JUDGMENT : BIREN VAISHNAV, J. 1 Heard learned advocates appearing for the respective parties. With consent of the learned advocates, the matter is taken up for final hearing today. Rule returnable forthwith. Mr.Alok Thakkar, learned advocate waives service of notice of rule on behalf of respondent No.1 and Mr.Akash Chhaya, learned AGP, waives service of notice of rule on behalf of the respondent – State. 2 This petition under Article 227 of the Constitution of India is filed by the original defendant No.1, Agriculture Produce Market Committee, Siddhpur, Challenging the order dated 17.12.2022 passed by the learned Principal Senior Civil Judge, Gandhinagar. By the aforesaid order, the learned Judge of the Commercial Court, rejected the application Exh.12 filed by the petitioner under Order VII Rule 11(a) & (d) of the Code of Civil Procedure, 1908. The respondent No.1 herein, namely, R.S.Corporation, was the original plaintiff in the Commercial Civil Suit No. 48 of 2021. 3 Facts in brief are as under: 3.1 The petitioner, APMC Siddhpur, in order to implement the General Order dated 27.03.2013 of the State Government to carry out various infrastructural developments, issued a tender for construction of a Auction Shed in the market yard of the market committee for an estimated cost of Rs.5.15 Crores. The advertisement was published in the daily newspaper and the last date for submitting the bid was 17.11.2014. 3.2 The Committee received four bids, of which it was found that the bid of the respondent R.S.Corporation was the lowest, and therefore, the Committee resolved to give the tender to the respondent No.1 by way of a Resolution dated 13.12.2014. 3.3 By a letter dated 15.12.2014, the respondent No.1 was called for further negotiations, where the respondent No.1 agreed to reduce the final price by 0.50%. The Market Committee entered into an agreement with the respondent No.1 on 16.12.2014. Since a complaint was lodged by one Shri Desai Amrutbhai Lilabhai to the Director of the APMC for breach of conditions of the tender, the Director – respondent No.2, passed an order directing the Committee to maintain status-quo on the contract. On the Committee filing its reply on 19.12.2014, the complaint was dropped. 3.4 Since elections were declared at the APMC, pending the results of the election, proceedings were initiated against the Committee under Sec.47 of the Act. On the Committee filing its reply on 19.12.2014, the complaint was dropped. 3.4 Since elections were declared at the APMC, pending the results of the election, proceedings were initiated against the Committee under Sec.47 of the Act. A Show- Cause Notice was issued and by an order dated 13.06.2016, the entire tender process was quashed. On the holding of the elections, the erstwhile complainant Desai Amrutbhai Laljibhai took over as the Chairman of the Committee. 3.5 By an order dated 05.07.2016, the original contract entered into with the respondent No.1 was cancelled in view of the order passed by the Director asking for a fresh tender process. The respondent No.1 was informed to appear before the panel of engineers for the work already done and for seeking compensation. Security deposits were returned to the respondent No.1 on 24.10.2016 and 16.02.2017 respectively. 3.6 The respondent No.1 on 23.02.2019, filed Commercial Suit No. 138 of 2019 before the Commercial Court at Ahmedabad, which was subsequently transferred to Gandhinagar claiming compensation by way of damages of Rs.2,98,54,153/-. The petitioner being defendant No.1 in the Suit, on 16.12.2020, filed application under Order VII Rule 11(a)&(d) of the Code of Civil Procedure, requesting that the suit be dismissed. As it was filed without fulfilling the requisite conditions as enumerated under Sec.58 of the Gujarat Agricultural Produce and Marketing (Promotion & Facilitation) Act, 1963. 3.7 It was the case of the applicant that no statutory notice under Sec.58(1) of the Act was issued before the suit was instituted and secondly as provided under Sec.58(2) of the Act, the suit was not instituted within six months from the date of accrual of the alleged cause of action. The third contention raised before the Trial Court in the application under Order VII Rule 11 was that the suit was barred, inasmuch as, in accordance with Clause 23 of the Contract, the parties were mandated to approach the Tribunal and that being so, the Trial Court could not have entertained the suit. The reply was filed by the respondent No.1, original plaintiff disputing his case and by the impugned order, the application under Order VII Rule 11 was rejected. Hence, the petition. The reply was filed by the respondent No.1, original plaintiff disputing his case and by the impugned order, the application under Order VII Rule 11 was rejected. Hence, the petition. 4 Mr.Dipan Desai, learned counsel appearing for the petitioner, would make the following submissions: 4.1 Mr.Desai, learned counsel, would submit that reading of the plaint would indicate that the cause of action to file the suit had arisen on 06.09.2016, 24.07.2017, 17.11.2017 and 02.04.2018 when according to the plaintiff – respondent No.1 herein, a written demand was made and a statutory notice was issued. He would submit that if these documents which were on record are read, the communications dated 06.09.2016, 24.07.2017 and 17.11.2017 can certainly cannot be said to be statutory notices under Sec.58(1) of the Act. In other words, therefore, since there was non-compliance of issuance of statutory notice under Sec.58(1) of the Act which mandated that a suit cannot be instituted unless a notice stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been issued and is left at the office and the plaint contains a statement that such a notice has been delivered. In absence of such a notice, which is mandatory, no suit could have been filed, and therefore, the suit is barred on not fulfilling the conditions under Sec.58(1) of the Act. 4.2 Mr.Desai, learned counsel, would submit that as per sub-section (2) of Sec.58 of the Act, a suit has to be instituted within a period of six months from the date of accrual of the alleged cause of action, and if such a suit is not instituted within the stipulated time, such suit has to be dismissed. Inviting our attention to the dates, Mr.Desai, learned counsel, would submit that admittedly, the contract was terminated on 05.07.2016. Assuming for the sake of argument that the communication dated 02.04.2018 is a statutory notice through an advocate, which is beyond a period of six months, and taking the date of filing of the suit being 23.02.2019, admittedly the suit was time barred in accordance with Sec.58(2) of the Act, and therefore, the suit ought to be dismissed and the learned Judge should have exercised his powers under Order VII Rule 11. 4.3 The third submission made by the learned Counsel for the petitioner Mr.Desai, original defendant No.1, was on the documents placed before the Commercial Court, i.e. copy of the Agreement dated 16.12.2014. The respondent No.1, original plaintiff, smartly did not place on record the tender agreement of the same date. The only averment made in the plaint was that an agreement was entered into between the parties on 16.12.2014. This was clever drafting. Had the tender document or the agreement produced before the Trial Court, it would have been evident from Clause 23 of the Contract that the disputes arising from such a contract had to be referred to the sole arbitrator appointed with the consent of the parties to the contract. Mr.Desai, learned counsel, would further submit that the suit was required to be dismissed as the mandate of Sec.8 of the Arbitration Act clearly stipulated that no civil suit can be entertained. It was open for the petitioner – defendant No.1 to opt for resorting to an application under Order VII Rule 11 rather than filing Sec.8 application under the Arbitration Act. 4.4 Mr.Desai, learned counsel, would submit that the Trial Court was in error in observing that merely because neither the plaintiff nor the defendant had produced the tender agreement, the Court could not decide on the issue, when in fact, even from the documents on record it was evident that the communication deed referred to Clause 23 of the contract. Even if while resorting to deciding the application under Order VII Rule 11, the defendant’s documents need not be looked into, the defendant did produce an Arbitration Agreement of which Clause 23 was a part of the Contract produced together with the written statement. Mr.Desai, learned counsel, would therefore submit that the order of the Trial Court was erroneous. 4.5 In support of his first two submissions with regard to the provisions of Sec.58(1) being mandatory and therefore in absence of such compliance the suit could not be entertained, Mr.Desai, learned counsel, would rely on the following decisions: (1) M.K.Indrajeet Sinhji Cotton Private Limited vs. Narmada Cotton Cooperative Spinning Mills Limited & Anr., reported in (2016) 12 SCC 133 . (2) State of A.P & Ors. Vs. Pioneer Builders, A.P., reported in (2006) 12 SCC 119 . (3) State of Kerala & Ors. Vs. Sudhir Kumar Sharma & Ors., reported in (2013) 10 SCC 178 . (2) State of A.P & Ors. Vs. Pioneer Builders, A.P., reported in (2006) 12 SCC 119 . (3) State of Kerala & Ors. Vs. Sudhir Kumar Sharma & Ors., reported in (2013) 10 SCC 178 . (4) M.G.Patel & Company Vs. Alka Co Operative Housing Society Limited., reported in 1980 (2) GLR 498 . (5) Agriculture Produce Market Committee, Botad Vs. Kantaben Jadurambhai Makwana., rendered in Civil Revision Application No. 64 of 2019 dated 13.02.2023. 4.6 On the second submission of the suit being filed beyond limitation as prescribed under Sec.58(2), inasmuch as it was not filed within six months from the alleged accrual of cause of action too also, Mr.Desai, learned counsel, would rely on the aforesaid authorities: (1) M.K.Indrajeet Sinhji Cotton Private Limited vs. Narmada Cotton Cooperative Spinning Mills Limited & Anr., reported in (2016) 12 SCC 133 . (2) State of A.P & Ors. Vs. Pioneer Builders, A.P., reported in (2006) 12 SCC 119 . (3) State of Kerala & Ors. Vs. Sudhir Kumar Sharma & Ors., reported in (2013) 10 SCC 178 . (4) M.G.Patel & Company Vs. Alka Co Operative Housing Society Limited., reported in 1980 (2) GLR 498 . (5) Agriculture Produce Market Committee, Botad Vs. Kantaben Jadurambhai Makwana., rendered in Civil Revision Application No. 64 of 2019 dated 13.02.2023. 4.7 In context of the submission with regard to the suit being barred in light of Clause 23, and therefore, a remedy of arbitration being available and the suit therefore could be dismissed on such a ground, Mr.Desai, learned counsel, would rely on the following decisions: (1) Sundaram Finance Limited & Anr Vs. T.Thankam., reported in (2015) 14 SCC 444 . (2) Sharad P. Jagtiani Vs. M/s. Edelweiss Securities Ltd., reported in 2014 SCC OnLIne Del 4015. (3) Madhu Sudan Sharma & Ors vs. Omaxe Ltd., reported in 2023 SCC OnLine Del 7136. (4) Naolin Infrastructure Private Limited Vs. Kalpana Industries, F-11, Industrial Area, Jhunjhunu., reported in 2024 SCC OnLIne TS 1618. 4.8 Mr.Desai, learned counsel, on the question of clever drafting and not producing of the tender agreement so as to mask the existence of clause regarding arbitration and that being suppression and the case of clever drafting, would rely on the following decisions: (1) Rajhans Infracon (India) Private Limited Vs. Santosh Rameshbhai Rathod., reported in 2019 JX (Guj) 1297. (2) Himanshubhai Pannalal Kothari Vs. Santosh Rameshbhai Rathod., reported in 2019 JX (Guj) 1297. (2) Himanshubhai Pannalal Kothari Vs. Hasubhai Kalubhai Shaikh., reported in AIR 2020 GUJ 132 . (3) Jaman Shamji Fadadu Vs. Sadik Mahmad Sidik., reported in 2023 (3) GLH 441 . 4.9 On the question of being barred under the Limitation Act, in light of the time limit specified under Sec.58(2), Mr.Desai, learned counsel, would rely on decision in the case of Himanshubhai Pannalal Kothari (supra). 5 Mr.Asim Pandya, learned Senior Counsel appearing with Mr.Alok Thakkar, learned advocate for the respondent No.1, would make the following submissions: 5.1 At the threshold, the submissions made by the learned counsel for the petitioner Mr.Desai needs to be rejected. Sec.58 of the APMC Act will not apply to the facts of the case. Sec.58 would apply to a case where a challenge is made to the action of the committee not taken in good faith. Here was a case where the plaintiff had filed a suit for damages for breach of a contract. It was in no way connected with challenging the action of committee not taken in good faith or malicious conduct or malafide action. Therefore, the general law of limitation as provided in the Central Act i.e. the Limitation Act would apply and even if the cause of action to be taken to be 05.07.2016 as the date of termination, the suit being filed on 23.02.2019 was clearly within time. The arguments of the learned counsel for the petitioner therefore that the plaint had to be rejected on the noncompliance of provisions of Sec.58(1)&(2) of the APMC Act, 1963, deserves to be rejected. The dispute was in realm of a contract making section 58 inapplicable. 5.2 Mr.Pandya, learned Senior Counsel, would further submit that Sec.58(2) has to be given a restricted meaning and cannot restrict the powers of central alternative, namely, the period of limitation prescribed under the Limitation Act and there cannot be a conflict of central law vis-a-vis the State enactment as this would directly be hit by Article 254 of the Constitution of India. 5.3 Mr.Pandya, learned Senior Counsel, would submit that it is not correct for the counsel for the petitioner to say that the plaint was cleverly drafted or that there was suppression of material facts as in the letter itself which is shown to us in the paper book of the plaintiff, particularly the letters dated 06.09.2016 and 24.07.2017, a specific reference was made to Clause 23 of the Contract which provided for arbitration. If provisions of Order VI of the Code of Civil Procedure are appreciated, the Trial Court is bound to look into the plaint and the documents so filed along with, and therefore, it cannot be said that the existence of an arbitration clause was suppressed. 5.4 In rejoinder to the submission that Sec.58 was not applicable, Mr.Desai, learned counsel, would draw our attention to Sec.10 of the APMC Act, 1963, and submit that when the section is read, obviously the controversy clearly fall within the province of Sec.58. 6 Having considered the submissions made by the learned counsels appearing for the respective parties, we are called upon to decide in essence two issues; (1) Whether the suit could be entertained when there was breach of the provisions of Sec.58 of the Act. The anciliary issue that we need to decide is whether in the facts of the present case, Sec.58 was applicable if at all and (2) Whether the existence of arbitration clause in the contract ousted the jurisdiction of the Civil Court. ANALYSIS 7 Addressing the first issue on the question of non compliance of the mandatory provisions of Sec.58(1)&(2) thereof, we may first address the issue on whether at all there was a statutory notice issued by the plaintiff – respondent No.1 under Sec.58(1) of the Act. 7.1 We have been taken through the communications dated 06.09.2016 and 24.07.2017. Reading of these communications would indicate that they were correspondences addressed to the Chairman of the Agricultural Produce Market Committee in context of the order dated 05.07.2016 which terminated their contract. The communications set out the loss that the Corporation-respondent No.1 had suffered, and therefore, it sought damages to the extent of Rs.2,98,54,153/- This certainly cannot be called to be statutory notice under Sec.58(1) of the Act. 7.2 When we read the notice addressed to the petitioner on 17.11.2017 by an advocate, it does talk and is titled as “legal notice”. The communications set out the loss that the Corporation-respondent No.1 had suffered, and therefore, it sought damages to the extent of Rs.2,98,54,153/- This certainly cannot be called to be statutory notice under Sec.58(1) of the Act. 7.2 When we read the notice addressed to the petitioner on 17.11.2017 by an advocate, it does talk and is titled as “legal notice”. However, when the notice is read, except talking about it in being continuation of the earlier two letters, it does not satisfy the ingredients of Sec.58(1) of the Act, inasmuch as, neither does it mention the cause of action, the name and place of abode of the intending plaintiff, the relief which are claimed and does not contain the averment that it has been delivered or left at the office. Certainly therefore, this communication dated 17.11.2017 and the preceding two communications be considered as statutory notice under Sec.58(1) of the Act. 7.3 That brings us to the notice dated 02.04.2018 which is titled as statutory notice under Sec.80 of the Code of Civil Procedure. The notice does state that it is a notice to resort to a legal action with regard to claiming mandatory damages in the sum of Rs.2,98,54,153/- and it does contain a statement and the name of the place of the intending plaintiff. Considering this communication though being a statutory notice under Sec.80 of the Code of Civil Procedure as being one under Sec.58(1) of the APMC Act, the alternative submission that needs to be answered is whether it is within the time limit as the one prescribed under Sec.58(2) of the APMC Act. For the purposes of our analysis, we reproduce Sec.58 of the APMC Act, which reads as under: “58. Bar of suit in absence of notice. For the purposes of our analysis, we reproduce Sec.58 of the APMC Act, which reads as under: “58. Bar of suit in absence of notice. (1)No suit or other proceedings shall be instituted against a market committee [or the Board] [These words were inserted, by Gujarat 17 of 1985, Section 6 (w.r.e.f. 25-01-1985).] or a member, officer or servant thereof or a person acting under the directions of any of them for anything done or purporting to be done in good faith under this Act, until the expiration of two months next after a notice in writing, stating the cause of action, the name and place of abode of the intending plaintiff and the relief which he claims, has been in the case of a market committee, [or the Board] [These words were inserted, by Gujarat 17 of 1985, Section 6 (w.r.e.f. 25-01-1985).] delivered or left at its office, and in the case of any such member, officer, servant or person as aforesaid delivered to him or left at his office or usual place of abode, and unless the plaint contains a statement that such notice has been so delivered or left. (2) Any such suit not instituted within six months from the date of the accrual of the alleged cause of action shall be dismissed. (3) Nothing in this section shall be deemed to apply to any suit instituted under Section 54 of the Specific Relief Act, 1877 (I of 1877).” 7.4 Having answered our submission and even accepting the fact of notice of 02.04.2018 to be a statutory notice, apparently the notice is dated 02.04.2018 for claiming damages for the breach of a contract which occurred on 05.07.2016. In the case of M.K.Indrajeet Sinhji Cotton Private Limited (supra), the Hon’ble Supreme Court had considered the provisions of Section 167 of the Cooperative Societies Act, which are similar to the one i.e. Sec.58. The Hon’ble Supreme Court held as under: “4. The controversy is: whether the Registrar, while considering whether leave should be granted can hold that the suit itself is not tenable for want of notice. Initially the Registrar passed a non-speaking order dated 6- 6-2003 refusing permission to continue the suit. On 28-11-2005, however, the Registrar passed a speaking order refusing permission to continue the suit. It is this order that has given rise to the present controversy. Initially the Registrar passed a non-speaking order dated 6- 6-2003 refusing permission to continue the suit. On 28-11-2005, however, the Registrar passed a speaking order refusing permission to continue the suit. It is this order that has given rise to the present controversy. The main reason why the Registrar refused permission to continue the suit for recovery of money against the respondents is that according to the Registrar, Section 167 of the Co-operative Societies Act requires a plaintiff to give notice to the Registrar stating the cause of action and the relief which the plaintiff claims. Such a notice not having been given by the appellant, the appellant is not entitled for leave to continue the suit against the defendant. In other words, according to the Registrar, the plaintiff's suit is not tenable for want of notice under Section 167 and, therefore, leave to continue such a suit is liable to be refused under Section 112 of the Co-operative Societies Act. Section 167 reads as under: “167. Notice necessary in suits Save as otherwise provided in this Act, 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.” XXX XXX XXX 8 A decision regarding the correctness or otherwise of the view of the Division Bench must be taken with regard to the relevant provisions of the Co-operative Societies Act. It is also necessary to ask if the decision that the suit is not tenable if notice is not given is judicial in nature. Section 167 is preceded by Section 166 which bars the jurisdiction of Courts in any matter concerned with the winding up and dissolution of the Society, vide Section 166 (1)(c). The clear intention of the legislature is to bar a civil court from entertaining any matter concerned with the winding up and dissolution of the society. Section 167 is preceded by Section 166 which bars the jurisdiction of Courts in any matter concerned with the winding up and dissolution of the Society, vide Section 166 (1)(c). The clear intention of the legislature is to bar a civil court from entertaining any matter concerned with the winding up and dissolution of the society. In order to give effect to this provision, the legislature has enacted Section 167 which makes it mandatory for a plaintiff who intends to institute a suit against a society or any of its officers in respect of an act touching the business of the society to give a clear notice of his intention to sue. The Section prohibits a plaintiff from instituting a suit until the expiration of two months after notice in writing has been delivered to the Registrar. There seems little doubt that this Section imposes a mandatory requirement that if the conditions prescribed by it exist, that is to say if the suit proposed to be filed is against a society or any of its officers and is in respect of any act touching the business of the society then it must be preceded by a notice of two months. It is obvious that the question whether Section 167 is attracted to a particular suit or not depends upon an inquiry into the nature of the suit, in particular whether it affects the business of the society and the parties to the suit. Such a decision is obviously within the jurisdiction and competence of the civil court where the suit is instituted and must therefore be regarded as judicial.” 7.5 We may not refer to the other decisions cited on the issue in context of Sec.58(1) because, inasmuch as, even if we accept that a statutory notice was issued under Sec.58(1) of the Act, being that of the year 2018, the suit was otherwise barred in light of Sec.58(2) of the Act. In this context, we may refer to a decision of this Court in the case of M.G.Patel & Company Vs. Alka Co Operative Housing Society Limited (supra), we cannot refer to Sec.167 of the Co-Operative Societies Act, where the Court held that even notice earlier by one day, it was mandatory for the plaintiff to wait for a full period of two months. Alka Co Operative Housing Society Limited (supra), we cannot refer to Sec.167 of the Co-Operative Societies Act, where the Court held that even notice earlier by one day, it was mandatory for the plaintiff to wait for a full period of two months. Admittedly, in the facts of the present case, from the date of accrual of cause of action the suit had to be filed within six months, whereas, it is apparent that the date of accrual of cause of action was 05.07.2016, the statutory notice was issued on 02.04.2018 i.e. more than one and a half year and the suit thereof was filed on 23.02.2019 i.e. more than a year later of the statutory notice. 7.6 In light of the decisions referred to hereinabove in the case of M.K.Indrajeet Sinhji Cotton Private Limited (supra), when the provision is mandatory, albeit in light of Sec.80 of the Code of Civil Procedure, in light of what is stated in M.G.Patel & Company Vs. Alka Co Operative Housing Society Limited (supra), the suit was clearly time barred failing to comply with the provisions of Sec.58(2) of the Act. When we look at the impugned order passed by the Trial Court, except for setting out the averments on this aspect of breach of provisions of Sec.58, no discussion is recorded or a finding recorded pursuant to a discussion on the issue raised before the Court. The order to that extent, therefore, is a non-speaking one apart from being without any reasons. 7.7 That brings us to the averments as to whether Sec.58 at all is attracted as submitted by the learned Senior Counsel Mr.Pandya which also would take into its fold the principal question of whether the Limitation Act would apply. Sec.58 talks of as the heading reads “Bar of a suit in absence of notice”. Reading of the section indicates that no suit or other proceedings shall be instituted against the market committee or a member, officer or a servant acting under the directions of any of them for anything done or purporting to be done in good faith under this Act. The statement of Mr.Pandya, learned Senior Counsel, appears to be that this being purely a dispute under the realm of the contract and not connected with the affairs of the society in discharge of its obligations, the section would not be applicable. We beg to disagree with this statement. The statement of Mr.Pandya, learned Senior Counsel, appears to be that this being purely a dispute under the realm of the contract and not connected with the affairs of the society in discharge of its obligations, the section would not be applicable. We beg to disagree with this statement. 7.8 In light of the provisions of Sec.10 of the APMC Act, it is amply clear that the Committee is a body corporate and amongst other things, is competent to contract and to do all things necessary for the purposes for which it is established. Sec.10, reads as under: “Sec 10: Incorporation of market committee (1) Every market committee shall be a body corporate by such name as the Director may specify by notification in the Official Gazette. It shall have perpetual succession and a common seal, may sue and be sued in its corporate name and shall be competent to acquire, hold, lease, sell or otherwise transfer property, to raise loans upon the security of its property in the manner and subject to the limits and other requirements including guarantees prescribed by rules, and to contract and to do all other things necessary for the purposes for which it is established. (2) A market committee shall be deemed to be a local authority within the meaning of clause (26) of section 3 of the Bombay General Clauses Act, 1904 (Bom I of 1904).” 7.9 It is in this context that when we read the language of Sec.58, the section clearly suggests that for anything done or purported to be done under the Act, if a suit is intended to be filed, a notice is mandatory. The language of Sec.58 is couched in such a way to suggest that no suit shall be instituted against market committee for anything done in good faith under the Act. Entering into contract with plaintiff was one of its act stipulated under Sec.10 of Act. Thus, the arguments of Mr.Pandya, learned Senior Counsel, has no legs to stand. To support his submission that the provisions of Sec.58 are not applicable, Mr.Pandya, learned Senior Counsel, relied on the following decisions: (1) Gujarat Electricity Board vs. Agricultural Produce Market Committee, Dehgam., reported in 2001 AIR (guj) 112. (2) Khetiwadi Utpadhan Bazar Samati Vs. Nitinkumar Maganlal Kalaria., reported in 1994 SCC OnLine Guj 176. To support his submission that the provisions of Sec.58 are not applicable, Mr.Pandya, learned Senior Counsel, relied on the following decisions: (1) Gujarat Electricity Board vs. Agricultural Produce Market Committee, Dehgam., reported in 2001 AIR (guj) 112. (2) Khetiwadi Utpadhan Bazar Samati Vs. Nitinkumar Maganlal Kalaria., reported in 1994 SCC OnLine Guj 176. 8 When we look at the decision in the case of Gujarat Electricity Board (supra), it was a case where the Gujarat Electricity Board under the powers conferred under the Electricity Act had laid down certain lines. The lines were passing above the land of survey numbers which were acquired for market committee. The Board instituted a suit with the prayer that the Committee be restrained from making any construction in violation of the Electricity Rules and the clearances be removed. Considering the provisions of Sec.58 of the Act, the Court held that the purpose of the Committee is not to construct godowns and in a suit for praying for demolition of such godowns insofar as construction were in violation of the electricity rules, a notice under Sec.58 was not necessary as the question would be that construction of godown was not an act to be done by the agricultural produce markets committee. 8.1 Similarly, in the case of Khetiwadi Utpadhan Bazar Samati (supra), considering the nature of dispute between the parties i.e. where the dispute was with regard to recovery of earnest money, the issue before the Court was on the question of computation of limitation so left to be decided at the stage of filing of the written statement in the facts of this case. In the case of Agriculture Produce Market Committee Botad (supra), the learned Single Judge of this Court had considered the issue whether Sec.58 was applicable in light of comparison with Sec.487 of the B.P.M.C Act, distinguishing the provisions of Sec.487 of the BPMC Act which was referred by the Court. The Court found that on perusal of Sec.58 of the Act, it does not provide that only those suits which are in respect of any function of administration of the Market Committee, notice under Section 58 is required and for other suit notice is not required. The Court found that on perusal of Sec.58 of the Act, it does not provide that only those suits which are in respect of any function of administration of the Market Committee, notice under Section 58 is required and for other suit notice is not required. The Court held that Sec.58 provides that no suit or other proceedings shall be instituted for anything done or purported to be done and further held that there can be no comparison with the provisions of Sec.487 of the BPMC Act with Sec.58 of the APMC Act. Para 7 of the decision reads as under: “7. Considering the above provision, no suit would be maintainable against the petitioner as the land in question is allotted to the petitioner for its sub market yard and therefore, it was clearly for the administration of the Market Committee to get the possession of the suit property after following due process of law. On perusal of the section 58 of the Act, it does not provide that only those suits which are in respect of any function of administration of the Market Committee notice under section 58 is required and for other suit notice is not required. Reliance placed by the respondent on the decision of this Court refers to section 487 of the BPMC Act which is applicable in respect of any act done or purported to have been done in pursuance of the said Act or any rule regulation or bylaw made thereunder whereas, such section 58 of the Act provides that no suit or other proceeding shall be instituted against the Market Committee for anything done or purported to be done in good faith under the Act until the expiration of two months. Whereas section 487 of the BPMC Act reads as under: “487. Protection of persons acting under this Act against suits. Whereas section 487 of the BPMC Act reads as under: “487. Protection of persons acting under this Act against suits. (1) No suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager or against any municipal officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act:— (a) until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the chief municipal office and, in the case of the Commissioner or of the Transport Manager or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney, advocate, pleader or agent, if any, for the purpose of such suit, nor (b) unless it is commenced within six months next after the accrual of the cause of action. (2) At the trial of any such suit — (a) the plaintiff shall not be permitted to go into evidence of any cause of action except such as is set forth in the notice delivered or left by him as aforesaid; (b) the claim, if it be for damages, shall be dismissed if tender of sufficient amends shall have been made before the suit was instituted or if, after the institution of the suit, a sufficient sum of money is paid into Court with cost. (3) Where the defendant in any such suit is a municipal officer or servant, payment of the sum or of any part of any sum payable by him in, or in consequence of the suit, whether in respect of costs, charges, expenses, compensation for damages or otherwise, may be made, with the previous sanction of the Standing Committee or the Transport Committee from the Municipal Fund or the Transport Fund, as the case may be.” 8.2 We also have the benefit of decision of the Hon’ble Supreme Court in the case of Bharat Kala Bhandar Ltd Vs. Municipal Committee, Dhamangaon., reported in AIR 1966 SC 249 , where considering Sec.48 of the Municipalities Act where objection was taken to the bar of the suit in light of this provision. Considering a decision in the case of Amraoti Town Municipal Committee vs. Shaikh Bhikan Shekh Latif., reported in AIR 1938 Nagpur 455 , which provided that the suit cannot be filed if not filed within a period of six months. The Court held that a suit for damages and compensation is a suit within the province of Sec.48 of the Act. When the action is within the scope of its authorities and is not ultra vires to the Act, mandatory provisions under Sec.48 have to be followed. The relevant paragraphs of the Bharat Kala Bhandar (supra), read as under: “36.The question in short boils down to this, whether the expression ‘anything done or purporting to be done under the Act will cover only those acts which would be in strict consformity with the provisions of the Act or will also cover such acts which the Municipal Committee is competent to do under the Act, but in doing which the Committee has, in some manner, acted beyond the provisions of the Act or beyond any other legal provision. 37. Section 48 of the Act refers to suits against the Committee or any of the other specified persons acting under the directions of the Committee, for anything done or purported to be done under the Act. If a suit is for anything done or purported to be done under the Act, the necessary conditions laid down in the section are to be satisfied before the institution of the suit. One condition is that the suit is to be instituted after the expiration of two months after the service of a notice, in writing, to the persons mentioned in sub-s(1). Another is that that suit be instituted within six months from the date of accrual of the alleged cause of action. If a suit is not instituted after giving notice or within this period, it has to be dismissed. 38. The question then is: what is the present suit for? Another is that that suit be instituted within six months from the date of accrual of the alleged cause of action. If a suit is not instituted after giving notice or within this period, it has to be dismissed. 38. The question then is: what is the present suit for? And it is only on the determination of the nature of the act to which the present suit relates that it can be said whether the suit is covered by S.48 or not i.e. whether the act can be said to be done or purported to be done under the Act. XXX XXX XXX 49. Sub-section(2) of S.48 as already stated, provides that every such suit, i.e. a suit falling within sub-s(1) of that section, shall be dismissed unless it is instituted within six months from the date of the accrual of the alleged cause of action. The suit was instituted in the instant case on December 6, 1952, more than 8 months after the date of recovery of most of the amounts alleged to have been illegally recovered from the appellant and, clearly, the suit for the recovery of such amount had to be dismissed. 50. The taxes for the years, 1951-52 were recovered in small amounts on January 17,1952, March 13, 1952, March 31, 1952 and August 27, 1952. The suit for the amount recovered on January 17 was also instituted after the period of limitation. 51. No notice with respect to the alleged illegal collection of taxes in March and August 1952 had been given to the Municipal Committee as notice was given on January 10, 1952, prior to those collections and could not have possibly referred to them. The suit for these amounts also has to be dismissed as the condition precedent for the institution of the suit under sub-s(I) of S.48 has not been satisfied.” 8.3 We may note that Sec.58, as the title denotes, suggests that bar of suit in absence of notice and is not a section which exclusively bars filing of the civil suits, and therefore, the arguments of the learned counsel for the respondent – original plaintiff that such a section cannot override the provisions of a Central Act like the Limitation Act or Sec.9 of the Civil Procedure Code, cannot be excluded. The principles governing the exclusion of jurisdiction of Civil Court have been well laid down by the Hon’ble Supreme Court in the case of Dhulabhai Vs. State of Madhya Pradesh & Anr., reported in AIR 1969 SC 78 ., and the seven principles read as under: “1 Where the statute gives a finality to the orders of the special tribunals the civil courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. 2. Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. 3. Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. 4. When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. 5. Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. 6. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. 5. Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. 6. Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. 7. An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply: Case law discussed.” 8.4 This is not a case of exclusion. Sec.58 is not a case where the jurisdiction of the Civil Court is ousted completely but is only subject to the mandate being followed, and therefore, the alternative submission made by the learned counsel for the plaintiff – respondent No.1 that there cannot be a conflict between the Limitation Act and Sec.58 of the Act has to be answered in the negative. 8.5 That brings us to the submission with regard to the mandate of the Civil Court being ousted in light of the proceedings of an arbitration clause in the tender agreement, namely, Clause 23 thereof. The decisions have been cited by the learned counsel for the petitioner on the ousting of the Courts’ jurisdiction under Sec.8 on the principle of Sec.8 of the Arbitration Act. On the question of whether the plaintiff did not fully disclose the existence of an arbitration agreement in light of the correspondence that was produced by the plaintiff together with the plaint, the Trial Court could have rejected the plaint only on the ground that no such documents were produced is a question we need not go into though argued because in the first two submissions of the learned counsel for the petitioner that the suit was barred as the mandatory provision under Sec.58(1) & (2) were not complied with have been answered in favour of the petitioner. 9 Accordingly, the order dated 17.12.2022 passed by the Principal Senior Civil Judge, Gandhinagar, in Application below Exh.12 in Commercial Civil Suit No. 48 of 2021 is quashed and set aside. Commercial Civil Suit No.48 of 2021 has to be treated as dismissed. Rule is made absolute accordingly.