Bombay High Court
Mrs.Amita Jiten Desai And Anr vs New Chandrodaya Co Operative Housing … on 28 April, 2026
2026:BHC-AS:20306
FA-251-2026 (1).doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
FIRST APPEAL NO. 251 OF 2026
1) Mrs. Amita Jiten Desai Age - 67 years of ]
Mumbai, Indian Inhabitant, residing at Flat ]
No. 501, In 'C' Building of New Chadroday Co- ]
operative Housing Society Ltd., Situated at ]
Bhanushale Lane, Ghatkopar (East), Mumbai ]
400077 ]
2) Mr. Jiten Manubhai Desai Age - 69 years of ]
Mumbai, Indian Inhabitant, residing at Flat ]
No. 502, In 'C' Building of New Chadrodaya ]
Co-operative Housing Society Ltd., Situated ]
at Bhanushale Lane, Ghatkopar (East), ]
Mumbai 400077 ]
...Appellants
Versus
1) New Chandrodaya Co-operative Housing ]
Society Ltd. Through their ]
Chairman/Secretary, Situated at Bhanushali ]
Lane, Ghatkopar (East), Mumbai 400077 ]
2) J Infraa Ventures Pvt. Ltd Plot No. A-781, ]
T.T.C Industrial, Area, M.I.D.C, Khairane, Navi ]
Mumbai - 400703 ]
3) M/s Dilip Sanghvi Consultants Architectural, ]
Structural Consultants And Project ]
Management Consultants (PMC), 101, Shri ]
Saidham, Plot no. 55, 90 Feet Road, Vikrant ]
Circle, Ghatkopar (East), Mumbai 400077 ] ...Respondents
Mr. Aman Saraf a/w Ms. Sakshi Agarwal i/b Mr. Bipin Joshi, for the
Appellants.
Mr. Anoshak Daver a/w Mr. Kushan Kode, Mr. Kevin Pereira, Ms.
Chinmaya Acharya, for the Respondent No. 1.
Mr. Amrut Joshi a/w Mr. Omkar Kulkarni, for the Respondent No. 2.
CORAM : SHARMILA U. DESHMUKH
RESERVED ON : March 23rd,2026
PRONOUNCED ON : April 28th, 2026
Arya Chavan 1/25
::: Uploaded on - 28/04/2026 ::: Downloaded on - 29/04/2026 06:03:25 :::
FA-251-2026 (1).doc
--------------
JUDGMENT:
1. The First Appeal is at the instance of the original Plaintiff
aggrieved by the impugned order dated 28 th January, 2026 dismissing
the suit under Order VII Rule 11(d) of Code of Civil Procedure, 1908 (for
short ‘CPC‘) as barred under section 91 of the Maharashtra Co-operative
Societies Act, 1960 (for short “MCS Act“).
2. The Plaintiffs are members of Defendant No. 1-society and
occupants of flat no. 501 and 502 in ‘C’ building of Defendant No. 1-
society. The plaint impleads the society, the developer and the project
management consultant as Defendants in the proceedings. The suit
came to be filed seeking reliefs in terms of prayer clauses (a) to (s) as
substantive reliefs and prayer clauses (t) to (v) as interim reliefs. Prayer
clauses (a) and (b) seeks declaration that the Resolutions dated 23 rd
December, 2023 and 27th May, 2024 passed by the Defendant No. 1-
society are illegal in law and not enforceable against the Plaintiff. Prayer
Clauses (c) to (m) sought varied declarations as regards the area of the
flats to be considered for redevelopment, the entitlement of the
Plaintiffs, who are residents of Building “C” of Defendant No 1 Society,
to similar benefits of redevelopment as given to the residents of
Building “A” and “B”, allotments in redeveloped building etc. Prayer
Arya Chavan 2/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:25 :::
FA-251-2026 (1).doc
clause (n) is an alternate relief in respect of a garage of Plaintiff No. 1
seeking directions to Defendant No. 1 and 2 to allot the Plaintiff No. 1,
permanent alternate accommodation in view of the area of the garage
plus additional increase. Prayer clause (q) to (s) seeks permanent order
of injunction against Defendant Nos. 1 and 2 from executing any
development agreement in relation to the development of the buildings
of Defendant No. 1-society and from carrying out any demolition. With
these prayers, the suit came to be filed.
3. The Defendant No. 1 Society filed an application under Order VII
Rule 11 (d) of CPC seeking dismissal of the suit on the ground that the
suit seeks to challenge the resolutions which touch the affairs of the
society, and hence, the jurisdiction of the Civil Court is barred by virtue
of Section 91 of the MCS Act and that the resolutions are not per se only
restricted to re-development but also pertains to inter se rights of the
society and members which touches the business of the society and on
the ground of pecuniary jurisdiction by reason of under valuation of the
subject matter. The application came to be resisted by the Plaintiffs.
4. The impugned judgment, while rejecting the plaint, renders a
finding that the plaint discloses that the Plaintiffs challenged the
general body resolution, redevelopment benefits, entitlement of
members, inter se rights of the society and the members which squarely
touched the business and affairs of the society. The Trial Court noted
Arya Chavan 3/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
the judicial pronouncements that dispute regarding the redevelopment
allotment or area falls within the ambit of Section 91 of MCS Act. The
Court also held that the plaint suffers from defective valuation.
SUBMISSIONS :-
5. Mr. Saraf, Learned counsel for the Appellant would point out that
the plaint seeks reliefs in respect of re-development of Defendant No.
1-society. Drawing attention of the Court to Section 91 of MCS Act, he
contends that the said provision contemplates specified class of person
in specified class of disputes and in the present case, the developer as
well as project management consultant are parties, who would not fall
within the specified class. He would further point out the prayers
seeking permanent injunction against execution of development
agreement and demolition and would submit that these prayers fall
squarely within the jurisdiction of Civil Court. He would submit that
without any resolutions, the Plaintiffs are carrying out soil testing and
there is an apprehension that the building will be demolished and the
reliefs of permanent injunction are sought which can be granted only by
the Civil Court.
6. He would further submit that the dispute essentially pertaining to
re-development is not a dispute touching the business of the society.
He submits that the upholding of jurisdiction of Co-operative Court in
respect of resolutions passed pertaining to redevelopment would lead
Arya Chavan 4/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
to an incongruous situation where the civil rights arising out of
development agreement will have to be agitated before the Civil Court
and the underlying resolutions will have to be entertained by the Co-
operative Court. He submits that the law is well settled that dispute
pertaining to re-development is not a dispute touching the business of
the Society and the plaint seeks relief only in respect of re-
development, which would lie before the Civil Court. He submits that
the initial construction of the society and redevelopment have been
held to be distinct activities and is not relatable to the business of the
society. He would point out that this Court has considered the amended
provisions of MCS Act to hold that where re-development is not one of
the objects of the Society, as per the Bye-Laws, it cannot be said to be
business of the Society. He would further point out the decision in
Pranav Constructions Limited vs Priyadarshini Co-operative Housing
Society Limited and Others1 holding that if the dispute does not touch
upon the buisness of Society, the member will have to file Civil Suit for
challenging the Resolutions.
7. Taking this Court through the impugned order, he submits that
there is no discussion as to the pleadings of the plaint, the nature of
relief sought and the Trial Court by a very cryptic order has dismissed
the plaint. In support he relies upon the following decisions:-
i) Mohinder Kaur Kochar vs Mayfair Housing Private
1 2025:BHC-OS:10902-DBArya Chavan 5/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).docLimited And Others2
ii) Parimal H. Solanki vs Bhoumik Co-operative Housing
Society Limited And Another3
iii) Pranav Constructions Limited vs Priyadarshini Co-
operative Housing Society Limited and Others (supra)
8. Mr. Daver, Learned counsel for Respondent No. 1 would submit
that all the reliefs sought by the Plaintiff primarily arise out of the
resolutions passed by society in respect of re-development of
Respondent No. 1-society. He has taken this Court painstakingly
through the prayer clauses and would co-relate the same with the
subject matter of the resolutions dated 23 th December, 2023 and 27th
May, 2024 passed by the Society which are under challenge. He submits
that at the time of filing of the suit, the development agreement was
not executed and came to be executed subsequently by reason whereof
the only aspect available for challenge were the resolutions and
minutes of meeting of the Society. He submits that civil rights over and
above the rights as member would arise only upon development
agreement being executed.
9. He submits that prayer clauses (c) to (s) are declarations in the
nature of re-negotiations of the terms of the proposed development
agreement, which are dependent on the challenge to the resolutions.
He would submit that the relief of permanent injunction are also
2 [2013 (1) Mh.L.J]
3 IA(L) No. 25993 of 2022 decided on 6th October, 2022 by Bombay High Court.
Arya Chavan 6/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
offshoot of the resolutions passed by Society. He has taken this Court
through the pleadings in the plaint to contend that it is dispute between
the Society and the Plaintiffs inter se as members and the impleadment
of the developer and the project management consultant is immaterial.
He submits that the action of the Respondent No 3, who is a consultant
stands in the position of agent of disclosed principal, and the plaint
constitutes a challenge to the act of the Society itself.
10. He would further submit that it is not the case of the Plaintiffs
that they are discriminated which would be a civil action and the Civil
Court would have the jurisdiction to adjudicate such cause. He submits
that the Plaintiffs being members are covered by the class specified by
Section 91 of the MCS Act. He submits that the Plaintiffs, by seeking
diverse declarations in the form of reliefs, have created an illusory cause
of action that the dispute is civil in nature. He submits that pleadings in
the plaint would indicate that the Plaintiffs are aggrieved in the manner
in which the meetings have been called and the resolutions have been
passed, and therefore, challenge those resolutions. He submits that all
actions by Respondent Nos. 2 and 3, till execution of development
agreement, where the rights of person other than the member and
society are sought to be created, will remain a dispute falling in the
ambit of Section 91 of the MCS Act and touching upon the business of
Respondent-society. He submits that any dispute between the members
Arya Chavan 7/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
and society has to be referred to the Co-operative Court in terms of
byelaws No. 175 (B) which will also cover the dispute about
appointment of developer and architect. He submits that the Plaintiff
also challenged the project report as approved by Respondent No. 1-
society by the resolution and the act of approval can only be challenged
before a Co-operative Court and not directly by way of seeking
declarations of purported rights. In support he relies upon the following
decisions:-
i) Rajendra Bajoria And Others vs Hemant Kumar Jalan
And Others4
ii) Dahiben vs Arvindbhai Kalyanji Bhanusali (Gajra)
Dead Through Legal Representatives And Others 5
iii) Girish Mulchand Mehta And Another vs Mahesh S.
Mehta And Another6
iv) Eknath Namdev Lashkare And Others vs
Pancharatna Properties And Others7
11. Mr. Joshi, Learned counsel for the Respondent No. 2-developer
would submit that Respondent No. 2 has right to be heard even though
it had not filed an application under Order VII Rule 11 of CPC. He would
further submit that management of society is different from business of
a society and in this case, the Plaintiffs being members of co-operative
housing society questions the decisions that touch on the management
4 (2022) 12 SCC 641
5 (2020) 7 SCC 366
6 [2010(2)Mh.L.J.]
7 WP No. 12956 of 2022
Arya Chavan 8/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
of the society. He submits that the in present case, the Plaintiffs as
members are questioning the decisions that touch upon the
management of the society and not the business of the society. He
would submit that Byelaw 5 sets out the object of the society which is to
manage, maintain and administer property of the society and clause (b)
sets out the type of complaints to be made to the Co-operative Court
and clauses (a), (e) and (g) particularly provide that disputes pertaining
to resolutions of the managing committee and general body as also the
disputes regarding the allotment of flats or plots or appointment of
developer, contractor or architect are to be raised before the Co-
operative Court. He would further submit that by way of clever drafting
an illusory cause of action is created and meaningful reading of the
plaint would indicate that there is no real cause of action against the
Respondent No. 2-developer or the re-development per se. He would
submit that there is no prayer seeking cancellation of any deed falling
within the ambit of Section 31 of the Specific Relief Act, 1963 which
could only be granted by Civil Court.
12. He submits that the resolutions challenged by the Plaintiffs are
not only restricted to re-development but also pertains to inter se rights
of the society and members including entitlement, and thus, Co-
operative Court would have the jurisdiction under Section 91 of the MCS
Act. In support he relies upon the following decisions:-
Arya Chavan 9/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
ii) Hemprabha Co-operative Housing Society Limited,
Mumbai vs Kishore Waghela And Others9
iii) Murlidhar Datoba Nimanka And Others vs Harish
Balkrushna Latane And Others10
iv) N.P. Ponnuswami vs Returning Officer, Namakkal
Constituency And Others11
v) JVPD Sterling CHSL (Regd) And Others vs Kamla
Landmarc Builders And Others12
13. The issue arising for determination is whether the jurisdiction of
the Civil Court is barred as the subject matter falls exclusively within the
jurisdiction of the Co-operative Court under Section 91 of the MCS Act.
14. Section 9 of the Code of Civil procedure deals with the jurisdiction
of Civil Courts. It declares that the court shall have jurisdiction to try all
lawsuits of civil nature excepting suits of which their cognizance is
either expressly or impliedly barred. The contention of the Defendants
is that the provisions of Section 91(3) of the MCS expressly bar the
jurisdiction of the Civil Court as the subject matter falls within the class
specified therein. Section 91 of MCS Act reads as under:
“91. Disputes.– (1) Notwithstanding anything contained in any other law
for the time being in force, any dispute touching the constitution, 3 [election
of the committee or its officers conduct of general meetings, management8 2024:BHC-OS:20634
9 2024(6)Mh.L.J.502
10 [2003(4) Mh.L.J.]
11 (1952) 1 SCC 94
12 2019 SCC Onl Bom 6792Arya Chavan 10/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).docor business of a society shall be referred by any of the parties to the dispute,
or by a federal society to which the society is affiliated, or by a creditor of
the society, to a Co-operative Court, if both the parties thereto 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 or 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 or a person claiming through a member, past
member or a deceased member of a society, or a society which is a member
of the society or person 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 section 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 restriction 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 deregistered
society or the Official Assignee of such a de-registered society:
Provided that, an industrial dispute as defined in clause (k) of section 2 of
the Industrial Disputes Act, 1947 (14 of 1947), or rejection of nomination
paper at the election to a committee of any society or refusal of admission
to membership by a society to any person qualified therefor, 12[or any
proceeding for the recovery of the amount as arrear of land revenue on a
certificate granted by the Registrar under sub-section (1) or (2) of section
101 or sub-section (1) of section 137 or the recovery proceeding of the
Registrar or any officer subordinate to him or an officer of society notified
by the State Government, who is empowered by the Registrar under sub-
section (1) of section 156, or any orders, decisions, awards and actions of the
Registrar against which an appeal under section 152 or 152A and revision
under section 154 of the Act have been provided,] shall not be deemed to be
a dispute for the purposes of this section.
(3) Save as otherwise provided under [sub-section (2) of section 93], no
Court shall have jurisdiction to entertain any suit or other proceeding in
respect of any dispute referred to in sub-section (1).
15. A plain reading of Section 91 of MCS Act would indicate that the
Co-operative Court would have jurisdiction only in case of the class of
dispute specified therein between the class of parties specified therein.
Therefore, the subject matter of lis as well as the parties to lis must fall
within the provisions of Section 91 of the MCS Act. Section 91(a) of the
Arya Chavan 11/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
MCS Act contemplates: (a) dispute touching the constitution, (b)
election of the committee or its officer; (c) conduct of general meetings
of the Society; (d) management of the society and (e) touching the
business of the society.
16. It is trite that while adjudicating an application under Order VII
Rule 11(d) of CPC, it is only the averments in the plaint which are
germane. It is impermissible to look into extraneous material. The bar
against entertaining the dispute pertaining to re-development must be
evident from the plaint itself. The Plaintiff’s case as set out in the plaint
is that the Plaintiffs are members of the Defendant No 1 Society, which
consists of three buildings and Plaintiff’s are in occupation of two flats
in “C” building. In addition, the issue of ownership of garages in “B”
and”C” building is raised. The plaint sets out the litigation in respect of
the buildings and the order passed by the Municipal Corporation in
respect of the unauthorised additions and alterations. The plaint further
pleads about the notices of the special general body meetings, the
passing of resolutions in relation to the re-development work,
regularising the unauthorised additions and alterations of “A” and “B”
building and appointment of project management consultant, the
objections raised by the Plaintiffs, the entitlement of the Plaintiffs as
regards the area in the re-development project and the appointment of
the developer.
Arya Chavan 12/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
17. In paragraph 43 pertaining to cause of action, it is pleaded that
the cause of action arose when the Plaintiffs received the letter by
Defendant No.2 stating that they are not aware about the internal
matters between the Plaintiff and Defendant No.1-Society and when
the Plaintiffs were communicated that they had granted permission to
Defendant No.2 to undertake trial soil investigation work. It is pleaded
that since neither the Defendant No.1 or Defendant No.2 have
corrected the manner in which they are carrying out the work of
redevelopment on suit plot of land as such, there is continuous cause of
action.
18. With this frame of suit, the Plaintiffs approached the Civil Court
seeking diverse reliefs but undoubtedly pertaining to re-development
of the Defendant No 1 Society. Prayer clause (a) and (b) challenge the
resolutions dated 23rd December, 2023 and 27th May, 2024. A meaningful
reading of the plaint would indicate that the dispute is between the
Society and the members and the subject matter of the dispute is re-
development of the Defendant No. 1 Society. The entitlement of the
Plaintiffs, which are decided by the impugned resolutions, are
entitlements in the context of the redevelopment process and cannot
be said to decide the inter se rights between the society and the
members dehors the redevelopment.
19. The real issue is whether the subject matter of the dispute,which
Arya Chavan 13/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
is in essence a challenge to the re-development of the Defendant No 1
Society falls within the jurisdiction of the Co-operative Court under
Section 91 of the MCS Act. The substantive challenge in the suit is to
the legality of the resolutions dated 23 rd December, 2023 and 27th May,
2024. The resolutions are not annexed to the plaint and reference to the
resolution dated 23rd December, 2023 can be found in paragraph 17 of
the plaint, that the Society had passed resolution in respect of work of
redevelopment to be carried out by the Society. The reference to
resolution dated 27th May, 2024 is found in paragraph 18 of the plaint,
that the Society passed the resolution approving the project report by
the Defendant No 3 reducing the area of occupants of “C” building and
omitting “C” garage of Plaintiff No 1 in stilt area.
20. The pleadings in the plaint discloses that the resolutions are in
respect of re-development of the Defendant No 1 Society. In Mohinder
Kaur Kochar vs Mayfair Housing Society Pvt Ltd (supra), identical issue
arose for consideration before the Hon’ble Division Bench of this Court.
In that case, the re-development agreement was entered into and suit
came to be filed in the High Court by the developer, who was one of the
members of the Society inter alia seeking declaration that the
development agreement was binding. An objection of jurisdiction was
raised in view of Section 91 of MCS Act. The Hon’ble Division Bench
considered the object of the Society as per the Model Bye-Laws and
Arya Chavan 14/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
held that the business of re-development cannot be said to be business
of the society. It held in paragraph 19 as under:
“19. When a co-operative housing society initially constructs the buildings
for its members, it is not a redevelopment, but the initial development of the
property. The initial construction of the property for a co-operative housing
society is one of its prime objects. The two activities namely, initial
construction of a building and its redevelopment are different activities. By
passage of time, as the building becomes older, the Housing Society may
take a decision to repair or redevelop the property. Such activity is totally
different from initial development of the building. The dispute arising from
such redevelopment, which becomes necessary by passage of time, is not
“business” of the society. Such activity cannot be considered as ‘touching the
business’ of the society. The dispute involving members, developers,
managing committee in respect of redevelopment of the property which
becomes necessary in view of passage of time, is not relatable to the
business of the society. The initial development of the co-operative housing
society of constructing the building may be business of the society, but the
subsequent redevelopment is not.”
21. In that case, the Plaintiff was developer as well as a member.
The decision of the Hon’ble Division Bench was not founded on the
aspect of the Plaintiff being a member of the society or not. The
Hon’ble Division Bench has considered the specific issue as to whether
the redevelopment undertaken by the society can be treated as
business of the society and in that context has rendered a specific
finding that the dispute arising from such redevelopment is not
business of the society. In the facts before the Hon’ble Division Bench,
there was no challenge to the resolutions passed relating to re-
development.
22. In Pranav Constructions Limited vs Priyadarshini Co-operative
Housing Society Limited and others (supra), the Hon’ble Division Bench
Arya Chavan 15/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
of this Court was considering appeals filed under Section 37 of
Arbitration and Conciliation Act, 1996 arising out of Section 9 of the Act
and one of the issues before the Court was whether existence of
dispute between the members and the Society about their entitlements
flowing out of redevelopment process can be ground for the Court to
abstain from making interim measures under Section 9 of the Act. It
held that the resolutions adopted by the general body of the Society
touching the business of the Society needs to be challenged under
Section 91 of the MCS Act and if the resolution does not touch upon the
business of the Society, the remedy for the affected party is to file civil
suit. The finding of the Hon’ble Division Bench comes in answer to the
question as to the exact forum which can go into the correctness of the
resolution adopted by the general body of the Society.
23. The Hon’ble Division Bench has in effect applied the provisions of
Section 91 of MCS Act, which requires both the party to the lis as well as
the subject matter of the lis to fall within the purview of Section 91 of
the MCS Act. The resolutions, if do not touch the business of the
Society, will have to be challenged in the civil Court. The question as to
whether re-development constitutes business of the Society will have to
be answered with reference to the objects of the Society. By the
Amending Act of 2019, Section 154B-1(17) brought the addition in the
definition of Housing society as under:
Arya Chavan 16/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
“housing society” means a society, the object of which is to provide its
Members with open plots for housing, dwelling houses or flats; or if open
plots, the dwelling houses or flats are already acquired, to provide its
Members common amenities and services and to demolish existing buildings
and reconstruct or to construct additional tenements or premises by using
potential of the land;
24. A plain reading of the amended definition makes it evident that
re-development is one of the permissible objects of a housing society.
Section 154B(31)(1) of MCS Act contains a saving clause in respect of
the existing ByeLaws, which would continue to apply to the said society.
Considering the amended definition, where a Society has amended its
objects to include re-development as one of its objects, the dispute
arising out of re-development would be a dispute touching the business
of the Society.
25. In Bhoumik Co-operative Housing Society vs Vina A Sisawala 13,
the Co-ordinate Bench has held that Section 154B(1)(17) is an enabling
provision and the amended definition of housing society will not apply
where the existing bye-laws do not include re-development as one of its
objects. It held that dispute relating to the “business of the Society”
necessarily require redevelopment to be business of the Society which
would have to be seen from the Bye-Laws of the Society as to whether
redevelopment has been included in the Bye-Laws.
26. A reading of the plaint in the present case does not disclose any
pleadings as regards the objects of the Society from which it can be
13 S No. 1190 of 2019 decided on 10th August, 2022 by Bombay High Court.
Arya Chavan 17/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
conclusively discerned whether redevelopment is an object of the
Society or whether pursuant to Section 154B(1)(17), the Society
amended its Bye-Laws. The Bye-Laws are not part of the plaint. Though
Mr. Daver and Mr. Joshi would strenuously urge this Court to take into
consideration the Bye-Laws of the Defendant No 1 Society, which they
attempted to tender, this Court declined to do so as that would
tantamount to looking into extraneous material outside of the plaint.
Determination of the objects of the Society, which requires adjudication
on facts, is necessary to arrive at a finding as to whether the dispute
touches the business of the Society. Sans the examination of the Bye-
Laws of the Society, it is not possible on holistic reading of the plaint to
arrive at a definitive finding that re-development is one of the objects
of the Society and consequently the dispute touches the business of the
Society and would be governed by Section 91 of MCS Act.
27. In Bank of India Staff Panchsheel Co-operative Housing Society
Ltd vs Jitendra Kumar Jani & Ors14, the Co-ordinate Bench considered
similar application under Order 7 Rule 11, where the dispute arising out
of redevelopment was filed before the Co-operative Court and
objection to jurisdiction was raised in context of the amended
provisions. The Learned Single Judge held in paragraph 20 and 21 as
under:
14 2025 SCC Online Bom 5358
Arya Chavan 18/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc“20. Order VII Rule 11 permits rejection of a plaint only where the bar is
clear from the plaint itself. When an issue requires examination of additional
material or evaluation of facts, it travels beyond the limited scope of that
provision. Whether redevelopment forms part of the object of a housing
society, as contemplated under Section 154B(1)(17) of the Maharashtra Co
operative Societies Act, is not a pure question of law. It is a mixed question
of law and fact. Its determination depends upon the specific objects of the
society as recorded in its bye laws, the manner in which the society has acted
upon those objects, and the nature of the resolutions passed by the general
body. In the present case, the bye laws of the society are not part of the
plaint. Without examining the bye laws, it is not possible to record a
definitive finding as to whether redevelopment does or does not form part
of the society’s objects. Such an exercise would necessarily require evidence
and adjudication on merits. That exercise lies squarely within the domain of
the Co operative Court during trial. Order VII Rule 11 permits rejection of a
plaint only where the bar is clear from the plaint itself. When an issue
requires examination of additional material or evaluation of facts, it travels
beyond the limited scope of that provision. Since the question of
redevelopment being part of the society’s object is a mixed question of law
and fact, and since the necessary factual foundation is not before the Court
at this stage, the dispute cannot be rejected under Order VII Rule 11.
21. The submission based on Section 154B and the saving clause also does
not justify rejection of the dispute at the threshold. The effect of the 2019
amendment, the nature of the enabling provision, and the impact of the
saving clause are all matters requiring interpretation in the context of
evidence and statutory scheme. They do not create an express bar to
institution of a dispute by a member challenging resolutions of the general
body. At the highest, they raise issues for adjudication on merits.”
28. In Raizada Topandas And Anr. vs M/s Gorakhram Gokalchand 15
the Hon’ble Apex Court was considering the issue of jurisdiction of City
Civil Court to entertain the suit seeking declaration of possession and
injunction on the basis of an agreement dated 23 rd June, 1955
appointing the Plaintiffs therein as commission agent. The defence
raised was of sub-letting and the existence of landlord-tenant
relationship. The preliminary issue of jurisdiction was decided against
the Defendant by the High Court. The Hon’ble Apex Court noted the
15 (1964) 3 SCR 214
Arya Chavan 19/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
decision of Allahabad High Court in Mt. Ananti v. Chhannu And Ors.16 on
the issue of jurisdiction at the inception of suit which had held as under:
“The plaintiff chooses his forum and files his suit. If he establishes the
correctness of his facts he will get his relief from the forum chosen. If … he
frames his suit in a manner not warranted by the facts, and goes for his
relief to a court which cannot grant him relief on the true facts, he will have
his suit dismissed. Then there will be no question of returning the plaint for
presentation to the proper court, for the plaint, as framed, would not justify
the other kind of court to grant him the relief…………… … If it is found, on a
trial on the merits so far as this issue of jurisdiction goes, that the facts
alleged by the plaintiff are not true and the facts alleged by the defendants
are true, and that the case is not cognizable by the court, there will be two
kinds of orders to be passed. If the jurisdiction is only one relating to
territorial limits or pecuniary limits, the plaint will be ordered to be returned
for presentation to the proper court. If, on the other hand, it is found that,
having regard to the nature of the suit, it not cognizable by the class of court
to which the court belongs, the plaintiff’s suit will have to be dismissed in its
entirety.”
29. It is only after trial that it can be conclusively determined whether
the object of the Society includes re-development or not, which if held
affirmatively will result in the suit being dismissed for lack of
jurisdiction.
30. The Respondent No.2-developer has taken a stand different from
the Respondent No.1-Society. In the written submissions, it is admitted
by Respondent No 2 that the Appellant’s case that re-development is
not business of the Society and bar under Section 91 is not attracted is
the settled legal proposition. Mr. Joshi would however submit that the
dispute arises out of management of the Society drawing support from
the decision of Hemprabha Co-operative Housing Society Limited,
Mumbai vs Kishore Waghela And Others (supra). The decision was
16 (1929) ILR 52 Allahabad 501
Arya Chavan 20/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
rendered in different factual context as in that case, after trial the issue
of jurisdiction was answered in favour of the Society. The Dispute
Application filed in the Co-operative Court sought eviction of the family
members of deceased employee from the Society’s premises. This Court
held that the relief is confined to recovery of property owned by the
Society and the dispute does not constitute employer-employee
dispute. It held that management of the Society includes all acts
necessary for protection and preservation of the assets of the Society.
The decision does not assist the case of the Respondent No 2 as the
issue arising for determination is whether dispute arising out of re-
development is dispute touching the business of the Society. The
decision cannot be stretched to mean that re-development means
protection and preservation of assets of the Society.
31. In so far as defective valuation is concerned, Order VII Rule 11 (b)
permits rejection of plaint, where the relief claimed is under-valued and
the Plaintiff, on being required by the Court to so correct the valuation
within a time fixed by the Court, fails to do so. This is not the case here.
32. Dealing with the citations relied upon by Mr. Daver, in the case of
Rajendra Bajoria And Others vs Hemant Kumar Jalan And Others
(supra), the Hon’ble Apex Court has held that if clever drafting has
created the illusion of a cause of action then power under Order VII,
Rule 11 of Code of Civil Procedure, 1908 should be exercised. The Court
Arya Chavan 21/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
has further held that if it is found that none of the reliefs sought in the
plaint can be granted to the Plaintiff under the law, the question then
arises is whether such a suit is to be allowed to continue and go for
trial, which was answered in negative. There is no quarrel with the
proposition of law, however, its applicability to the facts of the present
case is doubtful as in that case before the Hon’ble Apex Court, the
Plaintiff who were the legal heirs of partner of partnership firm sought
decree for dissolution of firm and to disclose the full particulars of all
assets and properties of the firm.
33. The decision in the case of Dahiben vs Arvindbhai Kalyanji
Bhanusali (Gajra) Dead Through Legal Representatives And Ors.
(supra) sets out the principles governing the exercise of powers under
Order VII, Rule 11 of CPC, about which there cannot be any dispute.
However, in light of discussion above, without any evidence being led, it
is not possible for this Court to arrive at a finding that the jurisdiction of
the Civil Court is ousted.
34. In the case of Girish Mulchand Mehta And Another vs Mahesh S.
Mehta And Another. (supra), the Hon’ble Division Bench of this Court
was considering the application under Section 9 of Arbitration and
Conciliation Act, 1996 where the general body of the society has taken a
decision to redevelop the building and dispute came to be filed before
the Co-operative Court by the members of the society challenging the
Arya Chavan 22/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
resolution. The Hon’ble Division Bench held that the members of the
society had no independent right and as long as resolutions passed by
the general body of the Society are in force and not overturned by a
forum of competent jurisdiction, the said decision would bind the
Appellant. The said decision has no applicability in the facts of the
present case.
35. In the case of Eknath Namdev Lashkare And Others vs
Pancharatna Properties And Others (supra), the Co-ordinate Bench
held that the Developer is an agent within the meaning of Section 91(1)
(a) of the Maharashtra Co-operative Societies Act and therefore, any
dispute regarding his acts or validity of the authorization touches the
business of the society and must be decided by the Co-operative Court.
In that case, the dispute was filed before the Co-operative Court and the
acts of Administrator in executing the Development Agreement and
Power of Attorney in favor of Respondent No. 1 were under challenge.
The question which arose for consideration is whether the Respondent
No. 1 can be regarded as agent of the society and it was held that in
dispute as regards these acts and validity of authorization necessary
touches the business of the society. In the facts of that case, the Co-
ordinate Bench was not concerned with the issue as to whether the
object of the society included redevelopment by examining bye-laws of
the society. The decision is therefore, distinguishable.
Arya Chavan 23/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
36. Coming to the decisions relied upon by Mr. Joshi, in the case of
Deepen Arun Parekh vs Indian Overseas Bank And Others (supra), the
issue pertained to the Deed of Guarantee. The decision was cited in
support of Mr. Joshi’s contention that Respondent No. 2 has right to be
heard even though he had no right to file application under Order VII,
Rule 11 of CPC.
37. The decision in the case of Murlidhar Datoba Nimanka And
Others vs Harish Balkrushna Latane And Others (supra) was cited to
support the proposition that where the power is given to do certain
thing in a certain way, the thing must be done in that way or not at all
which is the reiteration of the Nazir Ahmad vs. King Emperor17
principles, about which there is no quarrel.
38. The decision in the case of N.P. Ponnuswami vs Returning Officer,
Namakkal Constituency And Others (supra) was cited to support the
contention that the remedy provided by the statute must be followed
which is also not debatable.
39. In the decision in the case of JVPD Sterling CHSL (Regd) And
Others vs Kamla Landmarc Builders And Others (supra), this Court had
held that a party who does not approach the Court with clean hands is
not entitled to any relief. The applicability of the said decision to the
facts of the case is doubtful.
17 AIR 1936 PC 253.
Arya Chavan 24/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::
FA-251-2026 (1).doc
40. The termination of the proceedings at the threshold is drastic and
unless the plaint ex-facie discloses the bar, the power under Order VII
Rule 11 (d) cannot be exercised. In the present case, a holistic reading of
the plaint does not ex-facie disclose any bar on the jurisdiction of the
Civil Court. Resultantly, the impugned judgment is unsustainable and is
hereby quashed and set aside. Hence the following order is passed:
ORDER
(a) First Appeal is allowed.
(b) The impugned judgment and order dated 20th
January, 2026 is quashed and set aside.
(c) S.C Suit No 2048 of 2025 is restored to file.
(SHARMILA U. DESHMUKH, J.)
41. At this stage, request is made for stay of the judgment for a
period of 4 weeks. The judgment is stayed for a period of 4 weeks from
today.
(SHARMILA U. DESHMUKH, J.)
Arya Chavan 25/25
::: Uploaded on – 28/04/2026 ::: Downloaded on – 29/04/2026 06:03:26 :::