IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SECOND APPEAL NO. 111 of 2005 ==========================================================

THE MOTI CHICHNO MILK PRODUCERS CO OP MANDALI LTD Versus RAMABHAI SAMALBHAI PATEL ==========================================================

Appearance:

MR SK PATEL(654) for the Appellant(s) No. 1 MR PS PATEL(643) for the Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI Date : 03/12/2025

ORAL ORDER

1. By way of this second appeal u/s 100 of the Code of Civil Procedure, 1908, the appellant challenges judgment and order dated 18.2.2000 passed in Regular Civil Suit No.6 of 1996 by the learned 3^rd Joint Civil Judge (JD), Modasa confirmed by the learned Extra Asst. Judge, Sabarkantha @ Modasa vide order dated 26.7.2004 in Civil Appeal No.17 of

2000.

2. The plaintiff filed the suit for recovery of Rs.28,600/- from the defendant with 18% interest per annum from the date of filing of the suit till realization, inter alia, on the ground that the plaintiff is an agriculturist and the defendant is a registered cooperative society. The Gujarat State Seeds Corporation (in short “the Corporation”) is providing land to the agriculturist to grow certified millet and grain seeds under the government program. It is further the case of the plaintiff that he has been given one parcel of the land to grow certified seeds of millet, MH179 in the summer of 1993 with the condition that whatever the seeds grow therein is to be deposited in the Corporation at the rate of Rs.10.50 per KG. The deposition of the millet seeds were to be made through the defendant, as the defendant was acting as a commission agent of the Corporation. The defendant after taking its commission, was obliged to pay the amount of certified seeds deposited with the Corporation. The plaintiff further averred that after growing the certified seeds of millet MH 179, he has deposited in total 1525 kg seeds to the Corporation under the instructions of the defendant. It is further averred that the defendant has obtained the amount from the Corporation, but did not pay the same, which is due to the plaintiff. In the aforesaid proceedings, the plaintiff prayed for the aforesaid relief by filing the civil suit.

2.1 The defendant, having been served, appeared and denied the suit of the plaintiff in toto and claimed that the Corporation since is not joined as a party defendant, the suit of the plaintiff is suffering from principle of non-joinder of necessary party. The defendant further contended that it is acting as a commission agent of the Corporation, and therefore in absence of the principal party, the suit against the defendant is not maintainable. The defendant has not purchased any millet seeds from the plaintiff and therefore the defendant is not liable to pay any amount to the plaintiff.

2.2 The learned trial court fixed the issue and permitted both the parties to lead evidence. Ultimately, the learned trial court decreed the suit of the plaintiff and directed the defendant of the suit to pay Rs.28,600/- to the plaintiff from the date of the suit till realisation with 18% interest per annum.

2.3 Being aggrieved by the said judgment and decree, the defendant of the suit preferred Regular Civil Appeal No.12 of 2000 before the learned Extra Assistant Judge, Sabarkatha came at Modasa. The said appeal was decided against the defendant by judgment and decree dated 26th July 2004.

2.4 Being further aggrieved, the appellant - original defendant, preferred present second appeal under section 100 of the Code on various grounds stated in the appeal memo.

3. Vide order dated 17th October 2005, the Coordinate Bench of this Court has framed the following substantial question of law:-

“Following substantial questions of law arise for determination by this Court:-

(1) Whether the suit is maintainable against the agent without joining the principal and whether the agent can be sued without joining the principa