wp9237-10.doc 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.9237 OF 2010 Siddharth Nagar Co-operative Housing Society Ltd & Ors .. Petitioners versus Pradeep Kamlakar & Anr .. Respondents Mr.Harshad Bhadbhade for the petitioners. Mr.Amit Sale for respondent No.2. CORAM : S.C.DHARMADHIKARI, J. 17th JUNE 2011. P.C.: . The petitioner-Society has filed this writ petition aggrieved by the order made by the Maharashtra State Co- operative Appellate Court on 29th March 2010. 2 By the order under challenge, the Maharashtra State Co-operative Appellate Court has allowed the appeal which was directed against the refusal of the trial Court to pass an interim order and restrain the petitioners who are the original opponent wp9237-10.doc 2 Nos.2 to 6 from functioning as sub committee of Siddharth Nagar (11-D) Flat Owners Association and further directed that these opponents or any other sub committee should not look after management of building No.11-D. 3 Submission of Mr.Bhadbhade appearing on behalf of the petitioners is that, firstly, this appeal is not maintainable as the order impugned in that appeal was not made under section 95 of the Maharashtra Co-operative Societies Act, 1960, so as to enable the original disputants to file an appeal invoking the jurisdiction of Maharashtra State Co-operative Court under section 97 of the Act. 4 Apart therefrom, on merits, it is submitted that the Maharashtra State Co-operative Appellate Court has by sweeping and far reaching observations and findings concluded the issue. Now, nothing remains in the dispute and it stands allowed in the light of these conclusions and findings which cannot be termed as tentative and prima facie. The Court below has exceeded its jurisdiction in allowing the appeal and issuing temporary wp9237-10.doc 3 injunction. He submits that Society consists of more than 500 members. There are several buildings. For proper and effective management of the buildings, building-wise sub-committee was formed. That sub committee had to have some title for its identity. That is how building-wise association number has been given. The sub committee has been constituted in terms of the Resolution of the General Body dated 21st April 2000 which had not been challenged by the original disputants. Earlier, they were also part of sub committee. It is only on their removal that the dispute was filed. It was just a case of some disgruntled and dissatisfied minority members approaching a Court to stall effective and proper working of the Society. There is nothing like association or other entities replacing the Society. The Society continues to be governed in terms of the by-laws and the law, and the Managing Committee is intact. Therefore, the order under challenge deserves to be set aside. 5 On the other hand Mr.Sale appearing on behalf of the original disputants-respondent Nos.1 and 2 supported the impugned order and submitted that the observations and findings wp9237-10.doc 4 are only tentative and prima facie. The dispute is pending and, therefore, there is no reason to interfere at this stage. 6 With the assistance of the learned counsel appearing for the parties, I have perused the petition and the annexures. Prima facie, it is difficult to accept the argument of Mr.Bhadbhade that the appeal is not maintainable. If the Co-operative Court has power to make an interlocutory order as conferred by sub-section 4 of section 95, and against that order any appeal lies in terms of section 97 to Maharashtra State Co-operative Appellate Court, then, the appeal was clearly maintainable. The proper reading of section 95 would indicate that, it has conferred power on Co- operative Court to make such interlocutory orders, pending decision in a dispute referred to in sub-section 1, as may appear to be just and convenient. The argument that sub-section 1 refers to section 93 and not section 91, is not correct because section 93 speaks of transfer of disputes from one Co-operative Court to another and suspension of proceedings in certain cases. Section 94 sets out the procedure for settlement of the disputes and power of Co-operative Court. Combined reading of all these wp9237-10.doc 5 provisions, which supports the contention of the respondents that once the dispute which has to be settled, is covered by sub- section 1 of section 91, then, in terms of sub-section 3 of section 91 which carves out an exception as far as section 93(2) is concerned, no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub- section 1. Thus, when the dispute is covered by section 91(1) and it has to be decided by a Co-operative Court, no Court other than that Court will have jurisdiction to entertain any suit or other proceedings in respect of such dispute. Once such is the scope of the powers conferred and the nature of proceedings, then, interlocutory orders can always be made pending final decision in the dispute. Once there is a power conferred to make interlocutory orders which appears to be akin to a Civil Court, then, the ordinary remedy of appeal provided against orders including interlocutory orders of the Co-operative Court to an Appellate Court, which is an existing Court in this case, would have to be read in the scheme of the Act. So read, prima facie, the appeal was competent and maintainable. Any other construction of the Act/section would defeat the object and wp9237-10.doc 6 purpose in establishing Co-operative Courts for settlement of disputes as virtual substitutes for Civil Courts. The first contention of Mr.Bhadbhade, therefore, must fail. 7 As far as the second aspect of the matter and that is on merits is concerned, in my view, it would not be proper to express any opinion as the main dispute is pending before the trial Court. All that can be seen from a perusal of the pleadings and the affidavits on record is that, arguable questions with regard to authority of the sub committee or association qua each building to manage the affairs of that building arise for determination and, particularly, in the teeth of a single Co-operative Housing Society existing for all buildings. If that Co-operative Housing Society has its General Body consisting of members, who are occupants of flats in all buildings and there is a managing committee in place, then, prima facie even if the Resolution is passed qua sub committees, the extent of the authority and power of such sub committee and particularly to take decisions on financial matters, arises on account of the dispute and differences between the original disputants and the other occupants, who claim to be wp9237-10.doc 7 members of that sub committee. Therefore, the nature of the Resolution constituting such committee, the ambit and scope of power and authority of such sub committee and its duty and obligation to the Society and the General Body are matters, which would arise for determination in the dispute. When such questions arise in the dispute, the Maharashtra Co-operative Appellate Court is in no error in making interim orders so as to preserve and maintain the status-quo at site and not to complicate the matters and issues further. If the petitioners feel that the sub committees should be allowed to function, their functioning is not disturbed and discontinued qua other buildings. It is only as far as building No.11-D is concerned that the interim order operates and, therefore, the argument that the working of entire Society has come to a stand still is not well founded. 8 Further, I am not in agreement with Mr.Bhadbhade that the findings are conclusive and now nothing remains in the main dispute, as they will bind the trial Court. All observations and conclusions even by this Court are made during the course of decision on interlocutory applications. Therefore, the findings and wp9237-10.doc 8 conclusions are always tentative and prima facie and do not conclude the matters as apprehended. The trial Court must decide the dispute on the basis of oral and documentary evidence irrespective of any observations made by any Court during the course of deciding interlocutory application. With this clarification, there should not be any apprehension of the trial Court being influenced by the order of Maharashtra State Co-operative Appellate Court. 9 In the light of the above, I find no merit in this writ petition and it is accordingly dismissed. 10 In the view that I have taken, it is not necessary to decide any wider controversy or refer to the judgment of the learned single Judge reported in 2002 Vol.104 (3) Bom.L.R 862 (Khandesh Urban Co-operative Credit Society Ltd Vs. Ashok Rameshwar Agarwal) (S.C.DHARMADHIKARI, J)