1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO.187 OF 2006 The Bicholim Urban Co-Operative Bank Ltd., Having its Central Office at, Nandanvan, Near Town Centre, Bicholim – Goa, and under Co-op. Bank of India, Mumbai, and registered as a Co-operative Society under the Maharashtra Co-operative Societies Act, 1960, as applicable to the State of Goa, represented by its Chairman, namely Shri Umesh Narayan Prabhu Zantye, Residing at Bicholim Goa. ..... Appellant V/s. Shri Arvind Venkatesh Chikodi, Major of age, Married, Residing at Khadpaband, Gulmohar Housing Co-operative Society, Ponda, Goa. ..... Respondent. Mr.M.S.Sonak, Advocate, for the appellant. Mr.V.A.Lawande with Ms.F.Mesquita, for the respondent. CORAM : - P.B.MAJMUDAR & U.D.SALVI, JJ. DATED : 02nd March, 2009. ORAL JUDGMENT : (PER P.B.MAJMUDAR, J. ) 1. The appellant is the original plaintiff, who instituted a Special Civil Suit No.22 of 2004 for getting a decree for Rs.17,25,327.50 with interest from 31-05-1995 till the realization. 2 The said suit was filed on the ground that in the year 1993, the plaintiff decided to appoint staff members and for that purpose, advertisement was issued for the posts of Officer/Clerks/Peons/Watchmen. A public advertisement was given in Navhind Times dated 21-04-1993. The plaintiff constituted a selection assessment and selection committee, comprising of one Anand K. Shetty, who was then the Chairman of the Bank and has subsequently expired, Mr.Dilip K. Kankare, Managing Director/Chief Executive Officer and the present respondent. It was a three members committee which was constituted for the selection of the staff. It is the case of the plaintiff that without considering the proper assessment of the candidates, a merit list was prepared by the selection committee. The selection committee ignored the merit list and accordingly, illegal recruitment was made. It is the case of the plaintiff that because of aforesaid illegalities in the selection process, the plaintiff's society suffered financial loss and on that basis ultimately, suit for damages to the tune of aforesaid amount has been filed against the present respondent/original defendant, on 11- 07-2004. 2. The suit was resisted by the respondent herein/original defendant on various grounds. One of the ground which was taken in the written statement was that the suit is barred by limitation and that the suit is also bad for want of statutory notice 3 as per Section 164 of the Maharashtra Co-operative Societies Act, 1960, which is also applicable so far as State of Goa is concerned. On behalf of the defendant, an application under Order 7 Rule 11 of C.P.C., was submitted before the learned Trial Court on the ground that the suit is barred by limitation and the same is not maintainable for want of statutory notice and therefore, the plaint is required to be rejected. The learned Trial Judge allowed the said application by holding that the suit is filed beyond the period of limitation. The learned Trial Judge also found that the suit is not maintainable for want of statutory notice under the Maharashtra Co-operative Societies Act, the provisions of which are applicable to the State of Goa. The learned Trial Judge accordingly rejected the plaint and the suit was accordingly dismissed. The aforesaid order of the Trial Court is impugned at the instance of original plaintiff in this First Appeal. 3. The learned counsel Mr.Sonak appearing for the appellant submitted that the learned Trial Judge has committed an error in holding that the suit is not maintainable for want of statutory notice. The learned counsel for the appellant further submitted that the suit was not filed against the society and therefore, there is no question of serving any statutory notice as per the provisions of Section 164 of the Maharashtra Co-operative Societies Act. Mr.Sonak also submitted that the learned Trial Judge 4 has committed an error in holding that the suit is barred by the law of limitation. 4. Mr.Lawande, the learned counsel appearing for the respondent submitted that though he is not in a position to support the finding of the learned Trial Judge regarding maintainability of the suit on the ground of statutory notice, the order of the learned Trial Court in dismissing the plaint on the ground of limitation, is a correct finding. He submitted that the suit is hopelessly time barred and he accordingly supported the order of the learned Trial Court on the said point. 5. We have heard the learned counsel for the appellant as well as the learned counsel for the respondent. We have also gone through the order of the learned Trial Court and have also gone through the record and proceedings of this case. 6. So far as the question as to whether the suit is maintainable for want of statutory notice is concerned, a reference is required to be made to the provisions of Section 164 of the Act, as applied to the State of Goa. Section 164 reads as under : - 164. Notice necessary in suits. - No suit shall be instituted against a society, or any of its officers, in respect of any act touching 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 5 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. 7. It is required to be noted that the suit is not filed against the society or any of its office bearers in connection with the any act touching the business of the society. The suit is filed against the defendant in his individual capacity as he attended the meeting as a representative of the department. Considering the said factual aspect, in our view, the learned Trial Judge has committed grave error in coming to the conclusion that the suit is bad for want of statutory notice. The learned Trial Judge has failed to consider the fact that the suit is not filed against the society or any of its office bearers. The suit is filed against the defendant in his individual capacity on the ground that he was a party to the selection process, which was conducted in an illegal manner. Considering the said fact, the finding of the learned Trial Court that the suit is not maintainable for want of statutory notice is not sustainable as the defendant cannot be said to be a member of the society, nor the suit is filed against any office bearers of the society. 8. The next point which arises for determination of this Court is as to whether the learned Trial Judge was justified in dismissing the suit on the ground that the suit is filed beyond the period of limitation. So far this aspect is concerned, there are certain 6 factual aspects which are required to be taken into consideration. The selection committee which comprising of three officers, which included the present respondent, selected the candidates in the year 1993. A resolution was passed for such appointments on 28-07- 1993. Though, it is the case of the plaintiff that the said resolution was fabricated and manufactured one, appointment orders were ultimately given on 29-07-1993. It is not in dispute that subsequently the services of the concerned employees were also terminated. It is also not disputed that on the allegations about irregularities and so-called fraud in the appointment, a complaint was filed against the respondent in the year 1995 and subsequently, the respondent was acquitted in the said case. It is also not in dispute that proceedings have also been initiated against the Managing Director of the Society in the year 1996 for recovery of the amount and the said proceedings have been filed under the provisions of Co-operative Societies Act, 1960. In spite of the said fact, no steps were taken for filing the suit against the present respondent. It is required to be noted that inquiry was also conducted in this behalf by the Assistant Registrar, Co-operative Societies (Diary) Ponda, who submitted his report dated 01-08-1995, wherein certain observations were made by the Assistant Registrar. In spite of the same, no steps were taken to institute suit against the present respondent within a period of limitation, when the society 7 had taken steps within a period of three years to initiate proceedings against the Managing Director in the year 1996, it is difficult to understand as to why such a procedure was not adopted against the present respondent for filing the suit within a period of three years. 9. Mr.Sonak, the learned counsel for the appellant submitted that another report of the committee was made available to the plaintiff's society on 03-07-2001 and on the basis of said report, the suit was filed on 11-02-2004. The learned counsel for the appellant further submitted that the said report dated 03-07-2001 was put before the Society in its meeting held on 12-07-2001 and ultimately, it was decided in the said meeting to file a suit and accordingly, limitation can be said to be started from 12-07-2001 and the suit which was filed on 11-07-2004 can be said to be well within the period of limitation. 10. We are not in a position to accept the said submission of Mr.Sonak. It is required to be noted that even the said second report was received by the society on 03-07-2001, yet the suit is not filed within three years from the receipt of the said report. Simply because the society decided to hold a meeting on a particular day and might have decided to take decision subsequently to accept the report and to file a suit, it cannot be said that the limitation starts from that day. As pointed out earlier, even the so-called fraud came to the knowledge of the society in the year 1996 and even a criminal 8 case was filed in the year 1996, the aspect about so-called fraud was within the knowledge of the plaintiff's society in the year 1996, and yet the suit has been filed in the year 2004. Considering the aforesaid factual aspect of the matter, the learned Trial Judge was absolutely justified in holding that the suit is barred by law of limitation and in our view, the same is hopelessly time barred. 11. Considering the aforesaid aspect of the matter, it cannot be said that the learned Trial Court has committed any error in coming to the conclusion that the suit is filed beyond the period of limitation. In our view, the plaint has been rightly rejected by the learned Trial Judge under Order 7 Rule 11 of C.P.C. 12. At this stage, Mr.Lawande, the learned counsel for the respondent, states that his client has retired since long. He further submitted that the society has already terminated the services of the concerned employees and therefore, it cannot be said that there is any financial loss caused to the society. He therefore, submitted that the question of granting any damages does not arise. However, this aspect is not required to be considered as those issues are not decided by the Trial Court. 13. Considering the said aspect of the matter, we do not find any substance in the appeal so far as the question of filing of the suit beyond the period of limitation, though we are of the view that the finding of the learned Trial Judge on the ground of statutory 9 notice is not sustainable. In view of what is stated hereinabove, the appeal is devoid of any merits and the same is dismissed with no order as to costs. R & P be sent back to the Trial Court. ( P.B.MAJMUDAR, J. ) ( U.D.SALVI, J. )