Chief Justice

The appeal is directed against the order dated 27 June, 2012 of the learned Single Judge dismissing the Notice of Motion taken out by the appellant, by which the appellant had prayed that the Court has no jurisdiction to try and decide the present suit filed by respondent No. 1 herein, as only Co-operative Court has the jurisdiction to try the subject-matter of the present suit under Section 91 of the Maharashtra Co-operative Societies Act, 1960 (hereinafter “the Act”, for short).

2. Respondent No. 1 herein (hereinafter referred to as “the plaintiff”) entered into Redevelopment Agreement with Ganga Vihar Co-operative Housing Society Ltd., respondent No. 4 herein, for development of the flats of the Co-operative Society. The LOI was issued by the Society on 24 April, 2006. Clause 9 of the LOI provided that the plaintiff-developer had to purchase certain flats after the building was re-constructed. Pursuant to the said requirement, the plaintiff became member of respondent No.4-Society by purchasing one garage.

3. Thereafter, the Re-development Agreement was entered into on 7 November, 2007. The Co-operative Society has 13 members, and the plaintiff is the 14th member of the Co-operative Society.

4. On account of disputes raised by respondent Nos. 1 to 3 (defendant Nos. 1 to 3 in the suit), the plaintiff filed Suit No. 997 of 2010 praying for the following reliefs:-

“(a) That this Hon'ble Court be pleased to declare that the Development Agreement dated 07.11.2007 at Exhibit-“C” hereto is binding upon the Defendants No. 1 to 3;

(b) For a mandatory order and injunction of this Hon'ble Court directing the defendants No. 1 to 3 to quit, vacate and hand over to the Plaintiffs vacant and peaceful possession of the suit Flat No. 4, 1st Floor, Flat No.6, 2nd floor and Flat No. 13, 3rd Floor of the Gangavihar Co-operative Housing Society Ltd., Opp. Guru Nanak Park, Bandra (West), Mumbai 400 050 for the purpose of redevelopment in accordance with the said Development Agreement, Exhibit “C” hereto;

(c) that the Defendant Nos. 1 to 3, their servants, agents and all persons claiming through / under them be restrained by a permanent order and injunction of this Hon'ble Court from in any manner interfering / obstructing, creating any impediment in the fulfilment or performance of any obligations under the said Development Agreement, Exhibit “C” hereto;”

5. The plaintiff also prayed for a decree ordering defendant Nos. 1 to 3 to pay the plaintiff a certain sum on account of damage being caused to it due to the illegal acts of defendant Nos. 1 to 3.

6. Defendant No. 1 (the appellant herein) took out Notice of Motion No. 3627 of 2011 praying that the Court may frame a preliminary issue under Section 9-A of the Code of Civil Procedure, 1908, praying for the following reliefs:-

“a) that this Hon'ble Court may be pleased to frame a preliminary issue under section 9A of the Code of Civil Procedure, 1908, and determine as to whether this Honourable Court has jurisdiction to try and decide the present suit, or it is only the Co-operative Court, under section 91 of the Maharashtra Co-operative Societies Act, 1960, which alone can try and decide the dispute raised by the plaintiffs in the present suit;

b) That this Hon'ble Court may be pleased to pass an order rejecting the Plaint filed by the Plaintiffs under Order VII Rule 11 of the Code of Civil Procedure, 1908.”

7. The learned trial Judge of this Court held that this Court has jurisdiction to try and decide the suit. Hence, this appeal.

8. The learned counsel for the appellant submits that, since the plaintiff is a member of defendant No. 4-Co-operative Society, the present suit is barred by the provisions of Section 91 of the Act. Reliance is placed upon the provision of sub-section (1) of Section 91, which reads as under:-

“CHAPTER IX

[SETTLEMENT OF DISPUTES]

91. Disputes

(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching t