IMPORTANT POINT
A suit against a market committee is non-maintainable if statutory notice requirements under Section 58 of the Agricultural Produce Market Committee Act are not fulfilled, rendering the suit time-barred.

JUDGMENT :

BIREN VAISHNAV, J.

1 Heard learned advocates appearing for the respective parties. With consent of the learned advocates, the matter is taken up for final hearing today. Rule returnable forthwith. Mr.Alok Thakkar, learned advocate waives service of notice of rule on behalf of respondent No.1 and Mr.Akash Chhaya, learned AGP, waives service of notice of rule on behalf of the respondent – State.

2 This petition under Article 227 of the Constitution of India is filed by the original defendant No.1, Agriculture Produce Market Committee, Siddhpur, Challenging the order dated 17.12.2022 passed by the learned Principal Senior Civil Judge, Gandhinagar. By the aforesaid order, the learned Judge of the Commercial Court, rejected the application Exh.12 filed by the petitioner under Order VII Rule 11(a) & (d) of the Code of Civil Procedure, 1908. The respondent No.1 herein, namely, R.S.Corporation, was the original plaintiff in the Commercial Civil Suit No. 48 of 2021.

3 Facts in brief are as under:

3.1 The petitioner, APMC Siddhpur, in order to implement the General Order dated 27.03.2013 of the State Government to carry out various infrastructural developments, issued a tender for construction of a Auction Shed in the market yard of the market committee for an estimated cost of Rs.5.15 Crores. The advertisement was published in the daily newspaper and the last date for submitting the bid was 17.11.2014.

3.2 The Committee received four bids, of which it was found that the bid of the respondent R.S.Corporation was the lowest, and therefore, the Committee resolved to give the tender to the respondent No.1 by way of a Resolution dated 13.12.2014.

3.3 By a letter dated 15.12.2014, the respondent No.1 was called for further negotiations, where the respondent No.1 agreed to reduce the final price by 0.50%. The Market Committee entered into an agreement with the respondent No.1 on 16.12.2014. Since a complaint was lodged by one Shri Desai Amrutbhai Lilabhai to the Director of the APMC for breach of conditions of the tender, the Director – respondent No.2, passed an order directing the Committee to maintain status-quo on the contract. On the Committee filing its reply on 19.12.2014, the complaint was dropped.

3.4 Since elections were declared at the APMC, pending the results of the election, proceedings were initiated against the Committee under Sec.47 of the Act. A Show- Cause Notice was issued and by an order dated 13.06.2016, the entire tender process was quashed. On the holding of the elections, the erstwhile complainant Desai Amrutbhai Laljibhai took over as the Chairman of the Committee.

3.5 By an order dated 05.07.2016, the original contract entered into with the respondent No.1 was cancelled in view of the order passed by the Director asking for a fresh tender process. The respondent No.1 was informed to appear before the panel of engineers for the work already done and for seeking compensation. Security deposits were returned to the respondent No.1 on 24.10.2016 and 16.02.2017 respectively.

3.6 The respondent No.1 on 23.02.2019, filed Commercial Suit No. 138 of 2019 before the Commercial Court at Ahmedabad, which was subsequently transferred to Gandhinagar claiming compensation by way of damages of Rs.2,98,54,153/-. The petitioner being defendant No.1 in the Suit, on 16.12.2020, filed application under Order VII Rule 11(a)&(d) of the Code of Civil Procedure, requesting that the suit be dismissed. As it was filed without fulfilling the requisite conditions as enumerated under Sec.58 of the Gujarat Agricultural Produce and Marketing (Promotion & Facilitation) Act, 1963.

3.7 It was the case of the applicant that no statutory notice under Sec.58(1) of the Act was issued before the suit was instituted and secondly as provided under Sec.58(2) of the Act, the suit was not instituted within six months from the date of accrual of the alleged cause of action. The third contention raised before the Trial Court in the application under Order VII Ru