SIND PROVINCIAL CO-OPERATIVE BANK LTD. Versus UMER KHAN

1. This First Appeal is directed against the judgment of the learned Senior Civil Judge Mirpur Khas dated 9‑12‑1980 whereby he decreed the suit of appellant in sum of Rs.35,500 plus interest against the respondent.

2. I have heard the learned counsel for the parties. A preliminary objection has been raised by the learned counsel for the appellant, that the suit was liable to be dismissed as no notice under Section 70 of the Co‑operative Societies Act, 1925 had been served upon the Appellant and the plaint did not contain such statement that notice had been so delivered or not. It is contended by the learned counsel for the respondent that as no such issue was framed no evidence was led by the parties and further that it was mixed issue of fact and law as the Court had to determine, first whether the suit related to any act touching the business of the Society for which the parties did not have opportunity to adduce evidence.

3. The learned counsel for the appellant also drew attention of the Court to Ex.22, which was an application moved by the appellant under Order XII, Rule 11, C.P.C. before the learned trial Court. It was prayed therein, that the suit was not maintainable and it was barred under section 9, C.P.C. read with section 54 of the Cooperative Societies Act. This application was disposed of by the learned trial court by the order dated 10‑10‑1978 with the observation that legal points as suggested by the defendant appellant can be raised while framing issues. It is pointed out that no such issue has been framed by the trial Court.

4. It appears that legal aspect of the case has not been considered by the learned trial Court and no such issues were framed by the trial Court. No doubt written statement filed by the appellant is slip‑shod and does not raise specific legal issue, but all the same, certain duties are also cast upon the Court to see whether the suit is prima facie maintainable and whether it has jurisdiction to try the suit.

5. The learned counsel for the appellant also argued, that though the liability of the Sind Mercantile Bank, with whom respondent had deposited the suit amount, has been transferred to the appellant by operation of subsection (4) of section 42 of the Federal Co‑operative Banking Act, 1977, but under the proviso to this subsection, the liability is limited. This proviso reads:

6. "Provided that nothing in this subsection shall be deemed to render a Provincial Co‑operative Bank liable to pay share‑holders, creditors or employees of a Co‑operative Bank the assets of which so stand transferred to, and vested, in it any amount in excess of the amount, if any, which any of them would have been entitled to receive in the event of the winding up of such co‑operative bank."

7. It is argued that liability of the appellant to pay to the creditors of Sind Mercantile Bank is limited under this proviso to the amount which such creditors viz. respondents would have been entitled to receive in the event of winding up such cooperative bank. However, it is admitted by the learned counsel, that the appellant has not led any evidence to show as to what amount in such case they are liable to pay.

8. For all these reasons I am of the opinion that the dispute between the parties cannot be finally disposed of even in this appeal without framing specific issues on the above points and without allowing the parties to lead evidence if any on these issues.

9. I therefore, set aside the impugned judgment and decree, remand the case back for retrial to the trial Court, with a direction to frame issues in the light of the above observation and to give reasonable opportunity to the parties to lead evidence, if they so desired and then decide the case afresh. The costs of this appeal to follow the costs of the suit.

10. The retrial was ordered by short order passed earlier in the course of day. Above are the reasons in support of the said order.

11. H . B . T . /S‑116/ K Order accordingly.