1 app439-09 ttm IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.439 OF 2009 IN SUIT NO.1704 OF 1979 The Cotton Corporation of India Ltd. .. Appellants Vs. The Co-operative Textile Mills Ltd. .. Respondents Mr.Gaurav Joshi with Mr.U.M.Mahajan and Ms.Sanika Karnik i/b M/s.Divekar and Co. for the appellants None for the respondents CORAM: D.K.DESHMUKH & K.K. TATED, JJ. DATE: 22nd FEBRUARY, 2011 P.C. 1. In this appeal, the appellants challenge the order of the learned single Judge dated 1.12.08 in suit 1704 of 1979. That suit was filed by the present appellants for recovery of sum of Rs.8,63,211.94 with further interest @ 17% p.a. on the amount of Rs.7,72,068/- from the date of suit till the date of judgment and thereafter @ 6% p.a. till payment. 2. The suit was filed for recovery of damages for breach of contract 2 app439-09 committed by the defendants. The defendants appeared and filed written statement. On the basis of the rival pleadings and the documents, the learned single Judge framed following issues: ISSUES 1. Whether the suit is maintainable as no notice under section 117 of the Uttar Pradesh o-operative Societies Act, 1965 was given to the Registrar, as alleged by the Defendants in paragraph 1 of the Written Statement? 2. Whether this Hon ble Court has no jurisdiction as ’ alleged by the defendants to entertain and try this suit in paragraph 2 of the written statement? 3. Whether the plaintiffs prove that circular CCI/IMP/GLOBAL/CIR-II dated 5th April, 1977 was received by the defendants or that the defendants had no knowledge of the said Circular as alleged by the Defendants in paragraph 4 of the written statement? 4. Whether the plaintiffs prove that the letter dated 19.7.1977 was received by defendant as alleged in para 4 of the plaint? 5. Whether the plaintiffs prove that the circular dated 5th April, 1977, letter dated 11th April, 1977 and 18th April, 1977 3 app439-09 constitute valid, binding and concluded contract between the plaintiffs and the defendants as alleged in paragraph 3 of the plaint? 5A. Whether the Defendants prove that the signatory of letter dated 18th April, 1977 had no authority to issue the purchase order of the raw materials for and on behalf of the Defendant Society? 6. Whether the defendants prove that the plaintiffs have committed breach of the Contract as alleged in paragraph 5 of the Written Statement? 7. Whether the plaintiffs prove that the defendants have committed breach of the Contract by not lifting the said suit cotton? 8. Whether the plaintiffs prove that the suit cotton was sold and the plaintiffs suffered a loss upto Rs.7,72,068.41 ps. as alleged by the plaintiffs in paragraph 6 of the plaint? 9. Whether the plaintiffs are entitled to a decree for a sum of Rs.8,63,211.94 or for any other amounts with interest at the rate of 17% per annum on the sum of Rs.7,72,068.41? 10. What decree? 11. What order? 4 app439-09 3. By the judgment which is impugned in this appeal, the learned single Judge decided all the issues in favour of the plaintiffs except issued no.1. 4. The learned single Judge held that in the absence of any notice being issued to the Registrar by the plaintiffs under section 117 of the U.P.Co- op.Societies Act, the suit is not maintainable. The learned single Judge however, recorded that had the suit of the plaintiff been maintainable then on the basis of the material on record, plaintiffs were entitled to decree in terms of prayer clause (a) and (b) of the plaint. Therefore, the only question we have to decide is whether the finding recorded by the learned single Judge on issue no.1 that in the absence of any notice being issued to the Registrar by the plaintiffs as required by the provisions of section 117 of the U.P.Co-op.Societies Act, the suit is not maintainable. 5. The learned single Judge has recorded a finding that this court had exclusive Jurisdiction to try the suit as entire cause of action for filing the suit arose within the territorial jurisdiction of this court. 6. The learned single Judge however, held that in the absence of notice issued to the Registrar under section 117 of the Co-op.Societies Act the suit was not maintainable, relying on the judgment of the learned single Judge dated 2.8.04 in suit no.1652 of 1980. The learned single Judge has however, noted that appeal no.1007 of 2005 against that judgment of the learned single Judge was pending before the Division Bench. We today by 5 app439-09 our order passed in appeal no.1007 of 2005 have reversed the finding recorded by the learned single Judge in suit no.1652 of 1980 that in the absence of service of notice under section 117 of the U.P.Co-op.Societies Act on the Registrar, suit no.1652 of 1980 was not maintainable. 7. For the reasons that we have recorded in our judgment in appeal no.1007 of 2005, the finding recorded by the learned single Judge in judgment impugned in this appeal in relation to issue no.1 has to be set aside. It is accordingly so ordered. It is also held that it was not necessary for the plaintiffs to serve any notice under section 117 of the U.P.Co- op.Societies Act on the Registrar before instituting this suit. As a result, the suit stand decreed as recorded by the learned single Judge in para 22 of his order in prayer clause (a) and (b). 8. Appeal disposed of. (D.K. DESHMUKH, J) (K.K. TATED, J)