Malicious intention of MC in Vikhroli CHS

Ashok Shetty

I am an owner of flat no- 5930, Bldg. No.174, Kannamwar Nagar, Vikhroli E, Mumbai 400083, Maharashtra staying in Anasuyasoot Cooperative Housing Society Ltd. for more than 37years with my family.

Due to malicious intentions and personal grudge secretary Mr.Vijay Chiplunkar and chairman Mr Surendra Sawant and all the committee members are harassing me by refusing to allow me second membership in the society for the neighbouring flat 5929.

There is no dues pending to society or any LIEN on the said flat 5929. There is also no dues pending to society from my side as on date.

While i have applied for a home loan of Rs.25,00,000/- towards the purchase of this flat through Abhyudaya bank. Society is harassing me and Mrs Godbole. When Godbole requested to issue NOC to me for the bank loan, Society asked her to first resign and then discuss further things.

Society chairman/secretary is harassing me by not accepting my written applications and insist to do only personal and oral communication, which i do not agree with them.

Society chairman/secretary were exposed about his false talk/ his lie in front of all members by me. The chairman, secretary and committee members are now trying to spoil  my family hard earned good image in the society for the last 37years. Secretary and Chairman is threatening to beat me if i take the case further and harassing me by their intention of definitely not issuing the Bank NOC so that i face financial loss to the tune of Rs.25,00,000/-

I was completely surprised when all of a sudden without any notice to me or any information to me, topics relating to transfer of shares of room no.5929 along with my consent letter for second membership application and topic relating to my expulsion from society was put for discussion in the AGM held on July 13, 2014 at Manohar Kotwal Trust, Madyamik Vidyalay, Vikhroli .

More so, without giving me any opportunity to talk or represent my say on the subject discussed, they unfairly passed 2 biased resolutions:

1.Not to allow me second membership in society.

2.To expel me after 6months.

Society refuses to take letter and acknowledge my letters/complaints given to them in person, which forced me to send it by speed-post AD, which again is REJECTED by them.

Sale agreement is duly registered and Mrs. Godbole owner of room no.5929 (presently staying in Mulund) has sent transfer papers in relevant forms with fees and my membership application in relevant forms with fees sent by speed post AD on 11 August 2014 but it is REFUSED on 14 August 2014, result -envelope is onway back by postoffice to sender Mrs. Godbole.

Notice issued on notice board on 3 August 2014 that society will not accept any communication by speed post from members staying in society and that communication be done in person only at society office remaining open only on 1 and 2 week Sunday of every month from 11.30-1.30pm,

Also communication with society be done only in Marathi or Hindi. a resolution is passed in the committee meeting held on 27 July 2014 that communication in English will not be considered.

I have full faith in democracy and in the law of land and i have equally respect for marathi and Hindi.

I will be grateful to you if you can please inform me what i can do, to seek justice.

Ashok Sanjeeva Shetty

I C Naik

1.The Complaint appears genuine and I would like to offer workable advice.

2.The information furnished call for certain vital assumptions. If assumptions go wrong so will the advice.

3.The Society was registered some time in 1977 and publicly available model bye-laws is only the one approved in 1984.

4.The Society has not amended its registered Bye-Laws.

5.Consequently Bye-Laws concerning following matters are to be assumed to be those as per Model Bye-Laws 1984, at a peril of reaching faulty conclusions.

(A)Bye-Law No 40 to 42 – Transfer of Shares and Interest in the Capital/Property of the Society

(B)Bye-Law No 47 – mortgage of flat to take loan to buy the flat.

(C)Bye-Law No 63 –Member holding more than one Flat

6.The requirements under these Bye-Laws are briefly stated as under:

Bye-Law No 40 to 42;

40.

(a) A member, has to give 15 days’ along with the consent of the proposed transferee using prescribed forms.

(b) Secretary to confirm eligibility to transfer considering Section 29(2)(a) of the Act.

(c)If ineligible inform within 3 days.

(d) If eligible inform the member within 3 days to make the compliance as under.

(i) To submit an application, for transfer in the prescribed form, along with the share certificate;

(ii) to submit an application for membership of the proposed transferee in the prescribed form;

(iii) to give valid reasons for the proposed transfer;

(iv) to discharge all the liabilities to the society;

(v) to pay the transfer fee of Rs. 50/-;

(vi)to remit Rs. 10/- entrance fee of the proposed transferee;

(vii) to pay the amount of premium at a rate to be fixed by the general body meeting,

(viii) to submit ‘No objection’ certificate, if required under any law;

41(a)The Society shall not refuse any application for admission to membership or transfer of shares and interest in the Capital/Property of the society except on ground of noncompliance of the provisions of the Act, the Rules and the bye-laws of the society.

(b) If the decision of the Committee on the application within 3 months of its receipt, the transfer application shall be deemed to have been accepted and the transferee shall be deemed to have been admitted as a member of the society as provided under Section 22(2) of the Act.

(c) Any transfer made in contravention of the Act, Rules or the bye-laws-laws shall be void and not effective against the society.

42.The transferee shall be eligible to exercise the rights of membership on receipt of the letter in the prescribed form from the society.

47.A member borrowing to buy a flat does not require society’s permission to mortgage the flat.

63 –Holding more than One Flat

(a) No individual member allowed to hold more than one without the previous consent in writing  of the Committee of the society.

(b) The member, shall make an application to the Secretary of the society in the prescribed form, giving full justification for holding the additional flat.

Statutory Provisions

Section 23 – Open membership  is relevant to admission to membership

(1) No society shall, without sufficient cause, refuse admission to membership to any person duly qualified there for under the provisions of this Act and its by-laws.

[(1A) Where a society refuse to accept the application from an eligible person for admission as a member, or the payment made by him in respect of membership, such person may tender an application in such form as may be prescribed together with payment in respect of membership, if any, to the Registrar, who shall forward the application and the amount, if any so paid, to the society concerned within thirty days  from the date of receipt of such application and the amount; and thereupon if the society fails to communicate any decision to the applicant within sixty days from the date of receipt of such application and the amount by the society, the applicant shall be deemed to have become a member of such society. If any question arises whether a person has become a deemed member or otherwise, the same shall be decided by the Registrar after giving a reasonable opportunity of being heard to all the concerned parties.

Rule 24 of the M.C.S. Rules 1961 is also relevant

24.Procedure for transfer of shares:-

(1) No transfer of shares shall be effective unless,—

(a) it is made in accordance with the provisions of the by-laws;

(b) a clear fifteen days’ notice in writing is given to the society indicating therein the name of the proposed transferee, his consent, his application for membership, where necessary, and the value proposed to be paid by the transferee;

(c) all liabilities of the transferor due to the society are discharged; and

(d) the transfer is registered in the books of the society.

(2) Any charge in favour of the society on the share so transferred will continue unless discharged otherwise.

Relevant Facts briefly re-stated

1.Mrs Godbole has sold flat No 5929 to Mr Ashok Shetty holding flat 5930 and asked the managing committee to issue NOC to Shetty for taking loan to pay the flat price to her.

2.The Committee refused to give NOC.

3.On July 13, 2014 without giving Shetty any opportunity to represent his views the Society passed 2 resolutions in annual general meeting

a.Not to allow Shetty second membership in the Society

b.To expel Shetty from membership after 6months.

4.Sale agreement is duly registered and Mrs. Godbole owner of flat no.5929 (presently staying in Mulund) has sent transfer papers in relevant forms with fees along with  Shetty’s membership application in relevant forms with fees sent by speed post AD on 11 August 2014 but taking delivery was REFUSED on 14 August 2014. Shetty owns the flat subject to approval by the Society.

5.Notice issued on notice board on 3 August 2014 that society will not accept any communication by speed post from members staying in society and that communication be done in person only at society office remaining open only on two  Sundays every month for two hours namely 11.30-1.30pm.

6.Also communication with society be done only in Marathi or Hindi, a resolution is passed in the committee meeting held on 27 July 2014 that communication in English will not be considered.

7.The motive for alleged harassment by officers to member is not clear.

As regards refusing membership of cooperative housing society the managing committee has very little choice and Administration as also  Cooperative Society Law favors a legitimate buyer of a flat. The requirement of NOC has been waived by the Commissioner and Registrar of Cooperative Societies as per subsequent Models of Bye-Laws. That is the thinking in the Administration.

Ashok Shetty’s immediate goals are

a.to get loan to pay off Mrs Godbole for the flat 5929 owned by him

b.To get the flat 5929 is recorded as second flat held by him.

Since he is already a member, it is immaterial whether he is made a member once again.

At the outset let it be understood that two Resolutions passed  in annual general meeting are not tenable. The Committee’s decision to prescribe a particular mode of communication and specific language is wrong and without authority as that is at best the decision of the general body meeting. Since Mrs Godbole does not stay in the Society after the sale of flat, refusal of communication is against the decision of the Committee itself.

Course of action:

a.Loan from the bank:

For taking loan to pay price of the flat being mortgaged the Society has no say in the matter. Shetty can create an equitable mortgage by deposit of title deeds (registered agreement in original) with an undertaking to return loan if he failed to get the flat transferred in his name on the Society’s records.

b.To get the flat 5929 is recorded as second flat held by Shetty

1.Section 23 and Rule 24 both lay emphasis on adherence to procedure prescribed under Bye-Laws which have been violated by Mrd Godbole in not giving 15 days’ Notice. In that her case is some-what weak. But the fact that flat is sold to an existing member is on plus side as refusal to the existing member could be held as not an unbiased decision of the Committee.

2.Notwithstanding the defect in application (absence of 15 Days’ Notice)  Mrs Godbole has a right to be heard on her application for transfer the acceptance of which was refused by the Committee, itself an illegal act.

3.As provided under Section 23(1A) Mrs Godbole should submit all the papers which the Committee refused to accept in the office of Deputy Registrar N ward Annex Bldg.,Jawahar Road, Ghatkopar (E),

Mumbai-400 077. These papers will reach the Society within 30 days and within 60 days the Committee is bound to either accept her before application or reject giving reasons. The Committee’s decision can be challenged  before the Dy Registrar in the same office.

4.There is another course which Mrs Godbole can simultaneously take up under Consumer Protection Act 1986 and file a complaint against the Society for deficiency in service of attending to the member’s application. Address is as under:

Mumbai Suburban Dist. Forum

Administrative Bldg. 3rd Floor

Bandra Govt. Colony, Near C.B.D.

Bandra (E),

Mumbai-400 034.[ 022-26551625]

e.In the meanwhile Shetty should deposit in office by hand delivery an application to allow him hold neighborhood flat giving reasons as to why he needs that flat.