Decided on February 26,2013

Ramesh Chandra Tewari Appellant
Pradhan Prabandhak, Dugdh Utpadak Sahkari Sangh Ltd And Ors Respondents


- (1.) This appeal is directed against the judgment and decree dated 7.12.2012 passed by the District Judge, Almora in civil appeal no.18 of 2012 whereby the learned District Judge has set aside the judgment and order dated 30.5.2012 passed in Original Suit No.5 of 2009 Ramesh Chandra Tewari vs. Pradhan Prabandhak Dugdh Utpadak Sahkari Sangh Limited.
(2.) Brief facts of the case are that appellant-plaintiff filed a civil suit against the defendants for recovery of Rs.28,349.75 with the allegations that plaintiff was engaged to transport the milk for defendant s organization from Patal Devi Depot to Bageshwar and Bharadi by his own truck. As per agreement, Rs.2090/- per day was fixed for this purpose. On 25.5.2006, the plaintiff started from Patal Depot to Bageshwar, Bharadi along with milk. When he reached near Someshwar, his vehicle was not in a position to go ahead. Thereafter, plaintiff arranged other truck for supply of milk. In this whole exercise, there was some delay in delivery of milk. After three days, the defendant no.1 informed him that due to delay, milk was not in a condition to consume and refused to pay Rs.28,349.75 paisa. Thereafter, the dispute was referred to Arbitrator as pre-existing condition since there was an arbitration clause in the contract. The Arbitrator has given an award directing the defendants to pay Rs.28,249.75 paisa to plaintiff/appellant. Instead to make payment, the defendants filed an appeal against the order of Arbitrator which was numbered as 1 of 2008 and appeal was dismissed on 30.1.2009. But defendants have not paid the amount, hence, the suit for recovery of amount was filed.
(3.) It appears by a perusal of the fact that the suit has been filed for recovery on wrong advice since there was an arbitration clause and the matter was referred to Arbitrator. Against the order of the trial court, the appeal was also preferred. The order of the Arbitrator has become final and there is an independent procedure for execution of the order passed by the Arbitrator in the Act itself. But on wrong advice the suit has been filed. The suit was decreed against which the appeal was preferred before the appellate court by the impugned order. The appeal was allowed on the ground that there is a mandatory provision of section 117 of the Co-operative Societies Act which provides that the suit shall be instituted against a co-operative society or any of its officers in respect of any act relating to 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 place, stating the cause of action, the name, description of place of residence of the plaintiff and the relief which he claims; and the plaintiff shall contain a statement that such notice has been so delivered or left. Issue no.4 was framed to the effect that whether the suit was barred by section 117 of Co-operative Societies Act and on this ground the judgment of the trial court was set aside and appeal was allowed. The appellate court decided issue no.4 in favour of the defendant instead of plaintiff and dismissed the suit.;

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