DILEEP KUMAR PANDEY AND ORSversusJAG BUILDS REALTY PVT. LTD. AND ANR

                                                                    25-WP10497-2026+.DOC

                                                                                 Santosh

                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION


                                     WRIT PETITION NO. 10497 OF 2026
                                                  WITH
                                INTERIM APPLICATION (ST) NO. 24808 OF 2026

                      Dileep Kumar Pandey and Ors                         ...Petitioners
                                         Versus
                      Jag Builds Realty Pvt Ltd & anr.                  …Respondents

                      Mr. Atul Damle, Senior Advocate, a/w Mr. Bhushan Raut, for
                           the Petitioners.
                      Mr. Sumit Sonare, a/w Mr. Harshavardhan Jadhav and Mr.
                           Abhishek Raskar, for Respondent No. 1.
SANTOSH
SUBHASH
KULKARNI                                                 CORAM:    N. J. JAMADAR, J.
Digitally signed by
SANTOSH
SUBHASH                                                  DATED:    31st AUGUST, 2026
KULKARNI
Date: 2026.09.05
18:41:17 +0530


                      Order:-

                      1.   Heard the learned Counsel for the parties.

                      2.   This petition under Article 227 of the Constitution of India

                      assails the legality, propriety, and correctness of a judgment and

                      order dated 25th June, 2026, passed by the learned District

                      Judge in Regular Civil Appeal No. 38 of 2026, whereby the

                      appeal preferred by Respondent No. 1 / original Plaintiff against

                      an order passed by the learned Civil Judge on 6 th December,

                      2025, thereby returning the plaint in Regular Civil Suit No.

                      1419/2024 for presentation to the proper Court, purportedly in

                      the exercise of powers under Order VII Rule 10 of the Code of

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Civil Procedure, 1908 ("the Code"), came to be allowed, and

Regular Civil Suit No. 1419/2024 came to be restored to its

position on the file of the Civil Court, Pune.

3.   The Rajyog Heights Co-operative Housing Society Limited

(R2) - Defendant No. 5, is a Housing Co-operative Society

registered under the provisions of the Maharashtra Co-operative

Societies Act, 1960 ("the Act, 1960"). Defendant No. 5 Society is

the owner of the land bearing Plot No. 43/3, CTS No. 42,

alongwith a standalone building comprising of 18 residential

tenements and a garage situated at Lohegaon, Pune, (“the

society premises”). Defendant Nos. 1 to 4, the Petitioners herein,

are the members of the Defendant No. 5 Society. Defendant Nos.

1 to 4 are in the occupation of their respective flats described in

paragraph Nos. 1A, B, C, and D of the plaint.

4.   As the single solitary building was constructed on the

society premises in the year 1987-1988 without basic amenities,

the Defendant No. 5 Society, in its General Body meeting held

on 24th February, 2020, decided to demolish the existing

building and construct a new building with modern amenities.

After following the requisite process, eventually in a Special

General Body meeting held on 10th January, 2021, the




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Defendant No. 5 Society resolved to appoint the Plaintiff -

Respondent No. 1 to carry out the redevelopment work.

5.    In accordance with the terms of the contract between the

Plaintiff – Defendant No. 5, majority of Defendant No. 5’s

members entered into Memorandum of Understanding (“MoU’)

with the Plaintiff on 22nd February, 2021, incorporating all the

terms and conditions of the redevelopment, The Defendant No. 5

Society executed registered Development Agreement and Power

of Attorney in favor of the Plaintiff on 21st April, 2023.

6.    Despite    the   society having resolved       to   entrust the

redevelopment to the Plaintiff, and the latter having incurred

huge expenses to perform its part of the contract, the Defendant

Nos. 1 to 4 were putting hindrances in the redevelopment of the

society premises, putting the Plaintiff to grave prejudice and

enormous costs. The Defendant Nos. 1 to 4 were raising

untenable       objections    and   putting    obstacles       in   the

redevelopment work. Hence, the Plaintiff instituted the suit

seeking declaration that the decision of the society and the

resolutions     passed   by   the   society   in    relation   to   the

redevelopment of the society premises are binding on Defendant

Nos. 1 to 4, and to restrain the Defendant Nos. 1 to 4 from




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causing interference in the redevelopment of the society

premises.

7.   The Petitioners - Defendant Nos. 1 to 4 filed an

application, purportedly under Order VII Rule 11 of the Code,

seeking rejection of the plaint on the ground that the suit was

barred by the provisions contained in the Act, 1960, the suit

claim was also not properly valued, and, even otherwise, there

was no cause of action.

8.   By an order dated 6th December, 2025, the learned Civil

Judge was persuaded to partly allow the application, opining

that, the dispute was exclusively triable by the Co-operative

Court constituted under the provisions of the Act, 1960. Thus,

the plaint was directed to be returned to the Plaintiff for

presentation to the proper Court.

9.   Being aggrieved, the Plaintiff filed an appeal before the

District Court. By the impugned judgment and order, the

learned District Judge allowed the appeal, holding that, the

learned Civil Judge was in error in observing that the dispute

between the parties was touching the business of the Defendant

No. 5 Society. The learned District Judge was of the view that

the Plaintiff had no qualms over the resolutions passed by the

Defendant No. 5 Society, and the acts done by the Plaintiff in

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furtherance of those resolutions cannot be said to be illegal.

Thus, by setting aside the order passed by the trial Court, the

suit came to be restored to the file of the trial Court.

10.   Being aggrieved, Defendant Nos. 1 to 4 have invoked the

writ jurisdiction.

11.   Mr. Damle, the learned Counsel for the Petitioners,

submitted that if the prayers in the suit are considered, it

becomes explicitly clear that the Plaintiff was seeking a

declaration that the decisions taken, and the resolutions

passed, by Defendant No. 5 were binding on Defendant Nos. 1 to

4, who were the members of Defendant No. 5 Society.

Resultantly, the core dispute was between the society and its

members. The status of the Plaintiff was that of an agent of

Defendant No. 5 Society. Therefore, the fact that the Plaintiff did

not fall within the categories of the persons specified in clauses

(a) to (e) of sub-section (1) of Section 91 of the Act, 1960 was not

decisive.

12.   A very strong reliance was placed by Mr. Damle on the

judgment of a learned Single Judge of this Court in the case of

Eknath Namdev Lashkare and others vs. Panchatara Properties

& Others1. Mr. Damle would urge, the reliance by the learned


1     2025 SCC OnLine Bom 4345.
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District Judge on the judgment in the case of Vardhaman

Developers Ltd. vs. Borla Co-operative Housing Society in Notice

of Motion No. 1081 of 2010 in Suit No. 1442 of 2009 was

completely misplaced.

13.   In opposition to this, Mr. Sunit Sonare, the learned

Counsel for Respondent No. 1 - Plaintiff, supported the

impugned order. Mr. Sonare assailed the tenability of the

petition on the ground that since the learned District Judge

passed an order in a Regular Civil Appeal under Order XLI of

the Code, a writ petition is not maintainable against such order.

14.   Even otherwise, Mr. Sonare would urge, the central issue

was that of non-cooperative members of the society putting

hindrances in the redevelopment of the society premises.

Therefore, only the Civil Court has the jurisdiction to grant the

reliefs of declaration and injunction.

15.   The objection of Mr. Sonare to the maintainability of the

petition need not detain the Court. It is true, the learned

District Judge has passed the impugned judgment construing

the appeal to be one under the provisions of Order XLI of the

Code; yet, the fact remains that the challenge before the learned

District Judge was to an order returning the plaint for

presentation to the proper Court under the provisions of Order

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VII Rule 10 of the Code. Such an order is appealable under the

provisions of Order XLIII Rule 1(a) of the Code. The appropriate

remedy against an order returning the plaint for presentation to

the proper Court is an appeal against such order as provided

under Order XLIII of the Code. Therefore, the impugned

judgment and order passed by the learned District Judge does

not assume the character of a decree and, consequently, not

amenable to second appeal under Section 100 of the Code. Writ

petition against an order setting aside the order returning the

plaint for presentation to the proper Court is the proper remedy.

16.   The legal position as to the interplay between the

jurisdiction of the Civil Court and the Co-operative Court under

the Act, 1960 is well settled by a catena of decisions. The

jurisdiction of the Civil Court is plenary and omnipresent.

Conversely, the jurisdiction of the Co-operative Court is

circumscribed by the provisions contained in the Act, 1960; in

the context of the controversy at hand, Section 91 under the

caption “disputes”. To attract the provisions contained in

Section 91, the twin test of the “type” of the dispute and the

“identity” of the parties must be satisfied. In other words, the

dispute must be of the “type” described in Sub-section (1) of

Section 91, and such dispute must have arisen between the

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parties who belong to any of the categories specified in Clauses

(a) to (e) of Sub-section (1) of that section.


17.   In the case of Margaret Almeida and Others vs. Bombay

Catholic Co-operative Housing Society Limited and Others 2, the

Supreme Court, after an analysis of the provisions contained in

Section 91, Section 163 and related provisions of the Act, 1960,

enunciated in clear and explicit terms that, the disputes which

are mandatorily required to be referred to the Co-operative

Court should be of the category which are referred to in Section

91(1), and such disputes must have arisen between the parties

to dispute who should belong to one or the other categories

specified under clauses (a) to (e) of sub-section (1) of Section 91,

referred to therein as, “enumerated persons”. The Supreme

Court exposited that, both the subject matter as well as the

parties to the dispute must be those specified under that

section. In other words, the Supreme Court clarified, if either of

the aforementioned requirement is not satisfied then the dispute

cannot be adjudicated by the Co-operative Court. If one of the

parties to the dispute is not an enumerated person, the

question, whether the subject-matter of the dispute is one which

falls exclusively within the jurisdiction of the Co-operative Court


2     (2012) 5 SCC 642.
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need not be examined. Similarly, if it is found in a given case

that the subject-matter of the dispute is not covered by Section

91, an inquiry into the question whether the parties to the

dispute fall under any of the categories enumerated under

Section 91 would become irrelevant.

18.   Keeping in view the aforesaid legal position and applying it

to the facts of the case, from a meaningful reading of the plaint,

it becomes abundantly clear that the action of Defendants Nos.

1 to 4; the purported non-cooperating members, is at the heart

of the controversy. Reference to the redevelopment and the

decisions taken, and the resolutions passed, by the Defendant

No. 5 Society, is in the nature of historical facts. What the

Plaintiff, in effect and substance, asserts is that, Defendants

Nos. 1 to 4 are bound by the decision of the Defendant No. 5

Society, and they have no right to put obstacles in the

development of the society premises and, therefore, Defendants

Nos. 1 to 4 be restrained from causing obstruction in the

redevelopment process.

19.   It is well-recognized that once a society is formed, the

individual member loses his independent identity. It is only

through the society that the individual member can speak. A

useful reference in this context can be made to the decision of

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the Supreme Court in the case of Daman Singh & Others vs.

State of Punjab and Others3, wherein the Supreme Court has

expounded the position of a member qua the society after it is

formed in the following words:

      “11. ….. Once a person becomes a member of a co-
      operative society he loses his individuality qua the society and
      he has no independent rights except those given to him by
      the statute and the bye-laws. He must act and speak
      through the society or rather, the society alone can act and
      speak for qua rights or duties of the society as a body. ....”


20.   The aforesaid decision of the Supreme Court was followed

by a Division Bench of this Court in the case of Girish

Mulchand Mehta and another vs. Mahesh s. Mehta and

another4.

21.   If the averments in the plaint are read as a whole and in a

meaningful manner in the light of the aforesaid position in law,

it becomes absolutely clear that the twin tests to confer

exclusive jurisdiction on the Co-operative Court to adjudicate

upon the dispute are not satisfied. Firstly, the dispute is not of

the type envisaged by sub-section (1) of Section 91 of the Act,

1960. Secondly, the Plaintiff, does not satisfy the identity

criteria prescribed in clauses (a) to (e) of sub-section (1) of

Section 91 of the Act, 1960. The mere reference to the decisions


3     (1985) 2 SCC 670.
4     2009 SCC OnLine Bom 1986.
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taken, and resolutions passed, by Defendant No. 5 Society in

the prayer clause (a) of the plaint does not convert the suit,

which, in essence, seeks the enforcement of the rights

emanating from the contract executed by Defendant No. 5

Society against minority members, into a dispute of the type

covered by sub-section (1) of Section 91 of the Act, 1960.

22.   The learned District Judge was justified in holding that

the dispute was not touching the business of the society, as

redevelopment of the society premises was not the business of

the society.

23.   There is no substance in the petition. Thus, the petition

stands dismissed.

24.   In view of dismissal of the petition, IA(ST)/24808/2026

also stands disposed.

                                          [N. J. JAMADAR, J.]




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