Final Order 1

Order Details: Notice of Motion
Pdf Text: Notice of Motion No 3071 of 2019
Matter called out at 3.13 pm Adv Neha Mishra for plff present Adv A.S.
Kapse for defendant Nos. 2 to 4 present K.B. for order L.O. at 3.56 pm
On the last date adv for plaintiff and adv for defendant Nos. 2 and 4 are
heard at length on maintainability of the suit. Perused record. The suit
is lodged on 27.10.2017 and about a period of 5 years, the suit is still
on stamp number. Adv for plaintiff submitted that office objections are
removed. However, record shows that office has raised objection of non
issuance of pre suit notice under section 80 of CPC. In this regard, adv
for plff submits that state is a formal party and no relief is claimed
against the state. Therefore, as per her submissions it is not necessary to
issue notice under section 80 of CPC. The plaintiff has challenged the
order passed u/s 101 of Maharashtra Cooperative Societies Act, 1960 by
defendant No.2 i.e. the Deputy Registrar Co. Op. Societies. Therefore, it
cannot be said that no relief is claimed by the plaintiff against the public
servant. Section 80 of CPC mandates pre suit notice before institution of
suit against Government or public officer in respect of any act
purporting to be done by such public officer in his official capacity.
Defendant No.3 is the Governor, RBI and defendant No.4 is the State of
Maharashtra. It is matter of record that plaintiff has neither issued
notice u/s 80 of CPC to defendant Nos. 2 to 4 nor leave is sought u/s 80
(2) of CPC at the time of instituting the suit. Therefore, the suit in the
present form is not maintainable for want of pre suit notice u/s 80 of
CPC. Accordingly, following order is passed Order 1. The plaint is
rejected under Order 7 Rule 11 (d) of CPC. 2. Decree be drawn up
accordingly 3. Stamp No. 11570/2017 is disposed off. 4. Pending Notice
of Motion 3071/2019 also stands disposed off. Authenticated copy of
the order be given to the adv for plaintiff.
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