stage of the trial nor any application was made for amendment of the issues the defendant must be deemed to have waived the notice. IT was also observed that where objection as to notice was raised in the written statement but no issue was framed on the point and no objection was taken subsequently on this score at any subsequent stage of the trial nor any application was made for amendment of the issues the defendant must be deemed to have waived the notice. ( 4 ) THE third ruling which was cited was a case of JULAL MANDAL V. THE UNION OF INDIA AND OTHERS REPORTED IN A. I. R. 1978 PATNA AT PAGE 42. It was a case where a specific issue for non service of notice under sec. 80 was framed by the trial court. However that issue was not pressed. It was decided that this meant that the Government had impliedly waived the requirement of the notice. ( 5 ) ANOTHER ruling referred to was DHIRENDRA NATH GORAI AND OTHERS V. SUDHIR CHANDRA GHOSH AND OTHERS REPORTED IN A. I. R. 1964 SUPREME COURT AT PAGE 1300. It was a case where sec. 35 of Bengal Money Lenders Act was not complied with at the time when sale proclamation was issued. It was held that noncompliance of that section will not render the sale a nullity. The question which was discussed was whether an act done in breach of a mandatory provision is per force a nullity or a mere irregularity. The Supreme Court referred to various authorities and it was held if a provision of a statute is only directory an act done in contravention of the provision is manifestly not a nullity. Sec. 35 of the Act is couched in a mandatory form and it casts in terms a duty on the Court to comply with its provisions before a sale is held. Prima facie the provision is mandatory at any rate we shall assume it to be so for the purpose of these appeals. After holding that the provision was mandatory it was held that if a party can waive the objection if he can waive it it amounts to an irregularity if he cannot it is a nullity. Prima facie the provision is mandatory at any rate we shall assume it to be so for the purpose of these appeals. After holding that the provision was mandatory it was held that if a party can waive the objection if he can waive it it amounts to an irregularity if he cannot it is a nullity. Maxwell was quoted to read as under:everyone has a right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity which may be dispensed with without infringing any public right or public policy. The same rule was restated in Craies on Statute Law 6 Edition at p. 269 which reads as under :as a general rule the conditions imposed by statutes which authorise legal proceedings are treated as being indispensable to giving the court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves and that no public interest are involved such conditions will not be considered as indispensable and either party may waive them without affecting the jurisdiction of the court. ( 6 ) ON the basis of the above ruling it was submitted that though notice as required under sec. 167 of the Co-operative Societies Act was not given to the Registrar inasmuch as defendant no. 8 did not file written statement and did not request the trial court to raise a specific issue about the nonservice of the notice impliedly there was a waiver and therefore suit against defendant No. 8 was required to be considered on merits. The trial Court dismissed the suit against defendant No. 8 only because the trial Court bad come to the conclusion that the partnership was dissolved on 6-11-1963. Now it may be stated that the principle laid down of waiver so far as sec. 80 of the Civil Procedure Code is concerned cannot be applied to a notice which is required to be given under sec. 167 of the Gujarat Co-operative Societies Act. Notice under sec. 80 of the Civil Procedure Code is required to be given to the defendant. The provisions of sec. 80 of the Civil Procedure Code is concerned cannot be applied to a notice which is required to be given under sec. 167 of the Gujarat Co-operative Societies Act. Notice under sec. 80 of the Civil Procedure Code is required to be given to the defendant. The provisions of sec. 80 of the Civil Procedure Code are meant for the benefit of the defendant and therefore the defendant could waive them or could be held by his conduct to have been waived. A notice under sec. 167 of the Gujarat Co operative Societies Act has to be served not on the defendant society but on the third party the Registrar of the Cooperative Societies. Now the question which is required to be considered is whether noncompliance of a mandatory provision could be waived or could not be waived. On the basis of the ruling discussed above (A. I. R. 1964 S. C. 1300) a mandatory provision can only be waived if it is not conceived in the public interest but in the interest of the party that waives it. Now therefore it is also necessary to consider whether a provision of sec. 167 of the Gujarat Co-operative Societies Act which is a mandatory provision is for the protection of the public interest or for the protection of an individual society. If it was only for the protection of an individual society the individual society could waive the same as the defendant could waive a notice under sec. 80 of the Civil Procedure Code. For the purpose of coming to the conclusion as to whether the provision of sec. 167 of the Cooperative Societies Act is or is not in public interest it would be necessary to refer to some of the provisions of that Act. ( 7 ) SEC. 81 gives powers to the Registrar to supersede a committee of any society and to appoint another committee under certain contingencies. Under sec. 82 of the Act the Registrar has been given power to enforce of certain obligations. Sec. 86 of the Act gives power to the Registrar to hold an inquiry on his own motion into the constitution working and financial conditions of a society. As a result of such inquiry under sec. 86 of the Act the Registrar has been given power under sec. 107 of the Act to wind up the society. Sec. 86 of the Act gives power to the Registrar to hold an inquiry on his own motion into the constitution working and financial conditions of a society. As a result of such inquiry under sec. 86 of the Act the Registrar has been given power under sec. 107 of the Act to wind up the society. For the exercise of these powers over all the co-operative societies in the State it is necessary that the Registrar should know all the affairs of the society. With this object in view section 167 of the Gujarat Co-operative Societies Act must have been enacted looking to the scheme of the whole Act. It is the Registrar of the Co-operative Societies who is expected to know of any litigation which any party intends to file against any co-operative society. On receipt of such a notice he would be immediately able to know the financial condition of the society. He would also be able to know the transactions involved and he can effectively supervise control and act. If necessary a compromise could be effected. if necessary the committee could be changed if necessary an inquiry could be ordered and if necessary even a winding up could be ordered Now therefore if a defendant society chooses to waive the notice and it would be considered as a waiver a dangerous situation is likely to arise in some of the cases. It could be that the plaintiff and the office bearers of the defendant society might unite there may be a fraud; the plaintiff may not give any notice to the defendant society a false suit could be filed; the defendant society might waive the notice might not even appear; the plaintiff may obtain an ex parte decree. Such a situation can only be averted if before the institution of the suit the Registrar know the fact that a suit is to be filed against a particular society or for a particular amount or for a particular relief. Such a situation can only be averted if before the institution of the suit the Registrar know the fact that a suit is to be filed against a particular society or for a particular amount or for a particular relief. In order that the Registrar may have control in order that a cooperative society may not commit any fraud in the large interest of the cooperative movement itself which could be considered a public policy this mandatory provision has been enacted and therefore this mandatory provision cannot be waived by the society and therefore when admittedly it is not stated in the plaint that the notice was served to defendant No. 8 it was the duty of the Court to see that the mandatory provisions of that section were or were not complied with. This is held in a case of DHARWAR URBAN CO-OPERATIVE BANK LTD. V. RAMCHANDRA GOVINDRAO ALNAVAR AND OTHERS REPORTED IN A. I. R. 1937 BOMBAY AT PAGE 231. ( 8 ) THERE is no evidence to come to the conclusion that there was any waiver by the Registrar of the Cooperative Societies. Under the circumstances when admittedly notice to the Registrar was not given under section 167 of the Gujarat Co-operative Societies Act the mandatory provisions were not complied with and therefore the suit filed against defendant No. 8 challenging the four transactions was a suit which was not maintainable. To that extent the plaintiffs are required to be nonsuited against defendant No. 8. .