Mcs act, 1960, rules and bye-laws of the society

Prakash S. B. (Querist) 18 December 2013 This query is : Resolved
A partnership firm (dealers in Computers and Computer peripherals, Software, Electric and Electronic items etc.) named “M/s Muktai Group” was formed on 01.03.2005 and three partners were carrying on business under a Partnership Deed dated 01.04.2005. One of the partners immediately retired under a Retirement-Cum- Partnership Deed with effect from 21.05.2005 and the two continuing partners continued to carry on the said business as equal partners.

Subsequently, in pursuance of an Agreement for Sale dated 30.12.2005 and on payment of the total consideration amount of Rs. 2,50,000/-, the two continuing partners were holding an Office Premises (on ownership basis ) bearing No. 18/G , admeasuring 4.83 Sq. Mtrs. (Built Up Area), in the Building known as Satyam Owner’s ‘B’ & ‘C’ Wings Co-operative Premises Society Ltd. and five fully paid shares of Rs. 50/- each in the Share Capital of the Society above-named with effect from 20.06.2007. The continuing partner and member of the said Society whose name appeared first in the Share Certificate bearing No. 0124 was “Pravin S. Pol” and the other continuing partner and associate member whose name appeared second in the Share Certificate was “Kishore D. Salunke”. As per the Balance Sheet of the partnership firm for the years 2007-08 to 20010-11, the said Office Premises is not an asset of the partnership firm above-named; it is, therefore, presumed that the partners had invested Rs. 2,50,000/-in the said Office Premises in their personal capacity. It appears that the firm was carrying on its business at the said Office Premises and the partners were receiving monthly rent or income from the said Premises.

Mr. Pravin S. Pol expired on 21.04.2010 and the said five fully paid shares of Rs. 50/- each held by him were transmitted to his wife in the name of “Mrs. Komal Pravin Pol” with effect from 03.12.2012 and the name of his wife appeared first in the Share Certificate bearing No. 0124 and the name of the other member (Kishor Salunke) appeared second and he continued to be an associate member of the said Society. The original documents, namely, Agreement for sale dated 30.12.2005 and the said Share Certificate remained in the custody of Mr. Kishore Salunke after the demise of Mr. Pravin S. Pol.

On 29.12.2012, two documents came to be simultaneously executed, namely, (1) MEMORANDUM OF UNDERSTANDING between Mr. Kishore Salunke of the FIRST PART and Mrs. Komal P. Pol of the SECOND PART AND (2) AGREEMENT FOR SALE between Mrs. Komal P. Pol of the FIRST PART and Mr. Kishore Salunke of the OTHER PART.

Under the MEMORANDUM OF UNDERSTANDING dated 29.12.2012 (Stamp Duty of Rs.100/- was paid by Mr. Kishore Salunke on 27.03.2012 as per Franking done thereon by Thane Bharat Sahakari Bank Ltd.), it was mutually agreed: (1) That Mr. Kishor Salunke will pay an amount of Rs. 10,500/- to Mrs. Komal P. Pol by cheque immediately, (2) That considering the capital investment and other investment of the deceased partner, Mr. Pravin Pol, and for finalizing the Account of the firm, Mrs. Komal P. Pol will give up all her claim on the partnership firm, including the said Office Premises situated at No. 18-G in the said Society, after Mr. Kishor Salunke pays the full amount of Rs. 3,50,000/- (including cash of Rs. 1,14,500/-) to Mrs. Komal P. Pol on 20.01.2013 as per the mode of payment mentioned therein and Mr. Pravin Pol’s debit / negative Capital Balance of Rs. 2,50,181/- as per the Balance Sheet of the firm as at 31.03.2011 is waived off, (3) That after signing the MOU, Mrs. Komal P. Pol will transfer the said Office premises in the name of Kishore Salunke and that, thereafter, Kishore Salunke will mortgage the Office Premises and pay Mrs. Komal Pol the full amount of Rs. 3,50,000/- and that the transfer of the said Office Premises in the name of Kishore Salunke will be invalid if Mr. Kishore Salunke fails to pay the full amount of Rs. 3,50,000/- to Mrs. Komal Pol within three months from the date of the MOU as agreed therein. On the date of signing the MOU, Mr. Kishor Salunke paid an amount of Rs. 10,500/- to Mrs. Komal Pol by a cheque dated 29.12.2012 and the balance amount of Rs. 3,39,500/- was payable to her on or before 29.03.2013 i.e. within the time frame of three months as agreed in the MOU.

Under the RECITAL to the AGREEMENT FOR SALE dated 29.12.2012 (Stamp Duty of Rs. 11,780/- paid on 24.12.2012 by Mr. Kishore Salunke on the basis of Market Value of the said Office Premises: Rs. 2,07,000/-), it is stated the Transferor (Komal P. Pol) was holding the said Office Premises admeasuring 2.415 Sq. Mtrs. Built Up Area, i.e. 50% Undivided Share of 4.83 Sq. Mtrs. Under the said Agreement, it was agreed as follows: Under Clause No. 2 (a) of the Agreement, it was agreed that Rs. 10,500 will be paid on or before the execution of these presents. Under Clause No. 2 (b) of the Agreement, it was agreed that Rs. 2,25,000/- will be paid on such other date as is mutually decided by the parties but not later than _______ 2013 simultaneously against actual physical vacant possession of the above said 50% Undivided Share in Office. The date was kept blank. It is pertinent to note that Mrs. Komal P. Pol was never in physical possession of the said Office Premises after her husband’s death and that Mr. Kishore Salunke was throughout in actual physical vacant possession of her 50% Undivided Share in the Office Premises. Under Clause No. 14 of the Agreement, it was agreed that subject to Clause No. 2 (b) of the Agreement, the Transferor (Mrs. Komal P. Pol) agrees to transfer the said shares and her interest in the said 50% Undivided Share in Office Premises to the Transferee (Mr. Kishor Salunke).

Till date, Mr. Kishor Salunke has neither paid the balance amount of Rs. 3,39,500/- under the said MOU dated 29.12.2012 nor has he paid the balance amount of Rs. 2,25,000/- under the said Agreement for Sale dated 29.12.2012. Shockingly, Mr. Kishor Salunke, in collusion with the Secretary of the said Society, succeeded in getting the said shares transferred in his name with effect from 04.01.2013, i.e. within 32 days from the date of the previous transfer of shares in the name of Mrs. Komal P. Pol (03.12.2012). He is also claiming 100% Undivided Share and interest in the said Office Premises, i.e. 4.83 Sq. Mtrs.

QUERY: Please suggest appropriate and necessary legal steps priority-wise as Mrs. Komal wants to take legal action against the Secretary of the Society and Mr. Kishor Salunke (including criminal action against Mr. Kishor salunke if his acts amount to cheating and / or fraud) for illegal transfer of shares and cheating. She wants to restore her legal rights in relation to the said five fully paid shares and her 100% share in the said Office Premises, if possible.

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