NMS975-10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO.975 OF 2010 IN SUIT NO.332 OF 2010 Crown Construction Co. .. Plaintiff Versus Raj Coop.Housing Society Ltd. .. Defendant Mr.Yadunath Chaudhari i/b. Kunal Cheema for plaintiff Ms.K.V.Mirza for defendant CORAM : S.C.DHARMADHIKARI, J. DATE : 8th September 2010. P.C.: 1] This is a motion for rejection of plaint. Defendant invokes powers of this Court conferred by Order VII Rule 11(d) of the CPC. 2] It is contended that the defendant is a cooperative society registered under Maharashtra Cooperative Societies Act, 1960 (for short the Act). It is contended that the plaintiff has filed a suit for enforcement of an agreement dated 15th May 2008. The averments in the plaint show that the defendant is a cooperative society and owner of the land together with the building in which there are fifteen members/ fifteen flats. The building is dilapidated and, therefore, it is alleged that the society thought NMS975-10 2 it fit to pull down existing structure and put up a new building by re- developing the property. It invited offers from interested parties and that is how plaintiffs evinced interest and the subject agreement was executed. 3] From a perusal of the plaint, it is clear that the same concerns and touches the business of the society and, therefore, prior to institution of this suit, the plaintiff was obliged to serve a notice to the Registrar in terms of section 164 of the Act. 4] Although, it is faintly urged that the notice would not be required because this act of society does not touch the business of the society, I am not inclined to accept this submission for obvious reasons. The cause of action as set out in the plaint concerns dilapidated building of the defendant society which is occupied by its members. It is a cooperative housing society and considering the definition of the said term in the Act and the object and purpose for which the same is incorporated and registered, it will be an act touching business of society, admittedly. Therefore, the suit, without mandatory notice under section 164 of the Act is plainly not maintainable. NMS975-10 3 5] At this stage, Mr.Choudhary appearing on behalf of the plaintiff, on instructions, makes a request that the plaintiff be permitted to withdraw this suit with liberty to file fresh suit after compliance with section 164 of the Act and to enable plaintiffs to do so, ad-interim order dated 8th February 2010 be continued for a period of three months. 6] This request is opposed by the defendants’ Advocate on the ground that the building is dilapidated and because of the ad-interim order passed by this Court, it is difficult for the defendant society to initiate any proposal for re-development of the property. The hardships are being faced by the members and the problems have increased on account of the ongoing monsoon season. 7] In my view, all that this Court has recorded is a statement of the defendant’s Advocate that they will not create any third party rights and interest in the property and that is the order which is running against the society. That order does not prevent society from undertaking repairs to the building or initiating any proposal for re-development in terms of NMS975-10 4 directives issued under section 79A by the Department of Cooperation and Textiles, Government of Maharashtra vide G.R.dated 3rd January 2009. Beyond that the society has been restrained from transferring the property. In such view of the matter, the following order would serve ends of justice. 8] At the request of learned Advocate for plaintiff, the suit is allowed to be withdrawn with liberty to file a fresh suit after compliance with section 164 of the Act. 9] To enable the plaintiffs to do so, the ad-interim order dated 8th February 2010 shall continue for a period of ten weeks but subject to clarification as given above. Notice of motion disposed of. No costs. All contention on merits are kept open. Needless to state that since the suit is allowed to be withdrawn refund of court fees be given as per rules and further that after ten weeks, the ad-interim order shall stand vacated without reference to this court. (S.C.DHARMADHIKARI, J)