I entered into an agreement with a developer on 01.04.1994 to put up an apartment complex on my property in Bull Temple Road, Basavanagudi, Bangalore which contained my share calle Owner's share in the completed complex as under. Quote "Whereas the owner herein desire to retain 50% undivided right and interest in the scheduled property and 50% undivided right and interest in the super built area and the apartment to be constructed thereon, together with 50% car parking area, saleable garden area and exclusive right for use of terrace area (hereinafter referred to as the owner's share) and has offered to sell balance 50% undivided right and interest in the schedule property (hereinafter referred to as the saleable undivided right and interest) together with the right to construct and own the remaining apartments thereon."Unquote. It is understood that the saleable undivided right and interest is consideration for the Developer towards his contribution and that he will also act as the builder and that he will act as the owner's agent to sell the said saleable part to finance the construction of the entire complex which is divided into two parts - one is the Owners share quoted above and the other is the balance portion left out after allocating the owner's share. The developer issued a letter dt 14.09.1997 confirming handing over 4 flats, terrace area with one room thereon and 50% of covered parking area in the basement to the east of the staircase lift area to the owner ie myself. The developer also sold four flats that came to his lot as 50% which is the balance flats - one flat was sold on 06.06.1997 with two garages ; second one with one garage on 17.06.1997 (both these flats were sold about three months ahead of completion in 14.09.1997); third one with one garage on 29.01.1999 and the fourth one with one garage on 26.11.2001. All these five garages which is called covered car parking space is in the basement to the west of the staircase lift area which is within the developers share. Now in April 2014, an association having only four owners (out of eight owners) has filed a suit against me in April 2014 saying that the terrace area and the garages are all common areas and that the owners share defined in the original development agreement dt 01.04.1994 is not valid. This is principally the dispute about which I am seeking advice.
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Hi, Association has no right to question the development agreement entered into between you and developer.
2. You are become the absolute owner of the terrace and garage by virtue of development agreement and it will not include the common area.
3. It is my kind advice to you contest the case on merits and you have good case on merits.
The association which has been formed with only four owners ie 50% only (out of eight owners) and registered with the Registrar of Societies in July 2010 is the Plaintiff. The formation itself has been challenged for its maintainability on the grounds of sec 11 and 15 of the Karnataka Socities Act 1960 which mandates that within 18 months of formation ie before February 2012, a general body meeting should have been held and a new managing committe elected which alone can be said to be legally constituted. Whereas the present managing committee is the one nominated at the time of registering and according to Karnataka High Court decision, this body cannot be said to be legally constituted which cannot administer the affairs of the association. Please let me have your views on the maintainability of the suit filed by what I call as illegally formed association.
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1) it is necessary to peruse agreement signed by you with builder
2) from the factsstated by you it appears that you had 50 percent share in super built area of apartment constructed , parking area together with exclusive use of terrace ,
3) whether agreement entered into by builder with flat owners mentioned that flat owners would have no access to terrace , 50 percent parking areas which would remain the property of land owner
4) since association formation has been legally challenged by you this preliminary issue would have to be decided by the court before grant of any reliefs
5) generally terrace and parking slots form part of common areas for benefit of all members of the association
1. Garage is not common area but garage space is. However, the roof right is enjoyed by all the flat owners of the building as per judgement passed by the Apex Court,
2. All the flat owners of the building has every right to go to the roof for installing dish antenna, checking over head water tank etc. which can not be stopped by you,
3. However, they can not make any construction on the said roof,
4. If you construct another floor the existing roof, then the roof of the newly constructed floor will be enjoyed by all the flat owners.
1. Yes, you can challenge the maintainability of the association on the technical ground but it is not curing the defect of your agreement,
2. They can jointly file the same application against or form an association of persons to file the same application.
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Hi, all these facts has to canvased before the court filing the detailed written statement and it is all subject to the trial before the court.
The agreement between you and the builder came into existence legally and as per the agreement you have full rights based on the agreed terms and conditions.
The association which has been formed very recently has no rights to claim the terrace rights or have rights to infringe your rights.
The bye-laws formed by the association at this stage is not binding on you. Your previous registered agreement with the builder only is maintainable because there was no association formed when this agreement was enforced.
What suit have they filed against you, is it an injunction suit or declaratory suit?
Whatever it may be, since it is not maintainable in law, you can challenge it properly based on the documentary evidences in your favor and the merits on your side.
