cra104.11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 104 OF 2011 Prakash Gotunana Badgujar .. APPLICANT VERSUS Sunil Gotunana Badgujar & another .. RESPONDENTS Mr. V.P. Patil, advocate for the applicant. ===== CORAM : R.M. BORDE, J. DATE : 3 rd MAY, 2011. PER COURT : 1 Applicant / original defendant presented an application in the civil court raising preliminary objection in respect of entertainability of the suit by the civil court and requested the court to determine the issue of jurisdiction as preliminary issue. It is the contention of the defendant that as the subject matter of the dispute touches the business of the co-operative society and as the original defendant no. 2 is a co-operative society, the suit is not entertainable in view of the bar contained in section 163 of the Maharashtra Co-operative Societies Act. cra104.11 2 2 Section 91 of the Act deals with settlement of dispute which reads thus :- 91 Disutes : (1) Notwithstanding [anything contained] in any other law for the time being in force, any dispute touching the constitution, [elections of the committee or its officers other than elections of committees of the specified societies including the officer], conduct of general meetings, management or 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 the 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 of a person claiming through a member, past member of a deceased member of society, or a society which is a member of the society [ or a 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 sections 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 cra104.11 3 whom the society has any transactions in respect of which restrictions have been prescribed under section 45, whether such surety or person is or is not a member of the society;] (3) Save as otherwise provided under [sub-section (2) to section 93], no Court shall have jurisdiction to entertain any suit or other proceedings in respect of any dispute referred to in sub-section (1). . In the instant matter, it is contended that the dispute raised by the appellant touches the business of the society and as such the parties are required to be directed to avail of the remedy provided under Co-operative Societies Act. 3 I have perused the plaint annexed to the petition. Respondent / original plaintiff contends that the disputed property is ancestral one and he is entitled to have 1/2 share in the property. Prayer is made in the plaint for recovery of possession of 1/2 share in the suit property. Restraint order is also claimed against defendants 1 and 2 in respect of alienation of the property. The claim raised in the suit in respect of declaration of partition and separate possession of the property does not come within the purview of business of the society. Merely because a society is made defendant in the suit does not automatically lead to a conclusion that the dispute raised in the suit cra104.11 4 touches the business of the society. No substantive relief is prayed against defendant no. 2 – society. Substantive relief is prayed only against defendant no. 1, who is brother of the plaintiff, in respect of partition and separate possession of the ancestral property. Bar contained in section 163 r/w section 91 of the Act is not attracted in the instant matter. Trial court has adopted correct approach in rejecting the application tendered by the revision applicant. 4 Reliance is placed on a judgment in the matter of Arun Wamanrao Shinde vs. Prakash Bhagwan Dalvi and others reported in 1990 Mh.L.J. 923. Facts giving rise to the reported matter are different. As such, the reported judgment is not applicable to the facts and circumstances of the instant case. There is no merit in the civil revision application. Civil revision application therefore stands rejected. 5 Pending civil application, if any, does not survive and stands disposed of. ( R. M. BORDE ) JUDGE dyb