Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.      1175-1177                          OF 2012 [Arising out of SLP (C) NO.28611-28613 OF 2011]

Margret Almeida & Ors. Etc Etc. …Appellants  

Versus

The Bombay Catholic Co-operative Housing  Society Ltd. & Ors. Etc. Etc. ….Respondents  

WITH

CIVIL APPEAL NO. 1178 OF 2012  [Arising out of SLP(C) No.29507 of 2011]

CIVIL APPEAL NOS. 1179-1180 OF 2012  [Arising out of SLP(C) Nos. 30143-30144 of 2011]

J U D G M E N T

CHELAMESWAR, J.

1. Leave granted.

2. These appeals arise out of a common order dated 29th August,  

2011 of the Division Bench of the Bombay High Court passed in  

three writ petitions and two suits, 144 and 145 of 2010.

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3. By the said common order, it was held, among other things,  

that the two suits are not maintainable in view of the provisions of  

Sections 91 and 163 of the Maharashtra Co-operative Societies Act,  

1960 (hereinafter ‘the Act’, for short).  We are not concerned with  

the remaining part of the Division Bench’s judgment as the instant  

special leave petitions are preferred only against that part of the  

Division Bench’s  judgment.   The brief  factual  background of  this  

litigation is as follows.

4. The  first  respondent  is  a  Society  which  was  originally  

incorporated  in  the  year  1914.   The  full  particulars  of  such  

incorporation are not available at this juncture on record and are  

also not necessary for the present purpose.  It is sufficient to state  

that  it  is  admitted on all  hands that  it  is  a  housing cooperative  

society and the Act governs the affairs of the said Society.

5. It is also an admitted fact on all hands that the said Society  

has  different  classes  of  members  known  as  owners,  lessees,  

allottees,  tenants,  etc.  It  is  also  an admitted  fact  that  the total  

membership  is  762  out  of  which  69  members  fall  under  the  

classification of tenant members.  However,  the exact rights and  

obligations of these various classes of members, vis-à-vis the first  

respondent Society or these various classes of members inter se are  

also not available on record.   

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6. It  appears  from  the  record  that,  as  on  today,  the  first  

respondent Society owns an extent of approximately 21,774.10 sq.  

mts. of land in the city of Mumbai alongwith structures popularly  

known as  Wellingdon  Catholic  Colony.   It  appears  that  the  said  

property was part of a larger parcel of land earlier owned by the  

first  respondent  Society  but  is  not  owned  by  the  Society  now.  

Some of the ‘tenant members’ (including the appellants herein) of  

the Society   initiated proceedings  for  the division of  the Society  

sometime  in  the  year  1970  invoking  Section  18  of  the  Act  by  

making an application to the Registrar. The said application has a  

very  long  and  chequered  history,  the  details  of  which  are  not  

necessary for the present purpose except to state that by virtue of  

the  judgment  under  appeal,  the  application  is  still  open  and  

pending.

7. In the meanwhile, in a resolution came to be passed on the  

6th December, 2009 by the General Body of the Society to sell the  

above mentioned land in favour of respondents No.22 and 23.  In  

furtherance of the said resolution, a sale deed/conveyance came to  

be  executed  on  7th December,  2009.   Aggrieved  by  the  said  

resolution and the sale, two suits 144 and 145/2010 came to be  

filed invoking the original jurisdiction of the Bombay High Court.  A  

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copy of the plaint in the suit No.145/2010 is placed on record in  

these SLPs.  The principal prayer in both the civil suits is

“(a) for  a  declaration  that  the  said  Resolution  dated  6th  December,  2009  (Exhibit  ‘K’  hereto)  and  the  said  Conveyance dated 7th December, 2009 (Exhibit ‘M’ hereto)  are  invalid,  illegal  and void  ab  initio  and/or  the  same  are  voidable as against the Plaintiffs and the Tenant members of  Defendant No.17 Association;

(a-i) That  this  Hon’ble  Court  be  pleased  to  pass  Order  declaring Section 164 of Maharashtra Co-operative Societies  Act, 12 Violation of Article 14 of the Constitution of India  and the same ought to be struck down.”

It can be seen from prayer (a) extracted above that the plaintiffs  

seek  in  effect  two  declarations  –  (i)  that  a  resolution  dated  6th  

November,  2009  of  the  first  respondent  Society,  and  (ii)  a  

Conveyance dated 7th December, 2009 executed on behalf of the  

first respondent Society in favour of respondents 22 and 23, are  

either  illegal,  void  ab  initio or  in  the  alternative  that  they  are  

voidable as against the plaintiffs (of whom at least some) are the  

appellants  herein  and  claim  to  be  the  tenant  members  of  the  

respondent  society  (we  may  state  here  that  there  is  a  dispute  

regarding the membership of some of the appellants herein but, for  

the  present  case,  we  do  not  go  into  the  dispute  but  refer  the  

appellants, only for the sake of convenience, as ‘tenant members’).  

The substance of the factual and legal basis (asserted in the plaint)  

on which the plaintiffs seek the two declarations (referred to earlier)  

in the civil suits, and argued at the Bar is that the ‘tenant members’  

alone have the right, title and interest over the property sought to  

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be sold by the impugned conveyance dated 7th December, 2009 and  

that  the  other  members  of  the  Society  have  no  right,  title  or  

interest in the property in dispute. The plaintiffs expect an order of  

bifurcation  of  the  respondent  No.1  Society  and  also  to  get  a  

declaration  in  their  favour  of  the  right,  title  and  interest  in  the  

property in dispute. The plaintiffs also therefore claimed appropriate  

interim orders regarding the property during the pendency of the  

suits.

8. The defendants raised a preliminary objection regarding the  

maintainability of the suits in view of Sections 91 and 163 of the Act  

which was rejected by a learned single judge but found favour with  

the Division Bench of the Bombay High Court resulting in that part  

of the judgment which is under appeal now.

9.     By the judgment under appeal it is held that:

“In our opinion, therefore, what is principally challenged  in the Civil Suit is the resolution of the general body. And  challenge to the conveyance is ancillary”

And therefore opined:    

“That the Plaintiffs could have filed the dispute before the  Co-operative  Court  challenging  the  resolution  of  the  General  Body  and  the  consequent  execution  of  conveyance in favour of M/s. Sumer associates and could  have joined  M/s. Sumer associates as a Defendant in that  dispute.  In our opinion thus the entire subject matter of  the Civil Suit could have been the subject matter of the  dispute filed under Section 91.”

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10. Shri  Mukul  Rohtagi  and  Dr.  Abhishek  M.  Singhvi,  learned  

senior counsel appearing for the appellants argued that irrespective  

of  the  fact  whether  a  declaration  regarding  illegality  of  the  

impugned resolution dated 6th December, 2009 could be granted  by  

the  ordinary  civil  courts  in  view  of  Section  91  of  the  Act,  a  

declaration  regarding  the  voidness  of  the  impugned  conveyance  

dated 7th December, 2009 could only be given by a competent civil  

court contemplated under Section 9 of the Code of Civil Procedure  

(hereinafter  ‘the Code’  for  short)  because such conveyance is  in  

favour  of  a  person  who  is  not  a  member  of  the  Society.  It  is  

submitted that the ultimate dispute and grievance of the plaintiffs is  

against the alienation of the property in favour of the respondents  

22 and 23 herein by the impugned conveyance which has the  effect  

of  depriving  the  plaintiffs  of  their  right,  title  and interest  in  the  

property  in  dispute.  Such  a  conveyance  could  only  be  declared  

illegal and void ab initio by a competent civil court contemplated  

under  Section  9  of  the  Code.   The  impugned  resolution,  which  

purportedly  authorises  the  sale  of  the  property  covered  by  the  

impugned  conveyance,  by  itself  does  not  transfer  or  create  any  

interest  in  the  property  adverse  to  the  interest  of  the  plaintiffs.  

Therefore, even if it is assumed that the legality of the impugned  

resolution is amenable to the jurisdiction of the Co-operative Court  

functioning under Section 91, the suits in question could not have  

been held to be not maintainable as the jurisdiction to adjudicate  

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upon  the  incidental  question  regarding  the  impugned  resolution  

dated 6th December, 2009 would stand subsumed by the jurisdiction  

of the competent civil court which alone is competent to decide the  

legality of the impugned conveyance dated 7th December, 2009. The  

learned counsel  further argued that the ouster of the jurisdiction  

conferred on the Civil Courts under Section 9 of the Code is to be  

conceded only where there is an express exclusion by the language  

of the Statute or if such an ouster arises by a necessary implication  

from the Scheme of a particular Statute.  It is argued that there is  

nothing either in the language of Section 91 or the Scheme of the  

Act which would lead to a conclusion that the jurisdiction conferred  

under Section 9  of the Code is excluded to adjudicate the suits in  

question.

11. On the question of interim order during the pendency of the  

suits, the learned counsel argued that in view of the pendency of  

the claim of the plaintiff for the bifurcation of the respondent society  

(and according to the appellants, they have a very strong case), the  

disputed property must be preserved as it  is and the balance of  

convenience  is  in  favour  of  the  appellants.  The  learned  counsel  

argued  that  the  High  Court  grossly  erred  in  examining  the  

maintainability of the suits in the interlocutory application filed by  

the plaintiff  seeking interim order.  

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12.      On  the  other  hand,  learned  senior  counsel  Shri  C.A.  

Sundaram appearing for the respondents argued that the language  

of Section 91, sub-section 1(c) of the Act clearly indicates that the  

jurisdiction of the Co-operative Court contemplated under Section  

91 is not confined  only to the adjudication of the disputes between  

the society and its members or servants etc. enumerated in Section  

91(1)(a), (b), (d) and (e) but also extends  to the disputes where  

one of the parties to the dispute is a person other than a member of  

the  society.

13. According  to  the  learned  counsel,  such  conclusion  is  

irresistible from the language of Section 91(1) (c) and Section 94  

(3)  (a).Hence,  the  judgment  under  appeal  does  not  call  for  any  

interference.

14. Shri  K.K. Venugopal,  learned senior counsel  submitted that  

the course adopted by the Bombay High Court  in examining the  

maintainability of the suits in the Interlocutory Application  filed  by  

the  plaintiffs is not only justified but also mandatory in view of the  

language of Section 9A of the Civil Procedure Code inserted by the  

State Legislation of Maharashtra.

15. On the question of interim arrangement to be made during  

the  pendency  of  the  suit,  learned  counsel  for  the  respondent  

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submitted that  the suit itself is based on  the expectancy that the  

tenant  Members  would  succeed  in  their  application  for  the  

bifurcation of the society, and upon bifurcation, the tenant members  

would  be  entitled  for  the  exclusive  title  and  possession  of  the  

disputed property.  Even if the above mentioned understanding of  

the plaintiff’s is right since the plaintiffs are only some of the tenant  

members of the society, they would not be entitled for the title and  

possession of the entire disputed property, but only a part of it.  It  

is argued that since other tenant members have no objection to the  

alienation of the property in dispute in favour of the respondent no.  

22  and  23,  impeding  of  conveyance  dated  7th December,  2009  

would  not  be  justified  as  the  impugned  resolution  and  the  

conveyance have made adequate provisions for  safeguarding the  

interest (if any) of the appellants.

16. We shall now examine the issue of maintainability of the suits.  

As rightly contended by the learned counsel for the appellants the  

Civil  Court’s  jurisdiction  to  adjudicate  Civil  disputes  is  unlimited,  

subject only to the limitations imposed by law either expressly or  

by necessary implications.  The law in this regard is well settled and  

needs  no elaboration.  Therefore,  it  becomes necessary for  us to  

examine whether there is anything in the language of Section 91 or  

Section 163 which expressly excludes the jurisdiction  of the Civil  

Courts in the context of the suits in question.  Section 163 of the  

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Act  bars  the  jurisdiction  of  Civil  and  Revenue  Courts  reads  as  

follows:  

“163. Bar of jurisdiction of Courts.

(1)  Save  as  expressly  provided  in  this  Act,  no  Civil  or  Revenue Court shall have any jurisdiction in respect of  

(a)   the registration of a society or its by-laws or the  amendments of its by-laws or the dissolution of the  committee  of  a  society,  or  the  management  of  the  society on dissolution thereof: or

(b)  any dispute required  to  be  referred to  the  Co- operative Court for decision.

(c) any matter concerned with the winding up and  dissolution of a society.

(2)  while a society is being wound up, no suit or other  legal  proceeding  relating  to  the  business  of  such society  shall be proceeded with or instituted against the society or  any member thereof, or any matter touching the  affairs of  the society, except by the leave of the Registrar, and subject  to such terms as he may impose.

(3)    all orders, decisions or awards passed  in accordance  with the Act or the Rules shall, subject to the provisions for  appeal or revision in this Act be final; and no such order,  decision or award shall be liable to be challenged, set aside,  modified, revised or declared void in any Court upon the  merits or upon any other ground whatsoever.”   

17. Section  163 (1)(b) and Section 91 (3) are complimentary  to  

each other.  Section 91(3) reads as follows:

“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)”

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18.       It  can be seen that the Section 163 only excludes the  

jurisdiction of the Civil Court with reference to the disputes arising  

out of the registration:-

1) Registration of the society;

2) Disputes relating to the bye-laws of the society;  

3) Dissolution of the Committee of the society;

4) Management of the society on dissolution of the society;

5) Any disputes which is required to be referred to the Co- operative Court under Section 91.;

6) Any matter concerned with the winding up and dissolution  of the society etc.

19. A dispute arising out of a decision of the society to alienate  

the property of the society, in our opinion, is not expressly covered  

under Section 163 of the Act.  It is to be examined whether it is a  

matter which is required to be resolved by the Co-operative Court  

by virtue of the provisions under Section 91 of the Act. In view of  

the conclusion of the High Court that “the entire subject matter of  

the civil  suit could have been the subject matter of dispute filed  

under Section 91.”

20. It is necessary to examine the scope of Section 91(1), which  

reads as follows

“(1)  Notwithstanding  anything contained in any other law  for  the  time  being  in  force  any  dispute  touching   the  Constitution, (Election of Committee or its Officers) other  than  the  elections  of  the  committees  of  the  specified  

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societies  including  its  officers),   Conduct  of  general  meetings,  management  or  business  or  a  society  shall  be  referred by any of the parties to the disputes, or by federal  society to which the society is affiliated  or by a creditor of  the society, ( in the Co-operative Court)  If both the parties  there to 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  and  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  persons  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  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:

(e)  any  other  society  ,  or  the  Liquidator  of  such  a  society  or  de-registered  society  or  the  official  Assignee of such a de-registered society.”

21. It can be seen from the above extract that the Section makes  

it mandatory that certain disputes,  the nature of which is specified  

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in the said sub-section, be referred to the ‘Co-operative Court’1 – as  

defined under Section 2(10-a ii).  Such reference  is required to be  

made by  “any  of  the  parties  to  the  dispute”.   The Section  also  

specifies the nature/subject matter of dispute which is required to  

be  referred  to  the  Co-operative  Courts.  They  are  “disputes  

touching” the  

1) Constitution of the society 2)  Elections of the “Committee or its officers” 3) Conduct General Meetings 4) Management of the society or 5) Business of the society.

22. Section  91  also  stipulates  that  the  disputes  which  are  

mandatorily required to referred to the Co-operative Court for an  

adjudication must also be disputes arising between the parties to  

the  dispute  who  should  belong  to  one  or  the  other  categories  

specified  under clauses (a)  to (e)  to sub-section (1),  hereinafter  

referred to as ‘enumerated persons’, for the sake of convenience.  It  

can be seen from the scheme of Section 91, to confer exclusive  

jurisdiction on the Co-operative Court, the dispute must satisfy two  

requirements. It was held so in  Marine Times Publications (P) Ltd.  

Vs. Shriram Transport & Finance Co. Ltd., (1991) 1 SCC 469 at para  

11:

 “11. Before a dispute can be referred to a Cooperative Court  under the provisions of Section 91(1) of the said Act it is  not  only  essential  that  the  dispute  should  be  of  a  kind  

1 ‘Co-operative  Court’ means  a court constituted under this Act to decide  disputes referred to it under any of the provisions of the Act.

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described  in  sub-section  (1)  of  Section  91  but  it  is  also  essential that the parties to the said dispute must belong to  any of the categories specified in clauses (a) to (e) of sub- section (1) of the said section.”

Both the subject matter as well as the parties to the dispute must  

be those specified under the section.  In other words if either of the  

above mentioned two requirements is not satisfied then the dispute  

cannot be adjudicated by the Co-operative Court.   If  one of the  

parties to the dispute is not an enumerated person, the question  

whether  the  subject  matter  of  the  dispute  is  one  which  falls  

exclusively within the jurisdiction of the Co-operative Court need  

not be examined.   Similarly, if it is found in a given case that the  

subject matter of dispute is not covered by Section 91, an enquiry  

into the question whether the parties to the dispute fall under any  

of  the  categories  enumerated  under  Section  91  would  become  

irrelevant.   

23. However, learned counsel for the respondent argued that in  

view of the language of Section 91(1) (c) and Section 94(3) the  

various classes of persons contemplated under Section 91 to bring  

the dispute within the jurisdiction of the Co-operative Court (if the  

subject matter of the dispute is otherwise exclusively amenable to  

the jurisdiction of the Co-operative Court), includes persons other  

than the members of the society though not covered by clauses (a),  

(b), (d) and (e) of Section 91(1).  The leaned counsel laid emphasis  

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on  the  clause  “persons  other  than  a  member  of  the  society”  

occurring under Section 91(1) (c) and the clause ”whether he be a  

member  of  the  society  or  not  has  acquired  any  interest  in  the  

property of a person who is a party to a dispute” occurring under  

Section 94(3)(a) clearly demonstrate that the jurisdiction of the Co-

operative Court is not confined only to those cases where both the  

parties are  either members or officers etc. specified  in clauses (a),  

(b), (d) and (e) of Section 91(1).  

24.  To examine the correctness of the submissions made  by Shri  

C.A. Sundaram, it requires an analysis of Section 91(1)(c) and 94  

(3).   When Section 91(1)(c) stipulates that persons other than the  

members of the society with whom the society has any transaction  

as one of the classes of persons who could be parties to a dispute  

amenable exclusively to the jurisdiction of the Co-operative Court,  

such  a  class  is  not  an  unqualified  class.   The  said  sub-section  

further  qualifies the said class by expressly mentioning that the  

transactions of such persons with a society should be a transactions  

“in respect of which restrictions and Regulations have been made or  

prescribed under Sections 43, 44, or 45 of the Act”. Therefore, to  

understand  the  exact  nature  of  the  above  mentioned  class,   an  

examination of the scheme of Sections 43, 44  is necessary.

25.  Section 43 (1) reads as follows:  

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“43. (1)   A society shall receive deposits and loans from  members and other persons, only to such extent, and under  such conditions, as may be prescribed, or specified by the  by-laws of the society.”

The said provision recognises the legal authority of a co-operative  

society to receive deposits and loans either from the members or  

other persons.  It further stipulates that the receipt of deposits and  

loans  is  permissible  only  to  the  extent  and  subject  to  such  

conditions as may be prescribed.   

26. Section 44 on the other hand deals with the legal authority of  

the co-operative society to make a loan/lend money. Section 44 in  

so far as it is relevant reads as follows.

“44.(1)  No society shall make a loan to any person other than a  member or on the  security of its own shares, or on the  security of any person who is not a member.

      Provided that with the special sanction of the Registrar,  a society may make  loans  to another society.

    (2) Notwithstanding anything contained in the foregoing  sub-section, a society may make a loan to a depositor on  the security of his deposit.

     (3) ***************************”

It can be seen from sub-section (1) that it prohibits a society from  

lending money to a person other than a member. It also prohibits  

lending of money by the society even to a member on the security  

of the shares of the same society.  Further it also prohibits lending  

of  money  to  a  member  on  security  to  a  person  who  is  not  a  

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member.   However,  the  proviso  to  sub-section  (1)  authorises  a  

society to lend money to any other society with the special sanction  

of the Registrar.

27. Sub-section  (2)  expressly  authorises  the  society  to  lend  

money to  a  depositor  on the  security  of  his  deposits.   Such an  

authorisation is declared to be notwithstanding anything contained  

in sub-section (1). In other words, the restriction contained in sub-

section (1) that a society shall not lend money to a person other  

than a member is relaxed with reference to a depositor, who is not  

a member of the society, as we have already noticed under Section  

43 that the deposits or loans can be received by a society not only  

from its members but also from persons other than members.  

28. Section 45 makes a general declaration that the transactions  

of the society with  persons other than its members shall be subject  

to  such restrictions  as may be prescribed.   Section 45 reads as  

follows:-

“45. Save as is provided in this Act, the transactions of a  society with persons other than members shall be subject  to such restrictions, if any, as may be prescribed.”   

29.  Therefore, where Section 91 (1) (c) speaks of persons other  

than the members of the society,  it is actually referring  to persons  

other than the members of the society who have deposited money  

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with the society or who have  either lent or borrowed money from  

the society in accordance with the provisions of Sections 43 and 44  

and subject to the conditions and limitations if any prescribed with  

reference to such lending to or borrowing from the society.

30. Coming  to  the  language  and  Scheme  of  Section  94(3).  

Section 94(1) enumerates the powers of the Cooperative Court such  

as the power of summoning the witness and documents etc. Sub-

section (3)(a) reads as follows:

94. Procedure for settlement of disputes and power of  Co-operative Court

xxx xxx xxx xxx

(3)(a)   If the Co-operative Court is satisfied that a person  whether he be a member of the society or not has acquired  any interest in the property of a person who is a party  to a dispute it may order that the person who has acquired  the  interest  in  the  property  may  join  as  a  party  to  the  dispute;  and  any  decision  that  may  be  passed  on  the  reference by the Co-operative Court shall be binding on the  party so joined in the same manner as if he were an original  party to the dispute.”

[emphasis supplied]

The substance of sub-section (3)(a) is that if the Co-operative Court  

in the course of adjudication of a dispute is satisfied that any person  

other than a party to the dispute “has acquired any interest in the  

property of a party to a dispute”, then the Co-operative Court is  

empowered to implead such a 3rd party as a party to the dispute.  

Such a 3rd party may or may not even be a member of the society.  

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The sub-section further declares such an impleaded 3rd party to be  

bound by the decision of the Co-operative Court.   

31. It is argued by Shri C.A. Sundaram, learned senior counsel for  

the respondents that the scheme and language of Section 94(3)(a)  

makes it beyond doubt that the Co-operative Court’s jurisdiction to  

adjudicate the dispute is not confined only to the disputes between  

the various classes of persons enumerated under Section 91 alone  

but extends to others also if such a 3rd party (even in a case where  

he  happen  to  be  a  non-member)  acquires  some interest  in  the  

property of either the society or the members or any other person  

enumerated in Section 91.

32. We find it difficult to accept the submissions of Shri Sundaram  

for  the  reason  if  really  the  Legislature  intended  that  the  Co-

operative  Court  should  have  jurisdiction  in  all  the  disputes  

irrespective of the nature of the dispute arising between the various  

classes of persons enumerated in Section 91 and non-member 3rd  

parties who acquire any interest in the property of such enumerated  

persons, the Legislature could have clearly indicated the same in  

Section 91 itself.   It  must be remembered that Section 94(3)(a)  

does not enable a person other than an enumerated person to refer  

a dispute to the Co-operative Court.    The said legal  position is  

made clear in Marine Times (supra).  It was a case where a member  

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of a housing society occupying a part of the building owned by the  

society agreed to sell  that property to a 3rd party subject to the  

approval of  the society.   The society declined approval.   The 3rd  

party raised a dispute against the society as well as the member  

before the Co-operative Court.  Dealing with the question whether  

the  Co-operative  Court  would  have jurisdiction  to  adjudicate  the  

dispute, this Court answered the question in the negative.

33. Accepting the submission of Shri Sundaram would lead to a  

situation that while on one hand it is the settled position of law that  

the Act does not permit a person other than the one enumerated  

under  Section  91  to  seek  adjudication  of  his  dispute  with  

‘enumerated persons’ in a Co-operative Court, such a Court would  

be authorised by virtue of Section 94(3)(a) to adjudicate a dispute  

between  an  enumerated  person  and  a  non-member  3rd party,  if  

raised by an enumerated  person.   On the other  hand,  from the  

language  of  the  said  sub-section,  it  appears  that  the  only  

circumstance which enables the Co-operative Court to exercise its  

jurisdiction  against  such  a  3rd party  is  that  while  adjudicating  a  

dispute  which  is  otherwise  amenable  to  its  jurisdiction,  the  Co-

operative  Court  reaches  the conclusion that  a  3rd party  acquired  

some interest in the property of one of the parties to the dispute.  

Necessarily  the  following  two  questions  must  be  examined  to  

understand the exact scope of the said sub-section. (1) Whether the  

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property referred to in the sub-section is any property of one of the  

parties to the dispute or should such property bear any relationship  

to the dispute?  (2) Whether the acquisition of the interest referred  

to should be anterior  to the reference of  the dispute to the Co-

operative Court or on acquisition made during the pendency of the  

litigation?

34. The answer  to  the first  question to  our  mind is  plain.  The  

property in which the 3rd party acquired interest must bear some  

relationship with the dispute pending before the tribunal.  To hold  

otherwise would be to enable the Co-operative Court to examine  

questions  unconnected  with  the  dispute  pending  before  it  and  

wholly  unconnected  with  the  affairs  of  the  Society.   An  illogical  

result  to  be  normally  avoided  unless  compelled  by  the  express  

language of the Act.   

35. Coming  to  the  second  question,  learned  counsel  for  the  

appellant  argued  that  the  intention  of  the  Legislature  is  to  be  

gathered  from  the  language  of  the  sub-section  (3)(a)  and  the  

employment  of  the  present  perfect  tense  (has  acquired  any  

interest)  must  only  lead  to  a  conclusion  that  the  Legislature  

intended the Co-operative  Court   to  deal  with  only  the  cases  of  

acquisition of interest in the property during the pendency of the  

litigation before it.  On the other hand, Shri Sundaram argued that  

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there is no warrant for such an inference in the language of sub-

section (3)(a).

36. We are of the opinion that having regard to the language of  

Section 94, sub-section (3)(a), more specifically “has acquired any  

interest”,  the  acquisition of  the  interest  contemplated  is  only  an  

acquisition made during the pendency of the dispute before the Co-

operative Court.  For the reason that such an acquisition of interest  

is qualified by the words, “in the property of a person who is a party  

to the dispute”, we hold so for another reason also.   

37. To hold otherwise, would lead to a situation where a dispute  

between  an  enumerated  person  and  a  3rd party  would  become  

amenable  to  the  jurisdiction  of  the  Co-operative  Court  at  the  

instance of the persons enumerated under Section 91 but not at the  

instance of  a  3rd party  in  view of  the  judgment of  this  Court  in  

(1991) 1 SCC 469.  An absurd situation, ex facie violative of Article  

14, in as much as such a construction would lead to a situation that  

with reference to a dispute, the affected parties are compelled to  

approach  different  fora  for  the  adjudication of  the  same dispute  

depending upon the fact which party is seeking a relief.   Such a  

construction,  being inconsistent  with  a  constitutional  mandate,  is  

impermissible.

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38. For coming to the conclusion that the suits in question are not  

maintainable and the dispute could be examined exclusively by the  

Co-operative Court, the High Court proceeded on the basis that it is  

possible  to  challenge  the  resolution  and  the  conveyance  

independently.   Starting  from  such  a  premise,  the  High  Court  

opined that challenge alone to the resolution without challenging  

the conveyance is possible but not vice-versa.  The reason given by  

the High Court for the same is as follows:-

“If Court passes a decree or order setting aside the resolution  of the general body, the validity of the conveyance will not  be intact, but if a decree or order is made merely setting aside  the  conveyance,  the  resolution  of  the  General  body  will  remain intact.  By the conveyance land owned by the Society  is transferred.  The society is a body corporate.  The person  or persons who have signed the conveyance on behalf of the  Society derive the authority to do so from resolution of the  General  Body.  If  the resolution  is  set  aside  or  is  declared  invalid  the  act  of  the  person of  executing  the  conveyance  would become unauthorised.  Such an order in relation to the  validity  of  the  General  Body  resolution  will  impair  the  validity of the conveyance.  Consequently, if  the resolution  remains  intact  but  the  conveyance  is  set  aside  for  some  reason the Society may be in a position to execute another  conveyance pursuant to the resolution of the general body.”

We do not propose to examine the correctness of the legal premise  

that  the  general  body  resolution  and  the  conveyance  could  be  

segregated in a dispute such as one on the hand.  For the sake of  

argument,  we  presume  that  it  is  possible  for  the  plaintiffs,  

appellants herein, to challenge only the general body resolution. We  

also presume that the conclusion arrived at by the High Court that if  

the general body resolution is set aside, the same will impair the  

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validity of the conveyance even without an appropriate declaration  

by  a  competent  judicial  body.   (We  emphasise  that  we  only  

presume so without examining to the said conclusion for the limited  

purpose)  If  the  resolution  dated  6th December,  2009  alone  is  

challenged before the Co-operative Court, in view of our conclusion  

recorded earlier,  the respondents 22 and 23 (the beneficiaries of  

the resolution) could not be made parties before the Co-operative  

Court.  In such a situation, even if the Co-operative Court came to  

the conclusion that the resolution is illegal, it would always be open  

for the respondents 22 and 23 to ignore such a determination as  

they are not parties to the proceedings and assert their title on the  

basis of the conveyance dated 7th December, 2009.  If any party  

such as the plaintiffs (the appellants herein) disputes the validity of  

the  title  conveyed  thereunder,  necessarily  such  a  dispute  would  

have to be adjudicated by a competent Court under Section 9 of the  

Code of Civil Procedure wherein, necessarily, the question whether  

a valid title was conveyed in favour of respondents 22 and 23 by  

the  society  would  arise  for  determination.   The  legality  of  the  

resolution would still have to be gone into again.  Therefore, in our  

opinion,  the  premise  in  which  the  High  Court  commenced  its  

enquiry itself is wrong.

39. For all the above-mentioned reasons, we are of the opinion  

that the conclusion of the High Court that the suits in question are  

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not maintainable on the ground that the dispute is amenable to the  

exclusive  jurisdiction  under  Section  91  of  the  Act  to  the  Co-

operative Court cannot be sustained and the same is required to be  

set aside.

40. That takes us to the next question raised in these appeals -  

whether the High Court was right in going into the maintainability of  

the  suits  in  question.   Shri  Venugopal,  learned  senior  counsel  

appearing for some of the respondents submitted that in view of the  

provisions  contained  in  Section  9A  of  the  Code,  which  was  

introduced by local amendment of the Maharashtra Legislature to  

the Code by Maharashtra Act No.65 of 1977, the course of action  

followed by the High Court is not only justified but also the Court is  

obliged  to  follow  such  a  course  of  action.  Section  9A  reads  as  

follows:

“9A.  Whereof the hearing of application relating to interim  relief  in  a  suit,  objection  to  jurisdiction is   taken,   such  issue to  be  decided  by  the  Court  as   a   preliminary  issue.-  

(1)  Notwithstanding  anything  contained  in  this  Code or  any  other law for the time beiong in force, if, at the hearing of any  application for granting or setting aside an order granting any  interim relief, whether by way of stay, injunction, appointment  of a receiver or otherwise, made in any suit, an objection to the  jurisdiction of the Court to entertain such a suit is taken by any  of the parties to the suit, the Court shall proceed to determine at  the hearing of such application the issue as to the jurisdiction  as a preliminary issue before granting or setting aside the order  granting the interim relief.  Any such application shall be heard  and disposed of by the Court as expeditiously as possible and  shall not in any case be adjourned to the hearing of the suit.

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    (2)  Notwithstanding anything contained ion sub-section (1),  at  the hearing  of any such application,  the Court  may grant  such  interim  relief  as  it  may  consider  necessary,  pending  determination  by  it  of  the  preliminary  issue  as  to  the  jurisdiction.”

The  language  of  Section  9A  is  self-explanatory.   We accept  the  

submission made by Shri Venugopal in toto.

41. Coming to the question of the interim order in view of our  

conclusion that the suits in question are maintainable and having  

regard to the fact that the suits are to be tried by the High Court in  

exercise of its original jurisdiction, we do not propose to pass any  

interim order and leave it open to the High Court to consider the  

applications filed by the plaintiffs for interim orders in accordance  

with law and pass appropriate orders.  The principles governing the  

grant  of  interim  orders  are  too  well  settled  and  we  need  not  

expound the same once again.  However, we would like to indicate  

that on the question of the existence of a prima facie case in favour  

of the plaintiffs, the following factors are germane and require to be  

examined.  Having regard to the content of the plaint, we are of the  

opinion that the nature of the legal  right, the plaintiffs  claim for  

seeking the relief such as the one sought in the suits necessarily  

depends upon the byelaws of the Society, the rights and obligations  

of the various classes of its members with respect to the property in  

dispute.  The High Court may examine the above aspects before  

passing an appropriate interim order.

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42. In view of the above, we also deem it proper to direct all the  

parties to maintain status quo as on today for a period of two weeks  

to enable the Bombay High Court to examine the applications of the  

plaintiffs  for  interim  orders  and  pass  appropriate  orders  in  

accordance with law.

43. The appeals are, accordingly, disposed of.

………………………………….J. ( P. SATHASIVAM )

………………………………….J. ( J. CHELAMESWAR )

New Delhi; January 30, 2012.

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