Karnataka High Court
The Krishi Mattu Ksheera Utpadaka ... vs Sohanlal on 16 November, 1992
Equivalent citations: AIR1993KANT20, AIR 1993 KARNATAKA 20, (1992) ILR (KANT) 3587, (1993) 78 COMCAS 132, (1993) 1 CURCC 377, (1993) 1 CURLJ(CCR) 420, (1993) 1 BANKCLR 107
ORDER Shyamsundar, J.
1. This is a reference made by a Division Bench consisting of our brethern Mr. Justice Venkatachala and Mr. Justice Murlidher Rao as their Lordships then were commending to the consideration of a Full Bench a brace of two questions, acting under Section 7 of the Karnataka High Courts Act. The need for the reference arose at the hearing of R.F.A. 57 of 1990. The two questions as formulated by the Bench are :
"1. Whether the words 'any act' found in Section 125 of the Karnataka Co-operative Societies Act is referable to the Co-operative Society or an officer of a Co-operative Society or both?
2. Whether the words 'any act' is referable only to illegal omissions"?
The aforesaid questions for consideration appear to have arisen according to their Lordships in the light of two decisions of this Court i.e. The Bank of Citizens, Belguam v. Balwant Venkatesh Patodar, 1961 Mys LJ 397 and (ii) Somwarpet Nad Agricultural Produce Marketing Co-operative Society Limited v. Sha Mangilal Mohanlal and Company, R.F.A. 65/1969 decided on 5-7-1971. Apparently doubting the correctness of the decisions referred to supra their Lordships have commended for consideration of the Full Bench the two questions formulated by them as aforesaid. We will now proceed to consider the foregoing questions.
2. Question No. 1:--
The question herein is whether the words 'any act' found in Sec. 125 of the Karnataka Co-operative Societies Act, 1959 (hereinafter referred to as 'the Act) refers to the Society or an officer of the society or both, hinges on the width or reach of the expression 'any act' found in the Act. In order to measure the span of the expression 'any act' it would, in our view, be necessary to set out the section itself. Therefore, it is, the aforesaid provision is set out as hereunder:
"125. Notice necessary in suits:--
No suit shall be instituted against a cooperative 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 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."
A plain evaluation of the provision brings to the fore the need for issuing of a notice as enjoined thereunder prior to the institution of a suit by an aggrieved person who complains of any act done, may be by the society or an official of the society or by both. Since the tenability of the suit depends on the issuing of a notice under Sec. 125 of the Act, the need arises to ascertain the circumstances in which a notice becomes mandatory and has to be insisted upon as a necessary prelude.
Whatever be the act, be it legal or illegal, if it relates to the Constitution, management or business of the society, a notice under Sec. 125 becomes a fore-runner in the absence of which the suit would be doomed is what one of us, Swami J. (as he then was) held in Mahadevaiah v. Sales Officer, ILR 1990 Kant 151. The rationale of the decision is succinctly set out in the head note to the decision :
"Section 125 of the Act specifically provides that when in any suit, the relief is in respect of any act committed by the Society or its Officers touching the Constitution, management or the business of the society, no such suit shall be instituted without issuing the notice as required by Section 125 of the Act.
In the instant case, the act of the Society and its Officers relates to the amount due under the Award. Thus the act complained of relates to the business of the Society since it relates to the recovery of the amount due under the Award. Consequently it follows that the provisions of Section 125 are attracted to she reliefs sought for in the suit."
Proceeding further His Lordship referred to the decision of the Supreme Court in Amarnath Dogra v. Union of India, considering in the context the scope of Sec. 125, Swamy, J. held that whenever a statute prescribes the issuance of a notice before the institution of a suit, a suit brought without issuing such a notice is bad in law and the Court will not have jurisdiction to entertain such a suit. It was, however, held that the non-issuance of a notice under Sec. 125 if it was a must would only result in the judgment and decree being set aside and thereafter the plaint returned instead of dismissing the suit. But this aspect of the matter came to be dissented upon by a later Bench in Syed Abdul Jabbar v. Board of Wakfs, ILR 1991 (2) Kant 1628. In that case their Lordships pointed out that if there is want of a proper statutory notice the only course open to the Court is to reject the plaint and that the plaint could not be ordered to be returned for presentation to the proper Court. Based on the foregoing view of the Division Bench the decision in Mahadeviah's case referred to supra stood partially eclipsed but otherwise remains intact vis a vis the question of issuance of notice under Sec. 125 of the Act where the act complained of is against a society or an officer of the society or may be both, provided, the act complained of related to the Constitution, the management or business of the society. We would point out at this stage that even in the case of an act simplicter, per se a notice under Sec. 125 of the Act would be necessary. This conclusion we also reach on the basis of the decision in Amalgamated Electricity Company (Belgaum) Limited v. Municipal Committee, Ajmer, .
The scope of Section 80. C.P.C. was considered by the Supreme Court in the said decision i.e. Amalgamated Electricity case. That was a suit against a public officer in respect of an act done in an official capacity. It was contended therein that under Sec. 233 of the Municipalities Regulation a suit against a Committee or against a member of officer etc., could not be instituted unless preceded by a suit notice. Therein after referring to Section 80 of the Code of Civil Procedure and on juxtaposing the same with Section 233 (supra) their Lordships were pleased to observe at page 231 as follows:
"So far as suits against public officials are concerned this section is an exact reproduction of Section 80, Civil Procedure Code. But Section 80, Civil Procedure Code has two parts namely :
(1) Suits against Governments, and (2) Suits against public officers in respect of acts purporting to be done by those public officers in their official capacity.
So far as suits against Governments are concerned, they cannot be validly instituted without giving a notice as required by Section 80, Civil Procedure Code. But when we come to suits against public officers, Section 80, Civil Procedure Code applies only to suits in respect of any 'act' purporting to be done by a public officer and that in his official capacity. Hence before Section 80 can be relied on in any suit against a public officer, it must be shown that it is a suit in respect of an 'act' purporting to be done by him in his official capacity. In view of the provisions of the General Clauses Act, the expression 'act' also includes illegal omissions. Therefore if the suit does not relate to any 'act' or 'illegal omission' purporting to be done by a public officer in his official capacity, Section 80 will not have any application. Similar is the position under Section 233 of the Ajmer Merwara Municipalities Regulation."
The pronouncement of the Supreme Court on the scope of Sec. 80, which is undoubtedly in pari materia with Sec. 125 of the Act, without more indicating that not merely 'an act' but also 'an illegal omission' if it is attributable to the society ex facie entails a notice under Sec. 125 of the Act, if the said 'act' or 'omission' were to be challenged in a suit. But if the act referred to in Sec. 125 of the Act pertains to anything done by an officer of the society then as Swami, J. pointed out in Mahadevaiah's case the act if it relates to the business, management or Constitution of the society the issuance of a notice under Section 125 of the Act is mandatory but not otherwise. In other words, where 'the act' or 'omission' committed by an officer of the society does not relate to the Constitution, management or business of the society and is distinct from the society, then a notice under Set. 125 of the Act is uncalled for. This would be our answer to question No. 1.
4. Point No. 2 :--
The point herein contemplates an investigation to ascertain whether the word 'act' found in Section 125 of the Act is referable to illegal omissions alone or it is also referable to a mere omission that is simpliciter and plain. It seems to us the controversy if any that might have prevailed apropos the foregoing prior to the decision in State v. Chandra Kant, as to whether the 'act' or 'omission' being legal or otherwise has since lost all its parenthesis in the light of the pronouncement of the Supreme Court in the case referred to supra.
Therein the Court made it very clear that anything done by an officer in his official capacity, whether it is a case of non-feasance or misfeasance being clearly an act or a step taken by an officer in his official capacity attracted the issuance of a statutory notice under Sec. (25. The relevant dicta of the Court which is at page 995 is to the following effect:
"These provisions indicate that the Registrar is a Public Officer. The words 'act purporting to be done in official capacity" have been construed to apply to non-feasance as well as to misfeasance. The word 'act' extends to illegal omissions. See Prasaddas v. Bennerjee, ILR (1930) 57 Cal 1127 : (AIR 1931 Cal 61). No distinction can be made between acts done illegally and in bad faith and acts done bona fide In official capacity. See Bhagchand Dagadusa's case (54 IA 338) Section 80 of the Code of Civil Procedure therefore is attracted when any suit is filed against a Public Officer in respect of any act purporting to be done by such Public Officer in his official capacity.
The language of Section 80 of the Civil Procedure Code is that a notice is to be given against not only the Government but also against the Public Officer in respect of any act purporting to be done in his official capacity. The Registrar is a Public Officer. The order is an act purpoting to be done in his official capacity."
In the light of the foregoing dictum of the Supreme Court there can possibly be no doubt at all that the expression 'any act' appearing in Sec. 125 is referable not merely to an illegal omission but also to an omission simpliciter. In the circumstance it behoves on our part to fall in step with the views of the apex Court as aforesaid and in the light of the same to hold that the expression 'any act' referred to in Sec. 125 is not confined to illegal omissions alone but also covers a mere omission simpliciter. In fine our answers to the questions formulated are:
(1) (i) Notice under Section 125 is mandatory, where the act in question is with reference to the society. Such notice is also necessary if the 'act' in question is with reference to an officer of the society and the 'act' or omission complained of relates to the Constitution, management or business of the society.
(ii) Notice is also mandatory where the 'act' in question covers both the society and the officer.
(2) The expression 'any act' referred to in Sec. 125 of the Act is not confined to illegal omissions alone but also covers a mere omission simpliciter.
5. While parting we must hold that in the light of our views herein, the decision in the case of Ankola Urban Co-operative Credit Bank and in the Bank of Citizens, Belgaum case as also the decision in Somwarpet and Agricultural Produce Marketing Co-operative Society Ltd. are no longer good law. The matter will now go back to the Division Bench for disposal in the light of the findings recorded by us herein as aforesaid.
6. Order accordingly.