Legal mc committee & bank loan
Sanjay
(Querist) 29 July 2014
This query is : Resolved
Sir,
I am residing in CHS Mumbai (Mhada bldg - not yet conveyance).
Our secretary had expired in May' 2012 & chairman post vacant for 4-8 years. Only treasurer was there.
In June 2014 we all members came together & form committee, I am as chairman.
But we did not inform to Dy.Registrar about newly elected MC committee (which needs to be informed withing 15 days ) & not filled any M-20 bond cause new secretary is having heart problem dont want to work. Nobody (members) ready to take any position in MC committee.
Old secretary (expired in 2014) who had taken loan from bank by mortgaging society.
out of 16 members, 10 members paid bank loan but rest 6 members did not paid cause
there was misappropriation of fund by expired secretary MC & MC committee was illegal, did not filled m20 bond & dont have breakup of amount spent which needs to be collected from remaining members.
now bank started sending notice to chairman/secretary to pay dues or else will attached bldg.
please suggest,
1.whether our new committee is legal or illegal ?
2.we want to form good legal MC committe urgently so that we can communicate with bank.
3.whether there any legal harm to new committee ?
4.as society is mortgage but bank cannot recover from indivisual members. whether there is harm to all members ?
your suggestions are valuable to us.
R.K Nanda
(Expert) 29 July 2014
consult local lawyer.
V R SHROFF
(Expert) 29 July 2014
TALK WITH AST REGISTRAR CHS
Sanjay
(Querist) 29 July 2014
Sir, Thanks for reply.
Any other provision to at leat form new mc committee without dy.registrar's concern as member strength 16 only ( as per 97th amendment elections will be held after 31st Dec 2014 with the help of Election Authority).
In 2005 myself & few members had a lot of communications to Dy.Registrar to appoint administrator & get accounts checked but after many folloups for many years there was no response. Nothing happened.
In 2006-7 old secretary (expired) filed 101 recovery case but society loose the case due to non submission of m20 bond & ordered not to raise any bill to members as mc committee dont have any rights to do so.
Sir, what can I do alone as other members are not ready to even support me nor ready to do anything themselve, I am worried for everybody.
ajay sethi
(Expert) 30 July 2014
request registrar to appoint administrator for society . file RTi applications if no reply received .
in the meantime chairman/secretary should reply to legal notice received from bank .
Sanjay
(Querist) 30 July 2014
Thanks for reply Sethi Sir.
We had formed committee in June'2012 & as per by laws it is obligatory to execute M20 bond, submitt to registrar along with the new committee details, which was not done & hence whole committee & post seems to be vacated. Committee is defunc since then. So committee will not get any help from Secretary.
Sir, whether committee is authorised to accept or reply any communication ?
if we accept then it will prove that we continue on post without bond & informing registrar.
ajay sethi
(Expert) 30 July 2014
bond is no longer required from september 2012 . however since new committee was elected prior to september 2012 bond was necessary at that time .
however you have to reply to legal notice issued by bank . In any case all members of MC shall be jointly and severally responsible for all decisions taken by the managing committee during its term relating to the business of the society and shall be jointly and severally responsible for all acts and omissions detrimental to the interest of the society…”
M V Gupta
(Expert) 30 July 2014
It is not clear from ur narration whether the bank loan and mortgage of the Society's bldg was done with the approval of the General body. If not the mortgage and the loan are not valid and binding on the Society.Under the amended MCS Act the existing committee is allowed to continue in the Office till 31 December, 2014. Hence In order to protect the interests of the Society it would be appropriate for the Secretary to reply to the notices issued by the Bank in consultation with an Advocate. Otherwise the present members of MC, being in de facto control of the affairs of the Society, would be personally liable for negligence and causing damage to the interests of the Society.
Sanjay
(Querist) 30 July 2014
Thanks for reply Gupta Sir.
Ours is 50 year old Mhada bldg. The Secretary was acting like dictator.
It is coop bank loan where society is mortgaged for 10 lacs (pending now 3.5 Lacs for 6 members). He took affidavit from 15 members out of 16 & one member did not give concern to bank but dont know still how the society got mortgage.
In 2004 it must have passed in General Body but no one executed M-20 Bond. So their decision / signature should have null & void & only they should hold responsible for repayment.
We regularly asked for breakup of amount & bill against which we can make the payment but he was not having all details. Many ad-hoc payment done & contractor who was bogus (local icecream shop wala shown as contractor - he still there). contractor left work half way & secretary carried out remaining work with local mistry/bigari etc & paid all in cash to them.
Society's authorised supervisor certified work & amount to be paid to contactor 2.9 lacs only. Secretary did not listen & paid more than 7 lacs to contractor.
We had sent letter to secretary that we will pay our share according to certified amount 2.9 lcas which was mentioned in letter.
No audit report since 2005 or 2008.
All these facts were highlighted to Dy.Registrar to take action in those days but was no output. We have copies of documents.
Now other members are not that much knowledgable but due to bank matter nobody want to come forward to help themselves. But still I want to make everybody relax about their home.
As an individual I had spend my own money many times while fighting but now money & their support is must for me alongwith right direction's guideline from you experts.
Secretary expired leaving no legal heir behind & his flat is empy since May' 2012. We have seen Secretary was alone since more than 20 years, no gust, no relative but one person claiming his cousin to claim his property but not yet got possession due to some dispute with other claimer.
Chairman left house in 2005-6 since then there was no chairman & secretary was sole for doing anything what he wish. he died by over drinking leaving all members in problem.
In June 2012 I came forward to form committee & elected as Chairman but after few days new secretary refused to work at all & nobody want to come & take charge. I am too find myself helpless without secretary.
Sirs i know this very complicated issue, sometimes it may be difficult for you to guide me without any documents but for me right guidance is SOMETHING IS BETTER THAN NOTHING.
My sincere Thanks to you all experts.
T. Kalaiselvan, Advocate
(Expert) 01 August 2014
Your query has been properly addressed by experts, especially by Mr. Gupta. You may follow it. Please be brief and precis in your query, lengthy queries do not attract proper issues to be addressed.
M V Gupta
(Expert) 01 August 2014
DEAR MR. Sanjay, the circumstances in ur Society reg managing the affairs is no different from many other Societies of ur size. U may have to motivate ur members to unite and contribute requisite money to defend the property and also to regularize the administration of the Society's affairs. In such small Societies it is one active member that counts and others simply follow. Hence do ur best and take immediate action under guidance of an advocate. You may also consider discussing the issue with Asst Registrar of CS and seek his guidance.One more suggestion: if many members are old or ladies and not inclined to take part in the management of the affairs of the Society, pl involve their sons by making them Associate members and draft them into the MC so that u can get their support.
Sanjay
(Querist) 01 August 2014
Thank you Gupta Sir & Kalaiselvan Sir.
Yes Sir I'll do my best.
In above regards Iwould like ask below query.
If all members comes together & calls general body metting (meeting not called by old committee as does not exists)
1) old committee desclared as dismissed by general
2) new committee form by general body on date say on 30/06/2012
now if the M-20 bond need to submit within 45 days & assume 45th day is 12th September'2012. if new committee does not file bond saying it M-20 bond cancelled effect from 6th September'2012 ?
can this point be considered & valid to have committee to continue ?
Thanks.
Sanjay
(Querist) 02 August 2014
Thank you Sudhir Sir for reply.
The contractor was his paying guest very long time back & even today u can see that contractor selling icecream & other stuff with very small shop near station.
He was shown as contractor for as part of preplanning. It was second lowest tendor. He shown company name & address which does not exists at all.
Adhoc payment made to him even after general body asked him not to pay single paisa without authorised supervisors approval. He paid around 7-8 lacs to him but authorised supervisor certified amount to be paid only 2.9 lacs as per work.
Pest control done in 4-5 members home & not in ours but we have to pay that charges as well.
Beyond this mejority 12 members out of 16 approach registrar with all concern.
I am not only one but 12 members out of 16 cant be wrong.
Beside this there lot of things like are there cont write.
He was alone & jobless till end but his home was running. He had hiddenly given concern for redevelopment to builder which came out fater 2-3 years. He was regular drunker & chain smoker & his death might be due to that.
M V Gupta
(Expert) 02 August 2014
Bond or no bond. The committee constituted on 30-06-12 has been looking after the affairs of the Society. That is why you will be regarded as in de facto control of the Society. I hope u have registered the particulars of ur Society with the Registrar as per directions issued by him. If not pl do immediately. For details u may contact the Registrar's Office or search on the web site of "www.mswhousing.org". Now elections can be conducted by housing Societies only under the supervision of the Election Authority appointed under the recent amendments to MCS Act after 31-12-2014.
Sudhir Kumar, Advocate
(Expert) 03 August 2014
You have asserted embezzlement of fund.
It is criminal offence and complaint can be made in thana.
but you how to prove how much money is embezzled and how.
have the funds been audited with reference to details of receipt, details of bank deposited/withdrawal, bills of expenses.
Mere provision of pest control in few houses is not a fraud. fraud comes when records show expenditure for all houses.
Nothing is understood from what role do you assign for contract.
Sudhir Kumar, Advocate
(Expert) 03 August 2014
as far as embezzlement is concerned, you commented nothing on the role of Treasurer.
Your home work is not complete.
Sanjay
(Querist) 16 August 2014
Thanks for reply Sudhir Kumar Sir.
Agreed with your points.
Sorry for delay in reply. I was out station with no internet access.
Sanjay
(Querist) 06 October 2014
Sir,
10 out of 16 members paid complete Society's dues. Rest secretary file case for 101 recovery & lost the case & those 6 members won the case. in 2008, now those 6 members saying that pass resolution in general body that these members can pay only ruppes 18k only instead of 60k as per the certified amount given by project supervisor. (as it comes 18k). Can General Body pass such resolution & waive of rest amount & provide them full & final settlement & no due certificate after payment ? wheather this GB resolution can be challenge ?
Please advise
