Bombay High Court
Splendor Co-Operative Housing Society ... vs Nohit Bharadwaj And 3 Ors. on 1 August, 2025
Author: M.S. Sonak
Bench: M.S. Sonak
2025:BHC-OS:12813
12.APP-60.21.DOCX
PPN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed
by PRACHI
ORDINARY ORIGINAL CIVIL JURISDICTION
PRACHI PRANESH
PRANESH NANDIWADEKAR
NANDIWADEKAR
Date: 2025.08.06
18:06:15 +0530
APPEAL NO. 60 OF 2021
IN
INTERIM APPLICATION NO.1045 OF 2020
IN
SUIT (L) NO.65 OF 2020
Oberoi Splendor Flat Owners ... Appellants
Association & Anr.
Versus
Splendor Complex Co-operative ... Respondents
Housing Society Ltd. & Ors.
______________________________________________________
Mr. Mohit Bhardwaj a/w Arwa Lunawadawala for Appellants.
Mr. Ashish Kamat, Senior Advocate a/w Ms. Surabhi Agarwal,
Ms. Apoorva Bhadang & Mr. Aayush Shah i/by Vesta
Legal for Respondent Nos.1 to 13.
_____________________________________________________
CORAM : M.S. Sonak &
Jitendra Jain, JJ.
DATED : 1 August 2025 PC. (Per M.S. Sonak, J.) :-
1. Learned counsel for the appellants tenders an order dated 21 January 2025 made by the Hon'ble Supreme Court requesting this Court to hear this appeal most expeditiously.
2. Upon our offer to the learned counsel for the appellants to begin the arguments in the matter, she seeks an adjournment, stating that she is yet to file the vakalatnama, though she has received it and that she will file it within a Page 1 of 11 ::: Uploaded on - 06/08/2025 ::: Downloaded on - 08/08/2025 23:17:42 :::
12.APP-60.21.DOCX week from today. Thus, on one hand, the appellants seek an urgent hearing, and on the other hand, this Court is willing to hear the appeal right away, the counsel for the appellants seeks an adjournment on grounds that are not very convincing.
3. Accordingly, we requested the learned counsel for the appellants to see whether her arguing counsel can make it convenient to appear in the afternoon sessions so that we can take up this appeal. With considerable reluctance, she states that to keep the matter in the afternoon sessions, but she was not sure whether the arguing counsel would be able to make it convenient to argue the matter this afternoon.
4. Accordingly, list the matter at 3:00 p.m. At 3:00 p.m
5. Heard learned counsel for the parties.
6. This appeal challenges the order dated 4 January 2021 to the extent it dismisses the appellants' application under Order VII Rule 11 of the Code of Civil Procedure (CPC) for rejection of the plaint in Suit (L) No. 65 of 2020.
7. The learned counsel for the parties clarified that Appeal No. 59 of 2021 instituted against this very order dated 4 January 2021, to the extent it had granted some interim reliefs to the plaintiffs/respondents, is already withdrawn and therefore, the same is not required to be reconsidered. This clarification was made in the context of paragraph 11 of the Hon'ble Supreme Court's order dated 21 January 2025 in Civil Page 2 of 11 ::: Uploaded on - 06/08/2025 ::: Downloaded on - 08/08/2025 23:17:42 :::
12.APP-60.21.DOCX Appeal arising out of SLP Nos.11208-11209 of 2023 filed by the original plaintiffs in the suit.
8. By the same order, the Hon'ble Supreme Court directed this Court to dispose of Appeal No.60 of 2021, i.e., this appeal, most expeditiously.
9. Mr. Bhardwaj, learned counsel for the appellants, submits that the plaint in this case was liable to be rejected because it disclosed no cause of action. He submitted that the entire cause of action pleaded in the suit was some complaints made by the defendants to the authorities under the Maharashtra Co-operative Societies Act, 1960 (MCS Act) or some other authorities. He submitted that the contents of such complaints can never constitute any defamation, and therefore, there was no cause of action disclosed in the plaint.
He therefore submitted that the plaint was liable to be rejected under Order VII Rule 11(a) of the CPC.
10. Without prejudice, Mr. Bhardwaj submitted that the suit was ex facie barred by limitation. The alleged defamatory complaints were made more than a year before the institution of the suit. He submitted that the limitation period for defamation was one year; therefore, the plaintiff, on the statements made therein, was ex facie barred by limitation. He relied on Order VII Rule 11(d) in support of this contention.
11. Without further prejudice, Mr. Bhardwaj submitted that earlier, the plaintiffs in the suit had instituted a similar suit. An application under Order VII Rule 11 taken out therein was Page 3 of 11 ::: Uploaded on - 06/08/2025 ::: Downloaded on - 08/08/2025 23:17:42 :::
12.APP-60.21.DOCX rejected by the Trial Court. However, Appeal No. 437 of 2019 against such rejection is already admitted by this Court and further proceedings in the said suit have been stayed.
12. Mr. Bhardwaj submitted that to circumvent this stay order, the present suit came to be instituted. He maintained that since there is no substantial difference between the previous suit and the present suit, the principles of Order II Rule 2 of the CPC are liable to be invoked and the plaint in this suit is liable to be rejected.
13. Finally, Mr. Bhardwaj submitted that this is a suit between a Co-operative society and its members. He relied on Sections 35 and 91 of the MCS Act, read with Rule 28 of the Maharashtra Cooperative Society Rules, to submit that all these disputes had to be essentially raised and agitated under the special machinery provided, amongst others, by Section 91 of the MCS Act. He submitted that the MCS Act is a complete code and there is a bar on the filing of suits relating to disputes which are covered under Section 91 of the MCS Act. He relied on the Punjabi Bagh Cooperative Housing Society Limited vs. K.L. Kishwar and Anr. 1 to contend that even disputes about defamation and damages would be covered under the special machinery provided under the Cooperative Societies Act.
14. Mr. Bhardwaj, in conclusion, contended that the plaint in this case has been cleverly drafted to create the illusion of a cause of action when, in fact, there is none. He therefore 1 2001 SCC OnLine Del 1234 Page 4 of 11 ::: Uploaded on - 06/08/2025 ::: Downloaded on - 08/08/2025 23:17:42 :::
12.APP-60.21.DOCX submitted that on a meaningful reading of the plaint, since it is evident that no cause of action is disclosed, the plaint should have been rejected.
15. Mr. Kamat learned Senior Advocate, appearing on behalf of the respondents/plaintiffs, defended the impugned order based on the reasoning reflected therein. On instructions, he pointed out that the argument based on Section 91 of the MCS Act was never pressed before the learned Single Judge and therefore, could not be allowed to be raised for the first time in this appeal. He pointed out that this argument is not even reflected in the impugned order, and if the appellants had any grievance in this regard, the same should have been made by following the procedure prescribed in Mohd. Akram Ansari Vs. Chief Election Officer & Ors.2
16. The rival contentions now fall for our determination.
17. The scope of an application under Order VII Rule 11 of the CPC is quite limited. The plaint cannot be rejected where, according to any of the defendants, there is no cause of action or that the cause of action pleaded is false, but a plaint can be rejected only if there is no disclosure of cause of action. This is a subtle but real distinction that must be kept in mind when entertaining applications under Order VII Rule 11(a) of the CPC.
18. In this case, the plaint is detailed. Upon a meaningful reading of the plaint, we cannot say that there is failure to disclose cause of action. Several facts, which if construed as a 2 (2008) 2 SCC 95 Page 5 of 11 ::: Uploaded on - 06/08/2025 ::: Downloaded on - 08/08/2025 23:17:42 :::
12.APP-60.21.DOCX bundle of facts, have been pleaded disclosing a cause of action. Whether these facts are correct or not is a matter that will have to be decided in the trial. However, even on a meaningful reading of the plaint, we cannot agree with the learned counsel for the appellants that there is any failure to disclose the cause of action. The learned Single Judge has considered the averments in the plaint and based upon the same rejected the contention about failure to disclose the cause of action. Upon perusing the plaint, we see no good ground to take any different view in this appeal.
19. On the issue of limitation, again, at best, this is a matter involving mixed questions of fact and law. By reference to only some of the letters which may be dated earlier than a year from the date of the institution of the suit, we cannot reject the plaint by holding that the suit is ex facie barred by limitation. The plaint will have to be considered in its entirety. The alleged circumstance that some of the letters may attract the limitation bar is not a ground to reject the plaint.
20. Besides, in this case, apart from claiming damages for defamation, the plaintiffs have sought for injunctive reliefs. There is a statement in the plaint that the cause of action is of a continuous nature. Again, the issue at this stage is not whether such averments are correct or not. The defamation alleged is based not only on the letters but also on other acts. Even the compensation claimed is not only for defamation but also of certain other acts damaging to the plaintiffs. In such a situation, we cannot reject only a part of the plaint or part of Page 6 of 11 ::: Uploaded on - 06/08/2025 ::: Downloaded on - 08/08/2025 23:17:42 :::
12.APP-60.21.DOCX the reliefs when entertaining an application under Order VII Rule 11 of the CPC.
21. As regards the contention based on Section 91 of the MCS Act, we note that the impugned order does not discuss this issue. On instructions, Mr. Kamat stated that the same was not argued before the learned Single Judge. Mr. Bhardwaj contends that this issue was very much argued, and the learned Single Judge has failed to consider the same. He submits that this is a ground for entertaining this appeal.
22. The record of the Court will have to be respected. If a point was indeed argued but has not been considered, then the appellants should have adopted the course explained in the decision of the Hon'ble Supreme Court in Mohd. Akram Ansari (supra). Ordinarily, the Appeal Court will not enter into such controversies.
23. Mr. Bhardwaj points out that the ground about Section 91 of the MCS Act is squarely taken in paragraph 7 of the Application made under Order VII Rule 11 of the CPC. The point is indeed taken. However, the question is whether the same was argued or pressed. In Mohd. Akram Ansari (supra), the Hon'ble Supreme Court has explained that several points may be taken, but not all may be pressed. If any party sincerely believes that there is any omission, then such party should immediately point out such omission to the Court which decided the matter at the earliest opportunity. Admittedly, in the present case, no such procedure has been adopted by the appellants.
Page 7 of 11 ::: Uploaded on - 06/08/2025 ::: Downloaded on - 08/08/2025 23:17:42 :::12.APP-60.21.DOCX
24. The Hon'ble Supreme Court in Mohd. Akram Ansari has observed as follows:-
"14. In this connection we would like to say that there is a presumption in law that a judge deals with all the points which have been pressed before him. It often happens that in a petition or appeal several points are taken in the memorandum of the petition or appeal, but at the time of arguments only some of these points are pressed. Naturally a judge will deal only with the points which are pressed before him in the arguments and it will be presumed that the appellant gave up the other points, otherwise he would have dealt with them also. If a point is not mentioned in the judgment of a court, the presumption is that that point was never pressed before the learned judge and it was given up. However, that is a rebuttable presumption. In case the petitioner contends that he had pressed that point also (which has not been dealt with in the impugned judgment), it is open to him to file an application before the same learned Judge (or Bench) which delivered the impugned judgment and if he satisfies the Judge (or Bench) that the other points were in fact pressed, but were not dealt with in the impugned judgment, it is open to the court concerned to pass appropriate orders, including an order of review. However, it is not ordinarily open to the party to file an appeal and seek to argue a point which even if taken in the petition or memorandum filed before the court below, has not been dealt with in the judgment of the court below. The party who has this grievance must approach the same court which passed the judgment and urge that the other points were pressed but not dealt with."
25. In any event, there are several disputed questions, at least on a plain reading of the plaint. Therefore, even the issue as to whether the disputes raised fall in the realm of Section 91 of the MCS Act or not would require some investigation into factual aspects. That is not something which is undertaken when deciding an application under Order VII Page 8 of 11 ::: Uploaded on - 06/08/2025 ::: Downloaded on - 08/08/2025 23:17:42 :::
12.APP-60.21.DOCX Rule 11 of the CPC. No doubt, the appellants can raise such objections in their written statement and urge the Court to cast an issue on the issue of maintainability of the suit by reference to Section 91 of the MCS Act. However, since at this stage, we are only concerned with the averments in the plaint or the statements in the plaint, we find it difficult to consider the contention that the plaint in this case deserves to be rejected by resorting to Order VII Rule 11 of the CPC.
26. The contention that the cause of action in the previous suit and in the present suit is identical and therefore, the present suit was instituted only to circumvent the stay order issued by this Court in Appeal No. 437 of 2019, again, would involve examination of the plaints in the two suits. Any defence based upon Order II Rule 2 of CPC to be made out would involve an investigation into factual aspects. This is not something that can be ordinarily undertaken when deciding an application under Order VII Rule 11 of the CPC.
27. The learned Single Judge has observed that the cause of action in the two suits is different, though some averments may be common. This observation was no doubt made only in the context of entertaining an application under Order VII Rule 11 of the CPC. Notwithstanding this observation, it will be open to the appellants to plead and point out in their written statement why, according to them, the suit is barred under Order II Rule 2 of the CPC. If such a defence is raised, we are sure that an issue will be cast and both parties will have an opportunity to present their versions for the Page 9 of 11 ::: Uploaded on - 06/08/2025 ::: Downloaded on - 08/08/2025 23:17:42 :::
12.APP-60.21.DOCX consideration of the Court.
28. The decision of the Delhi High Court, again, turns on the facts which are not entirely comparable to the facts in the present case. As noted earlier, apart from alleging defamation and claiming damages for defamation, there are several other issues raised in the plaint. Injunctive relief is also claimed in the plaint. The issue as to whether the allegations in the plaint touch the society's constitution, elections, management, business or conduct of general meetings will have to be gone into. All these issues can be raised by urging the Court to frame a proper issue, but simply by relying on the averments in the plaint, it is not possible to hold that the plaint warrants a rejection.
29. We have perused the impugned order, and we find no serious error warranting interference by the Appeal Court. The learned Single Judge has appreciated the scope of proceedings under Order VII Rule 11 of the CPC and, by applying the well-settled principles in this regard, declined to reject the plaint. We see no good ground to interfere with the learned Single Judge's order.
30. For all the above reasons, we dismiss this appeal and the interim application without any order for costs. However, we clarify that the observations in the impugned order or, for that matter, in this order are only in the context of deciding the appellants' application under Order VII Rule 11 of CPC. Therefore, none of the observations in these orders need to influence either the decision in the suit on merits or even the Page 10 of 11 ::: Uploaded on - 06/08/2025 ::: Downloaded on - 08/08/2025 23:17:42 :::
12.APP-60.21.DOCX decision on any issues cast regarding the maintainability of the suit, if such defences are indeed raised by the defendants in the suit by filing a written statement.
(Jitendra Jain, J) (M.S. Sonak, J) Page 11 of 11 ::: Uploaded on - 06/08/2025 ::: Downloaded on - 08/08/2025 23:17:42 :::