1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO.4110 OF 2008. Bhaskarrao Kisan Dighe ... Petitioner. Versus Pad. Dr.Vithalrao Vikhe Patil ... Respondent. ... Mr.A.H.Kasliwal, advocate for the petitioner. Mr.Vijay B.Anjanwatikar, advocate holding for Mr.V.D.Hon, advocate for the Respondent. ... CORAM : V.R.KINGAONKAR,J. Date : 15.06.2009. PER COURT 1. Heard. 2. The petitioner filed a dispute for 2 recovery of unpaid price of sugarcane supplied to the Respondent as well the amount of his share money. The Respondent raised objection regarding maintainability of the suit on the ground that notice required U/s 164 of the Maharashtra Cooperative Societies Act, 1960 was not served before filing of the suit and, therefore, the suit was not tenable. The Respondent requested the Cooperative Court to frame a preliminary issue about maintainability of the suit. The learned Judge of the Cooperative Court declined to frame such issue. The Respondent preferred an appeal against such order. The Cooperative Appellate Court in Appeal No.50/2008 held that the finding on such preliminary issue may be required inasmuch as it pertains to maintainability of the dispute. The learned Member of the Cooperative Appellate Court allowed the appeal by the impugned order and directed that the issue No.4, which was already framed, shall be decided as preliminary issue. 3. Reliance is placed on behalf of the petitioner on certain observations in "Pimpri 3 Refugee Industrial Cooperative Society Vs. Parmanand Bhimandas Talreja" 2007 (1) Bom.C.R. 705. A Single Bench of this Court observed that any suit can be instituted on account of their being cause of action to obtain the relief asked for in the suit. It has been further observed that a statutory notice for filing of the suit is merely to put the defendant on guard so that it can avoid the lis by complying with the demand of the plaintiff based on the cause of action disclosed in the notice. Being so, it has been held that the notice is merely to attempt to avoid the litigation and by itself can not be a cause of action and hence, clause (a) of Rule 11 of Order 7 can not be attracted in such a case. In other words, what is held by the learned Single Judge is that the plaint can not be rejected merely due to absence of the legal notice. In the present case, the plaint has not been rejected at all but the issue is still required to be addressed. The only question is as to whether it could be regarded as preliminary issue or ought to have been decided alongwith other issues. The Cooperative Appellate Court 4 has duly considered the relevant arguments of the parties. This is not a case in which a notice of suit in writing is delivered at office of the Respondent. What is argued by the learned counsel is that the Respondent was quite aware about contemplated suit due to the earlier litigation pertaining to the writ petition between the parties. Whether such kind of intimation would fall within meaning of Section 144 of the MCS Act, 1960, is a question which will have to be decided by the Cooperative Court. In view of the fact that the said question goes to the root of the matter, there was nothing perverse when the Cooperative Appellate Court directed to decide such issue as a preliminary one. In this view of the matter, the petition is dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/wp411008