Criminal Trident Pack: IPC, CrPC and IEA by Sr. Adv. G.S Shukla and Adv. Raghav Arora
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Dilip Prajapati   20 June 2022

Passing resolution in agm against chs model bylaws

I have lodged complaint against society committee in consumer court. This is because during monsoon, there is leakage in my bedroom and kitchen ceiling from upper floor tenant whose terrace runs from my kitchen to bedroom (upper floor has private terrace flat). Now society has passed resolution in the AGM that legal expenses spend by society for this case will be recovered from me. This is totally wrong and unfair. I require advice / guidance for this.

Thanks,

Dilip



Learning

 6 Replies

Mahi Manchanda   21 June 2022

HI,

Section No. 44 to 47 of the model bye-laws of Co-operative Housing Society, mentions the details of members’ responsibilities with respect to clean maintenance, permission for addition and modification in flats, flat examination & reporting repair notices, storage restrictions, making peace with other members, action on bye-laws violation, etc. Hence, it was the duty of the society to ensure the leakage was repaired.

Further, cooperative housing societies cannot recover legal expenses from members fighting cases against them. Any resolution to that effect is illegal and arbitrary. Only a court can direct the respondent society to recover legal expenses as cost from the applicant member no other body has the jurisdiction.

The section 12 of Maharashtra Ownership Flat Act 1963 does not mention legal charges as one of the liability of flat owners therefore it cannot be taken into consideration.

This was a ruling made by the deputy registrar of cooperative societies in a case filed by Mr Ajay Panicker.

I hope this answers your question.

Have a good day!

Dilip Prajapati   22 June 2022

Thanks Sir for your detailed advice / response. This has boosted my confidence to fight with society for unfair practices folowed by them.

Thanks and Kind Regards,

Dilip

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     24 June 2022

The Section 2 (42) of the Consumer Protection Act, 2019 says

Section 2

(42) “service” means service of any descripttion which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supplying electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.

As one can see, the Act does cover services rendered free of charge.  A co-operative housing collects funds from its members to defray various expenses on behalf of the members. Excess amount, if any, collected should be credited back to the account of the members or adjusted against future expenditure. The Society cannot make any profit. The term 'profit' is used to mean any excess collected from the members. Hence a Co-operative Housing Society is not a service provider under the Consumer Protection Act.

Actually the lawyer of the Co-operative Housing Society can file a writ of prohibiton in the High Court against the Consumer court. But the lawyers are not generally that knowledgeable..

If leakage happens from an upper floor to a lower floor either the upper floor member or the Society or both may be responsible. It is necessary to sue both of them. The consumer court will say that the upper floor member is not a service provider and that the court cannot issue orders against him.

Actually such cases should go to the cooperative court which can issue orders to both the Society and the upper floor member. 

The complaint of the member is that the Society is asking him to defray its legal expenses of the Society. If the case is dimissed with costs, the complainant will have to pay the costs. Otherwise the Society will have to pay. What is the source of income of the Society? The Society will have to recover the cost from all the members including the complainant member. If the complainant has to complain against the General Body resolution, he will have to complain to the registrar or to the co-operative court.

In a similar case in Mumbai 10 years back, the consumer court ordered the Society to pay and let off the upper floor member. The Society held a General Meeting to ask the members to contribute. The resolution could not be passed as the members refused to pass it.  Only co-operative courts can handle such cases.

Dilip Prajapati   24 June 2022

Thanks for your detailed respons.

Dilip

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer)     25 June 2022

Actually the member need not worry about the AGM resolution because the balance of convenience in this case favours the member. If the member refuses to pay costs as per the AGM resolution can the Society afford not to contest the case?  If the Society does not respond to the notices, the member can pray to the court for ex-parte order. Mr.Dilip Prajapati do not get agitated with AGM resolution. Just ignore it.

Dilip Prajapati   25 June 2022

Thanks Sir for your valuable support.

Dilip


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