JUDGMENT - A.B. PALKAR, J.:---This is a suit for damages filed against a Co-operative Bank known as Zoroastrian Co-operative Credit Bank and the Zoroastrain Association on the ground that the Bank refused to allow the plaintiff to operate the joint account held by the plaintiff jointly with one Pestonji Jehangirji Bharucha.

2. According to the plaintiff, said Pestonji Jehangirji Bharucha had a joint saving bank account with him bearing No. 1269 and a Fixed deposit account bearing No. 10513 in which Rs. 600/- was deposited for a period of three years in the year 1985. As per the instructions, the saving bank account was to be operated by Pestonji Bharucha in his life time or by survivor in case of death. In case of fixed deposit however there was no direction that it has to be paid to the survivor. The plaintiff had admittedly filed a suit in the Bombay City Civil Court when he was refused to operate the said saving bank account. In that suit, the plaintiff had taken out Notice of Motion and on concession being made that the plaintiff would furnish security, he was allowed to operate the account and finally a decree is also passed in that suit in favour of the plaintiff. It is an admitted position now that the fixed deposit amount was also credited to the said saving bank account and the same has also been paid to the plaintiff as per the bank record and the plaintiff, although initially did not want to accept this position. When the entries in the account were shown to him, did not dispute the same. According to the plaintiff, after the death of Pestonji Bharucha, he approached the bank for operating the saving bank account, when he was informed by the bank that defendant No. 2 with whom Bharucha was employed had informed the defendant No. 1 Bank that there is a Will executed by Bharucha and in view of the said Will, the amount lying in the account should not be paid to anybody and defendant No. 2 is going to take steps in accordance with the law in respect of the said Will. In view of this, defendant No. 1 did not allow the plaintiff to operate that account and therefore, the plaintiff firstly filed suit in the City Civil Court which was restricted to his claim in respect of saving bank account and after direction of the Court that amount was paid to him and on furnishing security. At this stage on this aspect there is no dispute between the parties. However, in the present suit, it is the contention of the plaintiff that because of refusal of the bank to operate the joint account, he suffered mental agony, loss of reputation and huge expenses, which he had to incur for filing the suit in the City Civil Court and as such he has claimed damages against defendants Nos. 1 and 2 alleging further that the defendants conspired together and did not allow him to operate the account with mala fide intention. He has therefore claimed in all Rs. 7 lakhs with interest at 18% per annum.

3. The suit was resisted by the defendants. Defendant No. 1 has inter alia contended that in view of the communication received from defendant No. 2 regarding the Will of deceased Bharucha, the bank did not allow him to operate the account, even though he was a joint holder. In addition to the amount in the saving bank account and the fixed deposit, there was an amount of about Rs. 21,148/- which the deceased got on his retirement from service of defendant No. 2 and this amount was deposited with the Bank. In view of the Will, defendant No. 1 took legal action by approaching the Administrator General and Administrator General has issued certificate in favour of the executors of the Will entitling them to receive the amount with interest. Therefore, there was no mala fide on the part of the Bank. The suit is not maintainable, firstly for want of notice under section 164 of the Maharashtra Co-operative Societies Act, secondly on the ground that separate suit for cost of another litigation i.e. the suit filed in the City Civil Court, is not maintainable, and

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