THAKKAR LILADHAR VAGHJIBHAI v. JAMNAGAR JILLA SAHAKARI KHARID VECHAN SANGH LIMITED — 1982 DIGILAW 192 (GUJ)

N. H. BHATT, J. ( 1 ) * * * * ( 2 ) THE second importance circumstance to be noted in this connection is that the defendant has taken this case almost very lightly. No office bearer of the Society has stepped into the witness-box. The Rules and Regulations known as bye-laws of the Society and also the certificate of registration of the Society are not at all produced. As held by the Division Bench of this Court consisting of M. P. Thakkar J. (as he then was) and M. C. Trivedi J. in the first Appeal No. 514 or 1971 decided by the Bench on 12-10-1978 whether the defendant So- ciety carrying on business or not is a question of fact and if a Society does not produce its documents it can be said that that may be the business of the Society. The only witness that was examined in this case was the driver of the truck which had been responsible for the unfortunate mishap. His evidence on the contrary very clearly shows that this Society in all probabilities carried on the said business. T4e witness stated that he had gone to Ahmedabad in July 1967 with oil tins loaded therein because the defendant-Society had to transport bags of fertilizers from Ahmedabad for Jamnagar and he was ordered to load the tins in the truck. The witness however stated that the truck was mostly used for the goods of the defendant only. This statement necessarily means that occasionally the defendant-Society did use the truck for the purpose of carrying goods of others. One more important circumstance also to be noted. If the defendant-Society did not carry on this transport activity as a part of its routine business there was nothing to prevent the defendant-Society from producing its account- books to show that there was no credit entry in respect of charges for transport. Blissfully the office bearers of the defendent-Seciety remained behind the curtain and instructed their Advocate to take advantage of the technical point which cannot be permitted when the defendant-Society did not specifically deny the case of the plaintiff. ( 3 ) THERE is also evidence of the plaintiffs witness Shri Suryakant Ratilal from Jamnagar Ex. 69. Blissfully the office bearers of the defendent-Seciety remained behind the curtain and instructed their Advocate to take advantage of the technical point which cannot be permitted when the defendant-Society did not specifically deny the case of the plaintiff. ( 3 ) THERE is also evidence of the plaintiffs witness Shri Suryakant Ratilal from Jamnagar Ex. 69. He states that in his presence the partner of Kushal and Company (the plaintiffs sellers) had hired the truck of the defendant-Society by fixing the cartage at 7 annas per tin. In the course of his cross-examination by the defendants Advocate noth- ing fruitful could be elicited. He was asked whether he had seen the bye-laws of the defendant-Society. He was asked whether the truck was a private carrier or a public carrier. If it was the case of the defendant Society that it was a private carrier nothing prevented the defendant from producing the certificate of registration issued by the transport authorities. It is because of these circumstances that the defendant-Society blissfully avoided active participation in the trial having their eyes fixed on the technicality which they successfully did as far as the Trial court is concerned. ( 4 ) IN above view of the matter ordinarily the suit should be decreed but Mr. S. D. Shah for the defendant-Society raised two questions. One contention is purely of law resting on Sec. 167 of the Gujarat Co-operative Act 1961 which section has been relied- upon by the plaintiff-firm to save the suit from being lost on the point of limitation. As the plaintiff itself wanted to avail itself of the provisions of the Sec. 167 of the said Act it now cannot turn round and say that Sec. 167 of the said Act is not applicable. The moment the plaintiff stated so the suit would be treated as rightly dismissed by the Trial Court on the point of limitation. Mr. Shah urged that by virtue of mandatory provisions in sec. 167 of the said Act no suit can be instituted until the expiration of two months next after notice in writing has been delivered to the Registrar or left at his office. In the case on hand the notice in question is dated 10-7-1970. That was served on the Registrar on 13-7-1979. The suit unfortunately was filed on 10 and therefore earlier by three days. In the case on hand the notice in question is dated 10-7-1970. That was served on the Registrar on 13-7-1979. The suit unfortunately was filed on 10 and therefore earlier by three days. In my view there is no escape from this legal position which ultimately compels me to accept the contention. ( 5 ) IN support of his submission Mr. Shah invited my attention to a recent Judgment of this Court in the case of BAI CHANCHALBEN V. RAMANLAL KESHAVLAL SHAH AND ORS. 22- G. L. R. PAGE-101 in which My Brother Talati J. held on the strength of the judgment of the Supreme Court in the case of DHIRENDRA NATH GORIA and ORS. V. SUDHIR CHANDRA GHOSH and ORS. A. I. R. 1964 S. C. 1300 and also on the strength of the judgment of the Division Bench of the Bombay High Court in the case of DHARAWAR URBAN CO. OPERATIVE BANK LTD. V. RAMCHANDRA GOVINDRAO ALNAVAR and ORS. AIR 1937 BOMBAY 231 that the provisions of Sec. 167 of the Gujarat Co-operative Societies Act are mandatory and they cannot be waived. So Mr. Desais Submissions that the provisions of Sec. 167 of the said Act particularly the period of two months are not mandatory cannot be entertained. The reference to Craies on Statute law D. 269 referred to in the above authorities also is uncalled for because as held by Talati J. in the above mentioned case of Bai Chanchalben the purpose of a notice under Sec. 167 of the said Act is not for the individual benefit of the Society but it is for the benefit of the general public interest. Mr. Desai s submission however was that what was mandatory was giving of a notice to the Registrar which in this case was certainly given and not the waiting for the full period of two months from the date of receipt of the notice by the Registar. The emphatic text of sec. 167 of the said Act does not allow anyscope for such interpretation. The legislature wanted in the public interest that before any co-operative society is dragged into a litigation he should be put in mind of the affairs of the Society so that he may look into the matter and take one or more various courses referred by Talati J. in Bai Chanchalbens case. The legislature wanted in the public interest that before any co-operative society is dragged into a litigation he should be put in mind of the affairs of the Society so that he may look into the matter and take one or more various courses referred by Talati J. in Bai Chanchalbens case. The legislature also wanted that in order who might have many thing to mange simultaneously to enable the Registrar should have the minimum period of two months at his disposal and in order to safe-guard this minimum period a statutoay bar is created aginst the institution of the suit itself. In this view of the matter the legal point raised by Mr. S. D. Shah for the original defendent-respondents for thefirst time before me must be upheld .