1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.2801 OF 2010 Vipin Lalchand Mehata & others Petitioners Versus Special Recovery, Attachment and Sale Officer of Maharana Pratap Nagari Sahakari Patha Sanstha Ltd., Jalgaon Respondent Mr.S.P.Brahme, advocate for the petitioners. CORAM: R.M.BORDE, J. DATE : 09th April, 2010. P.C.: 1 The order passed by II Joint Civil Judge, Senior Division, Jalgaon in Regular Civil Suit No.233/2009 on 11.02.2010 holding that suit presented by plaintiffs is not entertainable and further rejecting the plaint, at the same time, returning back the plaint, is subject matter of challenge in this petition. 2 Petitioners herein presented a suit, being Regular Civil Suit No. 233/2009 claiming declaratory relief to the effect that notice issued on 31.10.2009 by Respondent, be declared as illegal. Plaintiffs also claim restraint order against defendant thereby restraining him from attaching property belonging to the plaintiffs. 3 It appears that plaintiffs are borrowers of one Maharana Pratap Nagari Sahakari Patha Sanstha. With a view to effect recovery of amount, 2 the Society has secured Recovery Certificate as contemplated by Section 101 of the Maharashtra Cooperative Societies Act and in furtherance of recovery proceedings, notice of attachment came to be issued, as contemplated by Section 107 of the Act on 31.10.2009. Plaintiffs, after receipt of notice in respect of recovery of amount and attachment of property, approached Civil Court and presented a suit claiming relief as stated above. An objection was raised by defendant to the entertainability of the suit and the trial Court was required to frame a preliminary issue and try same before taking up application for interim orders for consideration, as contemplated by Section 9A of the Code of Civil Procedure. After considering relevant aspects, trial Court came to the conclusion that suit presented by plaintiff is barred in view of provisions of Section 163 (3) of the Maharashtra Cooperative Societies Act and as such, directed rejection of the plaint and at the same time, issued a direction for return of the plaint. 4 Learned II Joint Civil Judge, Senior Division, Jalgaon, appears to lack basic knowledge of Civil Procedure Code. The order of rejection of plaint is different than the order in respect of return of plaint and both orders are required to be passed in different contingencies. The learned Judge ought to know at least basic things that the order of rejection of plaint amounts to decree and is appealable, whereas, order in respect of return of plaint is not so. The trial Court has erred in passing impugned order. The trial Court has also made reference to Section 163(3) of the Act, which is not in fact attracted in the facts of the case. However, final order is sustainable in view of provisions of Section 91(3) of the Maharashtra Cooperative Societies Act. It is not controverted that petitioners are members of Respondent-Pata Sanstha. The dispute raised in the suit also relates to business of society and as such, remedy can be availed of under Section 91 of the Maharashtra 3 Cooperative Societies Act. Section 91(3) of the Act creates a bar for entertaining suit, which is cognizable by the Cooperative Court under Section 91 of the Act. 5 Considering these aspects, I am of the view that although reasons recorded by the trial Court are not acceptable, nor final order in respect of rejection or return of plaint is sustainable, the fact remains that suit is not entertainable by Civil Court and as such, Writ Petition stands rejected. (R.M.BORDE) JUDGE ******* adb/wp280110