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

                                                                                                                                    

NOTES

v   The society or the company is entitled to get the conveyance, entitled to get the conveyance, etc. as set out in section 11 and is made obligatory on the promoter to handover such documents, etc.

v  Agreements/Conveyance—Distinction---Agreement  for sale not providing for when conveyance will be executed though possession is handed over on execution of agreement---Agreement when presented for registration Registrar impounding it on ground that full stamp duty for conveyance as required to be paid under Explanation to Entry 25 of Schedule I of the Stamp Act---held, where agreement dose not provide for when conveyance will be done and possession is handed over, case is co never  by Explanation  to Entry 25 of the Schedule I and High Court view that it is to be termed as conveyance and duty is cannot be faulted.

v  The High Court in 1992 (2) Bom. C.R.1 examined the scope of Explanation I Entry 25 of Schedule I of the Bombay Stamp Act and held that the same was attracted to the case. Under the agreement there is an obligation to hand over the possession even before executions of a conveyance and, therefore, it was a “conveyance” for the purpose of duty payable under the Bombay Stamp Act and there was no obligation in the agreement to enter into a later stage and clearly it was a case which attracted the said Explanation .handing over of the possession the very date of execution was not relevant for determining the nature of the document. O that basis the High Court upheld the stand take by the State in the matter of levy of duty. The duty in respect of an agreement covered by the Explanation is leviable as if it is a conveyance. The conditions to be fulfilled are if there is an agreement to sell immoveable property and possession of such property is purchaser before the execution or time of execution or subsequently without execution any conveyance in respect thereof such, an agreement to sell is deemed to be a “conveyance”. In the event a conveyance is executed in pursuance of such agreement subsequently, the stamp duty already and recovered on the agreement of sale which is deemed to a conveyance shall be adjusted towards the total duty legible on the conveyance. In the present case, the entered into clearly provides for sale of immoveable property and there is also a specific time within which possession has to the be delivered. Therefore, the document in question clearly falls within the scope of the Explanation I. If agreement provides that possession will be handed over on the execution of as contemplated under section 11 of the MOF Act. Then Explanation shall not be attracted at all. In the present case, it is clear that in the terms of the agreement there is now provision made at all for execution of the conveyance. On the other hand, what is that the provisions of the MOF Act, could be applied to the agreement and, therefore, a conveyance could be executed subsequently when it is clear as to when the conveyance is to be executed and the stipulated time within which the possession has to be handed over. If that is so, it is clear that the document would attract duty as if it is a conveyance as provided in the Explanation. There is no error view taken by the High Court. It is not necessary to amine in this appeal as to whether the instrument in question itself conveys a title or not. Therefore, the High Court made in this regard is upheld. The appeals are dismissed. 1992(2) Bom.C.R.1, upheld. Veena Hasmukh Jain &another v/s State of Maharashtra & others 1999(2) Bom.C.R.124; 1999(1) All.M.R. 698; 1999 (1) Bom.L.R. 235

v  Execution of deemed by developer---Builder developer no executing deed of transfer of premises to society under Maharashtra Flats Owners Act, even after collecting amount for executing the same---State Commission directing execute the deed of transfer of property to society with penalty of Rs.1, 000/- for each day of default—Order modified that deed be executed as per provisions of law and terms of the agreement. Penalty of Rs.1, 000/- a day set aside.

The present appeal is directed against the order dated 21-5-1996 in Complaint passed by the State Consumer Disputes Redressal Commission, Maharashtra. The facets giving rise to this appeal are that opposite party No.1 had not executed the conveyance deed in favour of the Society nor they formed the Society even though the amount had been collected by the opposite for the formation of the Society. Was also complained that the opposite party had provided half-inch water connection to the houses of the members of the Society instead of one-and –half inch water connection as provided under the rules and regulations. The order passed by the State Commission so far it related to the execution of the conveyance deed is not clear. The expression “exceeds F.S.I.” did not convey any tangible meaning. In complaint, the case put forward by the complainant was that opposite party in total disregard to the low and as contained in section 11and 13 in Maharashtra Ownership Flats Act, 1963 and Rules of Maharashtra ownership flats Rules, 1964 as well as per the terms of agreement into by the Opposite Pray No.2 with all the members of complainant No,2, refused to convey right, title and interest in the property in favour of the complaint No.1.So it follows that the complaint was requiring the Opposite No.2 to execute the conveyance deed under the provision of relevant laws and as per terms of the agreement entered into the society of the opposite Party No.2. In the written version filed on behalf of the appellant, it was stated that the Opposite Party No.2 was ready and willing to execute the conveyance deed subject to the Clauses 13 and 24 of the Agreement entered into between the parties. They also required the complainant to prepare and forward the draft conveyance deed in accordance with the terms and conditions of the agreement so as to enable them to execute the conveyance deed. But, it appears that the complaint was not agreeable to incorporate the terms of Clauses 13 and 24 of the agreement in the conveyance deed. The complainants themselves stated in the complaint that the opposite party had refused to convey right, title and interest of the property in total disregard of the relevant laws and as per the terms of the Flat purchaser’ agreement entered into between the parties. The parties are bound by the terms of the agreement. The conveyance deed was to be executed subject to the provisions of the laws and as per tams of the agreement.  The State Commission did not consider the written version filed on behalf of the appellant in its right perspective. The order passed by the State Commission so far as it related to the direction regarding execution of the conveyance execution of the conveyance deed on the basis of the “exceeded F.S.I.” is not correct and cannot be sustained in law. This Commission set aside that part of the order. As a appellant is directed to execute the conveyance deed subject to the provisions of the relevant laws and in terms of the agreement. It was lastly contended on behalf of the appellant that the penalty of Rs. 1,000.00 per day imposed on the appellant was not justified in the facts and circumstances of the case. There was no justification for the State Commission to impose such heavy penalty of Rs.1, 000.00 per day on the appellant. This order of the State Commission so for it related payment of penalty of Rs.1, 000.00 per day set aside. Ramesh R. Trivedi v/s M/s Amber Tower Co-operative Housing Society Ltd. & other 1998 (1) B

om.C.R. (Con.) 77