vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6990 OF 2008 WRIT PETITION NO.6990 OF 2008 WRIT PETITION NO.6990 OF 2008 Vishwanath A. Deshmukh ... Petitioner V/s. Dnyaneshwar Co-op. Hsg. Soc. Ltd. & Ors. ... Respondents Mr.R.S. Apte with A.A. Garge for Petitioner Mr.Yatin R. Shah for Respondent Nos.1 to 4 Mr.S.S. Joshi for Resp. No.5 Mr.P.S. Dani for Resp. Nos.6 and 7 Mr.S.A. Mulani for Resp. No.8 CORAM: SMT.NISHITA SMT.NISHITA SMT.NISHITA MHATRE, J MHATRE, J MHATRE, J. DATED: NOVEMBER 26, 2008 NOVEMBER 26, 2008 NOVEMBER 26, 2008 P.C.: P.C.: P.C.: . The petitioner has challenged the order passed by the Cooperative Court on 6.8.2008 referring the dispute raised by the petitioner for arbitration under section 8 of the Arbitration and Conciliation Act, 1996. The petitioner has sought several reliefs in his dispute. The first prayer is as follows: 1) The Hon’ble court may be pleased to declare that, the act of the opponent no.1 of acquiring and giving the said lay-out propety referred in para no.1 and 2 for development is illegal, bad in law and without due process of law. He has also claimed liquidated damages besides other reliefs. : 2 : 2. The learned counsel for the respondents have raised an objection regarding the maintainability of the petition by contending that an appeal is provided under the Maharashtra Cooperative Societies Act. The provisions of section 97 of the MCS Act is as follows: 97. Appeal against decision under section 96 and order under Section 95. - Any party aggrieved by any decision of the Co-operative Court under the last preceding section, or order passed by the Co-operative Court or the Registrar or the authorised person under section 95 may, within two months from the date of the decision or order, appeal to for the Co-operative Appellate Court. 3. An appeal therefore lies only against the orders passed under sections 95 and 96. Section 96 relates to awards passed with regard to the disputes referred for arbitration. Therefore, in my opinion, an order passed by the Cooperative Court directing the parties to proceed for arbitration u/s 8 of the Arbitration and Conciliation Act, is not an appealable order. 4. The petitioner’s grievance that the aforesaid prayer cannot be considered by the arbitrator is well founded. Evidently there is a dispute between the petitioner and respondent No.2 of which he is a member, to the effect that, a resolution passed by the society allowing development of the property of the society, is invalid. The learned advocates for the : 3 : respondent-developers have contended that the petitioner had attended the meeting where the resolution was passed and therefore could not raise any objection to the same at this stage. It has further contended that the petitioner is seeking liquidated damages which can only be considered by the arbitrator and not by the Cooperative Court in the peculiar circumstances of this case. 5. In my opinion, the aforesaid prayer in the dispute application strikes at the very root of the matter. Whether the respondent-society could have at all developed the property, assuming the petitioner was present at the meeting in which the resolution was passed is an issue which only the Charity Commissioner can consider. The Cooperative Court can always reject the dispute if it finds that the petitioner has made out no case to grant the relief claimed in the aforesaid prayer. The relief claimed in this prayer cannot be granted by the arbitrator as the petitioner is not a party to the arbitration agreement and moreover, the dispute is not between the developer and the petitioner but between the petitioner and the respondent society of which he is a member. As to whether the Cooperative Court could grant the other reliefs is something that the Cooperative Court would have consider in the light of the fact that the development agreements have already : 4 : been entered into and constructions under those development agreements have taken place. The Cooperative Court could well have directed that the disputes which were not strictly between the petitioner and the Cooperative Society did not fall within its jurisdiction. However it could not have referred the entire dispute for arbitration. 6. The impugned order is therefore, set aside. The respondent developers may make such applications to the Cooperative Court as they desire, to contend that other reliefs cannot be considered by the Cooperative Court. All contentions of the parties are left open with respect to the dispute as well as any application which may be filed by any of the respondents. 7. Writ petition is disposed of accordingly.