(1.) The defendant is a Co-operative Housing Society and has filed the present application seeking rejection of the plaint as being barred by law as contemplated under Order 7 Rule 11(d). It is also the case of the applicant that the suit discloses no cause of action against the applicant. The applicant- plaintiff has incorrectly filed the suit as a commercial suit when in fact the dispute is not a commercial dispute as contemplated under Section 2(1)(c) of the Commercial Courts Act, 2015. Apart from the nomenclature of a commercial suit, Mr. Mishra submits that the plaint contains no averment to support the plaintiffs' cause of action as a commercial dispute.
(2.) Mr. Mishra has highlighted the fact that the suit is in the nature of one seeking specific performance of the terms of a Memorandum of Understanding ("MOU") dated 16th May, 2014, no rights were created in favour of the plaintiff much less any right to initiate had to file the present suit as a commercial suit. Mr. Mishra submitted that the plaintiff has failed to comply with the mandate of Section 79A of the Mahrashra Co-operative Societies Act whereby the developer is required to comply with certain guidelines and having failed to carry out his obligations has now sought to hold the society liable in damages in a sum of Rs.10,52,95,962/-. The claim for damages is an alternative prayer. The main prayer in the suit is for a declaration that the cancellation of an MOU dated 16 th May, 2014 vide a notices dated 22nd October, 2018 and 1st February, 2019 are illegal and not binding upon the plaintiff.
(3.) A mandatory order is also being sought against the present applicant to execute a agreement of re-development in relation to the societies building. Permanent and temporary injunctions are also sought restraining grant of development rights to any third party. Mr. Mishra submitted that the plaintiff has failed to pay stamp duty on the MOU. The agreement was not registered and the plaintiff kept avoiding his obligations under the MOU. The attempt was to mortgage the society's land to a third party. The dispute thus is not in relation to any trade or commerce and it is simply an MOU pertaining to proposed redevelopment of the societies property to construct residential flats. It is contended that the society has called upon the plaintiff to execute a redevelopment agreement since the year 2015. However, till the MOU was terminated, the plaintiff had failed and neglected to comply. Mr. Mishra has sought to rely upon the correspondence in this respect. Thus, the principal submission on behalf of the plaintiffs and as canvassed by Mr. Mishra is that the present suit is barred by law viz. the provisions of the Commercial Courts Act, 2015. The applicant has therefore raised this bar as a preliminary issue of law which requires to be considered by this court before considering the interim application filed by the plaintiff in which the plaintiff seeks a decree for want of a written statement. The written statement was not filed within time as contemplated under the Commercial Courts Act and the applicant herein has also filed a separate application for condonation of delay.