Kodag38. Shaheen Khalil Potrik39. Bhairulal Nathulal Jat40. Dattatray Gulab Aher (since deceased) v. Saujanya Co-operative Housing Society Ltd

k 2/30 47 wp 15791.25 jr as.doc26. Dinesh Bandhu Kandu27. Poonam Jogindar Thakur & Jogindar Damodar Thakur28. Sharvan Singh Gurumukh Singh Bhella29. Gauri Shankar Tiwari30. Jivan Hindurav Jadhav31. Shafiuddin Shamsuddin Khan32. Nooruddin Shamsuddin Khan33. Tahirmunnisa Shamsuddin Khan34. Gulzar Ahmed Bharde35. Sarika Raju Mandalik & Raju Gulab Mandalik36. Sukhdev D. Kadam37. Aanand Pitambar Kodag38. Shaheen Khalil Potrik39. Bhairulal Nathulal Jat40. Dattatray Gulab Aher (since deceased) through his widow Shobha Dattatraya Aher41. Anandrav Bapurao Amale All r/o Koparkhairane, Navi Mumbai – 4000 709.....PetitionersV/SSaujanya Co-operative Housing Society Ltd.....Respondent_________Mr. Girish Agrawal with Ms. Chitra Darekar and Mr. Shubham Jangami/b Mr. P.D. Dalvi for the Petitioners.Mr. Mahendra V. Shingade with Mr. Prabhat R. Salunkhe forRespondent.__________ CORAM : SANDEEP V. MARNE, J.RESERVED ON : 17 AUGUST 2026.PRONOUNCED ON : 27 AUGUST 2026.katkamPage No. 2 of 30 k 3/30 47 wp 15791.25 jr as.docJ U D G M E N T:1. Petitioners have filed the present Petition challenging thejudgment and order dated 16 September 2025 passed by the MaharashtraState Co-operative Appellate Court, Mumbai, dismissing Appeal No.19 of2025 and confirming the order dated 11 March 2025 passed by thelearned Judge, Co-operative Court, Thane. By order dated 11 March 2025,the Co-operative Court has allowed the Application at Exhibit-10 filed bythe Opponent/Respondent-Society seeking rejection of the Plaint underOrder VII Rule 11 of the Code of Civil Procedure, 1908 (the Code).Accordingly, by the impugned Order, Dispute No. CCT 201 of 2024 isrejected by the Co-operative Court under Order VII Rule 11 (d) of theCode and the order is upheld by the Appellate Court.2.Briefly stated, facts of the case are that Respondent is a Co-operative Housing Society registered under the provisions ofMaharashtra Co-operative Societies Act, 1960 (MCS Act). Petitioners aremembers of the Respondent-Society. The Society decided to undertakeredevelopment of its building. According to the Petitioners, the Society’sbuilding consists of 69 ground floor structures situated at CondominiumNo.2, Plot No.8, Sector 23, Koperkhairane, Navi Mumbai – 400 709 onplot admeasuring 3200 square meters. The independent groundstructures are allotted to respective members of the Society in the year1995-96. According to Petitioners, the same were not 30 years old anddid not require any reconstruction. However, the managing committeemembers of the Society commenced redevelopment process in the year2016. In the Special General Body Meeting held on 9 May 2021, thekatkamPage No. 3 of 30 k 4/30 47 wp 15791.25 jr as.docSociety selected Project Management Consultant. Thereafter, in theSpecial General Body Meeting held on 8 August 2021 the Societyauthorized the Redevelopment Committee to select a developer. In theSpecial General Body Meeting held on 6 March 2022, M/s. Omkar PlanetBuildcon was selected and appointed as the developer to carry out theredevelopment process. Petitioners have accordingly filed Dispute No.CCT 201 of 2024 before Co-operative Court at Thane challengingResolutions passed in Special General Meeting dated 9 May 2021, 8August 2021, 6 March 2022 and 28 May 2023 concerning redevelopmentof disputed properties i.e. 69 ground floor structures. 3.The Respondent-Society appeared in the Dispute and filed itsWritten Statement. Additionally, Respondent-Society filed Application atExhibit-10 seeking rejection of the Dispute under Order VII Rule 11(d) ofthe Code inter alia on the ground that the Dispute was barred underSection 92(2) of the MCS Act and that the same is not maintainable. Itwas contended by the Respondent-Society that the impugnedresolutions relate to redevelopment of the Society’s building and thattherefore, the Dispute was barred under Section 91 of the MCS Act. TheApplication was resisted by the Petitioners by filing their Reply. TheCooperative Court has allowed the Application at Exhibit-10 by orderdated 11 March 2025 and has rejected the Dispute under Order VII Rule11 (d) of the Code. Petitioners filed Appeal No.19 of 2025 challenging theorder of the Co-operative Court dated 11 March 2025. However, by orderdated 16 September 2025, the Cooperative Appellate Court has dismissedthe Appeal and has confirmed the order passed by the Cooperative Court.Aggrieved by orders dated 11 March 2025 passed by the CooperativekatkamPage No. 4 of 30 k 5/30 47 wp 15791.25 jr as.docCourt and 16 September 2025 passed by the Cooperative AppellateCourt, Petitioners have filed the present Petition. 4.Mr. Agrawal, the learned counsel appearing for Petitioners wouldsubmit that the Cooperative Court and the Cooperative Appellate Courthave erroneously rejected the Dispute by having recourse to provisionsof Order VII Rule 11(d) of the Code. He submits that Petitioners haverestricted their challenge in the Dispute only to the resolutions. That thePetitioners have separately filed Special Civil Suit No.145 of 2024challenging the Development Agreement and the Power of Attorneydated 16 October 2023. That the Dispute does not involve any challengeto the Development Agreement or the Power of Attorney. Therefore, thedispute challenging only the resolutions adopted by the Respondent-Society is perfectly maintainable before the Cooperative Court underSection 91 of the MCS Act. He further submits that the CooperativeCourt and the Appellate Court have erroneously relied on judgment ofthe Apex Court in Margret Almeida and Ors. vs. Bombay Catholic Co-operative Housing Society Limited and Ors. 1 for rejecting the dispute.That the issue is no more res integra and is covered by direct judgmentsof this Court which hold that not only a challenge to resolutions adoptedby the General Body concerning redevelopment but also a challenge tothe Development Agreement is maintainable before the CooperativeCourt. He relies on judgment of this Court in The Bank of India StaffPanchsheel Co-operative Housing Society Limited vs. Jitendra KumarJani and others 2 . He further submits that the judgment of the ApexCourt in Margret Almeida (supra) has been considered by this Court in1 2012 (5) SCC 6422 2026 (2) ALL MR 659katkamPage No. 5 of 30 k 6/30 47 wp 15791.25 jr as.docEknath Namdev Lashkare & Ors. vs. Pancharatna Properties and Ors. 3 and it has been held that resolutions of General Body as well asDevelopment Agreement must be examined together by the CooperativeCourt as one cannot survive without the other. He further submits thatthe Cooperative Appellate Court has relied on judgment of this Court inKomal Arvind Vesavkar and ors. vs. Vesawa Koli Sarvoday SahakariSociety Ltd. and ors. 4 which has been considered and distinguished bythis Court in Bank of India Staff Panchsheel CHSL (supra). He also relieson judgment of this Court in Jeetu Rajeshwar Kotpalliwar and others vs.Ujjwal Nandadeep CHS Ltd. and others 5 in support of his contentionthat a dispute involving challenge to General Body Resolution cannot berejected by having recourse to provisions of Order VII Rule 11 of theCode. Mr. Agrawal would accordingly pray for setting aside the impugnedorders and for restoration of the Dispute. 5.Per contra, Mr. Shingade the learned counsel appearing forRespondent-Society submits that the Cooperative Court and theAppellate Court have correctly appreciated the position that GeneralBody Resolutions cannot be segregated from the DevelopmentAgreement. That therefore Petitioners cannot maintain a separatechallenge to the General Body Resolution before Cooperative Court andfile a Suit before the Civil Court challenging Development Agreementand Power of Attorney. He relies on judgment of this Court in KomalArvind Vesavkar (supra) in support of his contention that onceDevelopment Agreement is already challenged before the City CivilCourt, legality of resolutions cannot be challenged in a Dispute filed3 2025 (6) AllMR 6804 Writ Petition No.8254 of 2022, decided on 15 January 20255 Writ Petition No.1833 of 2025 decided on 12 February 2025katkamPage No. 6 of 30 k 7/30 47 wp 15791.25 jr as.docbefore the Cooperative Court. He also relies on judgment of this Court inParimal H Solanki In the matter between Bhoumik Co-operativeHousing Society Limited and another Versus. Vina A. Sisawala andOrs. 6 in support of his contention that the redevelopment process hadcommenced prior to the 2019 amendment and that therefore, the samedoes not constitute the business of the Respondent-Cooperative Society.He also relies on judgment of the this Court in Amita Jiten Desai andanother vs. New Chandrodaya Co-operative Housing Society Limitedand another 7 in support of his contention that both the judgments ofthis Court in Bank of India Staff Panchsheel CHSL (supra) as well asEknath Namdev Lashkare (supra) have been considered anddistinguished by this Court while allowing the First Appeal and settingaside order passed by the City Civil Court under Order VII Rule 11 of theCode and holding that a suit challenging resolutions passed byCooperative Society regarding the re-development is maintainable. Hesubmits that there is no averment in the plaint that redevelopment ofthe building forms subject matter of business of the Society. Heaccordingly prays for dismissal of the Petition. 6.Rival contentions urged on behalf of the parties now fall for myconsideration.7.The short issue involved in the Petition is about the forum beforewhich an aggrieved member can ventilate his grievance relating toredevelopment process undertaken by the cooperative housing society.6 Interim Application (L) No.25993 of 2022 in Suit No.1190 of 2019, decided on 6 October 20227 2026 SCC OnLine Bom 2765katkamPage No. 7 of 30 k 8/30 47 wp 15791.25 jr as.doc8.Section 91 of the MCS Act provides for settlement of disputes by aCooperative Court when twin requirements specified under sub-section(1) are met. The first requirement is that the dispute must concern theenumerated subject matters. The second condition is that parties to thedispute must be the ones enumerated in clauses (a) to (e) of Section91(1). It is only when both the conditions are met, the Cooperative Courtgets jurisdiction to decide the dispute. So far as the second condition isconcerned, there can be no doubt that, in the present case, thePetitioners are members of the Respondent-Society, and the dispute hasbeen raised by the members against the Society. Thus, the secondcondition of parties falling in the enumerated categories (a) to (e) ofSection 91 (1) is clearly met in the present case. The dispute is withregard to the first condition of the enumerated subject matters. UnderSection 91(1), only disputes touching constitution, elections of thecommittee or its officers, conduct of general meetings, management orbusiness of a society can be adjudicated by the Cooperative Court. Thedispute undoubtedly involves a challenge to the resolutions adopted bythe general body of the society. However, the dispute ultimately relatesto implementation of redevelopment process by the Respondent-Society.Petitioners are aggrieved by implementation of the redevelopmentconcerning their respective structures. They believe that their structuresdo not require redevelopment and they are opposing the redevelopmentprocess.9.The issue as to whether redevelopment of a building of acooperative society touches upon the 'business of the society' has beenthe subject matter of various decisions of this Court. Prior to the 2019katkamPage No. 8 of 30 k 9/30 47 wp 15791.25 jr as.docAmendments to the MCS Act, when special provisions relating tocooperative housing societies are introduced, this Court repeatedly heldin Vardhaman Developers Ltd. Versus. Thailambal CHS Ltd. 8 ,Mohinder Kochar Versus. Mayfair Housing 9 , and Maya DevelopersVersus. Rajkumar L. Nagda 10 that redevelopment of its building doesnot constitute business of the society within the meaning of Section 91of the MCS Act. However, the Amending Act of 2019 brought about achange in the definition of the term 'Housing Society' to mean a society,the object of which is to provide, inter-alia, demolition of existingbuildings and reconstruction of the same. In Parimal H. Solanki thisCourt took into consideration the effect of Section 154B-31 of the MCSAct dealing with saving clause and held in paras 54, 56, 57 and 61 of thejudgment as under: 54. The Amending Act of 2019 only brought above a change in thedefinition of “Housing Society” which now included redevelopment asone of the objects of the Society. However, Section 154B-31 clearlyprovided that inter alias, the Bye-Laws applicable to the HousingSociety existing on the date of the Amending Act, to continue to beapplicable, until expressly repealed, modified or amended. It is anadmitted position that the Bye-Laws of the Plaintiff No. 1 Society havenot been expressly repealed, modified or amended subsequent to theAmending Act of 2019 and would thus continue to apply to the PlaintiffNo. 1 Society. This saving of existing Bye-Laws has been expresslybrought in the Amending Act of 2019. The existing Bye-Laws of thePlaintiff No. 1 Society does not have “redevelopment” as one of theobjects of the Society. Thus, I do not find merit in the contention onbehalf of the Defendants that subsequent to the commencement of theAmending Act of 2019, the Bye-Laws are required to be read as if itincludes redevelopment as one of the objects of the Plaintiff No. 1-Society. If this contention on behalf of the Defendants is upheld, thesaid saving provision in the Amending Act of 2019 would be renderednugatory. In view of the said saving provision, the Bye-Laws of theSociety would necessarily have to be amended to bring it in line withthe definition of “Housing Society” under Section 154B-1(17). 8 Order dated 7 March 2011 in Notice of Motion No. 3274 Of 20109 2012 (6) Bom CR 19410 2016 (6) Bom.C.R. 629katkamPage No. 9 of 30 k 10/30 47 wp 15791.25 jr as.doc56. Thus, the dispute relating to the “business of the Society” which isto be referred by any of the parties to the dispute to the Co-operativeCourt necessarily would require redevelopment to be the “business ofthe Society”. This would have to be seen from the Bye-Laws of theSociety as to whether redevelopment has been included in the Bye-Laws. The submission of Mr. Madon that the definition of “HousingSociety” is an enabling provision and does not make redevelopment anobject or business of the Society unless the Society actually amends itsBye-Laws to include redevelopment as one of its objects, is required tobe accepted. In the present case, it is an admitted position that theBye-Laws of the Society do not have redevelopment as an object. Thiscan also be seen from the existing Bye-Laws of the Society tendered byMr. Madon pursuant to the advocates for the Defendants calling uponthe Plaintiffs to produce the Bye-Laws. It is no-one’s case thatsubsequent to Amending Act of 2019, the Plaintiff No. 1-Society hasamended its Bye-Laws for inclusion of redevelopment as one of itsobject.57. Thus, in my view, since redevelopment is not one of the objects ofthe Plaintiff No. 1-Society, as per the Bye-Laws of the Plaintiff No. 1-Society, it cannot be said to be the business of the Society.61. I am not impressed with the arguments on behalf of the Defendantsthat Maya Developers (supra) being prior to the Amending Act of 2019,is no longer good law, as it is considering the provisions which haveundergone a change in law. In my view, as Section 91 of the MCS Acthas not undergone any change, Maya Developers (supra) is very muchstill applicable, particularly, in view of the directive under Section 79Acontinuing to be excluded from Section 91(1)(c) of the MCS Act. Thepurpose and ambit of Section 79A and Section 45 as held in MayaDevelopers (supra) are entirely distinct. They operate in different fields.Section 79A is a broad-based State power to be used in the publicinterest. One cannot read Section 79A into Section 45 as has beensought to be contended on behalf of the Defendants.10. Thus, in Parimal H. Solanki the application preferred by theDefendants therein seeking direction for return of the plaint on theground of lack of jurisdiction of this Court to entertain the suit relatingto disputes over redevelopment has been rejected holding thatredevelopment of its building was not one of the objects of the society askatkamPage No. 10 of 30 k 11/30 47 wp 15791.25 jr as.docthe society had not amended its bye-laws to include redevelopment asone of its objects.11.It is well settled position that for deciding application under Order7 Rule 11, the averments in the plaint are required to be considered.Perusal of the averments in the Dispute filed by the Petitioners wouldindicate that the redevelopment process started in the year 2016, i.e.much prior to the introduction of Chapter XIII in the MCS Act byamendments of 2019. This is clear from the following averments in theplaint: 6. The Disputants state that the Committee members of the SaidOpponent Society made their personal ill effort without the knowledgeand consent of the members of the Said Opponent Society for theirpersonal financial benefits/gains and for the benefit of acquaintedDevelopers (The Disputants state that the Said Committeemembers of the Said Opponent Society started the process ofRedevelopment in fact in the year of 2016 in yearly annualgeneral meeting (in Short AGM) or thereabout in absence of anypoint of redevelopment in Agenda Notices of respective Said A. G. M.and and no resolutions are passed in respective the Said A.G.M. on thealleged basis of increased Floor Space Index to have excess and extrabenefit of areas in addition to existing area but all efforts are withouttaking into confidence to the members at large of the Said OpponentSociety.10. The Disputants state that the Said Opponent Society throughit's Development Committee Members have startedRedevelopment of the Dispute Properties firstly in the year of2016 and continued up to the year 2022 by appointing RedevelopmentCommittee of 14 members of the Said Opponent Society and time totime issued Agenda Notices for Annual General Meeting (in shortA.G.M.) to discuss the points mentioned therein the agenda Noticesand All the above copies of the Agenda Notices are in possession of theDisputants and crave leave to refer to and rely upon the same whenproduced. (emphasis added)katkamPage No. 11 of 30 k 12/30 47 wp 15791.25 jr as.doc12. Thus, the redevelopment process is undertaken by theRespondent-Society much prior to amendment of the MCS Act by whichChapter-XIIIB is inserted therein w.e.f. 9 March 2019.13.More importantly, in the entire plaint, there is no averment thatredevelopment of Society's building is the object or business of theRespondent-Society. Thus, perusal of the pleadings in the Dispute filedby the Petitioner would clearly indicate that the same lacks necessaryaverments for the purpose of retaining jurisdiction of Co-operativeCourt under Section 91 of the MCS Act. This factor is in fact sufficient forupholding the orders passed by the Cooperative Court and the AppellateCourt directing rejection of the dispute. 14.However, Mr. Agarwal has relied upon three judgments of thisCourt in support of his contention that the law has undergone a changepost the judgment in Parimal H. Solanki and that therefore the disputechallenging the resolutions passed by Society for implementation ofredevelopment process now clearly falls in the realm of challenge beforethe Cooperative Court under the MCS Act. On the other hand, Mr.Shingade has relied on two judgments of this Court to counter thesubmission of Mr. Agrawal and in support of his contention that it isimpermissible to segregate challenges relating to resolutions and thoserelating to redevelopment agreement and to institute separateproceedings before the Cooperative Court and the Civil Court.15. I accordingly proceed to examine the judgments relied upon bythe learned counsel appearing for the rival parties.katkamPage No. 12 of 30 k 13/30 47 wp 15791.25 jr as.doc16. Amongst the judgments relied upon by Mr. Agrawal and Mr.Shingade, the earliest one is in the case of Komal Arvind Vesavkarwhich is delivered on 15 January 2025 by a coordinate Bench of thisCourt. In that case, the order passed by the Cooperative Appellate Courtupholding the dismissal of Dispute under Order 7 Rule 11 of the Code onthe ground of maintainability was under challenge. The Dispute wasfiled by the members of a Cooperative Society which was set up with theobject of promoting welfare of the fishing community residing inVersova and to provide infrastructure facilities to the local fishing folksand to streamline the business activities at Versova, Andheri, Mumbai.The Society owned land at Versova and created development rights inrespect of society's land in favour of a developer by executingDevelopment-cum-Sale Agreement based on resolutions shown to havebeen adopted in the general body meeting of the Society. The Disputefiled before the Cooperative Court challenged the resolutions adopted bythe Society for redevelopment of its property. The Society filedapplication under Order 7 Rule 11 of the Code for rejection of theDispute on the ground of maintainability. This Court took intoconsideration the judgment of the Apex Court in Margret Almeida andheld in paras-21, 22, 23, 24, 26 and 27 as under: 21. In identical facts, but reverse position arose in Margret Almeida vsBombay Catholic Co-op Housing Society Ltd (supra), where theresolution and the conveyance executed by the Co-operative HousingSociety came to be challenged in the Civil Court and upon apreliminary objection raised as regards the maintainability, theDivision Bench held the suits are not maintainable and the disputecould be examined exclusively by the Co-operative Court proceeding onthe basis that it is possible to challenge the resolution and theconveyance independently. Based on such premise, the High CourtkatkamPage No. 13 of 30 k 14/30 47 wp 15791.25 jr as.docopined that the challenge to the resolution without challenging theconveyance is possible but not vice versa. Negating the reasoning ofDivision Bench, the Apex Court held that the premise on which theHigh Court commenced its inquiry itself was wrong and held inparagraph 47 as under:XXX22. The decision of Margret Almeida (supra) is squarely applicable tothe facts of the present case. The Resolutions under challenge areessentially with reference to the Development Agreementexecuted with Respondent No. 2 and the subject-matter of Disputewill not fall exclusively within the jurisdiction of Co-operativeCourt. The Cooperative Court will not have the jurisdiction toexamine the validity of Development Agreement, whereas, theCivil Court can adjudicate the challenge to the DevelopmentAgreement and can also go into the validity of Resolution as heldin Margret Almeida (supra). In the instant case, the DevelopmentAgreement has already been challenged by some of the membersof the Society in this Court and consequently, the legality ofResolutions will be gone into in those proceedings. Even if anobjection to jurisdiction of Civil Court was raised by Respondents,there was no adjudication of the objection and the objection cannot bethe basis for approaching the Co-operative Court.23. In view of the discussion above, it is not necessary for this Court toexamine whether the agreement between the Developer and theSociety constituted development or re-development of the Society’sproperty and whether the dispute touches the business of the Society.Following the decision of Margret Almeida (supra), it is the CivilCourt which will have the jurisdiction and Dispute is notmaintainable before the Co-operative Court. 24. The Appellate Court has rightly held that the resolutions arechallenged with reference to the development process and asthird party rights are involved, the Co-operative Court loses itsjurisdiction. 26. Apart from challenging the legality of the Resolutions as theDispute challenges the consequent deeds, decisions and actions takenpursuant to the impugned Resolution, the Dispute also seeksdeclaration that the Development Agreement is illegal, bad in law andvoid-ab-initio. The Dispute also impleads the Developer who does notfall within the enumerated class of parties to the lis under Section 91 ofMCS Act. The declaratory relief of this nature qua the DevelopmentAgreement falling under Section 31 of Specific Relief Act, 1963 can begranted only by Civil Court. Thus, with the presence of the Developerand the challenge to the Development Agreement, the subject-matterkatkamPage No. 14 of 30 k 15/30 47 wp 15791.25 jr as.docof the lis as well as the parties to the lis qua the DevelopmentAgreement is not within the jurisdiction of the Co-operative Court.27. The effect of deletion of the Developer from the Dispute wouldresult in confining the Dispute to the validity of Resolutions andthe Development Agreement remaining untouched. Resultantly,two different forums will have to be approached i.e the Civil Courtto seek declaration as regards the validity of DevelopmentAgreement and Cooperative Court as regards legality of theResolutions. As the reference in the Resolutions is essentially to theDevelopment Agreement, the Co-operative Court would not have theexclusive jurisdiction to decide the subject matter of the Dispute. TheApex Court in Margret Almeida and Ors vs Bombay Catholic Co-operative Housing Society Ltd (supra), did not agree with thereasoning of High Court based on premise that it is possible toindependently challenge the resolution and conveyance andupheld the jurisdiction of Civil Court. In the present case, theDevelopment Agreement is already in challenge before this Courtin civil proceedings initiated by some of the members in whichthe legality of the Resolutions can be gone into. (emphasis and underlining added)17. Thus, in Komal Arvind Vesavkar, this Court held that thedevelopment agreement was already in challenge in civil proceedingsinitiated by some of the members and that therefore the issue of legalityof resolutions can also be gone into by the Civil Court. This Court heldthat since the reference in the resolution was essentially to thedevelopment agreement, the Cooperative Court would not havejurisdiction to decide the subject matter of Dispute. This Court upheldthe Order of the Appellate Court which had concluded that theresolutions were challenged with reference to the development processand as third party rights were involved, the Cooperative Court had lostits jurisdiction. 18.On 7 November 2025, another coordinate Bench of this Courtdelivered a judgment in Eknath Namdev Lashkare. In that case,katkamPage No. 15 of 30 k 16/30 47 wp 15791.25 jr as.docCooperative Appellate Court had allowed applications as tomaintainability of Dispute and had dismissed the Dispute on the groundof lack of jurisdiction. In that case, the Administrator of a tenant co-partnership society had executed a Development Agreement in favour ofthe developer. In the Dispute, the disputant had challenged theResolution passed in the general body meeting of the society, as well asdevelopment agreement and power of attorney executed in favour of thedeveloper. This Court applied the concept of agency and held that thedeveloper was the agent of the society and that therefore the Disputetouched upon the business of the society. This Court therefore held thatCooperative Court has full jurisdiction, as the dispute touched themanagement and business of the society. It is held that the allegedinterest in the property was not acquired by the developer before theDispute and accordingly this Court followed the Apex Court judgment inMargret Almeida in which it is held that acquirer of property duringpendency of Dispute can be joined as party thereto. In the facts of thatcase, this Court held that the resolution and development agreementmust be examined together by Cooperative Court. This is clear from thefollowing observations: 27. Under Margret Almeida, a person who derives his rights through thesociety or its office-bearers, even if not a member, is covered by Section91(1)(a). In this case, respondent No. 1's rights do not existindependently of the society. His rights flow from documents executedby the society's Administrator. There is no credible evidence thatrespondent No. 1 had any independent or prior ownershipinterest in the property before these documents were executed.Therefore, respondent No. 1 cannot be treated as a third partywho acquired title before the dispute was filed.31. Following Margret Almeida, both the resolution of the generalbody and the development agreement must be examined together bythe Cooperative Court, because one cannot survive without the other.katkamPage No. 16 of 30 k 17/30 47 wp 15791.25 jr as.docAccordingly, applying the principles of Margret Almeida, the presentdispute clearly falls within Section 91 of the MCS Act and must bedecided by the Cooperative Court as the proper forum.(emphasis and underlining added)Thus, the judgment in Eknath Namdev Lashkare turns mainly on factualdistinction where the interest in the property was acquired by thedeveloper during pendency of the Dispute.19.Thereafter, on 19 December 2025, this Court delivered thejudgment in Bank of India Staff Panchsheel CHSL outlining thecontours of jurisdiction while deciding an application for rejection ofplaint under Order 7 Rule 11 of the Code. This Court held in paragraph20 of the judgment as under: 20. Order VII Rule 11 permits rejection of a plaint only where the bar isclear from the plaint itself. When an issue requires examination ofadditional material or evaluation of facts, it travels beyond the limitedscope of that provision. Whether redevelopment forms part of theobject of a housing society, as contemplated under Section 154B(1)(17)of the Maharashtra Co operative Societies Act, is not a pure question oflaw. It is a mixed question of law and fact. Its determination dependsupon the specific objects of the society as recorded in its bye laws, themanner in which the society has acted upon those objects, and thenature of the resolutions passed by the general body. In the presentcase, the bye laws of the society are not part of the plaint. Withoutexamining the bye laws, it is not possible to record a definitive findingas to whether redevelopment does or does not form part of thesociety’s objects. Such an exercise would necessarily require evidenceand adjudication on merits. That exercise lies squarely within thedomain of the Cooperative Court during trial. Order VII Rule 11 permitsrejection of a plaint only where the bar is clear from the plaint itself.When an issue requires examination of additional material orevaluation of facts, it travels beyond the limited scope of thatprovision. Since the question of redevelopment being part of thesociety’s object is a mixed question of law and fact, and since thenecessary factual foundation is not before the Court at this stage, thedispute cannot be rejected under Order VII Rule 11.katkamPage No. 17 of 30 k 18/30 47 wp 15791.25 jr as.doc20. Thus, in Bank of India Staff Panchsheel CHSL this Court has heldthat whether redevelopment forms part of the object of the housingsociety or not is not a pure question of law and that the same is a mixedquestion of law and fact. This Court therefore held that evidence isrequired to be led for deciding the said issue and that the dispute cannotbe rejected under Order 7 Rule 11 of the Code without granting anopportunity to the parties to lead evidence on the said mixed question oflaw and fact. The judgment in Bank of India Staff Panchsheel CHSL thushighlights the position that the issue as to whether redevelopment is thebusiness of the society or not needs to be decided at the trial stage. 21.On 12 February 2025, this Court passed an order in JeetuRajeshwari Kotpalliwar in which the issue before the Cooperative Courtwas about lack of quorum in the general body meeting and on thatcount, validity of resolution was questioned. This Court therefore heldthat the Dispute contemplated a bonafide dispute between a memberand a society relating to validity of resolution in the light of allegationlack of quorum. This Court therefore held that the lower Courts were notjustified in dismissing the dispute under Order 7 Rule 11 of the Code.22.Lastly, the judgment in Amita Jiten Desai is the latest amongst allthe judgments cited by the parties. According to Mr. Shingade, in AmitaJiten Desai this court has distinguished the judgments in EknathNamdev Lashkare and Bank of India Staff Panchsheel CHSL. In AmitaJiten Desai, a First Appeal was filed challenging the order passed by theCity Civil Court rejecting the plaint under Order 7 Rule 11(d) of thekatkamPage No. 18 of 30 k 19/30 47 wp 15791.25 jr as.docCode on the ground that the same was barred as only Co-operative Courthad jurisdiction to deal with the Dispute under Section 91 of the MCSAct. The Plaintiffs before the Court were members of the society. Theychallenged resolutions adopted by the society in relation to the areas offlats to be considered for redevelopment. The Plaintiffs were flat ownersin respect of Building-C and desired similar benefits extended to the flatowners of Buildings-A and B. Plaintiff No.1 sought direction forallotment of permanent Alternate Accommodations in-lieu of garageoccupied by him. Plaintiff also sought injunction against the societyfrom executing any development agreement. The Civil Court rejectedthe plaint under Order 7 Rule 11 of the Code holding that the Suitsought to challenge the resolutions, which touched upon the affairs ofthe society and hence jurisdiction of the Civil Court was barred by virtueof Section 91 of the MCS Act. This Court took into considerationjudgments of this Court in Mohinder Kochar and Parimal H. Solanki inwhich it was held that redevelopment of the building was not thebusiness of the Co-operative Housing societies. This Court also took intoconsideration the judgment of Division Bench of this Court in PranavConstructions Limited Versus. Priyadarshini Co-operative HousingSociety Limited 11 and held that if the Resolutions do not touch thebusiness of the society, they will have to be challenged before the CivilCourt. This Court took into consideration the definition of the term'housing society' appearing in Section 154B(1)(17) and held reading ofthe plaint did not disclose any pleadings as regards the object of thesociety from which it could be conclusively discerned as to whetherredevelopment is an object of the society and whether the society11 2025 : BHC-OS:10902 DBkatkamPage No. 19 of 30 k 20/30 47 wp 15791.25 jr as.docamended its bye-laws pursuant to Section 154B(1)(17). This Court heldin paragraphs 22 to 26 as under: 22. In Pranav Constructions Limited vs Priyadarshini Co-operativeHousing Society Limited and others (supra), the Hon’ble DivisionBench of this Court was considering appeals filed under Section 37 ofArbitration and Conciliation Act, 1996 arising out of Section 9 of theAct and one of the issues before the Court was whether existence ofdispute between the members and the Society about their entitlementsflowing out of redevelopment process can be ground for the Court toabstain from making interim measures under Section 9 of the Act. Itheld that the resolutions adopted by the general body of the Societytouching the business of the Society needs to be challenged underSection 91 of the MCS Act and if the resolution does not touch uponthe business of the Society, the remedy for the affected party is to filecivil suit. The finding of the Hon’ble Division Bench comes in answer tothe question as to the exact forum which can go into the correctness ofthe resolution adopted by the general body of the Society.23. The Hon’ble Division Bench has in effect applied the provisions ofSection 91 of MCS Act, which requires both the party to the lis as wellas the subject matter of the lis to fall within the purview of Section 91of the MCS Act. The resolutions, if do not touch the business of theSociety, will have to be challenged in the civil Court. The question as towhether re-development constitutes business of the Society will haveto be answered with reference to the objects of the Society. By theAmending Act of 2019, Section 154B-1(17) brought the addition in thedefinition of Housing society as under:“housing society” means a society, the object of which is to provide itsMembers with open plots for housing, dwelling houses or flats; or ifopen plots, the dwelling houses or flats are already acquired, to provideits Members common amenities and services and to demolish existingbuildings and reconstruct or to construct additional tenements orpremises by using potential of the land; 24. A plain reading of the amended definition makes it evident that re-development is one of the permissible objects of a housing society.Section 154B(31)(1) of MCS Act contains a saving clause in respect ofthe existing ByeLaws, which would continue to apply to the saidsociety. Considering the amended definition, where a Society hasamended its objects to include re-development as one of its objects,the dispute arising out of re-development would be a dispute touchingthe business of the Society.katkamPage No. 20 of 30 k 21/30 47 wp 15791.25 jr as.doc25. In Bhoumik Co-operative Housing Society vs Vina A Sisawala13 ,the Co-ordinate Bench has held that Section 154B(1)(17) is an enablingprovision and the amended definition of housing society will not applywhere the existing bye-laws do not include re-development as one ofits objects. It held that dispute relating to the “business of the Society”necessarily require redevelopment to be business of the Society whichwould have to be seen from the Bye-Laws of the Society as to whetherredevelopment has been included in the Bye-Laws.26. A reading of the plaint in the present case does not disclose anypleadings as regards the objects of the Society from which it can beconclusively discerned whether redevelopment is an object of theSociety or whether pursuant to Section 154B(1)(17), the Societyamended its Bye-Laws. The Bye-Laws are not part of the plaint. ThoughMr. Daver and Mr. Joshi would strenuously urge this Court to take intoconsideration the Bye-Laws of the Defendant No 1 Society, which theyattempted to tender, this Court declined to do so as that wouldtantamount to looking into extraneous material outside of the plaint.Determination of the objects of the Society, which requiresadjudication on facts, is necessary to arrive at a finding as to whetherthe dispute touches the business of the Society. Sans the examinationof the ByeLaws of the Society, it is not possible on holistic reading ofthe plaint to arrive at a definitive finding that re-development is one ofthe objects of the Society and consequently the dispute touches thebusiness of the Society and would be governed by Section 91 of MCSAct. 23. This Court thereafter took into consideration the ratio ofthe judgment in Bank of India Staff Panchsheel CHSL and held thatonly after the trial, it can be conclusively determined as to whetherobject of the society includes redevelopment or not. So far as thejudgment in Eknath Namdev Lashkare is concerned, this Courtdistinguished the same by holding that the coordinate Bench was notconcerned with the issue as to whether the object of the Societyincluded redevelopment by examining bye-laws of the society. In AmitaJiten Desai this Court ruled in favour of jurisdiction of Civil Court eventhough the suit involved challenge only to the general body resolutionkatkamPage No. 21 of 30 k 22/30 47 wp 15791.25 jr as.docand the development agreement was yet to be executed. The FirstAppeal is allowed and the suit has been restored. 24.Before proceeding further, it would also be necessary to considerthe judgment delivered by this Court in Shreesh Kumar Vs. BhramhaCHSL12 in which the issue was not about maintainability of Disputebefore the Cooperative Court in which resolution of General Body waschallenged. The Developer had filed application for impleadment sinceserious allegations were made qua him in the Dispute. In the facts ofthat case and by interpreting the provisions of Section 94(3)(a) and (c) ofthe MCS Act, this Court held that the developer was rightly directed tobe impleaded in the Dispute. This Court has made detailed analysis ofprovisions of Sections 91 and 94 of the MCS Act in the context ofimpleadment of non-member to the Dispute. Since the case did notinvolve the issue of maintainability of Dispute before the CooperativeCourt it is not necessary to discuss ratio of the judgment in ShreeshKumar. Also the judgment rendered in unique facts of the case cannotbe read to mean that in every case, a developer can always be impleadedin a Dispute filed before the Cooperative Court and that such disputechallenging only the resolutions would always be maintainable beforethe Cooperative Court. 25.In my view, when a member is aggrieved by the process ofredevelopment undertaken by the society, instead of leaving the issue ofrejection or retention of plaints filed in Disputes before CooperativeCourt or in Suits filed before the Civil Courts, to be decided on a case to12 2026 SCCOnline 7169katkamPage No. 22 of 30 k 23/30 47 wp 15791.25 jr as.doccase basis, it would be appropriate to deal with the larger issue of theexact forum before which such member can vent his grievances. Thiswould help to achieve better clarity for the members aggrieved byredevelopment process. I propose to do so because I believe that thisissue is already answered authoritatively by the Apex Court in itsjudgment in Margret Almeida. The judgment of the Apex Court inMargret Almeida provides a complete answer to the issue involved inthe petition. In case before the Apex Court, the Society had passedResolution on 6 December 2009 to sell its land in favour of RespondentNo.22 and 23 therein. In pursuance of the resolution, asale-deed/conveyance was executed on 7 December 2009. Aggrieved bythe resolution and sale, two suits were filed by the Appellants before thisCourt. In the Suit, Resolution dated 6 December 2009, as well asConveyance dated 7 December 2009 were challenged. The Society raisedpreliminary objection regarding maintainability of the Suits in view ofprovisions of Sections 91 and 163 of the MCS Act. The objection wasrejected by the Single Judge of this Court but the same found favourwith the Division Bench. The Division Bench held that Plaintiffs oughtto have filed a Dispute before the Cooperative Court challenging theResolution of the General Body and the subsequently executedConveyance by joining the assignee as a party to the Dispute. Aggrievedby the order of the Division Bench, Appeal was preferred before theApex Court. After examining the entire scheme of the MCS Act, theApex Court held that it was impermissible to join the assignee(Respondent Nos.22 and 23) as parties to the Dispute if the same wasfiled before the Cooperative Court. The Apex Court examined theprovisions of Section 94(3)(a) of the MCS Act and has concluded that thekatkamPage No. 23 of 30 k 24/30 47 wp 15791.25 jr as.docexpression 'has acquired any interest in the property of a party to a dispute'used in Section 94(3)(a) applies only to a party who acquires interest inthe property during pendency of the Dispute. Thus, it is held that wherethe interest in the property, which is the subject matter of the Dispute,is acquired by a person prior to the institution of the Dispute, the powerunder Section 94(3)(a) of the MCS Act cannot be exercised to impleadsuch acquirer of the right as a party to the Dispute.26. The Apex Court in Margret Almeida thereafter examinedcorrectness of the conclusion reached by the Division Bench of thisCourt that the Suits were not maintainable. The Apex Court held thatthe High Court had proceeded on a footing that it was possible tochallenge the resolution and the conveyance independently. The ApexCourt however felt it unnecessary to deal with the said finding of theDivision Bench of this Court about segregation of challenges toresolution and conveyance. Hypothetically however, the Apex Courtpresumed that it was possible for the Plaintiffs/Appellants to challengeonly general body resolutions before the Cooperative Court. The ApexCourt accordingly held that if the Resolution dated 6 December 2019alone was challenged before the Cooperative Court, the assignees(Respondent Nos.22 and 23) who were also the beneficiaries of theResolution, could not be made parties in the Dispute before theCooperative Court. The Apex Court held that in such situation, even ifCooperative Court came to the conclusion that the Resolution is illegal,the assignees would always ignore such declaration as the same wasmade behind their back. The Apex Court further held that if Plaintiff wasdisputing validity of the title conveyed by virtue of the conveyance, suchkatkamPage No. 24 of 30 k 25/30 47 wp 15791.25 jr as.docdispute will necessarily have to lie before the Civil Court under Section 9of the Code and in such situation, legality of the Resolution will have tobe gone into again. The Apex Court accordingly concluded that the HighCourt was not right in holding that the suits were not maintainable. Itwould be apposite to reproduce paragraphs 44 to 47 of the judgmentwhich read thus: 44. We are of the opinion that having regard to the language of Section94, sub-section (3)(a), more specifically “has acquired any interest”,the acquisition of the interest contemplated is only an acquisitionmade during the pendency of the dispute before the Cooperative Court.For the reason that such an acquisition of interest is qualified by thewords, “in the property of a person who is a party to the dispute”, wehold so for another reason also. To hold otherwise, would lead to asituation where a dispute between an enumerated person and a 3rdparty would become amenable to the jurisdiction of the Co-operativeCourt at the instance of the persons enumerated under Section 91 butnot at the instance of a 3rd party in view of the judgment of this Courtin (1991) 1 SCC 469. An absurd situation, ex facie violative of Article14, in as much as such a construction would lead to a situation thatwith reference to a dispute, the affected parties are compelled toapproach different fora for the adjudication of the same disputedepending upon the fact which party is seeking a relief. Such aconstruction, being inconsistent with a constitutional mandate, isimpermissible.45. For coming to the conclusion that the suits in question are notmaintainable and the dispute could be examined exclusively by the Co-operative Court, the High Court proceeded on the basis that it ispossible to challenge the resolution and the conveyanceindependently. Starting from such a premise, the High Court opinedthat challenge alone to the resolution without challenging theconveyance is possible but not vice-versa. The reason given by theHigh Court for the same is as follows:- “If Court passes a decree or order setting aside the resolution ofthe general body, the validity of the conveyance will not beintact, but if a decree or order is made merely setting aside theconveyance, the resolution of the General body will remainintact. By the conveyance land owned by the Society istransferred. The society is a body corporate. The person orpersons who have signed the conveyance on behalf of theSociety derive the authority to do so from resolution of thekatkamPage No. 25 of 30 k 26/30 47 wp 15791.25 jr as.docGeneral Body. If the resolution is set aside or is declared invalidthe act of the person of executing the conveyance wouldbecome unauthorised. Such an order in relation to the validityof the General Body resolution will impair the validity of theconveyance. Consequently, if the resolution remains intact butthe conveyance is set aside for some reason the Society may bein a position to execute another conveyance pursuant to theresolution of the general body.” 46. We do not propose to examine the correctness of the legal premisethat the general body resolution and the conveyance could besegregated in a dispute such as one on the hand. For the sake ofargument, we presume that it is possible for the plaintiffs, appellantsherein, to challenge only the general body resolution. We also presumethat the conclusion arrived at by the High Court that if the generalbody resolution is set aside, the same will impair the validity of theconveyance even without an appropriate declaration by a competentjudicial body. (We emphasise that we only presume so withoutexamining to the said conclusion for the limited purpose).47. If the resolution dated 6th December, 2009 alone is challengedbefore the Co-operative Court, in view of our conclusion recordedearlier, the respondents 22 and 23 (the beneficiaries of the resolution)could not be made parties before the Co-operative Court. In such asituation, even if the Co-operative Court came to the conclusion thatthe resolution is illegal, it would always be open for the respondents 22and 23 to ignore such a determination as they are not parties to theproceedings and assert their title on the basis of the conveyance dated7th December, 2009. If any party such as the plaintiffs (theappellants herein) disputes the validity of the title conveyedthereunder, necessarily such a dispute would have to beadjudicated by a competent Court under Section 9 of the Code ofCivil Procedure wherein, necessarily, the question whether a validtitle was conveyed in favour of respondents 22 and 23 by thesociety would arise for determination. The legality of theresolution would still have to be gone into again. Therefore, in ouropinion, the premise in which the High Court commenced its enquiryitself is wrong. (emphasis and underlining added)27. As observed above, the judgment of the Apex Court inMargret Almeida gives a complete answer to the controversy at hand.As held by the Apex Court, even if it is theocratically accepted that it ispossible for a member to challenge only the resolution before thekatkamPage No. 26 of 30 k 27/30 47 wp 15791.25 jr as.docCooperative Court, such challenge becomes meaningless because if thedevelopment agreement is not challenged before the Cooperative Court,any declaration made by the Cooperative Court qua the resolutionbecomes meaningless. The Apex Court has held that the aggrievedperson will have to ultimately challenge the conveyance (which in thepresent case is development agreement and power of attorney). Mostimportantly, the Apex Court has held that in para-47 that whilemaintaining a challenge to the development agreement before the CivilCourt, the legality of the resolution can always be gone into.28. Following the ratio of the judgment of the Apex Court in MargretAlmeida, in my view, the correct remedy for the Petitioners is tochallenge the development agreement and power of attorney before theCivil Court. They have exercised the remedy of filing a Civil Suit. Whiledetermining challenge to the validity of development agreement andpower of attorney, the Civil Court can also decide the issue of validity ofthe resolutions adopted by the Society. This is precisely what is held bythis Court in Komal Arvind Vesavkar after appreciating the lawenunciated by the Apex Court in paragraph 47 of the judgment inMargret Almeida.29. It is also seen that challenging the general body resolutionsadopted for execution of development agreement and power of attorneybefore Cooperative Court and challenging the validity of developmentagreement and power of attorney before the Civil Court would result inanomalous situation. To illustrate, if the Civil Suit (challenging thedevelopment agreement) is decided first and is dismissed and if thekatkamPage No. 27 of 30 k 28/30 47 wp 15791.25 jr as.docchallenge to resolution raised in the Dispute before the CooperativeCourt remains pending, since Civil Court has not determined the issueof validity of the general body resolutions adopted, the decree would notbind the Cooperative Court. If the Cooperative Court independentlydetermines validity of resolution and holds that the resolutions adoptedare bad in law, the same would lead to an incongruous situation wherethe resolution adopted for execution of the development agreementwould be declared illegal whereas the Suit challenging the developmentagreement is dismissed. The objector (who is the disputant before the Co-operative Court and Plaintiff before the Civil Court) would achieve nothingby seeking theocratical declaration as to the illegality of the Resolution.This is a reason why it is important that both the challenges to theresolution and to the development agreement are adjudicated upon bythe same Court. 30. Having held that the challenge to the resolution and challenge tothe development agreement must be raised before the same Court, theissue for consideration is whether such composite challenge can liebefore the Cooperative Court or before the Civil Court. In the judgmentin Margret Almeida the Apex Court has interpreted the provisions ofSection 94(3) of the MCS Act and has held that a person who hasacquired interest in the property of a person who is party to a Disputebefore filing of the Dispute, such person can never be made a party tothe Dispute. It is only when acquisition of interest in the property occursduring pendency of the Dispute that the acquirer of such interest can beimpleaded as a party to the Dispute. Therefore, in a given case where theDevelopment Agreement is already signed and executed and acquisitionkatkamPage No. 28 of 30 k 29/30 47 wp 15791.25 jr as.docof interest in the property of the society has already happened, amember challenging such acquisition cannot implead the developer asparty before the Cooperative Court. Since the developer cannot be aparty before the Cooperative Court in such Dispute in view of provisionsof Section 94(3) of the MCS Act, challenge to the DevelopmentAgreement would not be maintainable before the Cooperative Court.This is a reason why the correct remedy for a person who is aggrievedboth by the general body resolution, as well as by the developmentagreement is to maintain a Suit before the Civil Court. A member cannotsegregate challenges by filing civil suit qua development agreement andfile a Dispute before Cooperative Court qua the general body resolution.The member can also not file a composite dispute before theCooperative Court challenging the resolution, as well as thedevelopment agreement as held by the Apex Court in MargaretAlmedia. The correct remedy would be to file a civil suit raising acomposite challenge to resolution and development agreement. 31.The conspectus of the above discussion is that the Dispute filed bythe Petitioners before the Cooperative Court is clearly not maintainable.The developer has acquired interest in the property of the Society on 6October 2023 and therefore the developer could not have beenimpleaded as party to the Dispute which is filed in June 2024. This is areason why Petitioners have rightly not impleaded the developer as aparty to the Dispute. However, the declaration sought by them quaresolutions without challenging the development agreement ismeaningless. For the reasons discussed above, proper remedy for thePetitioners is to incorporate challenge to the resolutions in the pendingkatkamPage No. 29 of 30 k 30/30 47 wp 15791.25 jr as.docsuit. Even otherwise, there is no averment in the Dispute thatredevelopment of property of the Society forms business of the Societyor that the Bye-laws of the Society are brought in tune with theprovisions of Section 154B(1)(17) of the MCS Act. The Cooperative Courthas correctly dismissed the Dispute and there is no infirmity in the orderof the Cooperative Appellate Court dismissing the Appeal. 32.The Writ Petition is devoid of merits. It is accordingly dismissed. (SANDEEP V. MARNE, J.)katkamPage No. 30 of 30