Bombay High Court
Kohinoor Max City J Wing Co Op Housing Soc ... vs Madhu K Achra And Ors on 15 November, 2021
Author: Bharati Dangre
Bench: Bharati Dangre
Digitally signed by
JAYARAJAN JAYARAJAN
ANJAKULATH ANJAKULATH NAIR
NAIR Date: 2021.11.16
10:56:28 +0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7228 OF 2021
Kohinoor Max City J. Wing Co-op.
Housing Soc. Ltd. & Anr. .. Petitioners
Vs.
Madhu K. Achra & Ors. .. Respondents
...
Mr. Pradeep D. Dalvi for the petitioners.
Mr. S.D. Rayrikar, A.G.P. for respondent No.6.
...
CORAM : SMT. BHARATI DANGRE, J.
DATED : 15TH NOVEMBER, 2021.
P.C:-
1. The petitioners are the original plaintiff Nos.1 and 2, being Co-operative Societies, duly registered under the Maharashtra Co-operative Societies Act, 1960 ("MCS Act"), who instituted Special Civil Suit No. 101 of 2019 for a declaration, perceptual injunction and for damages in the court of Civil Judge, Senior Division, Kalyan. An application for temporary injunction was also filed vide Ex-5.
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2. In the said suit, an application under Order 7 Rule 11(d) read with Section 151 of the CPC was filed by defendant Nos. 1 to 3 on 10/04/2019. The said application is placed at page 51 of the paper-book. In the said application, the defendants raised issues about the maintainability of the suit, the suit being filed without following the mandate of Section 80 of the CPC. The bar under the MCS Act was also invoked. The rejection of the Plaint is also sought on the ground that the plaintiffs are three different societies and there is no compliance of Order 1 Rule 8 of the CPC. Another application came to be filed under Section 42 of the Arbitration & Conciliation Act by making a reference to clause 64 of the agreement which contains an arbitration clause. The third application is filed under Section 91 of the MCS Act praying for dismissal of the suit as being hit by Section 91 of the MCS Act.
3. On 22/4/2019, learned Judge passed an order, which is captioned "Order below Exh.1". Dealing with objections raised by learned counsel for defendant Nos.1, 2 and 3, who have preferred various applications, learned Judge was pleased to frame the following issues to be tried as preliminary issues.
"1] Is this suit barred by Sec. 91, 164, 165 of the Maharashtra Co.op. Societies Act 1960?
2] Is this suit barred by Sec. 42 of Arbitration and Conciliation Act 1996?
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3] Is this suit barred by Sec. 80 of Code of Civil Procedure?
4] Is this suit hit by Order 1 Rule 8 of Code of Civil Procedure?
5] Has this court got jurisdiction to entertain try and dispose of the present suit?
6] What order?
4. In furtherance of the said order, it is submitted by learned counsel for the petitioner that he has already led evidence on the said aspect and the cross-examination is in progress.
5. The petitioner is aggrieved by the two orders being at page Nos.100 and 102. As far as the order at page 100 is concerned, it reads thus:
"Perused Plaint. Plaint is not valued properly. Hence Plaintiff directed to argue on the point of valuation of suit."
6. On perusal of the said order, I find no illegality in the learned Judge recording that the plaint is not valued properly and he has directed the plaintiff to demonstrate as to how the plaint is properly valued.
7. The argument, which is sought to be made before this AJN 4/5 29 WP-7228.21.odt court is about the suit being properly valued, which can always be demonstrated before the learned trial judge and I am not inclined to show any indulgence against the order at page No.100.
8. As far as the order at page No.101 is concerned, it reads as under:
"Parties are directed to argue on Exh-27 i.e. application U/o. VII Rule 11 of C.P.C."
Perusal of the application at Ex-27 to which a reference is made above raises various objections though all of them do not make a ground for rejection of the plaint. However, apparently, learned Judge has considered the objections and instead of dealing with the said application praying for rejection of plaint, has formulated the said points of "Bar under law" by way of preliminary issues by an order dated 22/04/2019 and even the evidence is being lead on the aspect. In the circumstances, hearing of Ex-27, which is an application under Order 7 Rule 11 of the CPC, can be deferred since another course i.e. framing preliminary issues for determination is being followed.
9. In the aforesaid facts and circumstances, issue notice to the respondents. Notice is presently restricted to respondent Nos.1 to 4. Notice is made returnable on 13/12/2021.
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10. The petitioner is also permitted to serve the said respondents by private notice.
11. In the meantime, learned Judge shall defer the hearing on Ex-27 till the next date.
[SMT. BHARATI DANGRE, J.] AJN