1 nms2530-08.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.2530 OF 2008 IN SUIT NO.2105 OF 2007 Raja Builders .. Plaintiff Versus Sahara Coop.Housing Society Ltd. & Ors. .. Defendants Mr.D.H.Mehta i/b. Aarti Kanolkar for plaintiff Mr.M.M.Vashi for defendant Nos.2(a) to 2(e) and 3 Ms.Neeta Mandhyan i/b. M/s.S.M.Associates for defendant No.1. CORAM : S.C.DHARMADHIKARI, J. DATE : 9th November 2011. P.C.: 1] At the hearing of this notice of motion for interim reliefs filed in a suit by a developer against a cooperative housing society and non cooperating members, at the instance of the non cooperating members i.e. Defendant Nos. 2(a) to 2(e) and 3 a preliminary issue of jurisdiction of this Court was framed. Since the matter was at the stage of grant of interim reliefs, recourse was taken to section 9A of the Code of Civil Procedure, 1908 and pending determination of the issue of jurisdiction, ad-interim orders had been made. 2] The motion was placed for hearing and final disposal before me after both sides availed of the opportunity to lead oral and documentary evidence on the issue of jurisdiction. It was contended that only the defendants who are contesting the claim of plaintiffs stepped in to the box and neither the plaintiff nor the society entered the same. On the basis of oral and documentary evidence available at this 2 nms2530-08.doc interlocutory stage, detailed arguments were canvassed on the issue of jurisdiction. However, during the course of arguments, a suggestion was given to the defendant No.1 Sahara Cooperative Housing Society as to being a vitally affected party whether it desires to have an adjudication in these proceedings and particularly on the issue of jurisdiction of the Civil Court, the learned Advocate appearing for it, after taking instructions from the Chairman of the Society, who is present in court, makes a statement that with a view to avoid further delay and complications, arising out of any finding on the issue of jurisdiction of this Court, the Cooperative Housing Society will approach the Cooperative Court under section 91 of the Maharashtra Cooperative Societies Act, 1960 by filing a dispute against the non cooperating members on the strength of the resolution and decisions of the society and seek appropriate reliefs, including mandatory orders and directions. 3] Naturally to such proceedings the plaintiff – developer will also be a party. Since the cooperative society seeks to enforce its own resolution and decisions on the basis that they are binding on its members and seek appropriate declarations and reliefs by approaching cooperative court under section 91 of the MCS Act, I am of the opinion that no useful purpose will be served by considering rival contentions on the issue of jurisdiction and render any finding thereon. 4] In the light of the peculiar facts and finding that the members of the cooperative society who have vacated their flats and handed over the same to the developer are now residing in temporary alternate accommodation or have 3 nms2530-08.doc accepted compensation in lieu thereof and that is how the statements which are aforenoted have been made by the learned Advocate for cooperative society, it is clarified that the Cooperative Court, if approached by the society, shall decide the dispute on merits and in accordance with law, after hearing all parties. The cooperative court will also take into consideration any request for grant of urgent interim/ ad-interim reliefs and in the instant case, if any application for urgent interim reliefs is made, the Cooperative Court may endeavour to dispose of the same as expeditiously as possible and within the period of four months from the date of making of any application for interim reliefs. 5] Since the cooperative society has decided to approach the competent cooperative court and seek aforementioned reliefs, I am also clarifying that I have not considered the rival contentions as far as merits of the controversy are concerned and particularly on the conduct of the parties. Each of the contentions including that raised by the contesting defendants in this suit and particularly that the society has not acted bonafide and none of its members have vacated their flats/ tenaments, are kept open. The Cooperative Court shall decide the application/ dispute on the basis of the contentions raised by parties. 6] At this stage, Mr.Mehta learned Counsel appearing for plaintiffs – developer submits that considering the decision taken by the society to file a dispute in the Cooperative Court and seek all such reliefs therein as are permissible in law by impleading the plaintiffs – developer as party thereto, he has instructions 4 nms2530-08.doc from the plaintiffs to state before the Court that the plaintiffs do not desire to proceed with this suit and, therefore, the suit may be allowed to be withdrawn and dismissed as such. At this request of Mr.Mehta, the suit itself is allowed to be withdrawn and dismissed as such. Refund of Court fees as per rules. However, it is his request that interim orders made in the suit may not be vacated straight away or else the situation emerging from such vacation would not be to the benefit but rather to the detriment to the plaintiff as well as the society. 7] Mr.Vashi learned Counsel for defendant Nos.2(a) to 2(e) and 3 on the other hand submits that the moment the suit is allowed to be withdrawn and dismissed as such, all interim orders must also stand vacated and the Court Receiver, High Court, Bombay in any event has not taken physical possession of the flats from the contesting defendants to this suit. 8] To my mind, since the society has taken decision to approach cooperative court by filing a dispute and in the light of that development even this suit is being withdrawn, the interest of justice would be served if it is directed that without prejudice to the rights and contentions of all parties and keeping open all objections, the Court Receiver, High Court, Bombay who has been appointed as Receiver of the flats and the entire property shall continue to act in terms of the interim orders in the this for a period of eight weeks from today. It is stated that the Court Receiver has taken formal possession of the said flats but the physical possession thereof continues to be with the contenting defendants. The defendant 5 nms2530-08.doc Nos. 2(a) to 2(e) and 3 shall not alienate, encumber or part with possession and/or transfer the flats which are stated to be in their possession for a period of eight weeks from today. Even this order and direction is without prejudice to the rights and contentions of all parties and will not in any manner prevent the society as also the contesting defendants from raising appropriate pleas before the Cooperative Court. Needless to clarify that it is only to enable the society to approach the Cooperative Court that this arrangement is made and the Cooperative Court shall not be influenced by any of these arrangements while considering the request of interim/ ad-interim reliefs. This order does not mean that the contesting defendants are in any manner precluded and/or prevented from either raising their objections or taking such pleas as are permissible in law so also institute substantive proceedings. Suit and the notice of motion disposed off in these terms. No costs. (S.C.DHARMADHIKARI, J)