1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11018 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. WRIT PETITION NO.: 11018 OF 2010 *** 1. Advocate Mr. Shah for Petitioner/ plaintiff points out that before institution of suit for recovery of money a notice under section 164 of Maharashtra Cooperative Societies Act, 1960 was already given. It was replied to by Respondent/ defendant contending that if suit was withdrawn a settlement could be reached. In written statement as filed no defence of absence of statutory notice was raised. After institution of suit in the year 1993, on 5th July, 2000 issues were framed and thereafter application seeking leave to amend written statement has been filed contending that respondent/ defendant is a multi State cooperative society and hence notice under section 115 of Multi State Cooperative Societies Act was essential. That has been allowed. 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11018 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. 2. According to learned counsel by not raising this objection immediately, by permitting suit to proceed further and further by permitting time limit for institution of fresh suit to expire, the respondent/ defendant has waived requirement of such notice even if it is presumed that such notice is legally required. He contends that by allowing such amendment, a defence in that respect which has become available to petitioner is now rendered meaningless as the fresh suit becomes time barred. He is also relying upon certain documents to substantiate his stance. 3. Shri A. K. Tiwari holding for Mr. J. R. Shah supports the impugned order. 4. Various judgments on which Advocate Shri S. P. Shah is placing reliance are on 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11018 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. application of section 80 C.P.Code. I am, therefore, not inclined to refer to those judgments as it is materially different than section 164 or section 215 of Multi State Cooperative Societies Act. 5. The arguments advanced clearly show a case being attempt to show why the issue framed after such amendment on 6th October, 2010 should be answered against the respondent/ defendant. The contentions, therefore, pertains to merits of controversy. The prejudice to plaintiff as urged or then the estoppal or waiver are all questions which are still open and the petitioner/ plaintiff can raise all his grievances before trial Court in accordance with law. Merely by act of allowing amendment petitioner does not lose any right. 6. As the recording of evidence has not yet 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. WRIT PETITION NO.: 11018 OF 2010 Office Notes, Office Memoranda of Coram, appearances, Court’s orders or directions Court’s or Judge’s orders. and Registrar’s orders. began I am not inclined to interfere in this jurisdiction. 7. With liberty to petitioner to challenge impugned order of trial Court, after the suit is finally decided, if occasion arises therefor, writ petition is disposed of. No costs. [B.P.DHARMADHIKARI, J.] Dated:28/02/2011. ans/11018