& Ors. Etc. Vs. The Bombay Catholic Co-Operative Housing Society Ltd. &
Jurisdiction Civil Appeal Nos. 1175-1177 of 2012 arising out of SLP (C)
No.28611-28613 of 2011]
[civil Appeal No.
1178 of 2012 arising out of SLP (C) No.29507 of 2011]
[Civil Appeal Nos.
1179-1180 of 2012 arising out of SLP (C) Nos. 30143-30144 of 2011]
J U D G M E N T
appeals arise out of a common order dated 29th August, 2011 of the Division Bench
of the Bombay High Court passed in three writ petitions and two suits, 144 and
145 of 2010.
the said common order, it was held, among other things, that the two suits are
not maintainable in view of the provisions of Sections 91 and 163 of the
Maharashtra Co-operative Societies Act, 1960 (hereinafter `the Act', for
short). We are not concerned with the remaining part of the Division Bench's
judgment as the instant special leave petitions are preferred only against that
part of the Division Bench's judgment. The brief factual background of this
litigation is as follows.
first respondent is a Society which was originally incorporated in the year 1914.
The full particulars of such incorporation are not available at this juncture on
record and are also not necessary for the present purpose. It is sufficient to
state that it is admitted on all hands that it is a housing cooperative society
and the Act governs the affairs of the said Society.
is also an admitted fact on all hands that the said Society has different classes
of members known as owners, lessees, allottees, tenants, etc. It is also an admitted
fact that the total membership is 762 out of which 69 members fall under the
classification of tenant members. However, the exact rights and obligations of
these various classes of members, vis-`-vis the first respondent Society or
these various classes of members inter se are also not available on record.
appears from the record that, as on today, the first respondent Society owns an
extent of approximately 21,774.10 sq. mts. of land in the city of Mumbai alongwith
structures popularly known as Wellingdon Catholic Colony. It appears that the said
property was part of a larger parcel of land earlier owned by the first respondent
Society but is not owned by the Society now. Some of the `tenant members'
(including the appellants herein) of the Society initiated proceedings for the division
of the Society sometime in the year 1970 invoking Section 18 of the Act by
making an application to the Registrar. The said application has a very long and
chequered history, the details of which are not necessary for the present
purpose except to state that by virtue of the judgment under appeal, the application
is still open and pending.
the meanwhile, in a resolution came to be passed on the 6th December, 2009 by
the General Body of the Society to sell the above mentioned land in favour of
respondents No.22 and 23. In furtherance of the said resolution, a sale
deed/conveyance came to be executed on 7th December, 2009.
Aggrieved by the said
resolution and the sale, two suits 144 and 145/2010 came to be filed invoking
the original jurisdiction of the Bombay High Court. A copy of the plaint in the
suit No.145/2010 is placed on record in these SLPs. The principal prayer in
both the civil suits is "(a) for a declaration that the said Resolution dated
6th December, 2009 (Exhibit `K' hereto) and the said Conveyance dated 7th December,
2009 (Exhibit `M' hereto) are invalid, illegal and void ab initio and/or the same
are voidable as against the Plaintiffs and the Tenant members of Defendant
No.17 Association; (a-i) That this Hon'ble Court be pleased to pass Order declaring
Section 164 of Maharashtra Co-operative Societies Act, 12 Violation of Article 14
of the Constitution of India and the same ought to be struck down.
"It can be seen from
prayer (a) extracted above that the plaintiffs seek in effect two declarations -
(i) that a resolution dated 6th November, 2009 of the first respondent Society,
and (ii) a Conveyance dated 7th December, 2009 executed on behalf of the first respondent
Society in favour of respondents 22 and 23, are either illegal, void ab initio or
in the alternative that they are voidable as against the plaintiffs (of whom at
least some) are the appellants herein and claim to be the tenant members of the
respondent society (we may state here that there is a dispute regarding the
membership of some of the appellants herein but, for the present case, we do not
go into the dispute but refer the appellants, only for the sake of convenience,
as `tenant members').
The substance of the
factual and legal basis (asserted in the plaint) on which the plaintiffs seek
the two declarations (referred to earlier) in the civil suits, and argued at
the Bar is that the `tenant members' alone have the right, title and interest
over the property sought to be sold by the impugned conveyance dated 7th
December, 2009 and that the other members of the Society have no right, title or
interest in the property in dispute. The plaintiffs expect an order of
bifurcation of the respondent No.1 Society and also to get a declaration in their
favour of the right, title and interest in the property in dispute. The
plaintiffs also therefore claimed appropriate interim orders regarding the property
during the pendency of the suits.
defendants raised a preliminary objection regarding the maintainability of the
suits in view of Sections 91 and 163 of the Act which was rejected by a learned
single judge but found favour with the Division Bench of the Bombay High Court
resulting in that part of the judgment which is under appeal now.
the judgment under appeal it is held that: "In our opinion, therefore,
what is principally challenged in the Civil Suit is the resolution of the
general body. And challenge to the conveyance is ancillary"And therefore
opined: "That the Plaintiffs could have filed the dispute before the Co-operative
Court challenging the resolution of the General Body and the consequent execution
of conveyance in favour of M/s. Sumer associates and could have joined M/s.
Sumer associates as a Defendant in that dispute. In our opinion thus the entire
subject matter of the Civil Suit could have been the subject matter of the dispute
filed under Section 91."
Mukul Rohtagi and Dr. Abhishek M. Singhvi, learned senior counsel appearing for
the appellants argued that irrespective of the fact whether a declaration regarding
illegality of the impugned resolution dated 6th December, 2009 could be granted
by the ordinary civil courts in view of Section 91 of the Act, a declaration regarding
the voidness of the impugned conveyance dated 7th December, 2009 could only be
given by a competent civil court contemplated under Section 9 of the Code of
Civil Procedure (hereinafter `the Code' for short) because such conveyance is in
favour of a person who is not a member of the Society.
It is submitted that
the ultimate dispute and grievance of the plaintiffs is against the alienation
of the property in favour of the respondents 22 and 23 herein by the impugned
conveyance which has the effect of depriving the plaintiffs of their right, title
and interest in the property in dispute. Such a conveyance could only be declared
illegal and void ab initio by a competent civil court contemplated under Section
9 of the Code. The impugned resolution, which purportedly authorises the sale of
the property covered by the impugned conveyance, by itself does not transfer or
create any interest in the property adverse to the interest of the plaintiffs.
Therefore, even if it
is assumed that the legality of the impugned resolution is amenable to the
jurisdiction of the Co-operative Court functioning under Section 91, the suits
in question could not have been held to be not maintainable as the jurisdiction
to adjudicate 6upon the incidental question regarding the impugned resolution
dated 6th December, 2009 would stand subsumed by the jurisdiction of the
competent civil court which alone is competent to decide the legality of the
impugned conveyance dated 7th December, 2009.
The learned counsel further
argued that the ouster of the jurisdiction conferred on the Civil Courts under
Section 9 of the Code is to be conceded only where there is an express
exclusion by the language of the Statute or if such an ouster arises by a
necessary implication from the Scheme of a particular Statute. It is argued
that there is nothing either in the language of Section 91 or the Scheme of the
Act which would lead to a conclusion that the jurisdiction conferred under
Section 9 of the Code is excluded to adjudicate the suits in question.
the question of interim order during the pendency of the suits, the learned counsel
argued that in view of the pendency of the claim of the plaintiff for the
bifurcation of the respondent society (and according to the appellants, they
have a very strong case), the disputed property must be preserved as it is and the
balance of convenience is in favour of the appellants. The learned counsel
argued that the High Court grossly erred in examining the maintainability of the
suits in the interlocutory application filed by the plaintiff seeking interim
the other hand, learned senior counsel Shri C.A. Sundaram appearing for the
respondents argued that the language of Section 91, sub-section 1(c) of the Act
clearly indicates that the jurisdiction of the Co-operative Court contemplated under
Section 91 is not confined only to the adjudication of the disputes between the
society and its members or servants etc. enumerated in Section 91(1)(a), (b),
(d) and (e) but also extends to the disputes where one of the parties to the
dispute is a person other than a member of the society.
to the learned counsel, such conclusion is irresistible from the language of Section
91(1) (c) and Section 94 (3) (a).Hence, the judgment under appeal does not call
for any interference.
K.K. Venugopal, learned senior counsel submitted that the course adopted by the
Bombay High Court in examining the maintainability of the suits in the
Interlocutory Application filed by the plaintiffs is not only justified but
also mandatory in view of the language of Section 9A of the Civil Procedure
Code inserted by the State Legislation of Maharashtra.
the question of interim arrangement to be made during the pendency of the suit,
learned counsel for the respondent 8submitted that the suit itself is based on the
expectancy that the tenant Members would succeed in their application for the
bifurcation of the society, and upon bifurcation, the tenant members would be entitled
for the exclusive title and possession of the disputed property.
Even if the above
mentioned understanding of the plaintiff's is right since the plaintiffs are
only some of the tenant members of the society, they would not be entitled for
the title and possession of the entire disputed property, but only a part of
it. It is argued that since other tenant members have no objection to the
alienation of the property in dispute in favour of the respondent no. 22 and 23,
impeding of conveyance dated 7th December, 2009 would not be justified as the impugned
resolution and the conveyance have made adequate provisions for safeguarding the
interest (if any) of the appellants.
shall now examine the issue of maintainability of the suits. As rightly
contended by the learned counsel for the appellants the Civil Court's jurisdiction
to adjudicate Civil disputes is unlimited, subject only to the limitations imposed
by law either expressly or by necessary implications.
The law in this
regard is well settled and needs no elaboration. Therefore, it becomes necessary
for us to examine whether there is anything in the language of Section 91 or
Section 163 which expressly excludes the jurisdiction of the Civil Courts in
the context of the suits in question. Section 163 of the 9Act bars the jurisdiction
of Civil and Revenue Courts reads as follows: "163. Bar of jurisdiction of
as expressly provided in this Act, no Civil or Revenue Court shall have any
jurisdiction in respect of
a. the registration of a
society or its by-laws or the amendments of its by-laws or the dissolution of the
committee of a society, or the management of the society on dissolution
b. any dispute required to
be referred to the Co- operative Court for decision.
c. any matter concerned
with the winding up and dissolution of a society.
a society is being wound up, no suit or other legal proceeding relating to the business
of such society shall be proceeded with or instituted against the society or any
member thereof, or any matter touching the affairs of the society, except by
the leave of the Registrar, and subject to such terms as he may impose.
orders, decisions or awards passed in accordance with the Act or the Rules
shall, subject to the provisions for appeal or revision in this Act be final;
and no such order, decision or award shall be liable to be challenged, set
aside, modified, revised or declared void in any Court upon the merits or upon
any other ground whatsoever."
163 (1)(b) and Section 91 (3) are complimentary to each other. Section 91(3)
reads as follows: "Save as otherwise provided under "sub-section (2) to
section 93, no Court shall have jurisdiction to entertain any suit or other
proceedings in respect of any dispute referred to in sub-section (1)"
can be seen that the Section 163 only excludes the jurisdiction of the Civil
Court with reference to the disputes arising out of the registration:-1) Registration
of the society;2) Disputes relating to the bye-laws of the society; 3) Dissolution
of the Committee of the society;4) Management of the society on dissolution of
the society;5) Any disputes which is required to be referred to the Co- operative
Court under Section 91.;6) Any matter concerned with the winding up and
dissolution of the society etc.
dispute arising out of a decision of the society to alienate the property of
the society, in our opinion, is not expressly covered under Section 163 of the
Act. It is to be examined whether it is a matter which is required to be
resolved by the Co-operative Court by virtue of the provisions under Section 91
of the Act. In view of the conclusion of the High Court that "the entire
subject matter of the civil suit could have been the subject matter of dispute filed
under Section 91."
is necessary to examine the scope of Section 91(1), which reads as follows "(1)
Notwithstanding anything contained in any other law for the time being in force
any dispute touching the Constitution, (Election of Committee or its Officers)
other than the elections of the committees of the specified 1 societies including
its officers), Conduct of general meetings, management or business or a society
shall be referred by any of the parties to the disputes, or by federal society
to which the society is affiliated or by a creditor of the society, ( in the
Co-operative Court) If both the parties there to are one or other of the
a. a society, its committee,
any past committee, any past or present officer, any past or present agent, any
past and present servant or nominee, heir or legal representative of any deceased
officer, deceased agent or deceased servant of the society or the liquidator of
the society (or the official Assignee of a De-Registered Society),
b. a member, past member
of a person claiming through a member, past member of a deceased member of
society, or a society which is a member of the society ( or a persons who claims
to be a member of the society;)
c. a person other than a
member of the society, with whom the society has any transactions in respect of
which any restrictions or regulations have been imposed, made or prescribed
under sections 43,44 or 45 and any person claiming through such person:
d. a surety of a member,
past member or deceased member, or surety of a person other than a member with whom
the society has any transactions in respect of which restrictions have been prescribed
under section 45, whether such surety or person is or is not a member of the
e. any other society , or
the Liquidator of such a society or de-registered society or the official Assignee
of such a de-registered society."
can be seen from the above extract that the Section makes it mandatory that
certain disputes, the nature of which is specified 1in the said sub-section, be
referred to the `Co-operative Court'1 - as defined under Section 2(10-a ii). Such
reference is required to be made by "any of the parties to the dispute".
The Section also specifies the nature/subject matter of dispute which is
required to be referred to the Co-operative Courts. They are "disputes touching"
the 1) Constitution of the society 2) Elections of the "Committee or its
officers" 3) Conduct General Meetings 4) Management of the society or 5) Business
of the society.
91 also stipulates that the disputes which are mandatorily required to referred
to the Co-operative Court for an adjudication must also be disputes arising between
the parties to the dispute who should belong to one or the other categories
specified under clauses (a) to (e) to sub-section (1), hereinafter referred to
as `enumerated persons', for the sake of convenience. It can be seen from the scheme
of Section 91, to confer exclusive jurisdiction on the Co-operative Court, the
dispute must satisfy two requirements.
It was held so in Marine
Times Publications (P) Ltd. Vs. Shriram Transport & Finance Co. Ltd.,
(1991) 1 SCC 469 at para 11: "11. Before a dispute can be referred to a
Cooperative Court under the provisions of Section 91(1) of the said Act it is not
only essential that the dispute should be of a kind 1 `Co-operative Court'
means a court constituted under this Act to decide disputes referred to it
under any of the provisions of the Act. 1 described in sub-section (1) of Section
91 but it is also essential that the parties to the said dispute must belong to
any of the categories specified in clauses (a) to (e) of sub- section (1) of
the said section.
subject matter as well as the parties to the dispute must be those specified
under the section. In other words if either of the above mentioned two
requirements is not satisfied then the dispute cannot be adjudicated by the Co-operative
Court. If one of the parties to the dispute is not an enumerated person, the question
whether the subject matter of the dispute is one which falls exclusively within
the jurisdiction of the Co-operative Court need not be examined. Similarly, if
it is found in a given case that the subject matter of dispute is not covered
by Section 91, an enquiry into the question whether the parties to the dispute
fall under any of the categories enumerated under Section 91 would become
learned counsel for the respondent argued that in view of the language of Section
91(1) (c) and Section 94(3) the various classes of persons contemplated under
Section 91 to bring the dispute within the jurisdiction of the Co-operative
Court (if the subject matter of the dispute is otherwise exclusively amenable
to the jurisdiction of the Co-operative Court), includes persons other than the
members of the society though not covered by clauses (a), (b), (d) and (e) of
The leaned counsel
laid emphasis on the clause "persons other than a member of the society"
occurring under Section 91(1) (c) and the clause "whether he be a member of
the society or not has acquired any interest in the property of a person who is
a party to a dispute" occurring under Section 94(3)(a) clearly demonstrate
that the jurisdiction of the Co-operative Court is not confined only to those
cases where both the parties are either members or officers etc. specified in
clauses (a), (b), (d) and (e) of Section 91(1).
examine the correctness of the submissions made by Shri C.A. Sundaram, it
requires an analysis of Section 91(1)(c) and 94 (3). When Section 91(1)(c)
stipulates that persons other than the members of the society with whom the
society has any transaction as one of the classes of persons who could be
parties to a dispute amenable exclusively to the jurisdiction of the
Co-operative Court, such a class is not an unqualified class. The said sub-section
further qualifies the said class by expressly mentioning that the transactions
of such persons with a society should be a transactions "in respect of
which restrictions and Regulations have been made or prescribed under Sections
43, 44, or 45 of the Act". Therefore, to understand the exact nature of the
above mentioned class, an examination of the scheme of Sections 43, 44 is
43 (1) reads as follows: "43. (1) A society shall receive deposits and
loans from members and other persons, only to such extent, and under such
conditions, as may be prescribed, or specified by the by-laws of the
society."The said provision recognises the legal authority of a
co-operative society to receive deposits and loans either from the members or
other persons. It further stipulates that the receipt of deposits and loans is permissible
only to the extent and subject to such conditions as may be prescribed.
44 on the other hand deals with the legal authority of the co-operative society
to make a loan/lend money. Section 44 in so far as it is relevant reads as
1. "No society
shall make a loan to any person other than a member or on the security of its own
shares, or on the security of any person who is not a member. Provided that
with the special sanction of the Registrar, a society may make loans to another
anything contained in the foregoing sub-section, a society may make a loan to a
depositor on the security of his deposit.
can be seen from sub-section (1) that it prohibits a society from lending money
to a person other than a member. It also prohibits lending of money by the
society even to a member on the security of the shares of the same society. Further
it also prohibits lending of money to a member on security to a person who is not
a member. However, the proviso to sub-section (1) authorises a society to lend
money to any other society with the special sanction of the Registrar.
(2) expressly authorises the society to lend money to a depositor on the security
of his deposits. Such an authorisation is declared to be notwithstanding
anything contained in sub-section (1). In other words, the restriction
contained in sub-section (1) that a society shall not lend money to a person other
than a member is relaxed with reference to a depositor, who is not a member of
the society, as we have already noticed under Section 43 that the deposits or
loans can be received by a society not only from its members but also from
persons other than members.
45 makes a general declaration that the transactions of the society with persons
other than its members shall be subject to such restrictions as may be prescribed.
Section 45 reads as follows:- "45. Save as is provided in this Act, the
transactions of a society with persons other than members shall be subject to
such restrictions, if any, as may be prescribed."
where Section 91 (1) (c) speaks of persons other than the members of the
society, it is actually referring to persons other than the members of the
society who have deposited money with the society or who have either lent or
borrowed money from the society in accordance with the provisions of Sections
43 and 44 and subject to the conditions and limitations if any prescribed with reference
to such lending to or borrowing from the society.
to the language and Scheme of Section 94(3). Section 94(1) enumerates the
powers of the Cooperative Court such as the power of summoning the witness and
documents etc. Sub-section (3)(a) reads as follows: 94. Procedure for
settlement of disputes and power of Co-operative Court xxx xxx xxx xxx (3)(a)
If the Co-operative
Court is satisfied that a person whether he be a member of the society or not
has acquired any interest in the property of a person who is a party to a
dispute it may order that the person who has acquired the interest in the property
may join as a party to the dispute; and any decision that may be passed on the reference
by the Co-operative Court shall be binding on the party so joined in the same
manner as if he were an original party to the dispute." [emphasis
The substance of
sub-section (3)(a) is that if the Co-operative Court in the course of
adjudication of a dispute is satisfied that any person other than a party to
the dispute "has acquired any interest in the property of a party to a dispute",
then the Co-operative Court is empowered to implead such a 3rd party as a party
to the dispute. Such a 3rd party may or may not even be a member of the society.
The sub-section further declares such an impleaded 3rd party to be bound by the
decision of the Co-operative Court.
is argued by Shri C.A. Sundaram, learned senior counsel for the respondents
that the scheme and language of Section 94(3)(a) makes it beyond doubt that the
Co-operative Court's jurisdiction to adjudicate the dispute is not confined
only to the disputes between the various classes of persons enumerated under
Section 91 alone but extends to others also if such a 3rd party (even in a case
where he happen to be a non-member) acquires some interest in the property of
either the society or the members or any other person enumerated in Section 91.
find it difficult to accept the submissions of Shri Sundaram for the reason if really
the Legislature intended that the Co-operative Court should have jurisdiction in
all the disputes irrespective of the nature of the dispute arising between the
various classes of persons enumerated in Section 91 and non-member 3rd parties
who acquire any interest in the property of such enumerated persons, the Legislature
could have clearly indicated the same in Section 91 itself.
It must be remembered
that Section 94(3)(a) does not enable a person other than an enumerated person
to refer a dispute to the Co-operative Court. The said legal position is made
clear in Marine Times (supra). It was a case where a member 1of a housing
society occupying a part of the building owned by the society agreed to sell that
property to a 3rd party subject to the approval of the society. The society declined
approval. The 3rd party raised a dispute against the society as well as the member
before the Co-operative Court. Dealing with the question whether the Co-operative
Court would have jurisdiction to adjudicate the dispute, this Court answered
the question in the negative.
the submission of Shri Sundaram would lead to a situation that while on one
hand it is the settled position of law that the Act does not permit a person other
than the one enumerated under Section 91 to seek adjudication of his dispute with
`enumerated persons' in a Co-operative Court, such a Court would be authorised
by virtue of Section 94(3)(a) to adjudicate a dispute between an enumerated person
and a non-member 3rd party, if raised by an enumerated person.
On the other hand, from
the language of the said sub-section, it appears that the only circumstance which
enables the Co-operative Court to exercise its jurisdiction against such a 3rd party
is that while adjudicating a dispute which is otherwise amenable to its jurisdiction,
the Co-operative Court reaches the conclusion that a 3rd party acquired some
interest in the property of one of the parties to the dispute. Necessarily the following
two questions must be examined to understand the exact scope of the said
1. Whether the 2property
referred to in the sub-section is any property of one of the parties to the
dispute or should such property bear any relationship to the dispute?
2. Whether the
acquisition of the interest referred to should be anterior to the reference of the
dispute to the Co-operative Court or on acquisition made during the pendency of
answer to the first question to our mind is plain. The property in which the 3rd
party acquired interest must bear some relationship with the dispute pending
before the tribunal. To hold otherwise would be to enable the Co-operative Court
to examine questions unconnected with the dispute pending before it and wholly unconnected
with the affairs of the Society. An illogical result to be normally avoided unless
compelled by the express language of the Act.
to the second question, learned counsel for the appellant argued that the intention
of the Legislature is to be gathered from the language of the sub-section (3)(a)
and the employment of the present perfect tense (has acquired any interest) must
only lead to a conclusion that the Legislature intended the Co-operative Court to
deal with only the cases of acquisition of interest in the property during the pendency
of the litigation before it. On the other hand, Shri Sundaram argued that there
is no warrant for such an inference in the language of sub-section (3)(a).
are of the opinion that having regard to the language of Section 94,
sub-section (3)(a), more specifically "has acquired any interest", the
acquisition of the interest contemplated is only an acquisition made during the
pendency of the dispute before the Co-operative Court. For the reason that such
an acquisition of interest is qualified by the words, "in the property of
a person who is a party to the dispute", we hold so for another reason
hold otherwise, would lead to a situation where a dispute between an enumerated
person and a 3rd party would become amenable to the jurisdiction of the Co-operative
Court at the instance of the persons enumerated under Section 91 but not at the
instance of a 3rd party in view of the judgment of this Court in (1991) 1 SCC
469. An absurd situation, ex facie violative of Article 14, in as much as such
a construction would lead to a situation that with reference to a dispute, the affected
parties are compelled to approach different fora for the adjudication of the same
dispute depending upon the fact which party is seeking a relief. Such a
construction, being inconsistent with a constitutional mandate, is
coming to the conclusion that the suits in question are not maintainable and
the dispute could be examined exclusively by the Co-operative Court, the High
Court proceeded on the basis that it is possible to challenge the resolution and
the conveyance independently. Starting from such a premise, the High Court
opined that challenge alone to the resolution without challenging the
conveyance is possible but not vice-versa. The reason given by the High Court
for the same is as follows:-
"If Court passes
a decree or order setting aside the resolution of the general body, the
validity of the conveyance will not be intact, but if a decree or order is made
merely setting aside the conveyance, the resolution of the General body will remain
intact. By the conveyance land owned by the Society is transferred. The society
is a body corporate. The person or persons who have signed the conveyance on
behalf of the Society derive the authority to do so from resolution of the General
Body. If the resolution is set aside or is declared invalid the act of the person
of executing the conveyance would become unauthorised.
Such an order in
relation to the validity of the General Body resolution will impair the validity
of the conveyance. Consequently, if the resolution remains intact but the conveyance
is set aside for some reason the Society may be in a position to execute another
conveyance pursuant to the resolution of the general body."We do not
propose to examine the correctness of the legal premise that the general body resolution
and the conveyance could be segregated in a dispute such as one on the hand. For
the sake of argument, we presume that it is possible for the plaintiffs,
appellants herein, to challenge only the general body resolution.
We also presume that
the conclusion arrived at by the High Court that if the general body resolution
is set aside, the same will impair the validity of the conveyance even without
an appropriate declaration by a competent judicial body. (We emphasise that we only
presume so without examining to the said conclusion for the limited purpose) If
the resolution dated 6th December, 2009 alone is challenged before the
Co-operative Court, in view of our conclusion recorded earlier, the respondents
22 and 23 (the beneficiaries of the resolution) could not be made parties before
the Co-operative Court.
In such a situation,
even if the Co-operative Court came to the conclusion that the resolution is
illegal, it would always be open for the respondents 22 and 23 to ignore such a
determination as they are not parties to the proceedings and assert their title
on the basis of the conveyance dated 7th December, 2009.
If any party such as
the plaintiffs (the appellants herein) disputes the validity of the title conveyed
thereunder, necessarily such a dispute would have to be adjudicated by a
competent Court under Section 9 of the Code of Civil Procedure wherein,
necessarily, the question whether a valid title was conveyed in favour of respondents
22 and 23 by the society would arise for determination. The legality of the
resolution would still have to be gone into again. Therefore, in our opinion, the
premise in which the High Court commenced its enquiry itself is wrong.
all the above-mentioned reasons, we are of the opinion that the conclusion of
the High Court that the suits in question are 2not maintainable on the ground
that the dispute is amenable to the exclusive jurisdiction under Section 91 of the
Act to the Co-operative Court cannot be sustained and the same is required to
be set aside.
takes us to the next question raised in these appeals - whether the High Court
was right in going into the maintainability of the suits in question. Shri Venugopal,
learned senior counsel appearing for some of the respondents submitted that in
view of the provisions contained in Section 9A of the Code, which was
introduced by local amendment of the Maharashtra Legislature to the Code by Maharashtra
Act No.65 of 1977, the course of action followed by the High Court is not only
justified but also the Court is obliged to follow such a course of action.
Section 9A reads as
follows: "9A. Whereof the hearing of application relating to interim relief
in a suit, objection to jurisdiction is taken, such issue to be decided by the Court
as a preliminary issue.- (1) Notwithstanding anything contained in this Code or
any other law for the time beiong in force, if, at the hearing of any application
for granting or setting aside an order granting any interim relief, whether by
way of stay, injunction, appointment of a receiver or otherwise, made in any
suit, an objection to the jurisdiction of the Court to entertain such a suit is
taken by any of the parties to the suit, the Court shall proceed to determine
at the hearing of such application the issue as to the jurisdiction as a
preliminary issue before granting or setting aside the order granting the
Any such application
shall be heard and disposed of by the Court as expeditiously as possible and shall
not in any case be adjourned to the hearing of the suit. (2) Notwithstanding
anything contained ion sub-section (1), at the hearing of any such application,
the Court may grant such interim relief as it may consider necessary, pending determination
by it of the preliminary issue as to the jurisdiction."The language of Section
9A is self-explanatory. We accept the submission made by Shri Venugopal in to.
to the question of the interim order in view of our conclusion that the suits in
question are maintainable and having regard to the fact that the suits are to
be tried by the High Court in exercise of its original jurisdiction, we do not
propose to pass any interim order and leave it open to the High Court to consider
the applications filed by the plaintiffs for interim orders in accordance with
law and pass appropriate orders. The principles governing the grant of interim orders
are too well settled and we need not expound the same once again.
However, we would
like to indicate that on the question of the existence of a prima facie case in
favour of the plaintiffs, the following factors are germane and require to be
examined. Having regard to the content of the plaint, we are of the opinion that
the nature of the legal right, the plaintiffs claim for seeking the relief such
as the one sought in the suits necessarily depends upon the byelaws of the
Society, the rights and obligations of the various classes of its members with
respect to the property in dispute. The High Court may examine the above aspects
before passing an appropriate interim order.
view of the above, we also deem it proper to direct all the parties to maintain
status quo as on today for a period of two weeks to enable the Bombay High
Court to examine the applications of the plaintiffs for interim orders and pass
appropriate orders in accordance with law.
appeals are, accordingly, disposed of.