B. Prakash Rao, J.
1. Heard Sri M.P. Ugle, the learned Counsel for the appellant. Though served, none appeared on behalf of the respondent.
2. Unsuccessful plaintiff is the appellant herein, who is aggrieved against the judgment and Decree in O.S. No. 89 of 1984 dated 29-8-I992 on the file of II Additional Judge, City Civil Court, Hyderabad dismissing the suit filed for recovery amounts towards the Security Deposit of Rs. 2,17,96-51 ps and damages of Rs. 17,136/- with future interest
3. Briefly the case of the plaintiff, before the Court below, is that it has been appointed as the authorised dealer on behalf of the defendant for selling the goods namely, 'Viyaja Ghee' in the State of Rajasthan. Accordingly, there had been supply of the goods, for which the plaintiff gave security deposit However, the Ghee supplied was found in reddish colour and not salable. The quality of goods was of inferior with bad smell. Therefore, the plaintiff protested with the defendant. After long dealings and correspondence, the defendant sought to cancel the contract and forfeit the amount, which action is illegal.
4. Contesting the suit claim, the defendant, denied the allegation on the claim and stated that the plaintiff did not comply his obligation and the suit is bad for want of notice under Section 126 of the A.P. Cooperative Societies Act, 1964 hence the suit is liable to be dismissed.
5. The Court below, on the pleadings of either side, framed the issues and during the trial, the plaintiff examined P.Ws.1 to 3 and marked Exs.A.1 to A.47 and the defendant examined D.W.1 and marked Exs.B.1 to B.37.
6. Considering the evidence, both oral and documentary, and on hearing the Counsel on either side, the Court below having held that even though the plaintiff is entitled for recovery of the suit amount, dismissed the suit on the ground that the plaintiff did not issue notice under Section 126 of the A.P. Co-operative Societies Act. Hence the appeal.
7. In this appeal, Sri M.P. Ugle, learned Counsel for the appellant submits that having regard to the specific plea raised as to whether the defendant is a Society and an issue has been framed to that effect, the defendant did not discharge the burden, except marking Ex.B.1, which is true copy of Certificate of Registration dated 5-5-1981 issued under Section 8 of the Co-operatives Act and neither the bye-laws nor any regulations of the defendant have been filed. Further, he submitted that there is no evidence with regard to the nature of the business which the defendant is doing and thus, the suit transaction not connected with the business, the suit could not have been dismissed.
8. Having heard the learned Counsel for the appellant and on perusal of the record, the main question which arises in this appeal is - whether the suit of the appellant is liable to be dismissed for want of notice under Section 126 of the A.P. Co-operative Societies Act. The suit claim pertains to the refund of the Security Deposit made by the appellant with the respondent on various grounds of non-supply of proper material. Having regard to the findings arrived at by the Court below on all other issues with regard to the entitlement of the suit claim by the plaintiff, it is not necessary to go into the merits of the case as there are no cross-objections or appeal by the respondent-defendant.
9. For convenience sake, Section 126 of the A.P. Co-operative Societies Act is extracted which reads as follows:
'No suit shall be instituted against a Society or any of it's officers in respect of any act touching the constitution, management or the business of the society until the expiration of sixty days 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.'
10. On a reading of the above extracted Section, it is clear that filing of any suit is barred unless and until notice thereunder is given to the Registrar in respect of any act touching the constitution, management or the business of the Society. Admittedly, in this case, no such notice is given to the respondent. Even the notice issued prior to the notice in Ex.A.46 is not to the Registrar but to the Society. Though an attempt was made to show that there is no evidence on the part of the defendant that it is a Society, we are not prepared to accept the same since Ex.B.37, which is a true copy of Certificate of Registration dated 5-5-1981 issued under Section 8 of the A.P. Co-operative Societies Act, which is sufficient to show that it is a Society, registered under the A.P. Co-operative Societies Act. Non-filing of bye-laws or Regulations is not fatal, nor would it in any way goes contrary. By name, it speaks for itself the nature of the business. Further, the suit transactions and the business dealings between the plaintiff and the defendant squarely pertains to the said business. Therefore, it has to be held that the suit claim touches upon the business of the Society and therefore, the suit is not maintainable.
11. The learned Counsel for the appellant sought reliance on the decision reported in West Godavari District Marketing Society v. K.R. Chandra Chowdary, 1981 (1) An.WR 5, wherein a learned Single Judge of this Court, considering the same provision and placing reliance on the decision of Apex Court in D.M. Co-operative Bank v. Dalichand, : [1969]1SCR887 , holding that the word 'business' means the actual trading or commercial or other similar business activity of the Society, held that the words 'touching the Constitution, management or the business of a Society' do not touch the relief pertaining to service conditions under the Act and therefore, no prior notice to Society is necessary for instituting a suit claiming arrears of salary. However, in the present case, the claim does not pertains to any employee or any service conditions. Therefore, the above decision has no application to the facts on hand.
12. In another decision, relied upon by the learned Counsel for the appellant, reported in Mahendra C. Mehta v. Kousalya Co-operative Housing Society Limited, : 2001(5)ALD102 , another learned Single Judge of this Court held that in a suit filed alleging that Society is trying to occupy or occupying the land belonging to another, issuance of prior notice is not necessary as it cannot be an act touching constitution, management and business of Society and therefore, the suit is maintainable. On facts, the said decision is not applicable. Thus, neither of the aforesaid decisions is of any help to the appellant.
13. However, we take note that the Section 126 of the A.P. Co-operative Societies Act is almost in pari-materia with Section 80 of the Code of Civil Procedure prior to the amendment and both were held to be mandatory. But later, as amended, allowed the parties to file suits in case of urgency by seeking dispensing with the notice. Having regard to the same, we deem it appropriate that similar amendment can as well be introduced to Section 126 of the A.P. Co-operative Societies Act enabling the parties to file similar suits as against the Society by dispensing with the notice to the Registrar. It is needless to observe that having regard to the findings on the merits and nature of claim, it is always open to the appellant to approach the Consumer Forum and seek appropriate relief.
14. With the above observations, this appeal is dismissed, but in the circumstances of the case, without costs.