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Judgment
S.K. Gupta, J.—This appeal arises out of a judgment and decree dated 6-3-1995 passed by the learned District Judge, Jammu in file No.
71/Civil entitled National Agricultural Co-operative Marketing Federation of India Ltd. v. The Jammu Tehsil Cooperative Marketing Society Ltd.
by virtue of which the plaintiff-respondent No. 1 is held entitled to an amount of Rs. 1,13,920/ - with proportionate costs and interest @ 12%
pendente lite till satisfaction of the decree.
Appellant-defendant No. 1 Jammu Tehsil Co-operative Marketing Society Ltd. (hereinafter for short referred to as (JTCMSL) received
potatoes weighing 3600 quintals, detailed in one of the annexures of the plaint, for deposit of the same in the Cold Storage from the plaintiff-
respondent No. 1, National Agricultural Co-operative Marketing Federation of India Ltd. (hereinafter for short referred to as (NACMF)) in the
month of April, 1979. Defendant No. 2 was required to lift 4198 bags of potatoes weighing 2650 quintals by 31-10-1979 as per the agreement
made between the parties for which defendant No. 2 was informed accordingly. The plaintiff-respondent No. 1 was, however, informed by
defendant No. 2 that he could lift only three hundred bags of potatoes as the remaining stock of Potatoes had been alleged by the plaintiff-
respondent No. 1 to have become damaged because of the negligence of defendant No. 1 for not maintaining the proper and required temperature
in the Cold Storage where the potatoes were kept. This occasioned cause of action to the plaintiff-respondent No. 1 to commence a suit claiming
the price of the potatoes @ Rs. 81.40 per quintal, allegedly got damaged on account of the negligence of defendant No. 1. However, defendant
No. 2 resisted the suit on blend of objections both preliminary and on merits. The preliminary objections related to the maintainability of suit being
hit by Section 24 of the Specific Relief Act and also a specific bar under the provisions of the Jammu and Kashmir Co-operative Act, 1960
(hereinafter referred to as the Act of 1960). On merits, while admitting storage of 4332 bags of potatoes in the Gold Storage of defendant No. 1
at Udhwalla, Jammu, defendant No. 1 has emphatically denied the allegations of causing damage to the potatoes due to the negligence of the
defendants and asserted that defendant No. 2 continuously used to remove the stock up to ending Oct., 1979.
Upon the consideration of the pleadings of the parties, the following issues were struck down for adjudication by the trial Court:-
Whether the suit is hit by Section 24 of the Specific Relief Act if so, what is its effect on it ? OPP.
Whether the suit is maintainable in this Court despite the fact that there is a bar of the suit in a Civil Court under the provisions of J. & K. Co-
operative Societies Act ? OPP.
Whether the potatoes were damaged due to the negligence of defendant No. 1 ? If so, what is its effect on the suit ? OPP.
Whether the plaintiff is entitled to a decree for recovery of Rs. 2.31.884/- with interest 18% per annum against the defendants? OPP.
Relief.
Issue Nos. 1 and 2 were treated as preliminary issues before the trial Court and stood decided on 5-4-1991 out of which issue No. 1 was not
pressed and issue No. 2 stood decided against the defendants.
After analytical evaluation of the preliminary and prospective facts borne out from certain admissions made by the parties and the testimonial
boosts provided by the witnesses either way, the trial Court passed the judgment and decree impugned in the appeal which is mainly challenged on
twin grounds; firstly, that the suit in view of the provisions of Act, 1960 was not maintainable and secondly, no notice as contemplated u/s 119 of
the Act of 1960 has been served on the respondents before the commencement of the suit.
Before adverting to the grounds urged by the appellant-defendant No. 1 in assailing the correctness of the decree of the trial Court, I deem it
imperative to point out that the trial Court had decided the case on admissions made by the parties in their pleadings. It was not in dispute between
the parties that the plaintiff-respondent No. 1 had deposited the potatoes in the Cold Storage of defendant No. 1 at Udhwalla, Jammu in the
Month of April, 1979. Defendant No. 2, however, removed only 300 bags of potatoes out of the stored potatoes as the remaining had become
rotten and consequently damaged. This was also borne out from the com-munication addressed by the Manager of defendant No. 1 to Joint
Manager of the plaintiff Federation Delhi, wherein he admitted that the potatoes deposited in the Cold Storage of defendant No. 1 have 'al-most
sprouted' and that the sprouted potatoes admittedly had lost market value, the plaintiff specifically pleaded in the plaint that damage to the potatoes
had occasioned on account of negligence of defendant No. 1 in not maintaining the proper and required temperature in the Cold Storage. This fact
has not been denied by the defendants in their demurrer and instead pleaded that it was the responsibility of the plaintiff (NACMF) to have
removed the potatoes in time. The damage to the potatoes while stored in the Cold Storage of defendant No. 1 has been admitted both in the
communication EXPD3 and in a notice dated 10-12-1979, EXPD4 served by defendant No. 1 through Advocate on the plaintiff in response to
the latter's claim for damages of the potatoes while lying in the Cold Storage of defendant No. 1. Defendants have also admitted that 4232 bags of
potatoes out of the totality of the bags received in the Cold Storage were found, after the proper inspection, in good condition. Mr. Ravinder
Gupta, Manager (JTCMSL) examined by defendant No. 1 admitted that the potatoes were rotten.
In view of the aforesaid clear and cogent admission made in unequivocal terms by defendant No. 1 that the potatoes were in good and perfect
condition when received in the Cold Storage in April, 1979, the contradictory statement made by the witnesses examined by defendant No. 1 that
the potatoes were rotten at the time of deposit in the Cold Storage, cannot be accepted, apparently being false and is liable to be rejected. This I
say because even the other witnesses examined by the defendant No. 1 namely DW Darshan Kumar and Dhayan Singh have categorically stated
in their statements that the potatoes were in good condition when stored in the Cold Storage. The witnesses, however, stated that the potatoes
were got damaged as defendant No. 2 did not remove the stock by agreed date. i.e. 31st Oct.. 1979.
Ordinarily, It was the duly of the Cold Storage owner to ensure that the potatoes stored in his Cold Storage are properly protected. It is
admitted by the defendant-appellant in EXP1 that the potatoes had sprouted in Sept., 1979 while lying in the Cold Storage. This itself proves that
the damage has occasioned due to the negligence of defendant No. 1 by the reason of non-maintenance of the proper or required temperature as
provided or by any other reasons whatsoever for which they are required to account for to the plaintiff.
As regards the factual finding returned by the trial Court in respect of the entitlement of the plaintiff-respondent to claim damages for the
potatoes which became rotten while lying in the Cold Storage of the defendant No. 1 Mr. Ved Raj Wazir. learned Counsel also did not seriously
assail the same in his arguments. He, however, confined his arguments only with regard to the maintainability of the suit under the Act of 1960. Mr.
Wazir, learned Counsel for the appellant, at the threshold, submitted that the plaintiff-respondent as well as defendant No. 1 are the Co-operative
Societies, the Jurisdiction of the Civil Court Is bared in respect of any dispute arising between them as the same is required to be referred to the
Registrar Co-operative Societies u/s 64 of the Act, 1960. In support of his contention, he further relied upon the provisions of Sub-section (1)(d)
of Section 63 and submitted that a dispute touching the constitution, management or the business of a co-operative society arising between the
society or any other co-operative society: shall be referred to the Registrar for decision and no Court shall have Jurisdiction to entertain any suit or
other proceeding in respect of such dispute.
In controverting the contention of the appellant's counsel, it is submitted by the respondents' counsel that it is only where the dispute arises
between the two Co-operative Societies one registered under the J. & K. Co-operative Societies Act and the other Co-operative Society
registered under the Delhi Co-operative Societies Act, the Jurisdiction of the Civil Court is ousted to entertain any suit. His further submission is
that the plaintiff being a Co-operative Society registered under Delhi Societies Act, 1972 and not one registered under J. & K. Co-operative
Societies Act. the provision oIJ. A K. Co-opeative Societies are not attracted.
To buttress his submission, Mr. Chopra, learned Counsel appearing for the respondents further submitted that the term ""Co-operative Society
has been defined in Section 2(e) of the Jammu and Kashmir Co-operative Societies Act The definition of ""Cooperative Society"" envisaged under
the aforesaid provisions means a Society registered or deemed to be registered under tills Act.
It is admitted case of the parties that the plaintiff is a Co-operaUve Society registered under the provisions of Delhi Co-operative Society Act,
1972, therefore, it makes abundantly clear that the dispute is between a Co-operative Society registered under the J. & K. Co-operative Societies
Act and the other Co-operative Society registered under the Delhi Co-operative Societies Act. Such being the case, the provision of Section
63(1)(d) and Section 113 of the Act, 1960 are not attracted so as to bar the Jurisdiction of the Civil Court to entertain the suit.
Another limb of arguments put forth by the appellant's counsel. Mr. Ved Raj Wazir, is that no suit could be instituted against the Co-operative
Society registered under the Act. 1960 without notice u/s 119 of the said Act. On going through the record of the file, it is found that no such plea
has been taken or objection raised by the defendants in the written statement before the trial Court and also in the memo of appeal filed before this
Court. There is no inconsistency with the proposition that a notice u/s 199 of the Act, 1960 is mandatory but the right may be wavied by the party
for whose benefit it has been provided. Failure to raise such an objection by the defendants In the written statement would amount to waiver of
right as is also the view expressed in case reported as State of Bihar and Another Vs. Smt. Panchratna Devi and Another, .
In view of the aforesaid discussion I see no reason to differ from the Impugned Judgment and decree dated 6-3-1995 of the trial Court which
is found unimpeachable and the same is hereby affirmed. The appeal for the foregoing reasons, possessing no merit is dismissed. The costs shall
abide the result.