Urgent help/advice please - tenant co-partnership society

Associate

Tenant Co-partnership Society: The Society hold ownership of both land and building either on freehold or leasehold.  the member has only a share in the property as a whole and no claim to a particular house or tenament.


In a suit for specific performance where the flat is situated in a tenant co-partnership society, should the Society be included as a necessary party? Under what circumstances should the Society be included as a necessary party to a suit?


Although Plaintiff has accused the Society for being accessory to the Defendant not concluding the sale, they have not been impleaded as a party to the case. Will this be fatal to the case?

 

 
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Advisory/Advocacy

If the sale is not ultra vires the co - partnerhip agreement ( which should govern the sale ), Plaintiff's name should suffice....

 

 

Enlighten me to the other side. ( if any )

 

 

Regards

 

Chetan(dot)7679(at)gmail(dot)com


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Scientist/Engineer

Generally a tenant co-partnership Society is a Co-operative Housing Society. In such a Society the Society is deemed to be the landlord and the members are tenants. But the tenancy is a saleable commodity. A member can sell his or her tenancy rights along with his membership. In theory the Society’s approval is necessary for the transfer of the rights and membership. But such approval cannot be denied without valid reasons. In most States there are laws which prescribe open membership. Hence it is almost impossible to deny transfer and membership to the new-comer. Further if one considers the situation in this country, where the law favours the law-breakers, Societies are helpless to prevent transfers. Co-operative Societies are governed by the Co-operative Societies Act and Rules of the State and by byelaws of the Society. The byelaws have again to be approved by the Registrar of Co-operative Societies. The byelaws prescribe the procedure for transfer. The outgoing member should first introduce the proposed in-coming member to the Society and get its approval, then complete the transaction as in the case of transfer of any immovable property and further on the outgoing member tenders his resignation and the incoming member applies for admission and “allotment” of the house or flat as the case may be. The Managing Committee is empowered to act on behalf of the Society.

If a dispute arises between the parties to the transfer, it is essentially a dispute between the buyer and the seller only. But it is advisable to keep the Society in the loop as ultimately the Society has to admit the buyer as member and allow him to enter the building and occupy the house. In actual practice however the Society is kept in the dark by the contending parties.

I believe the plaintiff is the buyer and defendant is the seller. It is not necessary to implead the Society as a party. If the officers of the Society interfere, it is illegal and a separate issue.


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Associate

Thank you Dr MPS Ramani for that perfectly lucid reply. I am grateful for your insights.


Plaintff sued for Specific Performance. Society was not approving the transfer becasue the Plaintiffs were refusing to submit the necessary forms. In this case, after the Defendant submitted his Notice of Intention to Transfer - Form 20 (1),  the Society requested the Plaintiff to submit the necessary documents for transfer as per its bye-laws - namely, Forn 20 (2) [Consent of proposed transferee] and Form 23 [Application for Approval of memership of proposed transferee].


Now the Plaintiffs did not submit the required documents [there was some history between that society and the Plaintiffs from before which the defendant was not aware of]. And Plaintiffs wanted the society to give its approval without their submitting the required forms. So the Society never gave its approval. There were huge fights between the Plaintiff and the managing committee members of that society.

 


Can the defendant be held responsible if society did not provide its approval after she already applied for approval? Even if the Defendant is obliged to obtain Society approval for transfer how can he if Plaintiff never submits the forms?  


Is refusal to submit/not submitting  the necessary forms to the Society as a repudiation of contract by the Plaintiffs?

2 years after the above incident, the Plaintiffs deposited the balance money in Court. Is the Defendant still obliged to sell the property after the Plaintiffs have already repudiated the contract?

 
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Scientist/Engineer

Madam,

Is that your photograph. If so, you are really beautiful. Don't get upset. My grand daughter may be as old as you.

Please let me first know the following:

1. Is the Co-operative Housing Society in Maharashtra?

2. Who is the Plaintiff? The transferor, transferee or anybody else?

3. Who is the defendant in the affidavits or other documents submitted to the court?

Subject to your answers to the above questions my opinions are as follow:

1.This is a matter, which should have been finished in three months at the most.

2. The Managing Committee is perfectly right in refusing to transfer the flat.

3. I do not understand the refusal to submit the necessary forms. Can you not understand the Society has not only to know the identity of the transferee, who would be a future member but also see him/her in flesh and blood. The law was always on the side of the Society and now it is even more so with all the terrorist threats around.

4.In any organisation a person cannot be admitted as a member without an application for membership. Membership is mandatory for occupying a flat as a tenant.

5. In which court is the case pending, a civil court or a co-operative court? In any court it is well-known in India that it  will take ages to settle matters. Probably the grandchildren of the present litigants may get justice

6. The full amount has not been paid means the stamped sale deed has not been executed. The stamp duty may have increased in 2 years.

7. As refusal of the Society is the reason for the suit, I presume the Society also may have been included as a defendant.

8. As you have already gone to court, either you wait for the order of the court or let the Plaintiff and Defendant together withdraw the case from the court, saying that they would mutualy settle the matter out of court.

9. Pay the full amount, execute the stamped transfer deed and register it.

10. Submit to the Society all the documents asked for by the Society without any murmur and wait for the approval of the Society. The Managing Committe is allowed up to 3 months to communicate their decision. If the Society gives no reply within the period, the applicant shall be deemed to have been admitted as member and he or she can  occupy the Flat.

11.If the Society refuses to accept the documents, submit the documents to the Deputy Registrar of your Ward. The Registrar will send the documents to the Society and ask for action within 2 months. If the Society does not reply or gives a reply refusing the admission of the new member, but without giving valid reasons, the Registrar will issue an order admitting the member.

12. After the documents are submitted to the Registrar, you do not have to wait for his order.

13. Let the transferee get a coveat from a court, saying that he should not be evicted or any other action taken against him without giving him a hearing in a court of law.

14. The transferee  can then occupy the flat stealthly or otherwise. Give a copy of the coveat to the Society.

Once all these are done, if Society calls the Police to evict the occupant, they will not come or at the most the Transferee may be called to the Police Station. If a copy of the coveat is given to the Police, they  will not take any action. Now the ball is in the Society's court. The transferee can wait  aaraamse.

Who is your lawyer? Does he not know co-operative law? Or is he deliberately dragging you to court so that he can earn money?  I am not at all a lawyer. I learned law the hard way because of such lawyers.

If you have any further questions call me on 9930305131. If you are in Mumbai, you can visit me if you want  any advice. I will not charge any fees. Who will not welcome such a beautiful girl? Don't worry. My wife is always here at home.


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Associate

Thank you. Yes it is my photo :- )


 

1. Is the Co-operative Housing Society in Maharashtra?

Yes, it is. Case was filed in 2003. Trial has commenced.

2. Who is the Plaintiff? The transferor, transferee or anybody else?

The Plaintiff is the Transferee. He lives in the same society.

3. Who is the defendant in the affidavits or other documents submitted to the court?

The Defendant is the Transferor

Subject to your answers to the above questions my opinions are as follow:

1.This is a matter, which should have been finished in three months at the most.

It has now come to the trial stage

 

2. The Managing Committee is perfectly right in refusing to transfer the flat.

Agree

3. I do not understand the refusal to submit the necessary forms. Can you not understand the Society has not only to know the identity of the transferee, who would be a future member but also see him/her in flesh and blood. The law was always on the side of the Society and now it is even more so with all the terrorist threats around.

I think he refused because he was trying to buy time. He did not have money to pay the balance even after filing the suit, so by delaying submitting the documents he could gain additional time. He was supposed to pay within 60 days after approval for membership was received. So by delaying the approval for 2 years he was able to buy time.  He has kept mum about all this in his Plaint and it is only now that the Court will see the defendant’s evidence.

Also he purposely sent legal notices with wrong name (last name), address and telephone number. So the Defendant never received his alleged notices

 

4.In any organisation a person cannot be admitted as a member without an application for membership. Membership is mandatory for occupying a flat as a tenant.

Agree

5. In which court is the case pending, a civil court or a co-operative court? In any court it is well-known in India that it  will take ages to settle matters. Probably the grandchildren of the present litigants may get justice

Civil Court

6. The full amount has not been paid means the stamped sale deed has not been executed. The stamp duty may have increased in 2 years.

He has only paid 10% advance. And has not taken possession. He has not done any substantial acts either. The equity is not in his favour (my humble opinion – am I right?)

7. As refusal of the Society is the reason for the suit, I presume the Society also may have been included as a defendant.

 

8. As you have already gone to court, either you wait for the order of the court or let the Plaintiff and Defendant together withdraw the case from the court, saying that they would mutualy settle the matter out of court.

The flat has gone up 10 times in value in 10 years. So Defendant does not want to sell now. Defendant will be homeless if he is forced to sell.

 

9. Pay the full amount, execute the stamped transfer deed and register it.

10. Submit to the Society all the documents asked for by the Society without any murmur and wait for the approval of the Society. The Managing Committe is allowed up to 3 months to communicate their decision. If the Society gives no reply within the period, the applicant shall be deemed to have been admitted as member and he or she can  occupy the Flat.

They never submitted the documents and Society has written that since application is incomplete they cannot take any action. So he abused the members and threatened them. Society also filed a police complaint against plaintiff. This will come at trial stage now.

 

Who is your lawyer? Does he not know co-operative law? Or is he deliberately dragging you to court so that he can earn money?  I am not at all a lawyer. I learned law the hard way because of such lawyers.

He is acting strange, like he is siding with the Plaintiff. I don’t know why I get this feeling; I think he is trying to make more money. I hope they change the lawyer.

If you have any further questions call me on 9930305131. If you are in Mumbai, you can visit me if you want  any advice. I will not charge any fees. Who will not welcome such a beautiful girl? Don't worry. My wife is always here at home.

Thank you for your kind offer. 



 
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Scientist/Engineer

I was thinking that it was only two years. Now I find that almost 10 years have lapsed. You would have had a good case.  But due to lapse of time and no proper action on your part, the case would have got weakened on your side. The jurisdiction may be that of the civil court, because the Plaintiff is still not a member of the Co-operative Society.  But the case has to be decided on the basis of the Maharashtra Co-operative Societies Act, 1960 and the corresponding Rules. Your lawyer should have submitted before the court at the admission stage itself that the case should have come under the jurisdiction the Co-operative Court, because the Co-operative court only was equipped to decide the case on the basis of the relevant Acts and Rules. He also should have stated that the Plaintiff had purposely not included the Society because, if he had done so, the lapses on the part of the Plaintiff would have come to light.

As I have stated in my previous post in the procedure for transfer of a flat in a Co-operative Housing Society, all the transactions between the two parties for transfer, such as making full payments, executing the stamped transfer deed and its registration should have been completed, before the transferee member approaches the Society for the transfer and his admission as the new member. But the Plaintiff has gone in the reverse direction deliberately to delay payment. You may not be able to argue now that he did not pay the full amount within 60 days of the advance payment as it is too late.

Ask your lawyer to argue all the points stated above and also that as prices have gone up considerably and the circumstances also have changed in 10 years, you no more want to sell the flat. Hence pray to the court to dismiss the case.

If the court doesn’t do that, file another case for the cancellation of the deal.  Probably the case to quash the present case can be filed in the High Court also. You have to check. Your fight may be expensive, but it may be justified because of the amount of money involved.

Can you send me copies of the submissions of Plaintiff and Defendant before the court. Exhibits are not necessary.

I suggest that you take an appointment with the Assistant Registrar/Deputy Registrar having jurisdiction over your Society and discuss the above points mentioned by me.

 
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Associate

As I have stated in my previous post in the procedure for transfer of a flat in a Co-operative Housing Society, all the transactions between the two parties for transfer, such as making full payments, executing the stamped transfer deed and its registration should have been completed, before the transferee member approaches the Society for the transfer and his admission as the new member.

As per the bye-laws of the society [very old society who have not adopted model bye-laws] the transferor and transferee have to first submit Form 20(1), Form 20(2) and Form 23.  After Society convey s their decision then the transfer papers are to be submitted. Plaintiffs never submitted their forms.

I have written to you separately. It is not me who is the Defendant :-)

 
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