Raj Pal Grover vs The Guru Nanak Joint Co-Operative Farming Society Ltd., Kaithal

J.V. Gupta, J.—The plaintiff--appellant filed the suit to pre-empt the sale made on behalf of his'' father Tirath Ram in favour of the defendant-respondent Guru Nanak Joint Co-operative Farming Society Ltd., Gunthala Garhu, vide registered sale deed dated (sic) February, 1960, for a consideration of Rs. 55000/-. The superior right of pre-emption was claimed on the ground that the plaintiff is the son of the vendor Tirath Ram The suit was contested on the ground that the land sold was waste land and it had been reclaimed by the defendant after its purchase and as such was not pre-emptible. It was further pleaded that the notice as required u/s 79 of the Punjab Cooperative Societies Act, I of (hereinafter referred to as ''the Act'') having not been served on them, the suit as such was not maintainable. On the pleadings of the patties the trial Court framed the following issues :--

Whether the plaintiff has got superior right of pre-emption ?

Whether the suit is had for want of notice u/s 79 of Act No 5 of 1961 ?

3 Whether the suit land as waste at the time of its sale and has since been reclaimed by the vendee before the institution of the suit ?

Whether the plaintiff has waived his light of pre-emption ?

Whether the defendant-vendee was a tenant of the suit land under the vendor at the time of its sale ?

Whether the price of the suit land was fixed and paid in good faith?

In case issue No. 6 is not proved, what was the market value of the suit land at the time of its sale ?

Relief.

The plaintiff was nor suited by the trial Court as issue No. 2 was found against him. Under issue No. 2 the trial Court found that since no notice u/s 9 of the Act was served on the defendant, the suit as such is not maintainable. In appeal the learned District Judge affirmed the findings of the trial Court on all the issues and thus maintained the decree dismissing the plaintiff suit. Dissatisfied with the same the plaintiff has come up in second appeal in this Court.

Section 79 of the Act, reads as under :

Notice necessary in suits.-- No suit shall be instituted against a co-operative society or any of its Officers in respect of any act touching the business of the society until the expiration of three 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.

According to the Learned Counsel for the appellant notice under the said section is required to be delivered to the Registrar and not to the cooperative society as such. The argument further proceeded that Registrar as such is not competent to decide the matter on behalf of the co-operative society on the receipt of the notice, if any, and, therefore, there is no purpose in giving any notice as contemplated u/s 79 of the Act. He also referred to Section 55 of the Act, which deals with the dispute which may be referred to arbitration. According to the Learned Counsel the nature of disputes contemplated therein are such which may be reference to the Registrar for a decision. Since the dispute in the present suit for pre-emption does not fall in any of them, there was no necessary of issuing any notice u/s 79 because, according to the leaned counsel, the very object of the notice is that on receipt of the notice the cooperative society concerned may consider effectively and in case the claim is a genuine one the same may be accepted without going into litigation. To support this contention the Learned Counsel referred to Section 80 of the CPC and the objection of instance of a notice thereunder.

After hearing Learned Counsel for the parties I do not find any merit in this appeal Section 55 of the Act only deals with the disputes which may be referred to arbitration. These disputes are out of the ambit of section 79, which contemplates a notice when a suit is to be instituted against a cooperative society in respect of any act touching the business of the society. It has not been contended that the suit is not in respect of any act which does not touch the business of the society. The defendant society deals in sale and purchase of land, and, therefore, presumably on this ground it has not been contended by the plaintiff that it does not touch the business of the society as such The argument of the Learned Counsel for the appellant that since the notice is to he delivered to the Registrar and not to the cooperative society as such does not advance his case any further. Section 79 provides a mode that the service of that notice is to be made by delivering it to the Registrar. In case the Registrar himself is not competent to deal with the matter, he can certainly send the same to the cooperative society as such. That does not mean that the issuance of a notice is without any purpose, because it is to be delivered to the Registrar. Even u/s 80 of the CPC a notice has to be delivered to the functionary of the Government Moreover under the Act, ''Registrar'' as defined means a person appointed to perform the functions of the Registrar of Cooperative Societies, and u/s 61 of the Act, even has the power to cancel the registration of a society. Moreover, it is nothing more than a mode of service and therefore, is not significant for that matter. However, the matter is not without any precedent In Pt. Jandhu Lal and others v. Thappar Industries Cooperative Housing Society Ltd. ILR 1957 P&H. 1995, it has been held under this every Act that the giving of statutory notice in accordance with law is a condition precedent to the institution of the suit. No suit will be entertained and the merits and demerits of respective contentions raised by the parties cannot be examined unless the provisions as to the giving of a notice has been complied with. The language of the section is clear and unqualified and whenever a suit is instituted in respect of any act touching the business of the society, a notice as provided must be given.

Consequently the appeal fails and is dismissed with costs.