Promoter to steps for formation of co-operative society or company.-

NOTES

v  It is provided that when the flat, etc. gets constructed, the promoter is required is to take steps to get / formed a society or a company to be registered as such. These steps have to be taking as soon as a minimum number of occupants are getting the society or company. The provision being a minimum number, it is times possible that certain premises remain non-occupied in absence of an intending purchaser. The registration has to take place in spite that certain premises remain unsold. The non-obstinate clause it clear that in such cases the promoter still has a right to dispose them off even after the society /company is formed. By this mechanism, the occupants are safeguarded and at the same time, the promoter is safeguarded in terms of the means that he has for return being available to him on expenditure for the construction. The

    Provisions have to be understood in that context.

v  Housing Society obligations on promoter Conveyance deed not executed by builder /promoter Whether continuing offence  Held, one of the duty cast on the promoter or the builder is to get a co-operative society or the company formed or incorporated as per section 10 and as per section 11 of the Act the title is to be conveyed. In the instant case it can be said that every day and after exhaustion of the said period of four months under Rules, the builder or promoter has been committing breach of section 11 of Act and as long as he continues to do so, it would amount to continued offence and, therefore, the provisions of 472Cri.P.C.will be attracted. S. (Sorkhab) v/s Dinshaw&Dinshaw&other1999(Supp.)BomC.R.320;1999(0)All.M.R.(Cri)57;1998(0)Bom.L.R.496

   Suit under ---Valuation of suit—Builder entering into agreement with flat purchaser    containing provisions whish are to be incorporated as provided under Act---All such agreement must necessarily be held to be special agreement which can be enforced by filing suits where valuation would, be national under section 6(iv) (i) of Bombay Court fees Act—Held, it cannot be said that in such matters suits for specific performance should be valued section 6(xi) of Bombay Court Fees Act, 1959. Maria Phitomina Pereira v/s Rodrigues Construction 1990(2) AIR (Bom) 27

v  Sale of terrace---of registered society whether permissible—Builder selling flat and also terrace to one of flat owners on the ground that builder had right to sell the remaining flat also percentage of common area facilities under section 10 (1) of the Act—Held, none of the provisions of said Act individually or enable the builder to sell the terrace as words ‘common areas facilities,’ ‘care areas’ etc. do not include the terrace and it cannot be sold to one of the flat owners. Even if document of sale could show intention of builder to do so, it will be affected by absence of legal sanctity and authority of builder to do so. Ramagauri Keshvlal Virani v/s Walkeshwar Triveni Co-operative Housing Society Ltd. & other 2000(2) Bom.C.R. 687; 1999(0) AIR (Bom) 385; 1999 (3) Bom. L.R. 184; 1999(3)Mh.L.J. 145

v  Dispute—Ownership of terrace—Proof—builder selling terrace to one of flat      owners on 7^th floor—Dispute about legality raised by the society –Society registered and property transferred in 1963 not specifically mentioning sale of terrace to society—Held, as provisions of Maharashtra Co-operative Societies Act do not empower builder to sell the terraces separately, absence of registration of terrace to society is not material or adverse to claim of society. Ramagauri Keshvlal virani v/s Walkeshwar Ttriveni Co-operative Housing society Ltd. &others 2000(2)Bom.C.R.687; 1999 (0)AIR(Bom)385; 1999 (3)Bom.L.R.184; 1999 (3)Mh.L.J.145

v  Delivery of possession of flat to individual persons by promoter—It cannot be said that persons were put in possession of open plot of land ---In such circumstances it cannot be said that in respect of the plot of land the principal of part performance incorporated in section 53-A of T.P. Act will apply in favour of the persons. The Mohatta Nagar Co-operative Hsg. Soc .Ltd. v/s  M/s. vishram Khimji &Sons and other 1994 (1)Bom.C.R.444

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