• Dispute amount between Owner and Association - Registration date of Flat & Association formation

Hi sir,

I am sunil titto, I own an apartment in Bangalore registered on 26th November 2015.

Our Apartment has total 198 flats and got OC on 1st January 2015, and RWA formed on June 1st , 2015. RWA is registered under Karnataka Societies Registration Act.

When i got the Sales Deed , agreement clearly mentioned that maintenance need to be paid from the Possession of the flat or date of registration whichever is earlier.

But later on , I came to know from Managing Committee members, Association has decided to collect Maintenance charges from date of Formation of Association (1st June 2015) and this is passed in the First GBM when association formed. There was no Minutes of Meeting available and none was able to provide the proof for same. I never informed by builder about this unnecessary charges 
As per my little knowledge about payment dues , Since builder was the owner of the flat in the period of June 1st 2015 and 28th November 2015(Registration date of My flat), this amount supposed to be collected from builder. 
At present there are 16 Flat owners holding this payment and rest of the owners paid the amount even though they were not the flat owners for this period.
We have multiple level of discussion in this matter with Managing Committee; even i became Secretary of the association for finding an amicable solution of the issue; but nothing worked out as some of the residents were not agreeing our points.
A GBM was called and we even proposed a solution of due as collect 50% from builder, 25% from our side and 25% has to be beard by association but we were not able to won in the voting as we are the minority and only 16 out of 198 flats.
Now GBM and Managing committee is forcing us to pay this due and calling as defaulters . None of us made any default amount after our flat is registered.
I am concerned this situation is going to be worse when next GBM happens as we are still not convinced and strongly believe this dispute amount has to be collected from builder or Association has to file a case against builder in case builder is not paying and there are no rights to ask money from us. 
Builder has already denied to pay this amount 
 i would like to know if there is any judgement or clause available about this tricky situation so we can talk with residents again and make them aware what law says about it.

please help 

thanks & regards

Sunil titto
Asked 4 years ago in Property Law
Religion: Other

15 answers received in 1 day.

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16 Answers

you are absolutely correct

2) you are not liable to pay any maintenance for period prior to possession of flat been delivered to you

3) you cannot be labelled as defaulter. association has to sue the builder to recover dues for the period from formation of association to delivery of possession of flat to the purchasers

4)if society refuses to listen to reason file complaint against society before consumer forum for deficiency in service and seek orders to set aside resolution passed by AGM for recovery of dues from you

5) also seek litigation costs and compensation for mental torture undergone by you

Ajay Sethi
Advocate, Mumbai
87895 Answers
6207 Consultations

5.0 on 5.0

Please note that you are liable to pay the maintenance only after you got sale deed registered in your name and not from day of formation of association.

Any amount that is due must be recovered by the association from builder for period of formation of association and delivery period.

Send them a notice to that effect if they do not oblige file a consumer complaint against the builder for deficiency in service and claim for damages.

Since there is no record of no minutes of meeting recorded of the first resolution you can approach registrar of societies against the resolution passed in the GBM directing you to pay maintenance amount and declaring you as defaulter.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1. Under no circumstances the fat owners are liable tp pay the maintenance for the period winch is prior to the date of registration or taking of possession.

2. So demand of the MC has no legal basis at all and even if it was passed on GBM it has no legal sanctity.

3 So send them a legal notice refusing to pay the charges for this period.

4. If your demand is rejected then raise dispute with the Registrar of the Society and then to the high court in its writ jurisdiction.

5. Do not worry as if the dispute is litigated you will win the battle.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Dear Sir,

Let me explain that cases cannot be built up on judgments and it is vice versa. If you have a reason and cause to fight. You fight without any hesitation. Law will be automatically enlarged it is called judge made law. If builder is liable then file a suit and establish by all means. You will definitely win. One thing in India such civil suits never thrown at threshold. You have fair opportunity to prove let him take 1001 defenses.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

When there is an agreement clause regarding the payment of maintenance, you need not to pay the maintenance to the said period. File a civil suit against the association and builders for bare injunction before the civil court having jurisdiction from collecting or claiming the maintenance charges to the said period. You will get a remedy.

Selva Perumal
Advocate, Chennai
329 Answers
36 Consultations

4.9 on 5.0

Dear Mr Tutti,

The Builder till the date of sale of the flat maintains the flat by itself and have nothing to pay today's situation as maintenance charge from the date of registration or possession whichever is earlier the resident welfare Association is authorised to collect the common area maintenance charges from the apartment owners if builder has already registered society and that is being passed to the residents as welfare Association , the Welfare Association is obliged to collect the outstanding maintenance charges from the owners of the flat. this is the reason that you are not succeeding in the AGM for non payment of maintenance charges even if you have no idea of maintenance charges before buying the flat does not gives you any benefit for ignorence in the apartments services are provided for the common use of the residents and the cost is being shared as maintenance cost my apartment owners together.

If you have been Secretary of the Associationyou would have experienced same thing in operation and if in default in payment you can not contest the election and Association cat take action against the defaulting owners by cutting off the common services provided to them if you have problems and that is not being sorted out within the association you can approach to register of the societies altogether 16 members and give a complaint in this regard to get direction which is binding on the association

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

You should pay only from the date of registration or possession which is earlier.

For the period the inventory was unsold it was in maintenance with the builder and no maintenance is due for such period.

This is kind of modality being used in the projects which are not fully sold out and resident welfare Association is formed to take care of the maintenance of the society asking any maintenance amount from the builder if property is not sold and not in use is not logical and will raise the litigation for sure.

Thanks for your understanding

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

you are not the defaulter as builder was owner of flat during the period June to November 2015

2) association has to recover the dues from builder

Ajay Sethi
Advocate, Mumbai
87895 Answers
6207 Consultations

5.0 on 5.0

Dear Sir,

You are correct for the relevant period builder being the owner and liable to pay the maintenance charges. You may clarify this thing to the association and also get clarification from the owner if available.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Dear Client,

Until u do not become owner of the property, no previous liability can be imposed on you legally and logically,

Also, it must be mention in the Sale Deed, that property free from any encumbrance, tax dues at the time of purchase.

U can complain to registrar for arbitrary imposition of back date liability. - Co-operative Court;

In your case , u r third party for a period from June 1st 2015 and 28th November 2018, if any charges maintainable that from builder only.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Yes. On those period nobody needs to pay the maintenance because nobody had occupied the flat. If at all any such amounts have to pay to the association, the builder alone is rresponsible to pay it.

Selva Perumal
Advocate, Chennai
329 Answers
36 Consultations

4.9 on 5.0

''In between this period from June 1st 2015 and 28th November 2018 , builder was the owner''.

Yes, you are right and hence you are not liable for payment of maintenance charge till you took possession or registration is done.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

1. Logically a person would become liable for payment of maintenance charges only from the date on which he came into possession of his flat. Not before that.

2. However in your case, I understand the society has passed a resolution to collect maintenance from the date of its registration and this resolution is passed by majority.

3. So generally the minority would then be bound by the decision of the general body for a resolution which is passed by majority vote.

4. So I doubt if you can take any action against the society for the demand made by it to bear the maintenance charges from the date of formation of society.

5. Your remedy will be to recover those charges for the period for which you were not in possession of your flat, from the builder by filing a suit against him.

6. Other option would be to address a letter to the deputy registrar of co-operative societies therein stating the issue and follow up the same with a RTI Application.

7. You may also file a dispute case against the society in the co-operative court. However as stated before, since there is a resolution passed by majority members, there are slim chances of you succeeding in the matter.

8. I would strongly suggest to try and resolve the dispute amicably with the society. It may happen that the cost you would have to incur for taking legal steps may prove to be more than the extra amount towards maintenance demanded by the society from you. So please weigh the pros and cons.

Yusuf Rampurawala
Advocate, Mumbai
6876 Answers
79 Consultations

5.0 on 5.0

What is that you are going to with any judgment, first of all you have not filed any case nor they have filed any case against you.

If you do not want to pay the amount, you wait for them to give in writing the demands whatever they make with you.

You can issue a legal reply notice to them refusing to pay the same for the reasons whatever you may rely upon.

No doubt you have not occupied the flat from the date of formation of association, whereas you cannot deny the fact that you have booked the flat even before the formation of the society, if yes, then find out for what reason that you have been delayed to take possession.

If the delay was due to the builder side reason, you can very well transfer the responsibility on builder and point this to the society and direct them to collect the same from the builder.

Also you find out that if there is any bye law forcing you to pay the maintenance charges for the period prior to you taking possession of the flat.

After ascertaining all the ground realities you prepare yourself for legal battle agaisnt the society.

All the resolutions passed by the society in a meeting need not necessarily be made as bye law of the society, there has to be a justified reason to accept them as bye laws.

If there is a possibility for any amicable solution, you may try otherwise take the assistance of a lawyer and proceed legally for lawful solutions.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

Can you please explain if builder was the owner of the flat how i will become defaulter ?? this amount supposed to be collected from builder ??

The builder is the seller of all the flats, he cannot become owner of the flats.

They are treated as unsold flats if there are no sale agreement between the buildr and the prospective buyer.

If there was a subsisting sale agreement and for some reason the flat could not be handed possession, then the buyer may be directed to pay the maintenance for the booked flat.

If the owner had take possession but got the flat registered at a later date, then also he is liable to pay the maintenance for the period from the date of possession even though the flat was not registered during that period of claim made by the society.

T Kalaiselvan
Advocate, Vellore
78050 Answers
1543 Consultations

5.0 on 5.0

Generally as per the builders agreement they keep their side safe and make the buyers pay. As per the law till the formation of association the builder agd to pay the same and after formation residents need to pay.

Prashant Nayak
Advocate, Mumbai
27224 Answers
88 Consultations

4.4 on 5.0

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