Case against not convening SGM AGM AUDIT by Society

case against not convening SGM AGM AUDIT by Society

BEFORE THE REGISTRAR OF CO-OPERATIVE SOCIETIES, NCT, NEW DELHI

Arbitration Case No.  21  of 2013

In the matter of:

Raminder Singh Sahota

S/O Sh. Amar Singh

B-404 Lovely Home CGHS Ltd

Plot-5, Sec-5, Dwarka, New Delhi – 110 075

Plaintiff

Versus

M/S Lovely Home CGHS Ltd

(through its Hony Secretary)

Mr. Rajiv Chopra

A-304 Lovely Home CGHS Ltd, Plot-5,

Sec-5, Dwarka, New Delhi – 110 075

Defendant

INDEX

Annexure No.

Particulars

Page Numbers

0

Application of Plaintiff & Fees

1-3

I

Circular dated 01.04.12 and 06.06.12

4-7

II

Requisition of 1/5th members to call SGM

8-9

III

To RCS regarding SGM dt 01.10.12

10

IV

To RCS regarding financial decisions dt. 01.10.12

11

V

Copy of monthly bill of the Society

12

APPLICATION OF PLAINTIFF U/SEC 70 & 71 OF THE DCS ACT, 2003

AGAINST CONTRAVENING THE PROVISIONS OF LAW

IT MAY PLEASE BE

  1. That, M/S Lovely Home CGHS Ltd (R.No.1354 G.H.) (here-in-after called “the Society”) is formed by 107 members. The Society after taking pre-fixed amounts had allotted 107 HIG/MIG flats to its members. The Plaintiff is member (No.173) of the Society. The Society is Defendant and Names & Addresses of all the members of Managing Committee are below, as they are jointly & severally responsible under Rule 101 of the DCS Rules, 2007.

 

S.No. Name Designation Flat No.
1 Mr. Rakesh Kumar President/ ex President A-104
2 Mr. DR Gupta Vice President A-502
3 Mr. Nirmal Kumar Bolia Member/Hony Secy/ex Hony Secy C-601
4 Smt. Deep Shikha Gupta Member/Treasurer/ex Treasurer B-106
5 Smt Hem Lata Thakur Member B-704
6 Mr. V Ramabhadhran Member/Treasurer C-703
7 Mr. RH Kaul Member/Hony Secy/ex Hony Secy A-401
8 Mr. Mohit Purdhani Member A-403
9 Dr. BL Sherwal Member A-703
10 Mr. Rajiv Chopra Member/Hony Secy (Co-opted) A-304

All residents of    “The Lovely Home CGHS Ltd, Plot-5, Sec-5, Dwarka, New Delhi – 110075”

 

THE CAUSE OF ACTION NOT BARRED BY LIMIATION

  1. That, 1st cause of action arose when the Managing Committee issued a Circular dated 04.01.2012 & 06.06.2012 (Annexure-I) without approval of General meeting and started demanding various charges. This plaint is being filed as member of the Society and earlier. I have filed 1 case as allottee of car space against discrimination in imposing parking charges. Present petition do not cover discrimination in charges.
  2. The 2nd cause of action arose when the Managing Committee did not call SGM on receipt of requisition by 1/5th members (Annexure-II).
  3. The 3rd cause of action arose, when the Managing Committee has not submitted Audit Report to members for F.Y.2011-12 and has not called the AGM till date.

 

DISPUTE MAY BE DEEMED AS ADMITTED U/SEC 70(3)

  1. That, 1/5th members had submitted the requisition to the Society on 28.08.2012 to call SGM and the Plaintiff submitted the same to RCS on 01.10.2012 (Annexure-III); but till date no meeting has been called. Therefore, the dispute may be deemed as admitted U/Sec 70(3) and it should now be referred to the Arbitrator U/Sec 71.
  2. That, request to set aside financial decisions of the Society was submitted to RCS on 01.10.2012 (Annexure-IV); but till date no action has been taken by RCS. Therefore, the dispute may be deemed as admitted U/Sec 70(3) and it should now be referred to the Arbitrator U/Sec 71.

 

CONTRAVENED PROVISIONS FOR IMPOSING MAINTENANCE CHARGES

  1. 7.    BYE LAWS OF THE SOCIETY: That, Firstly, the duties and powers of the General Meeting specifies in the Bye Laws 20(12), “To fix rate of contribution to be made by the member for maintenance of the estate of the Society.”  Secondly, Bye Law 25 specifies that “the committee shall exercise all the powers of the society except those reserved for the General Meeting subject to any regulation or restriction laid down by the society in a General Meeting or in the bye laws and in the particular shall have the following powers and duties.” Therefore, the managing committee, by imposing maintenance charges on members without approval of general meeting has contravened the bye laws of the Society.
  2. 8.    THE DCS ACT, 2003: That, Firstly, Section 30(1) on Final authority in a co-operative society specifies “the final authority in a co-operative society shall vest in the general body of members”.  That, Secondly, Section 89(1) specifies that “Every cooperative housing society shall frame regulations from time to time with the approval of the general body meeting of the co-operative housing society for maintenance of essential services including mandatory green area……..”. That, Thirdly, Section 93(1) specifies that “The management of co-operative housing complex shall be entrusted to the committee which will ensure cleanliness, security, upkeep of common areas, services, landscape and exterior of the building, prepare a budget for annual maintenance charges which shall be got approved annually from general body and……….”. Therefore, the managing committee, by imposing maintenance charges on members without approval of general meeting has contravened the DCS Act, 2003.
  3. 9.    The DCS Rules, 2007: That, Rule 102(1) specifies that “the committee shall be responsible for maintaining the essential services in the housing complex on regular basis…” That, Rule 102(2) specifies that general body will frame the regulations. That, Rule 102(3) specifies that “the maintenance charges of essential services shall be made as a part of budget provision with the approval of general body……..” That Rule 106(1) specifies that “It shall be the responsibility and duty of the committee to carry out the repair works and maintenance………..”. But Rule 106(4) specifies that “general body shall decide (a) the limit of expenditure on repairs, maintenance or works could be incurred by the committee……..”. Therefore, the managing committee, by imposing maintenance charges on members without approval of general meeting has contravened the DCS Rules, 2007.

 

Due to above contraventions, all charges imposed by this Managing Committee be stayed U/Sec 71(5) of the DCS Act, 2003 immediately to maintain equity and justice during the arbitration proceedings.

 

CONTRAVENED PROVISION ON HOLDING SPECIAL GENERAL MEETING

10. That, 30 members of the Society gave a requisition to the Society on 28.08.2012 to call Special General Meeting U/Sec 33(1). A copy of the requisition was also submitted to the Registrar U/Rule 46(3) by Plaintiff. But the managing committee was to call SGM within 30 days U/Rule 46(4). The Registrar should have called the general meeting U/Sec 33(2), but said meeting has not been called till date. The items of Agenda submitted to the Society for SGM was:—-

(I)         Car Parking Charges – on allottees and non-allottees of Car Space;

(II)       Maintenance Charges – Increased from Rs.900 to Rs.1200 p.m.;

(III)     Electricity Charges – unreasonable increase and new head added;

(IV)      Not giving 15 days demand notice to pay monthly bills;

(V)        POC [Provisional Occupancy Certificate] – not procured yet;

(VI)      Insurance of building & flats not done – U/Rule 106(7);

(VII)    Disaster Management Plan not made & informed – U/Rule 106(8);

(VIII) Fire Prevention Plan not informed – U/Rule 106(9).

 

Due to above contraventions, suitable orders be passed to hold Special General Meeting of the Society on above AGENDA by the RCS, U/Sec 71(5) of the DCS Act, 2003 immediately to maintain equity and justice during the arbitration proceedings.

 

CONTRAVENED PROVISIONS OF LAW ON RECEIPT OF PAYMENT

  1. 11.  That, earlier the monthly bills used to be received by the members in such a way that, more than 20 days were given to members to pay the bill. But now this Managing Committee has put the Plaintiff to hardship by not giving even 15 days time to pay the monthly bill (Annexure-V). This, Managing Committee is continuously violating Rule 102(4) of the DCS Rules, 2007. The Society has charged interest from Plaintiff, even when the payment was received within 15 days.

 

Due to above contraventions, suitable orders be passed to stay the decision of the Society U/Sec 71(5) of the DCS Act, 2003 immediately to maintain equity and justice during the Arbitration proceedings.

 

CONTRAVENED PROVISIONS ON TIMELY AUDIT OF F.Y. 2011-12

  1. 12.  That, as per Section 60(1) specifies a co-operative society shall get its accounts audited annually by an auditor selected from the panel prepared by the Registrar in the prescribed manner within the period of [one hundred twenty days from the prescribed date for making up its account for the year.] Under Rule 38 the accounts are to be closed by 30th April each year therefore the audit should have been completed by 31st July, 2012. Under Rule 79(2) the “the committee shall ensure that the audit of the co-operative society is complete within the period as provided under sub section 1 of Section 60…….”. Further Sec 60(6) specifies that “On failure to get the audit of the co-operative society conducted in time, the Registrar shall get the audit conducted and fee paid shall be a charge against the delinquent officers of the committee and shall be recoverable from them………

 

Due to above contraventions, suitable orders be passed U/Sec 71(5) of the DCS Act, 2003 immediately to maintain equity and justice during the arbitration proceedings.

 

CONTRAVENED PROVISIONS ON HOLDING ANNUAL GENERAL MEETING

13. That, as per Section 31(1) specifies that “every co-operative society shall within a period of [one hundred and eighty days] next after the date fixed for making up its accounts for the year under the rules for the time being in force, call a  general body meeting of its members ………”. So it was to be held on or before 31.10.2012, which the present managing committee has not called. Therefore, the Registrar of Co-operative Societies should call the general meeting under Section 31(2) and expenses on such meeting should be recovered from delinquent members of the managing committee.

 

Due to above contraventions, suitable orders be passed U/Sec 71(5) of the DCS Act, 2003 immediately to maintain equity and justice during the arbitration proceedings.

PRAYER

The Plaintiffs prays

(A)         That, interlocutory orders should be issued against the Society/Managing Committee to STAY all the financial demands raised by the Society & date advanced to receive payments, to maintain equity & justice during the arbitration proceedings.

(B)         That, wrong decisions of the Society may be set aside and service charges or interest charged from Plaintiff be refunded.

(C)         That, immediate orders be passed to implement all the provisions of law which have been contravened by the Society/Managing Committee.

(D)         That, the responsibility for all the wrongdoings be fixed and suitable action / penalty as is laid down under Sec 120 of the DCS Act, 2003 and under Rule 101 & 167 of the DCS Rules, 2007, be imposed on delinquent members.

(E)          That, any other order may be passed in favour of the Plaintiff and against the Defendant in the interest of fundamental principles of natural justice and equity before law.

Plaintiff

 VERIFICATION

 Verified at New Delhi this 29 day of April, 2013, that the contents of above Plaint are true to the best of my information and knowledge believed to be true.

Plaintiff

 

2 thoughts on “Case against not convening SGM AGM AUDIT by Society”

  1. Sanjiv Kumar

    I am a founder member of CGHS in Rohini (Delhi), my society is more than 25 years old and I want to repair my Flat. The society is demanding Rs 8000/- non refundable and Rs 5000/- refundable for repair work. However all my flat repair cost will be paid by me and repair will be done by outside labour. Kindly advise me whether i have to pay the amount or not. Second question is if my flat is locked for more than one month what maintenance charges I have to pay Full or Half?

  2. Shekhar Bharadwaj

    I am a member of the CGHS in Dwarka,Delhi….my question is what if thePresident of the CGHS resigns before expiry of the tenure of three years …is the entire managing committee is also desolved with the resignation of the President? What does the DCS ACT AND RULES say on this issue.?

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