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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.15791 OF 2025

1. Baliram Totaram Misal

2. Mujeebuddin Shamsuddin Khan

3. Swati Bhanudas Rajguru

4. Vinod Kumar Umapati Mishra

5. Gopilal Nathulal Jat

6. Parvati Suresh Mhaske

7. Sadhna Shamsundar Rane

8. Suman Sawlaram Gangavne

(since deceased)

9. Pratap Eknath Misal

and Nilima Pratap Misal

10. Manohar Maruti Gaikwad

11. Ashok Ganpati Kasurde &

Kalpana Ashok Kasurde

12. Popat Namdev Kadam

13. Gangadhar Baban Khillari &

Rekha Gangadhar Khillari

14. Manikrao Balaso Thopte

15. Poonaram Chitraram Gorchiya

16. Mohan Kumar Radhnath Pal

17. Balu Eknath Jadhav

18. Metaji Gopinath Dethe

19. Sangita Srikant Polekar

20. Babulal Gulaji Lohar

21. Deepa Krishna Shetty

22. Sikandar Chand Shaikh &

Saira Sikandar Shaikh

23. Narayan Shamrao Wagh

24. Sanjay Gajanan Jathar &

Pallavi Sanjay Jathar

25. Laxmi Balkrishna Khadpekar

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26. Dinesh Bandhu Kandu

27. Poonam Jogindar Thakur &

Jogindar Damodar Thakur

28. Sharvan Singh Gurumukh Singh Bhella

29. Gauri Shankar Tiwari

30. Jivan Hindurav Jadhav

31. Shafiuddin Shamsuddin Khan

32. Nooruddin Shamsuddin Khan

33. Tahirmunnisa Shamsuddin Khan

34. Gulzar Ahmed Bharde

35. Sarika Raju Mandalik &

Raju Gulab Mandalik

36. Sukhdev D. Kadam

37. Aanand Pitambar Kodag

38. Shaheen Khalil Potrik

39. Bhairulal Nathulal Jat

40. Dattatray Gulab Aher

(since deceased) through his

widow Shobha Dattatraya Aher

41. Anandrav Bapurao Amale

All r/o Koparkhairane,

Navi Mumbai – 4000 709. ....Petitioners

V/S

Saujanya Co-operative Housing Society Ltd. ....Respondent

_________

Mr. Girish Agrawal with Ms. Chitra Darekar and Mr. Shubham Jangam

i/b Mr. P.D. Dalvi for the Petitioners.

Mr. Mahendra V. Shingade with Mr. Prabhat R. Salunkhe for

Respondent.

__________

CORAM : SANDEEP V. MARNE, J.

RESERVED ON : 17 AUGUST 2026.

PRONOUNCED ON : 27 AUGUST 2026.

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J U D G M E N T:

1. Petitioners have filed the present Petition challenging the

judgment and order dated 16 September 2025 passed by the Maharashtra

State Co-operative Appellate Court, Mumbai, dismissing Appeal No.19 of

2025 and confirming the order dated 11 March 2025 passed by the

learned Judge, Co-operative Court, Thane. By order dated 11 March 2025,

the Co-operative Court has allowed the Application at Exhibit-10 filed by

the Opponent/Respondent-Society seeking rejection of the Plaint under

Order VII Rule 11 of the Code of Civil Procedure, 1908 (the Code).

Accordingly, by the impugned Order, Dispute No. CCT 201 of 2024 is

rejected by the Co-operative Court under Order VII Rule 11 (d) of the

Code 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 of

Maharashtra Co-operative Societies Act, 1960 (MCS Act). Petitioners are

members of the Respondent-Society. The Society decided to undertake

redevelopment of its building. According to the Petitioners, the Society’s

building consists of 69 ground floor structures situated at Condominium

No.2, Plot No.8, Sector 23, Koperkhairane, Navi Mumbai – 400 709 on

plot admeasuring 3200 square meters. The independent ground

structures are allotted to respective members of the Society in the year

1995-96. According to Petitioners, the same were not 30 years old and

did not require any reconstruction. However, the managing committee

members of the Society commenced redevelopment process in the year

2016. In the Special General Body Meeting held on 9 May 2021, the

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Society selected Project Management Consultant. Thereafter, in the

Special General Body Meeting held on 8 August 2021 the Society

authorized the Redevelopment Committee to select a developer. In the

Special General Body Meeting held on 6 March 2022, M/s. Omkar Planet

Buildcon was selected and appointed as the developer to carry out the

redevelopment process. Petitioners have accordingly filed Dispute No.

CCT 201 of 2024 before Co-operative Court at Thane challenging

Resolutions passed in Special General Meeting dated 9 May 2021, 8

August 2021, 6 March 2022 and 28 May 2023 concerning redevelopment

of disputed properties i.e. 69 ground floor structures.

3.The Respondent-Society appeared in the Dispute and filed its

Written Statement. Additionally, Respondent-Society filed Application at

Exhibit-10 seeking rejection of the Dispute under Order VII Rule 11(d) of

the Code inter alia on the ground that the Dispute was barred under

Section 92(2) of the MCS Act and that the same is not maintainable. It

was contended by the Respondent-Society that the impugned

resolutions relate to redevelopment of the Society’s building and that

therefore, the Dispute was barred under Section 91 of the MCS Act. The

Application was resisted by the Petitioners by filing their Reply. The

Cooperative Court has allowed the Application at Exhibit-10 by order

dated 11 March 2025 and has rejected the Dispute under Order VII Rule

11 (d) of the Code. Petitioners filed Appeal No.19 of 2025 challenging the

order of the Co-operative Court dated 11 March 2025. However, by order

dated 16 September 2025, the Cooperative Appellate Court has dismissed

the Appeal and has confirmed the order passed by the Cooperative Court.

Aggrieved by orders dated 11 March 2025 passed by the Cooperative

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Court and 16 September 2025 passed by the Cooperative Appellate

Court, Petitioners have filed the present Petition.

4.Mr. Agrawal, the learned counsel appearing for Petitioners would

submit that the Cooperative Court and the Cooperative Appellate Court

have erroneously rejected the Dispute by having recourse to provisions

of Order VII Rule 11(d) of the Code. He submits that Petitioners have

restricted their challenge in the Dispute only to the resolutions. That the

Petitioners have separately filed Special Civil Suit No.145 of 2024

challenging the Development Agreement and the Power of Attorney

dated 16 October 2023. That the Dispute does not involve any challenge

to the Development Agreement or the Power of Attorney. Therefore, the

dispute challenging only the resolutions adopted by the Respondent-

Society is perfectly maintainable before the Cooperative Court under

Section 91 of the MCS Act. He further submits that the Cooperative

Court and the Appellate Court have erroneously relied on judgment of

the 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 judgments

of this Court which hold that not only a challenge to resolutions adopted

by the General Body concerning redevelopment but also a challenge to

the Development Agreement is maintainable before the Cooperative

Court. He relies on judgment of this Court in The Bank of India Staff

Panchsheel Co-operative Housing Society Limited vs. Jitendra Kumar

Jani and others

2

. He further submits that the judgment of the Apex

Court in Margret Almeida (supra) has been considered by this Court in

1 2012 (5) SCC 642

2 2026 (2) ALL MR 659

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Eknath Namdev Lashkare & Ors. vs. Pancharatna Properties and Ors.

3

and it has been held that resolutions of General Body as well as

Development Agreement must be examined together by the Cooperative

Court as one cannot survive without the other. He further submits that

the Cooperative Appellate Court has relied on judgment of this Court in

Komal Arvind Vesavkar and ors. vs. Vesawa Koli Sarvoday Sahakari

Society Ltd. and ors.

4

which has been considered and distinguished by

this Court in Bank of India Staff Panchsheel CHSL (supra). He also relies

on judgment of this Court in Jeetu Rajeshwar Kotpalliwar and others vs.

Ujjwal Nandadeep CHS Ltd. and others

5

in support of his contention

that a dispute involving challenge to General Body Resolution cannot be

rejected by having recourse to provisions of Order VII Rule 11 of the

Code. Mr. Agrawal would accordingly pray for setting aside the impugned

orders and for restoration of the Dispute.

5.Per contra, Mr. Shingade the learned counsel appearing for

Respondent-Society submits that the Cooperative Court and the

Appellate Court have correctly appreciated the position that General

Body Resolutions cannot be segregated from the Development

Agreement. That therefore Petitioners cannot maintain a separate

challenge to the General Body Resolution before Cooperative Court and

file a Suit before the Civil Court challenging Development Agreement

and Power of Attorney. He relies on judgment of this Court in Komal

Arvind Vesavkar (supra) in support of his contention that once

Development Agreement is already challenged before the City Civil

Court, legality of resolutions cannot be challenged in a Dispute filed

3 2025 (6) AllMR 680

4 Writ Petition No.8254 of 2022, decided on 15 January 2025

5 Writ Petition No.1833 of 2025 decided on 12 February 2025

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before the Cooperative Court. He also relies on judgment of this Court in

Parimal H Solanki In the matter between Bhoumik Co-operative

Housing Society Limited and another Versus. Vina A. Sisawala and

Ors.

6

in support of his contention that the redevelopment process had

commenced prior to the 2019 amendment and that therefore, the same

does not constitute the business of the Respondent-Cooperative Society.

He also relies on judgment of the this Court in Amita Jiten Desai and

another vs. New Chandrodaya Co-operative Housing Society Limited

and another

7

in support of his contention that both the judgments of

this Court in Bank of India Staff Panchsheel CHSL (supra) as well as

Eknath Namdev Lashkare (supra) have been considered and

distinguished by this Court while allowing the First Appeal and setting

aside order passed by the City Civil Court under Order VII Rule 11 of the

Code and holding that a suit challenging resolutions passed by

Cooperative Society regarding the re-development is maintainable. He

submits that there is no averment in the plaint that redevelopment of

the building forms subject matter of business of the Society. He

accordingly prays for dismissal of the Petition.

6.Rival contentions urged on behalf of the parties now fall for my

consideration.

7.The short issue involved in the Petition is about the forum before

which an aggrieved member can ventilate his grievance relating to

redevelopment 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 2022

7 2026 SCC OnLine Bom 2765

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8.Section 91 of the MCS Act provides for settlement of disputes by a

Cooperative Court when twin requirements specified under sub-section

(1) are met. The first requirement is that the dispute must concern the

enumerated subject matters. The second condition is that parties to the

dispute must be the ones enumerated in clauses (a) to (e) of Section

91(1). It is only when both the conditions are met, the Cooperative Court

gets jurisdiction to decide the dispute. So far as the second condition is

concerned, there can be no doubt that, in the present case, the

Petitioners are members of the Respondent-Society, and the dispute has

been raised by the members against the Society. Thus, the second

condition of parties falling in the enumerated categories (a) to (e) of

Section 91 (1) is clearly met in the present case. The dispute is with

regard to the first condition of the enumerated subject matters. Under

Section 91(1), only disputes touching constitution, elections of the

committee or its officers, conduct of general meetings, management or

business of a society can be adjudicated by the Cooperative Court. The

dispute undoubtedly involves a challenge to the resolutions adopted by

the general body of the society. However, the dispute ultimately relates

to implementation of redevelopment process by the Respondent-Society.

Petitioners are aggrieved by implementation of the redevelopment

concerning their respective structures. They believe that their structures

do not require redevelopment and they are opposing the redevelopment

process.

9.The issue as to whether redevelopment of a building of a

cooperative society touches upon the 'business of the society' has been

the subject matter of various decisions of this Court. Prior to the 2019

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Amendments to the MCS Act, when special provisions relating to

cooperative housing societies are introduced, this Court repeatedly held

in Vardhaman Developers Ltd. Versus. Thailambal CHS Ltd.

8

,

Mohinder Kochar Versus. Mayfair Housing

9

, and Maya Developers

Versus. Rajkumar L. Nagda

10

that redevelopment of its building does

not constitute business of the society within the meaning of Section 91

of the MCS Act. However, the Amending Act of 2019 brought about a

change in the definition of the term 'Housing Society' to mean a society,

the object of which is to provide, inter-alia, demolition of existing

buildings and reconstruction of the same. In Parimal H. Solanki this

Court took into consideration the effect of Section 154B-31 of the MCS

Act dealing with saving clause and held in paras 54, 56, 57 and 61 of the

judgment as under:

54. The Amending Act of 2019 only brought above a change in the

definition of “Housing Society” which now included redevelopment as

one of the objects of the Society. However, Section 154B-31 clearly

provided that inter alias, the Bye-Laws applicable to the Housing

Society existing on the date of the Amending Act, to continue to be

applicable, until expressly repealed, modified or amended. It is an

admitted position that the Bye-Laws of the Plaintiff No. 1 Society have

not been expressly repealed, modified or amended subsequent to the

Amending Act of 2019 and would thus continue to apply to the Plaintiff

No. 1 Society. This saving of existing Bye-Laws has been expressly

brought in the Amending Act of 2019. The existing Bye-Laws of the

Plaintiff No. 1 Society does not have “redevelopment” as one of the

objects of the Society. Thus, I do not find merit in the contention on

behalf of the Defendants that subsequent to the commencement of the

Amending Act of 2019, the Bye-Laws are required to be read as if it

includes redevelopment as one of the objects of the Plaintiff No. 1-

Society. If this contention on behalf of the Defendants is upheld, the

said saving provision in the Amending Act of 2019 would be rendered

nugatory. In view of the said saving provision, the Bye-Laws of the

Society would necessarily have to be amended to bring it in line with

the definition of “Housing Society” under Section 154B-1(17).

8 Order dated 7 March 2011 in Notice of Motion No. 3274 Of 2010

9 2012 (6) Bom CR 194

10 2016 (6) Bom.C.R. 629

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56. Thus, the dispute relating to the “business of the Society” which is

to be referred by any of the parties to the dispute to the Co-operative

Court necessarily would require redevelopment to be the “business of

the Society”. This would have to be seen from the Bye-Laws of the

Society as to whether redevelopment has been included in the Bye-

Laws. The submission of Mr. Madon that the definition of “Housing

Society” is an enabling provision and does not make redevelopment an

object or business of the Society unless the Society actually amends its

Bye-Laws to include redevelopment as one of its objects, is required to

be accepted. In the present case, it is an admitted position that the

Bye-Laws of the Society do not have redevelopment as an object. This

can also be seen from the existing Bye-Laws of the Society tendered by

Mr. Madon pursuant to the advocates for the Defendants calling upon

the Plaintiffs to produce the Bye-Laws. It is no-one’s case that

subsequent to Amending Act of 2019, the Plaintiff No. 1-Society has

amended its Bye-Laws for inclusion of redevelopment as one of its

object.

57. Thus, in my view, since redevelopment is not one of the objects of

the 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 Defendants

that Maya Developers (supra) being prior to the Amending Act of 2019,

is no longer good law, as it is considering the provisions which have

undergone a change in law. In my view, as Section 91 of the MCS Act

has not undergone any change, Maya Developers (supra) is very much

still applicable, particularly, in view of the directive under Section 79A

continuing to be excluded from Section 91(1)(c) of the MCS Act. The

purpose and ambit of Section 79A and Section 45 as held in Maya

Developers (supra) are entirely distinct. They operate in different fields.

Section 79A is a broad-based State power to be used in the public

interest. One cannot read Section 79A into Section 45 as has been

sought to be contended on behalf of the Defendants.

10. Thus, in Parimal H. Solanki the application preferred by the

Defendants therein seeking direction for return of the plaint on the

ground of lack of jurisdiction of this Court to entertain the suit relating

to disputes over redevelopment has been rejected holding that

redevelopment of its building was not one of the objects of the society as

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the society had not amended its bye-laws to include redevelopment as

one of its objects.

11.It is well settled position that for deciding application under Order

7 Rule 11, the averments in the plaint are required to be considered.

Perusal of the averments in the Dispute filed by the Petitioners would

indicate that the redevelopment process started in the year 2016, i.e.

much prior to the introduction of Chapter XIII in the MCS Act by

amendments of 2019. This is clear from the following averments in the

plaint:

6. The Disputants state that the Committee members of the Said

Opponent Society made their personal ill effort without the knowledge

and consent of the members of the Said Opponent Society for their

personal financial benefits/gains and for the benefit of acquainted

Developers (The Disputants state that the Said Committee

members of the Said Opponent Society started the process of

Redevelopment in fact in the year of 2016 in yearly annual

general meeting (in Short AGM) or thereabout in absence of any

point 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 the

alleged basis of increased Floor Space Index to have excess and extra

benefit of areas in addition to existing area but all efforts are without

taking into confidence to the members at large of the Said Opponent

Society.

10. The Disputants state that the Said Opponent Society through

it's Development Committee Members have started

Redevelopment of the Dispute Properties firstly in the year of

2016 and continued up to the year 2022 by appointing Redevelopment

Committee of 14 members of the Said Opponent Society and time to

time issued Agenda Notices for Annual General Meeting (in short

A.G.M.) to discuss the points mentioned therein the agenda Notices

and All the above copies of the Agenda Notices are in possession of the

Disputants and crave leave to refer to and rely upon the same when

produced.

(emphasis added)

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12. Thus, the redevelopment process is undertaken by the

Respondent-Society much prior to amendment of the MCS Act by which

Chapter-XIIIB is inserted therein w.e.f. 9 March 2019.

13.More importantly, in the entire plaint, there is no averment that

redevelopment of Society's building is the object or business of the

Respondent-Society. Thus, perusal of the pleadings in the Dispute filed

by the Petitioner would clearly indicate that the same lacks necessary

averments for the purpose of retaining jurisdiction of Co-operative

Court under Section 91 of the MCS Act. This factor is in fact sufficient for

upholding the orders passed by the Cooperative Court and the Appellate

Court directing rejection of the dispute.

14.However, Mr. Agarwal has relied upon three judgments of this

Court in support of his contention that the law has undergone a change

post the judgment in Parimal H. Solanki and that therefore the dispute

challenging the resolutions passed by Society for implementation of

redevelopment process now clearly falls in the realm of challenge before

the Cooperative Court under the MCS Act. On the other hand, Mr.

Shingade has relied on two judgments of this Court to counter the

submission of Mr. Agrawal and in support of his contention that it is

impermissible to segregate challenges relating to resolutions and those

relating to redevelopment agreement and to institute separate

proceedings before the Cooperative Court and the Civil Court.

15. I accordingly proceed to examine the judgments relied upon by

the learned counsel appearing for the rival parties.

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16. Amongst the judgments relied upon by Mr. Agrawal and Mr.

Shingade, the earliest one is in the case of Komal Arvind Vesavkar

which is delivered on 15 January 2025 by a coordinate Bench of this

Court. In that case, the order passed by the Cooperative Appellate Court

upholding the dismissal of Dispute under Order 7 Rule 11 of the Code on

the ground of maintainability was under challenge. The Dispute was

filed by the members of a Cooperative Society which was set up with the

object of promoting welfare of the fishing community residing in

Versova and to provide infrastructure facilities to the local fishing folks

and to streamline the business activities at Versova, Andheri, Mumbai.

The Society owned land at Versova and created development rights in

respect of society's land in favour of a developer by executing

Development-cum-Sale Agreement based on resolutions shown to have

been adopted in the general body meeting of the Society. The Dispute

filed before the Cooperative Court challenged the resolutions adopted by

the Society for redevelopment of its property. The Society filed

application under Order 7 Rule 11 of the Code for rejection of the

Dispute on the ground of maintainability. This Court took into

consideration the judgment of the Apex Court in Margret Almeida and

held in paras-21, 22, 23, 24, 26 and 27 as under:

21. In identical facts, but reverse position arose in Margret Almeida vs

Bombay Catholic Co-op Housing Society Ltd (supra), where the

resolution and the conveyance executed by the Co-operative Housing

Society came to be challenged in the Civil Court and upon a

preliminary objection raised as regards the maintainability, the

Division Bench held the suits are not maintainable and the dispute

could be examined exclusively by the Co-operative Court proceeding on

the basis that it is possible to challenge the resolution and the

conveyance independently. Based on such premise, the High Court

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opined that the challenge to the resolution without challenging the

conveyance is possible but not vice versa. Negating the reasoning of

Division Bench, the Apex Court held that the premise on which the

High Court commenced its inquiry itself was wrong and held in

paragraph 47 as under:

XXX

22. The decision of Margret Almeida (supra) is squarely applicable to

the facts of the present case. The Resolutions under challenge are

essentially with reference to the Development Agreement

executed with Respondent No. 2 and the subject-matter of Dispute

will not fall exclusively within the jurisdiction of Co-operative

Court. The Cooperative Court will not have the jurisdiction to

examine the validity of Development Agreement, whereas, the

Civil Court can adjudicate the challenge to the Development

Agreement and can also go into the validity of Resolution as held

in Margret Almeida (supra). In the instant case, the Development

Agreement has already been challenged by some of the members

of the Society in this Court and consequently, the legality of

Resolutions will be gone into in those proceedings. Even if an

objection to jurisdiction of Civil Court was raised by Respondents,

there was no adjudication of the objection and the objection cannot be

the basis for approaching the Co-operative Court.

23. In view of the discussion above, it is not necessary for this Court to

examine whether the agreement between the Developer and the

Society constituted development or re-development of the Society’s

property and whether the dispute touches the business of the Society.

Following the decision of Margret Almeida (supra), it is the Civil

Court which will have the jurisdiction and Dispute is not

maintainable before the Co-operative Court.

24. The Appellate Court has rightly held that the resolutions are

challenged with reference to the development process and as

third party rights are involved, the Co-operative Court loses its

jurisdiction.

26. Apart from challenging the legality of the Resolutions as the

Dispute challenges the consequent deeds, decisions and actions taken

pursuant to the impugned Resolution, the Dispute also seeks

declaration that the Development Agreement is illegal, bad in law and

void-ab-initio. The Dispute also impleads the Developer who does not

fall within the enumerated class of parties to the lis under Section 91 of

MCS Act. The declaratory relief of this nature qua the Development

Agreement falling under Section 31 of Specific Relief Act, 1963 can be

granted only by Civil Court. Thus, with the presence of the Developer

and the challenge to the Development Agreement, the subject-matter

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of the lis as well as the parties to the lis qua the Development

Agreement is not within the jurisdiction of the Co-operative Court.

27. The effect of deletion of the Developer from the Dispute would

result in confining the Dispute to the validity of Resolutions and

the Development Agreement remaining untouched. Resultantly,

two different forums will have to be approached i.e the Civil Court

to seek declaration as regards the validity of Development

Agreement and Cooperative Court as regards legality of the

Resolutions. As the reference in the Resolutions is essentially to the

Development Agreement, the Co-operative Court would not have the

exclusive jurisdiction to decide the subject matter of the Dispute. The

Apex Court in Margret Almeida and Ors vs Bombay Catholic Co-

operative Housing Society Ltd (supra), did not agree with the

reasoning of High Court based on premise that it is possible to

independently challenge the resolution and conveyance and

upheld the jurisdiction of Civil Court. In the present case, the

Development Agreement is already in challenge before this Court

in civil proceedings initiated by some of the members in which

the legality of the Resolutions can be gone into.

(emphasis and underlining added)

17. Thus, in Komal Arvind Vesavkar, this Court held that the

development agreement was already in challenge in civil proceedings

initiated by some of the members and that therefore the issue of legality

of resolutions can also be gone into by the Civil Court. This Court held

that since the reference in the resolution was essentially to the

development agreement, the Cooperative Court would not have

jurisdiction to decide the subject matter of Dispute. This Court upheld

the Order of the Appellate Court which had concluded that the

resolutions were challenged with reference to the development process

and as third party rights were involved, the Cooperative Court had lost

its jurisdiction.

18.On 7 November 2025, another coordinate Bench of this Court

delivered a judgment in Eknath Namdev Lashkare. In that case,

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Cooperative Appellate Court had allowed applications as to

maintainability of Dispute and had dismissed the Dispute on the ground

of lack of jurisdiction. In that case, the Administrator of a tenant co-

partnership society had executed a Development Agreement in favour of

the developer. In the Dispute, the disputant had challenged the

Resolution passed in the general body meeting of the society, as well as

development agreement and power of attorney executed in favour of the

developer. This Court applied the concept of agency and held that the

developer was the agent of the society and that therefore the Dispute

touched upon the business of the society. This Court therefore held that

Cooperative Court has full jurisdiction, as the dispute touched the

management and business of the society. It is held that the alleged

interest in the property was not acquired by the developer before the

Dispute and accordingly this Court followed the Apex Court judgment in

Margret Almeida in which it is held that acquirer of property during

pendency of Dispute can be joined as party thereto. In the facts of that

case, this Court held that the resolution and development agreement

must be examined together by Cooperative Court. This is clear from the

following observations:

27. Under Margret Almeida, a person who derives his rights through the

society or its office-bearers, even if not a member, is covered by Section

91(1)(a). In this case, respondent No. 1's rights do not exist

independently of the society. His rights flow from documents executed

by the society's Administrator. There is no credible evidence that

respondent No. 1 had any independent or prior ownership

interest in the property before these documents were executed.

Therefore, respondent No. 1 cannot be treated as a third party

who acquired title before the dispute was filed.

31. Following Margret Almeida, both the resolution of the general

body and the development agreement must be examined together by

the Cooperative Court, because one cannot survive without the other.

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Accordingly, applying the principles of Margret Almeida, the present

dispute clearly falls within Section 91 of the MCS Act and must be

decided by the Cooperative Court as the proper forum.

(emphasis and underlining added)

Thus, the judgment in Eknath Namdev Lashkare turns mainly on factual

distinction where the interest in the property was acquired by the

developer during pendency of the Dispute.

19.Thereafter, on 19 December 2025, this Court delivered the

judgment in Bank of India Staff Panchsheel CHSL outlining the

contours of jurisdiction while deciding an application for rejection of

plaint under Order 7 Rule 11 of the Code. This Court held in paragraph

20 of the judgment as under:

20. Order VII Rule 11 permits rejection of a plaint only where the bar is

clear from the plaint itself. When an issue requires examination of

additional material or evaluation of facts, it travels beyond the limited

scope of that provision. Whether redevelopment forms part of the

object of a housing society, as contemplated under Section 154B(1)(17)

of the Maharashtra Co operative Societies Act, is not a pure question of

law. It is a mixed question of law and fact. Its determination depends

upon the specific objects of the society as recorded in its bye laws, the

manner in which the society has acted upon those objects, and the

nature of the resolutions passed by the general body. In the present

case, the bye laws of the society are not part of the plaint. Without

examining the bye laws, it is not possible to record a definitive finding

as to whether redevelopment does or does not form part of the

society’s objects. Such an exercise would necessarily require evidence

and adjudication on merits. That exercise lies squarely within the

domain of the Cooperative Court during trial. Order VII Rule 11 permits

rejection of a plaint only where the bar is clear from the plaint itself.

When an issue requires examination of additional material or

evaluation of facts, it travels beyond the limited scope of that

provision. Since the question of redevelopment being part of the

society’s object is a mixed question of law and fact, and since the

necessary factual foundation is not before the Court at this stage, the

dispute cannot be rejected under Order VII Rule 11.

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20. Thus, in Bank of India Staff Panchsheel CHSL this Court has held

that whether redevelopment forms part of the object of the housing

society or not is not a pure question of law and that the same is a mixed

question of law and fact. This Court therefore held that evidence is

required to be led for deciding the said issue and that the dispute cannot

be rejected under Order 7 Rule 11 of the Code without granting an

opportunity to the parties to lead evidence on the said mixed question of

law and fact. The judgment in Bank of India Staff Panchsheel CHSL thus

highlights the position that the issue as to whether redevelopment is the

business of the society or not needs to be decided at the trial stage.

21.On 12 February 2025, this Court passed an order in Jeetu

Rajeshwari Kotpalliwar in which the issue before the Cooperative Court

was about lack of quorum in the general body meeting and on that

count, validity of resolution was questioned. This Court therefore held

that the Dispute contemplated a bonafide dispute between a member

and a society relating to validity of resolution in the light of allegation

lack of quorum. This Court therefore held that the lower Courts were not

justified in dismissing the dispute under Order 7 Rule 11 of the Code.

22.Lastly, the judgment in Amita Jiten Desai is the latest amongst all

the judgments cited by the parties. According to Mr. Shingade, in Amita

Jiten Desai this court has distinguished the judgments in Eknath

Namdev Lashkare and Bank of India Staff Panchsheel CHSL. In Amita

Jiten Desai, a First Appeal was filed challenging the order passed by the

City Civil Court rejecting the plaint under Order 7 Rule 11(d) of the

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Code on the ground that the same was barred as only Co-operative Court

had jurisdiction to deal with the Dispute under Section 91 of the MCS

Act. The Plaintiffs before the Court were members of the society. They

challenged resolutions adopted by the society in relation to the areas of

flats to be considered for redevelopment. The Plaintiffs were flat owners

in respect of Building-C and desired similar benefits extended to the flat

owners of Buildings-A and B. Plaintiff No.1 sought direction for

allotment of permanent Alternate Accommodations in-lieu of garage

occupied by him. Plaintiff also sought injunction against the society

from executing any development agreement. The Civil Court rejected

the plaint under Order 7 Rule 11 of the Code holding that the Suit

sought to challenge the resolutions, which touched upon the affairs of

the society and hence jurisdiction of the Civil Court was barred by virtue

of Section 91 of the MCS Act. This Court took into consideration

judgments of this Court in Mohinder Kochar and Parimal H. Solanki in

which it was held that redevelopment of the building was not the

business of the Co-operative Housing societies. This Court also took into

consideration the judgment of Division Bench of this Court in Pranav

Constructions Limited Versus. Priyadarshini Co-operative Housing

Society Limited

11

and held that if the Resolutions do not touch the

business of the society, they will have to be challenged before the Civil

Court. This Court took into consideration the definition of the term

'housing society' appearing in Section 154B(1)(17) and held reading of

the plaint did not disclose any pleadings as regards the object of the

society from which it could be conclusively discerned as to whether

redevelopment is an object of the society and whether the society

11 2025 : BHC-OS:10902 DB

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amended its bye-laws pursuant to Section 154B(1)(17). This Court held

in paragraphs 22 to 26 as under:

22. In Pranav Constructions Limited vs Priyadarshini Co-operative

Housing Society Limited and others (supra), the Hon’ble Division

Bench of this Court was considering appeals filed under Section 37 of

Arbitration and Conciliation Act, 1996 arising out of Section 9 of the

Act and one of the issues before the Court was whether existence of

dispute between the members and the Society about their entitlements

flowing out of redevelopment process can be ground for the Court to

abstain from making interim measures under Section 9 of the Act. It

held that the resolutions adopted by the general body of the Society

touching the business of the Society needs to be challenged under

Section 91 of the MCS Act and if the resolution does not touch upon

the business of the Society, the remedy for the affected party is to file

civil suit. The finding of the Hon’ble Division Bench comes in answer to

the question as to the exact forum which can go into the correctness of

the resolution adopted by the general body of the Society.

23. The Hon’ble Division Bench has in effect applied the provisions of

Section 91 of MCS Act, which requires both the party to the lis as well

as the subject matter of the lis to fall within the purview of Section 91

of the MCS Act. The resolutions, if do not touch the business of the

Society, will have to be challenged in the civil Court. The question as to

whether re-development constitutes business of the Society will have

to be answered with reference to the objects of the Society. By the

Amending Act of 2019, Section 154B-1(17) brought the addition in the

definition of Housing society as under:

“housing society” means a society, the object of which is to provide its

Members with open plots for housing, dwelling houses or flats; or if

open plots, the dwelling houses or flats are already acquired, to provide

its Members common amenities and services and to demolish existing

buildings and reconstruct or to construct additional tenements or

premises 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 of

the existing ByeLaws, which would continue to apply to the said

society. Considering the amended definition, where a Society has

amended its objects to include re-development as one of its objects,

the dispute arising out of re-development would be a dispute touching

the business of the Society.

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25. In Bhoumik Co-operative Housing Society vs Vina A Sisawala13 ,

the Co-ordinate Bench has held that Section 154B(1)(17) is an enabling

provision and the amended definition of housing society will not apply

where the existing bye-laws do not include re-development as one of

its objects. It held that dispute relating to the “business of the Society”

necessarily require redevelopment to be business of the Society which

would have to be seen from the Bye-Laws of the Society as to whether

redevelopment has been included in the Bye-Laws.

26. A reading of the plaint in the present case does not disclose any

pleadings as regards the objects of the Society from which it can be

conclusively discerned whether redevelopment is an object of the

Society or whether pursuant to Section 154B(1)(17), the Society

amended its Bye-Laws. The Bye-Laws are not part of the plaint. Though

Mr. Daver and Mr. Joshi would strenuously urge this Court to take into

consideration the Bye-Laws of the Defendant No 1 Society, which they

attempted to tender, this Court declined to do so as that would

tantamount to looking into extraneous material outside of the plaint.

Determination of the objects of the Society, which requires

adjudication on facts, is necessary to arrive at a finding as to whether

the dispute touches the business of the Society. Sans the examination

of the ByeLaws of the Society, it is not possible on holistic reading of

the plaint to arrive at a definitive finding that re-development is one of

the objects of the Society and consequently the dispute touches the

business of the Society and would be governed by Section 91 of MCS

Act.

23. This Court thereafter took into consideration the ratio of

the judgment in Bank of India Staff Panchsheel CHSL and held that

only after the trial, it can be conclusively determined as to whether

object of the society includes redevelopment or not. So far as the

judgment in Eknath Namdev Lashkare is concerned, this Court

distinguished the same by holding that the coordinate Bench was not

concerned with the issue as to whether the object of the Society

included redevelopment by examining bye-laws of the society. In Amita

Jiten Desai this Court ruled in favour of jurisdiction of Civil Court even

though the suit involved challenge only to the general body resolution

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and the development agreement was yet to be executed. The First

Appeal is allowed and the suit has been restored.

24.Before proceeding further, it would also be necessary to consider

the judgment delivered by this Court in Shreesh Kumar Vs. Bhramha

CHSL

12

in which the issue was not about maintainability of Dispute

before the Cooperative Court in which resolution of General Body was

challenged. The Developer had filed application for impleadment since

serious allegations were made qua him in the Dispute. In the facts of

that case and by interpreting the provisions of Section 94(3)(a) and (c) of

the MCS Act, this Court held that the developer was rightly directed to

be impleaded in the Dispute. This Court has made detailed analysis of

provisions of Sections 91 and 94 of the MCS Act in the context of

impleadment of non-member to the Dispute. Since the case did not

involve the issue of maintainability of Dispute before the Cooperative

Court it is not necessary to discuss ratio of the judgment in Shreesh

Kumar. Also the judgment rendered in unique facts of the case cannot

be read to mean that in every case, a developer can always be impleaded

in a Dispute filed before the Cooperative Court and that such dispute

challenging only the resolutions would always be maintainable before

the Cooperative Court.

25.In my view, when a member is aggrieved by the process of

redevelopment undertaken by the society, instead of leaving the issue of

rejection or retention of plaints filed in Disputes before Cooperative

Court or in Suits filed before the Civil Courts, to be decided on a case to

12 2026 SCCOnline 7169

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case basis, it would be appropriate to deal with the larger issue of the

exact forum before which such member can vent his grievances. This

would help to achieve better clarity for the members aggrieved by

redevelopment process. I propose to do so because I believe that this

issue is already answered authoritatively by the Apex Court in its

judgment in Margret Almeida. The judgment of the Apex Court in

Margret Almeida provides a complete answer to the issue involved in

the petition. In case before the Apex Court, the Society had passed

Resolution on 6 December 2009 to sell its land in favour of Respondent

No.22 and 23 therein. In pursuance of the resolution, a

sale-deed/conveyance was executed on 7 December 2009. Aggrieved by

the resolution and sale, two suits were filed by the Appellants before this

Court. In the Suit, Resolution dated 6 December 2009, as well as

Conveyance dated 7 December 2009 were challenged. The Society raised

preliminary objection regarding maintainability of the Suits in view of

provisions of Sections 91 and 163 of the MCS Act. The objection was

rejected by the Single Judge of this Court but the same found favour

with the Division Bench. The Division Bench held that Plaintiffs ought

to have filed a Dispute before the Cooperative Court challenging the

Resolution of the General Body and the subsequently executed

Conveyance by joining the assignee as a party to the Dispute. Aggrieved

by the order of the Division Bench, Appeal was preferred before the

Apex Court. After examining the entire scheme of the MCS Act, the

Apex Court held that it was impermissible to join the assignee

(Respondent Nos.22 and 23) as parties to the Dispute if the same was

filed before the Cooperative Court. The Apex Court examined the

provisions of Section 94(3)(a) of the MCS Act and has concluded that the

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expression '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 in

the property during pendency of the Dispute. Thus, it is held that where

the 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 power

under Section 94(3)(a) of the MCS Act cannot be exercised to implead

such acquirer of the right as a party to the Dispute.

26. The Apex Court in Margret Almeida thereafter examined

correctness of the conclusion reached by the Division Bench of this

Court that the Suits were not maintainable. The Apex Court held that

the High Court had proceeded on a footing that it was possible to

challenge the resolution and the conveyance independently. The Apex

Court however felt it unnecessary to deal with the said finding of the

Division Bench of this Court about segregation of challenges to

resolution and conveyance. Hypothetically however, the Apex Court

presumed that it was possible for the Plaintiffs/Appellants to challenge

only general body resolutions before the Cooperative Court. The Apex

Court accordingly held that if the Resolution dated 6 December 2019

alone was challenged before the Cooperative Court, the assignees

(Respondent Nos.22 and 23) who were also the beneficiaries of the

Resolution, could not be made parties in the Dispute before the

Cooperative Court. The Apex Court held that in such situation, even if

Cooperative Court came to the conclusion that the Resolution is illegal,

the assignees would always ignore such declaration as the same was

made behind their back. The Apex Court further held that if Plaintiff was

disputing validity of the title conveyed by virtue of the conveyance, such

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dispute will necessarily have to lie before the Civil Court under Section 9

of the Code and in such situation, legality of the Resolution will have to

be gone into again. The Apex Court accordingly concluded that the High

Court was not right in holding that the suits were not maintainable. It

would be apposite to reproduce paragraphs 44 to 47 of the judgment

which read thus:

44. We are of the opinion that having regard to the language of Section

94, sub-section (3)(a), more specifically “has acquired any interest”,

the acquisition of the interest contemplated is only an acquisition

made during the pendency of the dispute before the Cooperative Court.

For the reason that such an acquisition of interest is qualified by the

words, “in the property of a person who is a party to the dispute”, we

hold so for another reason also. To hold otherwise, would lead to a

situation where a dispute between an enumerated person and a 3rd

party would become amenable to the jurisdiction of the Co-operative

Court at the instance of the persons enumerated under Section 91 but

not at the instance of a 3rd party in view of the judgment of this Court

in (1991) 1 SCC 469. An absurd situation, ex facie violative of Article

14, in as much as such a construction would lead to a situation that

with reference to a dispute, the affected parties are compelled to

approach different fora for the adjudication of the same dispute

depending upon the fact which party is seeking a relief. Such a

construction, being inconsistent with a constitutional mandate, is

impermissible.

45. For coming to the conclusion that the suits in question are not

maintainable and the dispute could be examined exclusively by the Co-

operative Court, the High Court proceeded on the basis that it is

possible to challenge the resolution and the conveyance

independently. Starting from such a premise, the High Court opined

that challenge alone to the resolution without challenging the

conveyance is possible but not vice-versa. The reason given by the

High Court for the same is as follows:-

“If Court passes a decree or order setting aside the resolution of

the general body, the validity of the conveyance will not be

intact, but if a decree or order is made merely setting aside the

conveyance, the resolution of the General body will remain

intact. By the conveyance land owned by the Society is

transferred. The society is a body corporate. The person or

persons who have signed the conveyance on behalf of the

Society derive the authority to do so from resolution of the

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General Body. If the resolution is set aside or is declared invalid

the act of the person of executing the conveyance would

become unauthorised. Such an order in relation to the validity

of the General Body resolution will impair the validity of the

conveyance. Consequently, if the resolution remains intact but

the conveyance is set aside for some reason the Society may be

in a position to execute another conveyance pursuant to the

resolution of the general body.”

46. We do not propose to examine the correctness of the legal premise

that the general body resolution and the conveyance could be

segregated in a dispute such as one on the hand. For the sake of

argument, we presume that it is possible for the plaintiffs, appellants

herein, to challenge only the general body resolution. We also presume

that the conclusion arrived at by the High Court that if the general

body resolution is set aside, the same will impair the validity of the

conveyance even without an appropriate declaration by a competent

judicial body. (We emphasise that we only presume so without

examining to the said conclusion for the limited purpose).

47. If the resolution dated 6th December, 2009 alone is challenged

before the Co-operative Court, in view of our conclusion recorded

earlier, the respondents 22 and 23 (the beneficiaries of the resolution)

could not be made parties before the Co-operative Court. In such a

situation, even if the Co-operative Court came to the conclusion that

the resolution is illegal, it would always be open for the respondents 22

and 23 to ignore such a determination as they are not parties to the

proceedings and assert their title on the basis of the conveyance dated

7th December, 2009. If any party such as the plaintiffs (the

appellants herein) disputes the validity of the title conveyed

thereunder, necessarily such a dispute would have to be

adjudicated by a competent Court under Section 9 of the Code of

Civil Procedure wherein, necessarily, the question whether a valid

title was conveyed in favour of respondents 22 and 23 by the

society would arise for determination. The legality of the

resolution would still have to be gone into again. Therefore, in our

opinion, the premise in which the High Court commenced its enquiry

itself is wrong.

(emphasis and underlining added)

27. As observed above, the judgment of the Apex Court in

Margret Almeida gives a complete answer to the controversy at hand.

As held by the Apex Court, even if it is theocratically accepted that it is

possible for a member to challenge only the resolution before the

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Cooperative Court, such challenge becomes meaningless because if the

development agreement is not challenged before the Cooperative Court,

any declaration made by the Cooperative Court qua the resolution

becomes meaningless. The Apex Court has held that the aggrieved

person will have to ultimately challenge the conveyance (which in the

present case is development agreement and power of attorney). Most

importantly, the Apex Court has held that in para-47 that while

maintaining a challenge to the development agreement before the Civil

Court, the legality of the resolution can always be gone into.

28. Following the ratio of the judgment of the Apex Court in Margret

Almeida, in my view, the correct remedy for the Petitioners is to

challenge the development agreement and power of attorney before the

Civil Court. They have exercised the remedy of filing a Civil Suit. While

determining challenge to the validity of development agreement and

power of attorney, the Civil Court can also decide the issue of validity of

the resolutions adopted by the Society. This is precisely what is held by

this Court in Komal Arvind Vesavkar after appreciating the law

enunciated by the Apex Court in paragraph 47 of the judgment in

Margret Almeida.

29. It is also seen that challenging the general body resolutions

adopted for execution of development agreement and power of attorney

before Cooperative Court and challenging the validity of development

agreement and power of attorney before the Civil Court would result in

anomalous situation. To illustrate, if the Civil Suit (challenging the

development agreement) is decided first and is dismissed and if the

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challenge to resolution raised in the Dispute before the Cooperative

Court remains pending, since Civil Court has not determined the issue

of validity of the general body resolutions adopted, the decree would not

bind the Cooperative Court. If the Cooperative Court independently

determines validity of resolution and holds that the resolutions adopted

are bad in law, the same would lead to an incongruous situation where

the resolution adopted for execution of the development agreement

would be declared illegal whereas the Suit challenging the development

agreement is dismissed. The objector (who is the disputant before the Co-

operative Court and Plaintiff before the Civil Court) would achieve nothing

by seeking theocratical declaration as to the illegality of the Resolution.

This is a reason why it is important that both the challenges to the

resolution and to the development agreement are adjudicated upon by

the same Court.

30. Having held that the challenge to the resolution and challenge to

the development agreement must be raised before the same Court, the

issue for consideration is whether such composite challenge can lie

before the Cooperative Court or before the Civil Court. In the judgment

in Margret Almeida the Apex Court has interpreted the provisions of

Section 94(3) of the MCS Act and has held that a person who has

acquired interest in the property of a person who is party to a Dispute

before filing of the Dispute, such person can never be made a party to

the Dispute. It is only when acquisition of interest in the property occurs

during pendency of the Dispute that the acquirer of such interest can be

impleaded as a party to the Dispute. Therefore, in a given case where the

Development Agreement is already signed and executed and acquisition

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of interest in the property of the society has already happened, a

member challenging such acquisition cannot implead the developer as

party before the Cooperative Court. Since the developer cannot be a

party before the Cooperative Court in such Dispute in view of provisions

of Section 94(3) of the MCS Act, challenge to the Development

Agreement would not be maintainable before the Cooperative Court.

This is a reason why the correct remedy for a person who is aggrieved

both by the general body resolution, as well as by the development

agreement is to maintain a Suit before the Civil Court. A member cannot

segregate challenges by filing civil suit qua development agreement and

file a Dispute before Cooperative Court qua the general body resolution.

The member can also not file a composite dispute before the

Cooperative Court challenging the resolution, as well as the

development agreement as held by the Apex Court in Margaret

Almedia. The correct remedy would be to file a civil suit raising a

composite challenge to resolution and development agreement.

31.The conspectus of the above discussion is that the Dispute filed by

the Petitioners before the Cooperative Court is clearly not maintainable.

The developer has acquired interest in the property of the Society on 6

October 2023 and therefore the developer could not have been

impleaded as party to the Dispute which is filed in June 2024. This is a

reason why Petitioners have rightly not impleaded the developer as a

party to the Dispute. However, the declaration sought by them qua

resolutions without challenging the development agreement is

meaningless. For the reasons discussed above, proper remedy for the

Petitioners is to incorporate challenge to the resolutions in the pending

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suit. Even otherwise, there is no averment in the Dispute that

redevelopment of property of the Society forms business of the Society

or that the Bye-laws of the Society are brought in tune with the

provisions of Section 154B(1)(17) of the MCS Act. The Cooperative Court

has correctly dismissed the Dispute and there is no infirmity in the order

of the Cooperative Appellate Court dismissing the Appeal.

32.The Writ Petition is devoid of merits. It is accordingly dismissed.

(SANDEEP V. MARNE, J.)

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