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Andhra Pradesh High Court
Judges : Y.V.NARAYANA
V.J.Dandekar - Appellant
Versus
Meera Co-operative Housing Society Ltd., Hyderabad - Respondent
Decided On : 11-01-99
Civil Procedure Code ,1908 - Section 80 - Section 51 - A. P. Co-operative Societies Act, 1964 - Section 126 - Averments in plaint in brief are set out as hereunder plaintiff is a graduate in engineering and he has been working as engineer and Contractor for last 14 years and has sufficient experience in construction and expertise in construction of residential houses and flats - defendant is a registered Society and they called for Tenders for construction of 48 flats initially, which was later on increased to 64 flats - Plaintiff submitted his tender along with necessary specifications to defendants, prior - defendant having found tender of plaintiff acceptable, accepted said tender by their letter - It is also further stated that on same day, on further discussions, plaintiff gave certain modifications to written agreement, by his letter and defendant after consideration of said agreement to agreed contract, expressly approved and agreed to same and at request of defendant, plaintiff gave a letter confirming same - It is further stated that original letter is with defendant and he is called upon to produce same - Plaintiff has commenced work in right earnest as desired by defendant - Plaintiff expeditiously carried out work and was intending to complete work within time stipulated - From work schedule it would be apparent that within about first two months, plaintiff has turned out work worth Rs - 3l/2 lakhs – Held , Following judgment of Full bench a learned single Judge of this Court has held that notice contemplated has to be strictly construed and it has to be complied with accordingly - This Court has held that words touching business of a society of Andhra pradesh Co-operative Societies Act must be given their full import bearing in mind object of legislation - Disputes are not to be restricted to matters arising from and out of business of society but are also extended to matters which are in some way concerned or related to business of society - word business is not used in narrow sense - In order to determine business of society, one has to look into provisions of Act, rules and Bve-laws framed by society - All matters comprised in them or incidental or are necessary for carrying out those matters must be deemed to be business of society - Learned Counsel for appellant relied on a judgment of supreme Court reported Dominion of India and contended that such notices should not be construed strictly - Question that arises in present case relied upon by appellant is whether fresh notice has to be issued by legal representatives of a late contractor - Court held that notice issued earlier by late contractor of act is sufficient and no fresh notice is necessary - That decision has no application to facts of present case - consideration of evidence on record and having regard to principles laid down it has to be held that plaintiff has neither materially nor substantially complied with statutory requirements of Andhra Pradesh co-operative Societies Act - A reading of exs - A-7 and A-9 shows that they are admittedly not addressed to Registrar but they are addressed only to defendant-Society - It is not in dispute that a copy of Ex - A-7 was not sent to Registrar - However, Ex - A-9 was sent to defendant and a copy of it was sent to Registrar along with a copy of Ex - A-7 - In view of settled legal decisions, it has to be held that there is no sufficient compliance and hence suit is not maintainable for want of notice - Appeal is accordingly dismissed
( 1 ) UNSUCCESSFUL plaintiff is the appellant. O. S. No. 365 of 80 was filed by the plaintiff on the file of the Additional Chief Judge, city Civil Court, Hyderabad for recovery of a sum of Rs. 3,65,887-80. For the sake of convenience the parties to this appeal would be referred to in accordance with their ranking in the suit.
( 2 ) THE averments in the plaint in brief are set out as hereunder: the plaintiff is a graduate in engineering and he has been working as engineer and Contractor for the last 14 years and has sufficient experience in construction and expertise in construction of residential houses and flats. The defendant is a registered Society and they called for Tenders for construction of 48 flats initially, which was later on increased to 64 flats, at Basheerbagh, Hyderabad. The plaintiff submitted his tender along with the necessary specifications to the defendants, prior to 22-7-1975. The defendant having found the tender of the plaintiff acceptable, accepted the said tender by their letter dated 1-10-1975. It is also further stated that on the same day, on further discussions, the plaintiff gave certain modifications to the written agreement, by his letter and the defendant after consideration of the said agreement to the agreed contract, expressly approved and agreed to the same and at the request of the defendant, the plaintiff gave a letter on 11-10-1975 confirming the same. It is further stated that the original letter dated 11-10-1975 is with the defendant and he is called upon to produce the same. The plaintiff has commenced the work in the right earnest as desired by the defendant on or about 25-10-1975. The plaintiff expeditiously carried out the work and was intending to complete the work within the time stipulated. From the work schedule it would be apparent that within about first two months, the plaintiff has turned out the work worth Rs. 3l/2 lakhs. The plaintiff also agreed to provide a rebate of 20% of the tender rates to the defendant subject to : (a) the defendant to waive the initial security deposit of Rs. 10,000/- bul collecting the entire security deposit oi rs. 45,000/- by deductions to the extent o: 2l/2% from each bill; (b) the defendant ii paying a sum of Rs. 25,000/- as advanc is which was to remain with the plaintiff during the entire period of contract; (c) the defendant shall make weekly payments ranging between Rs. 5,000/- to Rs. 10,000/ depending on the quantum of work done during the said week. This payment shall be ad hoc payment; (d) by the time the toal advance payment made to the plaintiff reaches the figure of Rs. 1,25,000/- the plaintiff shall get bills to the extent of rs. 1,00,000/- certified by the consulting. Engineer of the defendant for the work done by that time so that a sum of rs. 25,000/- remains with the plaintiff (e) the ad hoc and advance payments shall be independent of the supply of material such as cement and steel, the supply of which was the responsibility or the defendant.
( 3 ) IT is further alleged that though the defendant did not make payments strictly as per the agreement, the plaintiff carried out the work for some time and thereafter the defendant had no funds and could not make payments and the plaintiff was made aware of the financial position of the defendant and also about the disputes among some of its members and the managing Committee and therefore the plaintiff was asked not to proceed with the work and the plaintiff could not risk by proceeding with further work, for want of payment by the defendant. It was further alleged that at one stage, there was some court order restraining the management of defendant from proceeding with the work in and about May/june 1976. The fact that the work had to be suspended by the plaintiff due to non-availability of the funds with the defendant is evident from the defendant s letter dated 29-6-1976. It is further alleged that the Bank accounts of the defendant would also show that they had
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