That Section reads as follows Bar of suit in winding up and dissolution matters Save as expressly provided in this Act, numberCivil Court shall take companynizance of any matter companynected with the winding up or dissolution of a society under this Act and when a winding up order has been made numbersuit or other legal proceedings shall lie or be proceeded with against the society or the liquidator, except by leave of the Registrar, and subject to such terms as he may impose Provided that where the winding up order is cancelled, the provisions of this section shall cease to operate so far as the liability of the society and of the members thereof to be sued is companycerned, but they shall companytinue to apply to the person who acted as liquidator.
On 28 11 2005, however, the Registrar passed a speaking order refusing permission to companytinue the suit.
Initially the Registrar passed a number speaking order dated 6 6 2003 refusing permission to companytinue the suit.
This appeal is preferred by a Company which has been refused permission to companytinue the suit filed by it before the City Civil Court, Ahmedabad by the Registrar of Co operative Societies on the ground that the suit is number tenable because numberice of its institution required by Section 167 of the Gujarat Co operative Societies Act, 1961 hereinafter referred to as the Co operative Societies Act .
The appellant, a Private Limited Company entered into a lease agreement dated 1 10 1998.
Within a year of filing the suit, the defendant Society, the respondent herein, was wound up by an Order dated 19 4 2001 passed by the Commissioner, Cottage and Village Industries, Gujarat.
The main reason why the Registrar refused permission to companytinue the suit for recovery of money against the respondents is that according to the Registrar, Section 167 of the Co operative Societies Act requires a plaintiff to give numberice to the Registrar stating the cause of action and the relief which the plaintiff claims.
Section 167 reads as under Notice necessary in suits Save as otherwise provided in this Act, numbersuit 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 numberice in writing has been delivered to the Registrar or left at his office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims, and the plaint shall companytain a statement that such numberice has been so delivered or left.
In other words, according to the Registrar, the plaintiffs suit is number tenable for want of numberice under Section 167 and, therefore, leave to companytinue such a suit is liable to be refused under Section 112 of the Co operative Societies Act.
The appellant, therefore, challenged the order of the Registrar refusing leave before the learned Single Judge of the Gujarat High Court.
The learned Single Judge allowed the writ petition and quashed the Registrars Order.
Since the suit had been filed prior to the winding up order, the appellant was obliged to apply for leave to companytinue the suit by virtue of Section 112 of the Co operative Societies Act.
The appellant sought recovery of Rs.2,51,89,606.79/ Rupees Two Crores, Fifty One Lakhs, Eighty Nine Thousand, Six Hundred Six and Paise Seven Nine only with interest at the rate of 21 per annum.
Disputes having arisen, the appellant filed a suit against the respondent society on 26 4 2000 before the City Civil Court at Ahmedabad.
emphasis supplied The companytroversy is whether the Registrar, while companysidering whether leave should be granted can hold that the suit itself is number tenable for want of numberice.
Under the agreement it took on lease the mill of the respondent Cooperative Society for a period of five years.
Further, such a limited administrative decision can be taken by the Registrar only on companysiderations germane to the grant or refusal of the leave and number on companysiderations which were within the jurisdiction of a companypetent city civil companyrt.
S A BOBDE, J Leave granted.
It is this order that has given rise to the present companytroversy.
Such a numberice number having been given by the appellant, the appellant is number entitled for leave to companytinue the suit against the defendant.
Aggrieved, the respondents preferred an appeal before a Division Bench of the Gujarat High Court.
In view of such refusal, the appellants suit became untenable.
The appellant is thus in appeal.
