Andhra HC (Pre-Telangana)
Kona Ramu vs The Payakaraopeta Primary ... on 27 June, 1997
Equivalent citations: 1997(4)ALT45, 1997 A I H C 4096, (1997) 5 ANDHLD 94, (1998) 1 ICC 244, (1997) 4 ANDH LT 45
Author: R. Bayapu Reddy
Bench: R. Bayapu Reddy
ORDER R. Bayapu Reddy, J.
1. This revision is filed by the plaintiff in the unnumbered suit in G.R.No. 1389, dated 15-3-1994 against the orders of the Principal District Munsif, Yellamanchili dated 26-7-1994 by which the plaint filed by him was rejected under Order 7 Rule 11(d) C.P.C.
2. The petitioner had filed the suit against the respondents 1 to 3 seeking the relief of declaration that the loan No. 24403, dated 30-7-1992 and another loan No. 24676, dated 4-8-1992 said to have been granted by the first respondent society to him are null and void and for consequential relief of permanent injunction restraining the defendants from proceeding against him and his properties for realising such loans. The Office took an objection in the lower Court that the suit is not maintainable for want of notice Under Section 126 of A.P. Co-operative Societies Act, 1964 (for short' the Act').
3. After hearing the contentions of the learned Counsel for the plaintiff the lower Court came to the conclusion that the suit was not maintainable for want of notice Under Section 126 of the Act 1964 and as such the plaint was rejected under Order 7 Rule 11(d) C.P.C. Questioning such orders of the lower Court the present revision is filed by the plaintiff.
4. Heard both sides.
5. The learned Counsel for the petitioner firstly tried to contend that the notice Under Section 126 of the Act 1964 is not mandatory in a suit of the present nature, that the suit is not filed by him relating to any management or business of the first defendant society or touching its constitution and that therefore the lower Court has erred in rejecting the plaint on the ground that notice Under Section 126 of the Act 1964 is not issued. But such contention raised before the lower Court was not accepted and rightly so in my view Section 126 of the Act states that no suit shall be instituted against a society or any of its 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. In the present case, it is clear from a perusal of the plaint and the averments made therein that the plaintiff is questioning the validity and legality of two loans alleged to have been granted to him by the first defendant's society contending that no such loans were, in fact, borrowed by him that the respondents committed fraud upon him and obtained his signatures in some blank papers and subsequently fabricated the relevant documents to evidence the loan transactions and that therefore the relief of declaration that such loans are null and void may be granted. Even though it is alleged in the plaint that the employees of the defendant committed fraud upon him by obtaining his signatures in some blank papers, the relief prayed for in the plaint relates only to the loans said to have been sanctioned by the first respondent society to the plaintiff. As a matter of fact, even prior to the filing of the suit a notice was issued by the plaintiff to the society by way of reply to a notice issued to him by the society that the plaintiff had borrowed such loans from the society and that he is still liable to discharge those loans. It is clear from such circumstances that the suit is filed only to question the validity and legality of such loans said to have been granted to him. When the suit is of such a nature regarding the validity of the loan said to have been granted notice Under Section 126 of the Act is mandatory inasmuch as the relief prayed for in the plaint can be said to be touching the business of the society as the act of granting and collecting loans will be in the course of business of such society. Therefore, as per Section 126 of the Act notice is mandatory, and inasmuch as such notice was not given by the plaintiff before filing the suit the learned District Munsif, rightly rejected the plaint.
6. The learned Counsel for the revision petitioner however tried to contend that the lower Court ought not to have rejected the plaint without numbering the same for want of notice Under Section 126 of the Act, that it ought to have numbered the plaint and given an opportunity to the defendants to put forward their contentions and then frame an issue and then alone decide the question whether such notice Under Section 126 of the Act is necessary before the suit is filed. He has tried to rely upon the decision reported in Sreedam v. Tencori, and some other decisions in support of his contention. It is seen from the said decision that Their Lordships have observed that Order 7 Rule 11(d) C.P.C. is attracted only when on the admitted facts as appearing from the plaint itself the suit is 'prima facie' barred. It was further observed in the decision that the question whether Section 80 C.P.C. would be attracted or not could not be decided merely on the point as it stood and that the Court should have registered the plaint, issued notices on the defendants and allowed them to file their written statements and that after issues were framed, it would have been open to the Court to take up one or more of the issues as preliminary ones and decide the same, and that the order of rejection of the plaint in limine was therefore bad. But in the present case, even a reading of the plaint and the earlier notice and reply notice clearly reveal that while the respondent is claiming that the loan was, in fact, granted to the plaintiff and such loan still subsists, the plaintiff is asserting that the loans said to have been granted to him are null and void as they were the result of some alleged fraud committed on him and that the suit was filed for the relief of declaration that the alleged loans are null and void. It is therefore clear from a perusal of the plaint itself that the suit was being filed for questioning the validity of the loan transaction said to have been entered into with the first respondent and such loan transaction admittedly refers to the business of the Society as contemplated Under Section 126 of the Act. Therefore, under such circumstances, the lower Court was justified in rejecting the plaint on the ground that the statutory notice Under Section 126 of the Act 1964 did not precede the filing of the suit. Therefore the abovesaid decision does not apply to the facts of this case.
7. He has also tried to rely upon the decision of this Court reported in Koduru Gayatri Devi being rep. by Mother and Guardian Smt. Subhadra Devi v. Kamarsu Jogi Raju, 1971 APLJ 53 (NRC) wherein also it is observed that rejection of plaint before numbering is not proper. But it is to be seen from the facts of that case that what was in dispute in that particular case was regarding the valuation of the subject matter of the suit. The plaintiff valued the suit in a particular amount and paid Court fee thereon while the Court was of the opinion that the subject matter of the suit was of higher value. When the plaintiff failed to deposit the Court fee as per the valuation fixed by the Court, the plaint was rejected. Under such circumstances, it was observed in that decision that the Court ought to have numbered the suit and given an opportunity to the defendants to file their written statements and then arrive at the correct valuation of the subject matter of the suit and then alone decide whether the valuation made by the plaintiff was correct or not. In the present case no such points are involved inasmuch as the notice Under Section 126 of the Act 1964 is mandatory and there may not be any second opinion about the same. Therefore, there was no necessity to number the plaint and then give opportunity to the defendants to file their written statement before rejecting the palint as the suit itself is barred for want of such notice. He has also fried to rely upon another decision of this Court reported in United India Insurance Company v. C.R. Ramanatham, 1989 (1) ALT 190 in support of the same contention. It is observed in the said decision that under Order 7 Rule 11(d) C.P.C. a plaint must be rejected only if the averments therein explicitly disclose that the suit is barred by the provisions of any law, but not otherwise and the Court has no power to throw out the suit by rejecting the palint at the threshold stage by examining and interpreting the provisions of law on which the suit is found and that what is explicitly mentioned in the plaint, therefore, must alone be the basis for the exercise of power under Order 7 Rule 11(d) C.P.C. but not the conclusions that may be interpretatively drawn on an examination of the statutory provisions alluded to in the plaint. But, as already stated above, in the present case, a mere reading of the plaint suggests that the suit is filed questioning the validity of the loan transaction which relates to the business of the first defendant society and that such suit is clearly not maintainable without a prior notice Under Section 126 of the Act. Therefore the above cited decision of our High Court cannot also be of any assistance for the contention of the plaintiff.
8. The learned Counsel for the revision petitioner has next contended alternatively that in the present case there was in fact a notice issued on behalf of the plaintiff on 14-12-1993 by way of reply to the notice already issued on behalf of the first defendant society denying the alleged loan transaction and contending that it was the result of fraud exercised upon him and that the reply notice dated 14-12-1993 can be construed as the notice Under Section 126 of the Act and that the lower Court was, however, failed to take this aspect into consideration. He has also produced a copy of the said reply notice dated 14-12-1993 before this Court, and it is also submitted by him that the said copy of notice was enclosed to the plaint. But it is to be seen from a perusal of the said reply notice dated 14-12-1993 issued on behalf of the plaintiff to the first defendant society that it does not conform to the provisions of Section 126 of the Act. The notice as contemplated Under Section 126 of the Act is to be delivered to the Registrar of the Co-operative Societies and the plaint must contain a statement that such notice as contemplated Under Section 126 of the Act 1964 has been, in fact, delivered to the Registrar of the Society. The reply notice admittedly is addressed only to the Secretary of the first defendant society putting forward the contention of the plaintiff regarding the validity of the loan transaction. The suit is filed against the Society and its officials and the suit contemplated Under Section 126 of the Act 1964 is also against the society or any of its officers in respect of any act touching the constitution, management or the business of such society. Section 126 specifically provides that no such suit shall be instituted against the society or its officers unless it is preceded by a notice delivered to the Registrar of Co-operative Societies. In the present case, the reply notice dated 14-12-1993 was admittedly not addressed and not delivered to the Registrar of Co-operative Societies. Therefore, the alleged notice dated 14-12-1993 is not in conformity with the provisions of Section 126 of the Act 1964 and as such it cannot be considered as such notice which must precede the filing of a suit against the society. Therefore the above said contention of the learned Counsel for the revision petitioner cannot also be accepted. In view of all these circumstances, the lower Court was justified in rejecting the plaint as not maintainable for want of notice Under Section 126 of the Act 1964 and there are no valid reasons for interfering with such orders of the lower Court.
9. The learned Counsel for the respondent has also tried to contend that the revision is not maintainable against the orders of the rejection of the plaint and that the revision petition is therefore liable to be dismissed on such ground also. It is an admitted fact that the present revision petition is filed against the orders of rejection of palint under Order 7 Rule 11 (d) C.P.C. Such an order amounts to a decree against which only appeal lies before the concerned forum and not revision Under Section 115 C.P.C. This view is clearly expressed by various High Courts in the decisions reported in Rameshwar v. Bhagwati Devi, ; Mohd. K. Rowther v. Hassan Rowther, (F.B.) and Sudharsh Kumar Ahuja v. R.P. Joshi, . Therefore in this view also the revision is liable to be dismissed. For the foregoing reasons this revision petition is liable to be dismissed.
10. In the result, the revision petition is dismissed. No costs.