A.M. Khanwilkar, J.
1. Rule. Mr. Gawde waives notice for respondent No. 1. Respondent No. 2 has been served with notice indicating that the matter will be finally disposed of at notice stage but none appears. Heard forthwith for final disposal.
2. This writ petition, under Article 227 of the Constitution of India, takes exception to the common order passed by the Maharashtra State Co-operative Appellate Court, Mumbai dated March 30, 2001 in Appeal No. 80 of 2000 and Appeal No. 27 of 2001. Briefly stated, the petitioner had filed a dispute under section 91 of the Maharashtra Co-operative Societies Act, 1960 against the respondents. In the said dispute, as it stood amended, following reliefs were claimed:---
'a) The respondent No. 2 has no right to represent the society i.e. Vishakha Sadan Co-operative Housing Society,
b) For permanent injunction from this Hon'ble Court restraining the respondents from entering into the contract with the builder or developer for the purpose of developing the said property, i.e. Vishakha Sadan Co-operative Housing Society, situate at Plot No. 9, Survey No. 66/9-A and 68/14.
(bb) This Hon'ble Court be pleased to order refund of Rs. 1,25,151/- along with interest @ 16% p.a. from the Opponent No. 1 Society and/or from opponent No. 2 and any other amounts spent by the Disputant till the date of Registration, from the date of incurring expenses excluding the membership contribution and shares.
(bbb) This Hon'ble Court be pleaded to declare the Disputant as the 'Chief Promoter' of the said Society.'
The dispute was decided ex parte against the respondents by the Co-operative Court by the judgment and order dated 3-4-2000. The Co-operative Court partly allowed the dispute by the following Award:--
'ORDER
1. The opponent No. 2 has no right to represent the society i.e. Vishakha Sadan Co-operative Housing Society,
2. Opponent No. 2 is hereby restrained permanently from entering into the contract with the building or developer for the purpose of developing the said property i.e. Vishakha Sadan Co-operative Housing Society situate at Plot No. 9, Survey No. 66/9-A and 68/14, Bhagulpada, Shivaji Road, Dahisar (East) Bombay 400 068,
3. Opponent Society is hereby ordered to refund Rs. 1,25,151/- along with interest @ 16% p.a. to the disputant, the amount spent by the disputant till registration of the opponent No. 1 society.
4. It is hereby declared that Disputant was the Chief Promoter of the Opponent Society.
5. Opponents to pay the cost of this dispute to the disputant as under and to bear their own.
Court fee stamps Rs. 60/-Court expenses Rs. 320/-6. Judgment and order pronounced in open Court.'
3. Against this order the petitioner carried appeal before the Appellate Bench of the Co-operative Court being Appeal No. 80 of 2000 praying for further reliefs even against the society, which was not granted by the Co-operative Court. On the other hand, the respondents filed substantive appeal before the Appellate Bench of the Co-operative Court being Appeal No. 27 of 2001 challenging the ex parte Award passed by the Co-operative Court. Both the appeals are disposed of by the common judgment, which is the subject matter of challenge in this writ petition. The Appellate Court has taken the view that the dispute as filed by the petitioner before the Co-operative Court was without jurisdiction as it pertained to matters prior to registration of the Society. The Appellate Court has essentially allowed the appeal preferred by the respondents and dismissed the appeal preferred by the petitioner holding that the Co-operative Court had no jurisdiction to entertain the dispute. It is this decision which is the subject matter of challenge in the present writ petition.
4. This Court had issued notice for final disposal on 17-4-2002. According to the petitioner the relief claimed in terms of prayer Clause (a) of the dispute was on the basis of allegations pointing out continuing cause of action against the respondent No. 2 and the averments in the plaint as filed would clearly support that position. The learned Counsel contends that if the petitioner was justified in taking that stand, then relief in terms of prayer Clause (b) ought to be granted, atleast as was granted by the Co-operative Court. In so far as the relief in terms of prayer Clause (bb) is concerned, the learned Counsel contends that apparently the claim pertains to the amount spent by the petitioner till the date of registration of the Society but, since the society has subsequently after its registration in its first general body meeting ratified that expenditure. Therefore, the petitioner would be entitled to maintain the dispute for recovery of that amount and that claim was amenable to section 91 of the Act. In so far as the relief in terms of prayer Clause (bbb) is concerned, the learned Counsel for the petitioner contends that the basis on which the Appellate Court has rejected that claim as not falling within section 91 of the Act is also inappropriate. According to him, all the reliefs claimed in the dispute were amenable to the jurisdiction under section 91 of the Act. In any case, contends the learned Counsel, that reliefs in terms of prayer Clauses (a) and (b) will survive for consideration under section 91 of the Act.
5. On the other hand, the Counsel for the respondent No. 1 contends that no fault can be found with the ultimate order passed by the Appellate Court in dismissing the dispute on the ground that the Co-operative Court lacked jurisdiction to decide the same. He contends that there is no question of granting relief in terms of prayer Clause (bb) because that relief is referable to the period prior to the registration of the society and such a claim is not covered by section 91 of the Act. He further contends that the argument now canvassed before this Court that the claim stated in prayer Clause (bb) has been ratified by the society is without any substance. For that is not the case made out in the dispute as filed. And, if that be so, that aspect cannot be taken into account and of no avail. He further contends that in so far as prayer Clause (bbb) is concerned, no fault can be found with the view taken by the Appellate Court in para 14 of the judgment that since the society is already registered, the question of granting declaration in favour of the petitioner that he was the Chief Promoter of the said society would not arise. It is further contended that the claim set up by the petitioner is not supported by the records inasmuch as the application for registration of the society was not signed by the petitioner. Consequently, there is no evidence to suggest that the petitioner was the Chief Promoter or for that matter even the member of the society. In so far as prayer Clause (a) is concerned, the learned Counsel contends that that declaration is sought essentially against respondent No. 2 and he has no submission to offer in that behalf. In so far as relief in terms of prayer Clause (b) is concerned, the learned Counsel contends that the said relief was not granted by the Co-operative Court against the respondent No. 1 society but was confined only against respondent No. 2. Besides, it is pointed out that now the society has already entered into transaction with builders regarding development of the property in question after the decision of the Appellate Court. In the circumstances, that relief has become infructuous as against respondent No. 1 society is concerned and cannot be considered.
6. Having considered the rival submissions I have no hesitation in observing that the Appellate Court has committed manifest error in dismissing the dispute in its entirety. On perusing the plaint as filed, it would appear that the petitioner has asserted that he was the Chief Promoter of the proposed society whereas the respondent No. 2 was the other promoter. Moreover, specific allegation is made about the activities of the respondent No. 2 and that he has no right to represent the society. According to him, the grievance made would give rise to continuous cause of action which has necessitated the petitioner to institute the dispute for relief inter alia in terms of prayer Clause (a). That relief is against the respondent No. 2 only and is covered by section 91 of the Act. In so far as prayer Clause (b) is concerned, it is not in dispute that the Co-operative Court had granted injunction against the respondent No. 2. The Appellate Court, however, proceeded to hold that the entire dispute was not maintainable. On close examination of the reasons recorded by the Appellate Court it would appear that it was impressed by the fact that the expanses incurred and claimed in the dispute pertained to period prior to the date of registration of the society. However, that reason may be valid or relevant for considering reliefs (bb) and (bbb) but not for the reliefs (a) and (b). There is no cogent reason assigned by the Appellate Court as to why reliefs (a) and (b) was also not maintainable under section 91 of the Act. It is now pointed out that it will not be necessary to consider relief (b) since the respondent No. 1 has already entered into transaction with the builder for developing the subject property. However, since I am inclined to remand the matter to the Appellate Court that Court may consider the efficacy of that aspect of the matter.
7. To my mind, however, the Appellate Court was right in taking the view that reliefs claimed in terms of prayer Clause (bb) or for that matter prayer Clause (bbb) were not within the jurisdiction of the Co-operative Court in terms of section 91 of the Act. The Appellate Court has adverted to the decision of the Apex Court reported in : AIR1972SC2161 I.R. Hingorani v. Pravinchandra Kantilal Shah and others, as well as the decision of this Court reported in : (1994)96BOMLR217 Kapurchand Jivraj Jain since deceased by heirs Samtaben and others v. Shri Datta Co-operative Housing Society Ltd., Amalner and others, and another decision of the Division Bench of this Court reported in A.I.R. 1987 Bom. 344 Gopibai and others v. M/s. Asner Drums Ltd. and others. The principle enunciated in the aforesaid decisions is that if the transaction pertains to period prior to the registration of the society such a transaction cannot be subject matter of dispute within the meaning of section 91 of the Act. Going by the averments made in the plaint the Appellate Court has rightly taken the view that the relief in terms of prayer Clause (bb) was obviously in relation to claim for amounts spent by the petitioner till the date of registration. If that be so, that relief was not available under section 91 of the Act. To over come this position, the learned Counsel for the petitioner contends that the respondent No. 1 was registered as a society on 17-12-1988. The first general body meeting of the society was convened on 16-3-1989 in which resolution has been passed ratifying the expenses incurred by the petitioner prior to date of registration of the society. According to the petitioner, therefore, the claim in terms of prayer Clause (bb) was enforceable against the society. However, on plain reading of the plaint as presented, it is not possible to accept this submission because no case has been made out in the plaint in this behalf. The learned Counsel for the petitioner has not invited my attention to any averment which would support the claim of the petitioner that the society has already acknowledged its liability to pay any amount to the petitioner. In the circumstances, going by the averments made in the plaint, the Appellate Court was right in taking the view that the Co-operative Court had no jurisdiction to decide the prayer Clause (bb) of the dispute referred to above. In so far as the relief in terms of prayer Clause (bbb) is concerned, I find that the reason recorded by the Appellate Court in para 14 of the judgment to the effect that no declaration can be granted in favour of the petitioner that he is the Chief Promoter of the society after the society has already been registered, is correct. The Appellate Court is right in observing that once the society is registered there is no question of going into that issue. Besides, the learned Counsel for the respondent no doubt relied on the fact that the application for registration of the society does not indicate that the petitioner has signed the same either as the Chief Promoter or as member thereof. However, it is not necessary for us to go into that aspect of the matter as it is well settled that for examining the question of jurisdiction the Court has to look only at the plaint and decide the issue on the basis of the averments in the plaint. In the present case. From the averments in the plaint prima facie, it is possible to take the view that the Co-operative Court would have jurisdiction to try and decide the claim set up in the dispute atleast in terms of reliefs (a) and (b).
8. In the circumstances, the view taken by the Appellate Court that the Co-operative Court had no jurisdiction will have to be upheld to the extent of relief in terms of prayer Clauses (bb) and (bbb) are concerned. Whereas, in so far as reliefs in terms of prayer Clauses (a) and (b) are concerned, the Appellate Court may reconsider the issue of jurisdiction after examining the plaint. This has become necessary as I find that the Appellate Court has not addressed itself in that behalf. All questions are kept open. As observed earlier, the Appellate Court shall keep in mind the contention canvassed by the respondent No. 1 before this Court that since there was no direction or injunction against the respondent No. 1, the respondent No. 1 has already entered into a contract with the builder for development of the subject plot as a consequence of which relief in terms of prayer Clause (b) cannot be considered as against respondent No. 1. Needless to mention that even the Co-operative Court had confined the relief in terms of prayer Clause (b) only against respondent No. 2.
9. Accordingly the impugned order is set aside. The appeals are remanded and restored to the file of the Co-operative Court, Mumbai to its original number. This petition succeeds to the above extent. No order as to costs.
Parties to act on the copy of this order duly authenticated by Sheristedar of the Court.