Final Order 1

Order Details: Notice of Motion
Pdf Text: 1 N.M No.1732/2019 in Suit No.678/2019
IN THE BOMBAY CITY CIVIL COURT AT MUMBAI
NOTICE OF MOTION NO. 1732 OF 2019
(C.N.R. No. MHCC01-004760-2019)
IN
S. C. SUIT NO. 678 OF 2019
C.N.R. No. MHCC01-001403-2019)
Mr. Umesh Patkar .... Applicant
(Ori. Def. No.2)
V/s.
Pawan Heights Co-op. Housing Society Ltd. .… Plaintiff
AND
Mr. Tejas Sagar Ghadigaonkar & others …. Defendants
Advocate Mr. Nishant Tripathi for defendant Nos.1 and 2.
Advocate Mr. Sanjay Dhadam with Rohit Shevte for the plaintiff.
CORAM : HIS HONOUR JUDGE
S.R. SALUNKHE.
(C.R. No. 12)
DATE : 17th MARCH, 2020
ORAL ORDER
This notice of motion is taken out by the defendant No.2
praying to reject the plaint under O.VII R. 11 of the Code of Civil
Procedure, 1908 (CPC) r/w Sec. 91 of the Maharashtra Co-operative
Societies Act,1960 claiming that the suit is barred under Sec.9 of CPC.
2. The dispute as reveals from the plaint averments is that the
plaintiff is a registered Co-operative Housing Society and the
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defendants are called to be the unlawful occupiers. The names of the
defendant Nos. 3 to 6 have been deleted. The defendant No.7 (MHADA)
has constructed the building for welfare of poor Mill workers and the
plaintiff Society is protecting their interest.
3. According to the plaintiff Society, the defendants have
obtained unlawful and forcible possession of the premises from poor
Mill workers by using political influence and police force by forging the
documents. The defendants are not the members of the plaintiff Society.
They tried to form Society of unlawful occupiers by grabbing the
premises of lawful occupiers but the lawful occupiers came together and
formed plaintiff Society. The plaintiff Society and lawful occupiers
issued several notices and letters to concerned illegal occupiers,
MHADA, and other Competent Authorities in order to evict the illegal
occupiers from the premises of the plaintiff Society but in vain. The
plaintiff Society therefore, passed resolution to institute a civil suit to
prohibit the defendants by an order of injunction from continuing their
illegal activities i.e. illegal parking and various other acts and further
prohibiting them from interfering in the daily affairs of the plaintiff
Society.
4. The defendant No.2, by giving stress on the prayer of
prohibitory injunction against the defendants
“not to interfere in the
daily affairs of the plaintiff Society” has come with this notice of
motion contending that looking to the relief asked in the plaint, the
dispute involved in the suit is covered by Sec.91 of the Act of 1960 and
consequently, this Court will have no jurisdiction to entertain and try
this suit as is expressly barred by the special provision under Sec.91 of
the Act of 1960. The case of the defendant No.2 is that he is a lawful
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tenant of the original owner Biva Narayan Petkar and is in possession of
the premises in that capacity. Bhiva Narayan Petkar is a member of the
plaintiff Society but he was intentionally not made party to the suit.
5. Mr. Nishant Tripathi, the learned advocate for the
defendant No.1 and 2 has relied on the judgment of the Hon’ble
Supreme Court in
Margret Almedia v/s Bombay Catholic Cooperative
Housing Society [ (2012) 5 SCC 642 ] wherein, the suit was for
declaration that the resolution Dt. 6.12.2009 passed by the respondent
Cooperative Society proposing to sell its property to respondent No. 22
and 23 and conveyance deed Dt. 7.12.2009 executed pursuant thereto
were invalid, illegal and
void-ab-initio were not maintainable and
dispute was amenable to exclusive jurisdiction of Cooperative Court.
The jurisdiction of the Civil Court was questioned. The Hon’ble
Supreme Court held that the Civil Court’s jurisdiction to adjudicate civil
disputes is unlimited, subject only to limitations imposed by law either
expressly or by necessary implications. The law in this regard is well
settled and needs no elaboration. The Honble Supreme Court then
examined 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 Act bars the
jurisdiction of Civil and Revenue Courts reads as follows:
"163. Bar of jurisdiction of Courts-
(1) Save 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 thereof: or
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(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.
(2) while 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.
(3) all 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."
6. The Hon’ble Supreme Court then referred Section 163 (1)
(b) and Section 91 (3) which 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)"
7. The Hon’ble Supreme Court further observed that the
Section 163 only excludes the jurisdiction of the Civil Court with
reference to the disputes arising out of:
1) Registration of the society;
2) Disputes relating to the bye-laws of the society;
3) Dissolution of the Committee of the society;
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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.
8. The Hon’ble Supreme Court further held that a 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."
9. It 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 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
following:-
(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
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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 society;
(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."
10. The Hon’ble Supreme Court concluded observing that it can
be seen from the above extract that the Section makes it mandatory that
certain disputes, the nature of which is specified in the said sub-section,
be referred to the Co-operative Court 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,
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4) Management of the society or
5) Business of the society.
11. Section 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). 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] in Para 11 as follows-
“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 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 91”.
12. The learned advocate for the defendant no.1 and 2 further
relies on the judgment of the Honble Supreme Court in
A.V.R. and Co.
v/s Fairfield Cooperative Housing Society [(1988) 4 SCC 408] wherein,
the Society had moved an application before Co-operative Court against
its member and his licensee for possession on the ground of violation of
Society’s rules, regulations and bye-laws. It was held that Co-operative
Court had jurisdiction under Sec. 91 to entertain and decide the
dispute. In
Sopan Sabale v/s Assistant Charity Cimmissioner [ (2004)
3 SCC 137 ], the facts and question for determination were altogether
different from the fact and question in the case in hand. This judgments
is therefore, not necessary to discussed in detail.
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13. The reliance is also placed on the judgment of the Hon’ble
Bombay High Court in
Chandra Prem Shah v/s K. Raheja Universal Pvt.
Ltd. [ 2015 (5) Mh.L.J. 714 ]. There was dispute between Co-operative
Society and its members covered under Sec. 91 of the Act of 1960. The
real dispute was as to whether the plaint has to be rejected or returned.
So, this judgment is also out of context. The reliance is also placed on
the judgment in
Sardar Mohan Singh Ahluwalia v/s Maitrai Park
Cooperative Housing Society [ (1988) 4 SCC 416 ] wherein, the
appellant was inducted by an allottee member without Society’s
consent. Appellant was claiming possession through the member of the
Society. It was held that the dispute is covered by Sec. 91 of the Act of
1960 and it will lie before the Cooperative Court. Similar is the case in
Hindustan Thomson Associates Ltd. v/s Mrs. Maya Inderson Israni
[ (1988) 4 SCC 745 ]. wherein, it is held that where a dispute under
Sec.91 of the Maharashtra Co-operative Societies Act is filed by a
member of the Society for possession of a Flat in the Society’s building
in possession of his licensee along with the Society as co-disputant, the
dispute is one touching the business of the Society within the meaning
of Sec. 91and will lie before the Co-operative Court. In
Pigment Lakes
Chemical Manufacturing Co. Pvt. Ltd. v/s Sitaram Kashiram Konde
[ 1969 Mh.L.J. 710 ], the dispute was covered by the Industrial Disputes
Act and it has no relevance to the case in hand.
14. Mr. Sanjay Dhadam, the learned advocate for the plaintiff
Society has relied on the judgment of the Hon’ble Bombay High Court
in
Alok Agarwal v/s Punam Co-operative Housing Society [2013 (1)
All.MR. 33]. The judgment of the Hon’ble Supreme Court in
Margret
Almeida’s case
(supra) has been referred in detail in this judgment.
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Applying the ratio in that judgment, the Hon’ble Bombay High Court
further observed in Para 20 and 21 as follows-
“20. Moreover, and independent of the aforesaid
position, the claim of the First Respondent is that the
Appellants have trespassed upon common areas or an
amenity required for the use of the members of the
society. When a member of a co-operative society
commits an act of encroachment in respect of an area
which is not lawfully allotted to him by the co-
operative society, he assumes the character of an
encroacher or a trespasser. The act of encroachment or
of trespass is not committed by a member in his
capacity as a member of the co-operative society. The
question as to whether the Appellant has trespassed in
fact does not fall for determination at this stage in
these proceedings nor should the observations which
have been made by the Learned Single Judge be
regarded as concluding that issue. It is necessary to so
clarify because Motion for interim relief is still pending
before the Learned Single Judge and at this stage, the
Trial Court has considered the preliminary issue under
Section 9A and the Motions for the rejection of the
plaint under Order 7 Rule 11 and for the grant of a stay
under Section 10 of the Code of Civil procedure 1908.
Be that as it may, it is evident that when a co-operative
society sues on the basis that there has been a trespass
or an encroachment in respect of a common amenity
which does not form the subject matter of a lawful
allotment in favour of any member, the dispute that is
sought to be raised by the society cannot properly
construed be regarded as a dispute falling within the
purview of Section 91. Chief Justice Chagla, speaking
for a Division bench of this Court in
Shyam Co-
operative Housing Society Ltd. v. Ramibai Bhagwansing
Advani [AIR 1952 Bombay 445] observed that the
dispute must be between the society and the member
as a member or qua a member. The Learned Chief
Justice held that it must be a dispute in which the
member must be interested as a member and it must
relate to a transaction in which the member must be
interested as a member. From this perspective it was
held that it was not every dispute between the society
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and a member that would fall within the purview of the
provisions of Section 54 of the Bombay Co- operative
Societies Act,1925. The Learned Chief Justice held that
for instance, there may be many disputes between the
society and its members in which the members are not
concerned as members at all and they are in the same
position as strangers.
21. The judgment of the Supreme Court in
O.N.
Bhatnagar v. Rukibai Narsindas [AIR 1982 SC 1097]
dealt with a situation where a member to whom
premises had lawfully been allotted had granted a
license of the premises and the licensee had thereupon
failed to vacate. It was in this context that the Supreme
Court held that the nature of the business of a society
has to be ascertained from the objects for which the
society is constituted and whatever the society did in
the normal course of its activities such as by initiating
proceedings for removing an act of trespass by a
stranger, from a flat allotted to one of its members,
cannot but be part of its business. In the present case,
the foundation of the action which has been instituted
by the society is that the premises to which the suit
relates do not form the subject matter of the allotment
by the society to its member and it is from that
perspective that the society has sought a declaration in
regard to the invalidity of the agreement dated 30 May
2007 under which the Appellants claim title. Looked at
from either perspective, such a suit by the society
would not fall within the jurisdiction of the Co-
operative Court under Section 91. Section 9 of the
Code of Civil Procedure confers jurisdiction on a Civil
Court to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly
barred. The suit which is instituted by the First
Respondent on the Original Side of this Court is not a
suit meeting the description of an action that the Co-
operative Court would have jurisdiction to entertain
under Section 91 of the Maharashtra Co-operative
Societies Act 1960. For these reasons, we are of the
view that the Learned Single Judge was not in error in
answering the preliminary issue framed under Section
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9-A by holding that this Court had jurisdiction to
entertain and try the suit”.
15. Keeping in mind the legal position as settled in
Margret
Almeida’s case which is relied on in
Alok Agarwal’s case
(supra), which
are the legal pronouncements latter in time, it has to be seen as to
whether the case in hand falls within the parameters as laid down in
those judgments to hold the jurisdiction of this Court or otherwise.
16. As is appears from the frame of the suit, the defendant
No.1 and 2 are said to be the rank trespassers illegally occupying the
premises of its members and refusing to pay maintenance charges and
they are illegally using the common parking slot despite complaints by
the allottee members and the Society and are doing other illegal
activities. No doubt the plaint averments suffer with vagueness. Which
premises are the actual subject matter of the suit, who are the allottees
of those premises, when and by what manner the defendant No.1 and 2
obtained their illegal possession, which parking slot they are using
illegally, what are those illegal acts they are doing, by what manner they
are interfering in the daily affairs of the plaintiff Society are the
important questions on which the plaint is completely silent. Only
illegal activity alleged is illegal parking.
17. Be that as it may, we are not concerned with the
irregularities in drafting of the plaint and its legal effect at this stage.
Question before the Court is whether this Court has jurisdiction to
entertain and try this suit as it stands? The suit is for injunction
simlicitor filed against the defendant No.1 and 2 calling them to the
trespassers having unlawful possession and are unauthorizedly using
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the parking slot. The defendant No.1 and 2 have come with a case of
valid tenancy and lawful use and occupation. The original allottees are
not supporting the case of the defendants. In my considered view, such
a dispute has nothing to do with internal affairs or business of the
Society. Merely because the defendant No. 1 and 2 are sought to be
restrained from interfering in the daily affairs of the plaintiff Society, it
cannot be said that the dispute pertains to the internal business of the
Society.
18. Thus, in view of the detailed discussion in two judgments
referred above, there is no scope to hold that the dispute involved in the
suit is covered by Sec. 91 (1) of the Maharashtra Co-operative Societies
Act. In the result, I hold that this Court has jurisdiction to entertain and
try this suit. The Notice of motion lacks merit and therefore, is liable to
be dismissed. Hence the order.
ORDER
1. Notice of Motion No. 1732 of 2019 is hereby dismissed.
2. Ad-interim relief granted, if any, shall stands vacated.
3. Cost in cause.
4. Notice of Motion No. 1732 of 2019 stands disposed of
accordingly.
(S.R SALUNKHE)
Judge,
City Civil Court,
Date: 17/06/2020. Gr. Bombay.
Dictated on : 17/06/2020
Transcribed on : 17/06/2020
Signed on : 17/06/2020.
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
18/06/2020 At 01.50 p.m. MRS. SUPRIYA S. PAWAR
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court
Room No.)
HHJ MR. S. R. SALUNKHE
(C.R.NO.12)
Date of pronouncement of
Judgment/Order
17/06/2020
Judgment/Order signed by P.O. on 17/06/2020
Judgment/Order uploaded on 18/06/2020
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