1. This appeal under Section 100 of the Code of Civil Procedure is filed by the original defendant against whom the respondent- original plaintiff had filed Special Civil Suit No.169 of 2001 (old Special Civil Suit No.136 of 1996) for recovery of Rs.4,34,229/-.

2. The case of the plaintiff in its suit is that the plaintiff is in the business of purchasing and selling castor oil, that the defendant is Co-operative Union dealing in purchasing, selling and exporting castor oil, that the defendant purchased castor oil from the plaintiff between the period from 14.7.1993 to 29.10.1993, however the defendant did not provide H form on such purchase for 45 bills to the plaintiff though the plaintiff made repeated requests to the defendant to send such H form. It is further case of the plaintiff that because of non sending of H form by the defendant, the plaintiff became liable to pay 5% as sales tax and 1% as turnover tax on the bills under which the defendant purchased oil from the plaintiff. The plaintiff discharged such liability by paying Rs.4,78,489/- as sales tax and interest thereon of Rs.2,76,392/- as well as Rs.95,697/- being turnover tax with interest thereon of Rs.62,140/- to the Sales Tax Department. Thus, the plaintiff suffered loss of Rs.4,34,229/- because of non-issuance of H form by the defendant. The plaintiff had issued legal notice dated 17.7.1996 to the defendant to pay up the said amount but since the defendant did not pay the said amount, the suit is filed for recovery of the suit amount.

3. The suit of the plaintiff was resisted by the defendant by filing written statement at Exh.13 stating that the suit was liable to be rejected because of non-issuance of the notice under Section 167 of the Gujarat Co-operative Societies Act, 1961 (hereinafter referred to as the Act). It is also stated that there was no agreement between the parties for sending of H form and the plaintiff was required to send debit note for payment of the sales tax at Palanpur and therefore, the Court was not competent to hear the suit of the plaintiff. Other contentions have also been taken as regards filing of the suit by the unregistered partnership firm as also the bar of filing of the suit under Section 96 of the Act. The defendant also denied the liability of payment of sales tax dues paid by the plaintiff by stating that it was absolute liability of the plaintiff.

4. On the basis of the pleadings, learned Trial Judge framed many issues, two of which were, as to whether the suit of the plaintiff was liable to be rejected because of non-issuance of the notice under Section 167 of the Act and whether the suit was barred under Section 96 of the Act .

5. On appreciation of the evidence, learned Trial Judge came to the conclusion that the plaintiff had to bear burden of paying sales tax and turnover tax on account of non-issuance of H form by the defendant and the plaintiff has thus become entitled to recover the said amount with interest as claimed in the suit. As regards the contention about non-issuance of the notice under Section 167 of the Act is concerned, learned Trial Judge came to the conclusion that when the plaintiff alleged that the defendant had done business outside and beyond its objects, it was for the defendant to produce its memorandum (bylaws), which the defendant had not produced. Learned Trial Judge further observed that in the present case, the business of the defendant is to purchase and sell oil but as per the oral evidence, the main object of the defendant is to purchase oil from its members and to get appropriate price of the same for them by selling oil in the market. The defendant has not produced its memorandum to show its objects, as per which the defendant was entitled to purchase oil from the outsider. Under these circumstances, it can be said that the defendant has done business beyond its objects. As regards contention that the suit is barred under Section 96 of the Act, learned Trial Judge came to the