This is an appeal preferred by the original plaintiff whose suit bearing Special Civil Suit No.104 of 1991 for recovery of Rs.4,12,000/- was dismissed by 2nd Jt. Civil Judge, Senior Division, Nandedon 14.07.1994 on the ground that the suit is not maintainable for want of notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960.

2. Brief facts giving rise to this appeal may be stated as below:-

The respondents are Chairman and Manager of a factory run by Shri. Shankarrao Chavan P.V.C. Pipe Utpadak Sanstha Maryadit, a co-operative society registered under the Maharashtra Co-operative Societies Act, 1960. The plaintiff/appellant has approached the Court with a case that he had agreed to carry out construction of excavation, brick lying, plastering, concreting, carpentry, joinder of steel and iron work, drainage work, water supply, sanitary fitting etc. of factory building and other constructions at the site of the defendant factory. An advance of Rs.5,00,000/- was paid by the defendant - Cooperative Society to the plaintiff for above said construction work and said amount was to be adjusted towards bill of work done. According to the plaintiff, defendant did not co-operate in performance of the work and the work could not be completed. Defendant - Co-operative Society illegally withdrew the work from the plaintiff. Due to the withdrawal of work, the plaintiff appellant suffered loss and therefore the suit is filed for recovery of amount of Rs.4,12,000/- .

3. The defendant/respondent Society filed written statement at Exh.32 and amongst other contentions, it objected to the tenability of the suit stating that since the defendant is a Co-operative Society registered under the Maharashtra Co-operative Societies Act, 1960, the suit without notice under Section 164 of the said Act is barred.

4. The learned Civil Judge framed preliminary issue whether the suit is maintainable for want of notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960, and the answer was in the negative. Since it is held that the suit is not maintainable, it is dismissed. It is this order which is challenged in this appeal The only point which arises for out consideration is as under:

"Whether the suit is not maintainable without Notice under Section 164 of the Maharashtra Co-operative Societies Act, 1960?"

5. Heard Adv. Shri. B.A. Darak for the appellant and Adv. Shri P.S. Agarwal for the respondents. Section 164 of the Maharashtra Co-operative Societies Act, 1960, hereinafter referred to as "the Act" is as follows:-

"164. Notice necessary in suits:- No suit 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 notice 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 plaintiff shall contain a statement that such notice has been so delivered or left."

6. The words "touching the business of the society" also appear in Section 91 of the Act, wherein phrase used is "in dispute touching business of society". Section 91(1) is as follows:-

"91. Disputes- (1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, elections of the committee or its officers other than the elections of committees of the specified societies including its officers, conduct of general meetings, management or business of a society shall be referred by any of the parties to the dispute, or by a federal society to which the society is affiliated or by a credit of the society, to a Co-operative Court if both the parties thereto are one or other of the following:-

(a)……………"

7. Both sides cited several authorities. The earliest case cited is Farkhundali Nannhay Vs. V.B. Potdar and another, AIR 1962 Bombay 162. The Full Ben