Karnataka High Court
M/S Suvidha Realtors And ... vs The Hubli Taluka Agricultural ... on 19 July, 2022
Bench: R.Devdas
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WP No. 101000 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 19TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE R.DEVDAS
WRIT PETITION NO. 101000 OF 2021 (GM-CPC)
BETWEEN:
M/S SUVIDHA REALTORS AND CONSTRUCTIONS PVT LTD.,
REPRESENTED BY ITS MANAGING DIRECTOR,
SRI DINESH R MAHAJAN, AGED ABOUT 61 YEARS,
AND ITS DIRECTOR TEJPRAKASH MAHAJAN,
AGED ABOUT 58 YEARS,
BOTH RESIDING AT NO.2,
CENTRAL LIBRARY CAMPUS,
LAMINGTON ROAD, HUBBALLI.
...PETITIONER
(BY SRI.G.V.CHANDRASHEKAR, SENIOR COUNSEL FOR
SRI. S S NIRANJAN.,ADVOCATE)
AND:
1. THE HUBLI TALUKA AGRICULTURAL PRODUCE CO
OPERATIVE MARKETING LTD. A-1, APMC YARD,
AMARGOL, HUBBALLI 580025, BY ITS SECRETARY.
2. THE REGISTRAR OF CO OPERATIVE SOCIETIES IN
KARNATAKA, NO.1, ALI ASKAR ROAD,
BANGALURU 560052.
...RESPONDENTS
(BY SRI.G.R.GURUMATH, SENIOR COUNSEL FOR
SMT.SHARMILA M.PATIL, ADV. FOR R1,
SRI.SHIVAPRABHU S.HIREMATH, AGA FOR R2)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT OF
CERTIORARI AND QUASH THE ORDER PASSED BY THE TRIAL COURT
IN O.S.NO.51 OF 2009 DATED 31.01.2020 AND REMAND THE
MATTER TO BE DISPOSED OFF THE SUIT ON MERITS AND AT
ANNEXURE-A.
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WP No. 101000 of 2021
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING
'B' GROUP THIS DAY THE COURT MADE THE FOLLOWING.
ORDER
R.DEVDAS J., (ORAL):
The petitioner, a company established under the
Companies Act had filed O.S.No.51/2009 and it is
aggrieved of the impugned judgment/order dated
31.01.2020 whereby the trial court held that the suit is not
maintainable for want of compliance of
statutory/mandatory notice under Section 125 of the
Karnataka Co-operative Societies Act, 1959 (hereinafter
referred to as 'the Act' for short) and consequently
returned the plaint to the plaintiff.
2. Learned senior counsel Sri.G.V.Chandrashekar,
appearing for the petitioner/plaintiff submits that the
premise on which the impugned order has been passed is
that, although notice under Section 125 of the Act was
issued by the plaintiff, nevertheless, according to the trial
court, the notice was not only required to be given to the
Registrar of Co-operative Societies, but also to the
WP No. 101000 of 2021
defendant-society. The trial court has also considered
issuance of notice under Section 80 of CPC. Learned senior
counsel submits that plain reading of Section 125 of the
Act contemplates issuance of two months notice to the
Registrar and it does not contemplate issuance of notice to
the society even if a suit is required to be instituted
against the co-operative society or any of its officers in
respect of any act touching upon the business of the
society.
3. Learned senior counsel has drawn the attention
of this court to an earlier order passed by the trial court on
I.A.No.2 dated 29.06.2009. The said application was filed
under Order XXXIX Rule 1 and 2 of CPC by the plaintiff
seeking to restrain defendant No.1 by an order of ad-
interim injunction from holding any re-sale by public
auction for the sale of the suit properties until disposal of
the suit. At para 18 of the order, it was pointed out that
certain facts were recorded after verifying the records. In
para 18 of the order dated 29.06.2009 on I.A.No.2, the
WP No. 101000 of 2021
trial court held that, after going through the records, it is
found that the plaintiff had earlier presented the suit on
15.12.2008 and there is an order on 20.12.2008 that the
plaint was returned to the plaintiff for compliance of the
notice and the suit was re-presented on 02.03.2009. It
was also noticed that after taking return of the plaint, the
plaintiff has issued a notice under Section 125 of the Act
on 23.12.2008 and thereafter, after completion of two
months period as contemplated under Section 125 of the
Act, the suit was re-presented on 02.03.2009. Learned
senior counsel would further submit that the trial court
seems to have based its judgment on a decision of this
court in the case of Arogyanagar Co-operative Housing
Society Ltd. and Another vs Fakiragouda and
Another (ILR 2004 KAR 1445).
4. On going through the said decision in the case
of Arogyanagar Co-operative Housing Society, this court
finds that the said decision does not contemplate or
interpret Section 125 of the Act requiring a notice to be
WP No. 101000 of 2021
issued to the society. In fact, it was found that a notice
under Section 125 of the Act was not issued by the
plaintiff. Therefore, this court upheld the decision of the
trial court in rejecting the plaint on the ground that the
mandatory requirement of issuance of notice under
Section 125 of the Act was not complied by the plaintiff.
5. Learned senior counsel Sri.G.R.Gurumath
appearing for respondent No.1-society would fairly submit
that there was some confusion regarding the dates of the
original filing of the suit and the subsequent returning of
the plaint and re-filing of the suit. Therefore, having
looked into the earlier orders passed by the trial court on
29.06.2009, wherein the factual aspects have been clearly
narrated in para 18 that the suit was originally filed on
15.12.2008, the plaint was returned on 20.12.2008 and
thereafter, the plaint was re-presented on 02.03.2009
after issuance of notice to the Registrar of Co-operative
Societies as contemplated under Section 125 of the Act,
the impugned order has been passed on a wrong reading
WP No. 101000 of 2021
of the judgment in the case of Arogyanagar Co-operative
Housing Society.
6. Having heard the learned senior counsels and
having perused the petition papers, this court finds that
the order of the trial court in holding that the suit is not
maintainable for want of compliance of the statutory notice
under Section 125 of the Act and further returning the
plaint, cannot be sustained. On plain reading of Section
125 of the Act, it is clear that even if the suit is required to
be filed against a co-operative society touching upon the
business of the society, what is contemplated is issuance
of notice to the Registrar and not to the society. The
question of going into Section 80 of CPC also does not
arise since what is contemplated under Section 80 of CPC
is issuance of notice to the State Government or a public
officer in respect of any act purporting to be done in his
official capacity. Section 80 of CPC would not come into
picture in the present factual matrix, since the suit is filed
by the plaintiff who had entered into an agreement with
WP No. 101000 of 2021
the respondent-society and at best, notice in terms of
Section 125 of the Act was required to be given. On
verification of the factual matrix, this court finds that the
plaintiff has issued a notice under Section 125 of the Act,
giving a period of two months to the Registrar of the Co-
operative Society before re-filing the suit. Consequently,
the writ petition is required to be allowed. Hence, this
court proceeds to pass the following:
ORDER
i) The writ petition is allowed.
ii) The impugned order dated 31.01.2020 passed
in O.S.No.51/2009 by the Principal Senior Civil
Judge, Hubballi is hereby quashed and set
aside.
iii) The suit is restored to its original file.
iv) The Principal Senior Civil Judge, Hubballi shall
re-commence the proceedings from the stage
when which the impugned order was passed
WP No. 101000 of 2021
and make all endeavour to dispose of the suit
as expeditiously as possible and at any rate
within a period of six months from 16.08.2022.
v) The parties are directed to appear before the
trial court on 16.08.2022 at 11.00 a.m. without
waiting for further notice.
vi) Needless to observe that the interim order
passed by the trial court restraining the
defendants from holding any re-sale by public
auction for sale of the suit properties, until
disposal of the suit shall continue after
restoration of the suit, until disposal of the suit.
vii) Ordered accordingly.
SD
JUDGE
MBS
