Bangalore District Court
Radha Shenoy Alias Latha Shenoy vs The Hoysala Dreamz Apartment Owners … on 21 April, 2026
1 OS No.6162/2016
KABC010196812016
IN THE COURT OF THE XXV ADDL. CITY CIVIL &
SESSIONS JUDGE (CCH No.23)
DATED THIS THE 21st DAY OF APRIL 2026
PRESIDING OFFICER
PRESENT : Sri. GOPALKRISHNA RAI. T
XXV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU.
O.S. No.6162/2016
PLAINTIFFS/S : 1. Smt. Radha Shenoy
@ Latha Shenoy,
Aged about 49 years,
Wife of Sri. P.G.Shenoy,
Residing at Flat No.202,
Second Floor,
Hoysala Dreams Apartment,
No.2, Seenapp layout,
New BEL Road,
RMV 2nd Stage,
Bangaluru-560094,
Represented by her Constituted
by her power of Attorney holder
and husband,
Sri.P.G. Shenoy,
S/o.V.G. Shenoy,
Aged about 55 years.
2. Smt. Manjula Ram Mohan,
Aged about 54 years,
Wife of Ram Mohan,
Flat No.207, Second Floor,
2 OS No.6162/2016
Hoysla Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengaluru-560094.
V/s
DEFENDANT/S : 1. The Hoysala Dreamz
Apartment Owners
Association,
No.2, Seenappa Layout,
New BEL Road,RMV 2nd Stage,
Bengaluru-560094.
Represented by its
a) Dr. P.D.Sheony, President
b) Sri.K.S.Sreedhar, Secretary
c)Sri K.V. Ramamohan,
Treasurer
2. Niveditha Hemanth,
Major by age
W/o. Hemanath,
Residing at Flat No.001,
PID No.100-674-2,
Hoysala Dreamz Apartment,
No.2, Seenappa Layout, New
BEL Road, RMV 2nd Stage,
Bengalore-560094.
3. H.R. Devapriya,
Major by age,
Father's name not known
to plaintiffs,
Residing at Flat No.002,
PID No.100-674-2/1,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
3 OS No.6162/2016
4. M.Radhika,
Major by age,
Husband's name not known to
plaintiffs,
Residing at Flat No.003,
PID No.100-674-2/2,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
5. Anand Shirwal &
Supriya Jagadish
Major by age,
Residing at Flat No.004,
PID No.100-674-2/3,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
6. Radha Rajagopalan,
Major by age,
Residing at Flat No.005,
PID No.100-674-2/4,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
7. Prabha Premkumar,
Major by age,
Residing at Flat No.006,
PID No.100-674-2/5,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
4 OS No.6162/2016
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
8. Bhavya.D.C.,
Major by age,
Residing at Flat No.007,
PID No.100-674-2/6,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094
9. Sujatha Jagadish,
Major by age,
Residing at Flat No.101,
PID No.100-674-2/7,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
10. T.S.Heena,
Major by age,
Residing at Flat No.102,
PID No.100-674-2/8,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
11. M.Poobalan,
Director,
M/s. D.P.Properties Pvt.Ltd.,
Residing at Flat No.103,
PID No.100-674-2/9,
5 OS No.6162/2016
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
12. Shobha Rani.S.,
Major by age,
W/o Sri Basavaraj
Residing at Flat No.104,
PID No.100-674-2/10,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
13. Preethambarajan.M.,
Major by age,
Father name not known
to plaintiffs,
Residing at Flat No.105,
PID No.100-674-2/11,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
14. Uma Prasad.R.,
Major by age,
Husband name not known to
plaintiffs,
Residing at Flat No.106,
PID No.100-674-2/12,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
6 OS No.6162/2016
15. P.Manju,
Trustee,
J.C. Kala Education and
Charitable Trust,
Residing at Flat No.107,
PID No.100-674-2/13,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
16. Sujatha Jagadish,
Major by age,
Husband name not
known to plaintiffs,
Residing at Flat No.201,
PID No.100-674-2/14,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
17. K. Rohit Karanth
& Ramya.R.,
Major by age,
Residing at Flat No.203,
PID No.100-674-2/16,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
18. Jayanthi Rajaram, Rajaram,
Hari Krupa Padmanabhan,
Major by age,
Residing at Flat No.204,
7 OS No.6162/2016
PID No.100-674-2/17,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
19. Ms. Josna Keni,
Major by age,
Father's name not
known to plaintiffs,
Residing at Flat No.205,
PID No.100-674-2/18,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094,
Represented by her GPA Holder,
Nayanatara Umakanth.
20. B.V. Santosh Singh,
Major by age,
Father's name not
known to plaintiffs,
Residing at Flat No.206,
PID No.100-674-2/19,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
21. Kadayinti Venkata
Rammohan and
Padmavathi Koride,
Major by age,
8 OS No.6162/2016
Father's name not known to
plaintiffs,
Residing at Flat No.301,
PID No.100-674-2/21,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
22. Uma J.Karanth and
Smt.K.Rama Karanth,
Major by age,
Residing at Flat No.302,
PID No.100-674-2/22,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
23. Dr. Devadas Shenoy.P.,
Sharada V.Shenoy &
Venkatesh Shenoy.P.,
Major by age,
Father's name not known to
plaintiffs,
Residing at Flat No.301,
PID No.100-674-2/21,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
24. Bhagya,
Major by age,
W/o S.G. Hegde,
Residing at Flat No.304,
9 OS No.6162/2016
PID No.100-674-2/24,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
25. K.N.Suresh and
Sharmila Suresh,
Major by age,
Residing at Flat No.305,
PID No.100-674-2/25,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
26. Srinivas.M.G.,
Major by age,
Father's name not known
to plaintiffs,
Residing at Flat No.306,
PID No.100-674-2/26,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
27. K.S.Sreedhar and
Sudha Sreedhar,
Major by age,
Residing at Flat No.307,
PID No.100-674-2/27,
Hoyasala Dreamz Apartment,
No.2, Seenappa Layout,
New BEL Road,
RMV 2nd Stage,
Bengalore-560094.
10 OS No.6162/2016
28. M/s. Hoysala Developers,
No.104, Ground Floor,
Unfantry Techno Park,
Infantry Road, Opposite to Gem
Plaza
Bengaluru-560001
Represented by its Proprietor
Sri. T.S. Sateesh
Date of institution of suit 24.08.2016
Nature of suit Declaration and Injunction
Date of commencement of 18.01.2023
recording of evidence
Date on which the judgment was 21.04.2026
pronounced
Duration of the suit Year/s Month/s Day/s
09 07 28
JUDGMENT
The plaintiffs filed the suit for the relief of declaration,
declaring that existing Declaration and the Bylaws unilaterally
executed by the builder/developer is without consensus and
suggestions of individual Apartment Owners and thereby it is to be
rendered null and void, issue mandatory injunction, directing
Constitution of the by-laws in accordance with the provisions of the
Apartment Owners Act, 1972 and Rules framed therein, to appoint
aReceiver/Commissioner for management of entire Apartment
11 OS No.6162/2016
building under the Provisions of Karnataka Apartment, Ownership Act
of 1972 until a newly constituted body of managers are appointed to
the satisfaction of individual apartment owners, for a decree of
declaration that Resolutions dated 31.01.2015, 05.04.2015,
10.04.2015, 05.04.2013, 17.04.2016 and 31.07.2016 as illegal, null
and void and to render redundant, for auditing of the accounts of the
first defendant from 2009 till the date of newly constituted body takes
further management, to refund Rs. 30,000 paid by the first plaintiff in
respect of apartment building corpus fund and for a decree of
permanent injunction restraining the residents/apartment owners of
Hoysala Dreamz Apartment constructed in A schedule property to
keep the pets in the premises owned by individual apartment owners.
2. Briefly stated, the case of plaintiffs is as follows:- The
defendant No.28 is the Developer and Builder of the A schedule
property. The same constitutes 20,278 square feet area constructed a
multi-storied residential apartment building. The plaintiffs and
defendant No. 2 to 27 have purchased independently constructed
dwelling apartment premises. The builder had promised that he will be
providing occupancy certificate at a later stage and accordingly
Legally and lawfully, he conveyed right title, interest, and ownership
12 OS No.6162/2016
to the individual owner’s . The first plaintiff had purchased Apartment
No. 202 and whereas second plaintiff with co-ownership of CC Ram
Mohan purchased premises No. 207. The first plaintiff is represented
by her power of attorney holder/husband P. G. Shenoy. The individual
apartment owners who are the plaintiffs and Defendant No. 2 to 27 are
required to constitute a Condominim of individual apartment owners.
Thus, they have got their respective title, interest and joint and
common interest for the management of larger interest. A careful
perusal of sale deed, commonly executed by the builder/developer,
provides for execution of a deed of Declaration as contemplated under
Section 2 of Karnataka Apartment Ownership Act, 1972 and the
developer has unilaterally executed a deed of Declaration. The deed of
Declaration cannot be executed unilaterally, nor is it incumbent upon
the builder/developer to formulat Association, representing
unilaterally himself as the Proprietor. Both the declaration and by-
laws were made in violation of statutory provisions of Karnataka
Apartment Owners Act, 1972, and rules framed thereunder. The
defendant No.28 being the Builder, without taking consent of
individual apartment owners, has executed the above document and it
is improper and incorrect. In furtherance to the provisions of
Karnataka Apartment Owners Act, each apartment owner shall
execute a Declaration that constitutes his Apartment to the provisions
13 OS No.6162/2016
of the Act and a deed of apartment in relation to his apartment in the
manner prescribed for the purpose.
3. The defendant No.28, being the builder and owner of the
property, with an intention to release monetary benefits, has hastily
executed the deed of declaration and the by-laws by a self-styled
unilateral Act. The contents of declaration will have to contain
description of the land, building improvements and land located
freehold. That apart, declaration, deed of apartment and copies of
floor plans are required to be registered. The deed of declaration will
have to be accompanied by Bylaws and their contents. In the present
matter, constitution of Bylaws by the builder is at his own volition and
he himself has affixed the signature and reiterated the declaration.
Therefore the apartment owners put to uncomfortability. As their right
over the property, peace and tranquility in their building is disturbed
and damaged. That apart, the wisdom of each apartment owners has
practically been that it is a cause for all the disputes arising with
regard to management of the apartment building. Hence, prayed for
the relief.
14 OS No.6162/2016
4. The defendant Nos. 21, 23 and 27 have filed common written
statement under Order VIII Rule 1 of CPC. They have contended that
the suit is not maintainable either in law or on facts. The same is hit
by Order II Rule 2 of CPC as plaintiff No.1 has already filed suit in
OS No. 4990/2015 against the first defendant for the relief of
declaration of meetings dated 31.01.2015, 05.04.2015 and 10.05.2015
as null and void and for permanent injunction. The plaintiff has
omitted the reliefs claimed in the present suit and therefore under
Order II Rule 2 of CPC, the suit shall have to be dismissed. The
plaintiff is challenging the constitution of the association and its by-
laws, contending that same is not constituted under the Provisions of
Karnataka Apartment Ownership Act, 1972. The application of the Act
is in relation to the property which is mainly used or proposed to be
used for residential purpose. In the present case, the property has been
subjected to the provisions of the Act by executing the declaration by
original owner/defendant No. 28. Secondly, the persons who have
purchased individual apartments did not object to the association or its
by-laws after purchase and therefore, the application of the Act and
formation of the association is in terms of Act. In any event,
admittedly plaintiff No. 1 has filed suit against the Association in OS
No. 4990/2015 seeking the relief stated above and also for permanent
injunction restraining the defendant therein from acting on behalf of
15 OS No.6162/2016
the defendant till office bearers are appointed in duly constituted
meeting and other reliefs. In the said suit, the present plaintiff No. 1
accepted the constitution of the Association and applicability of the
Karnataka Apartment Ownership Act, 1972. Now in the present suit
he has claimed reliefs in respect of the resolutions dated supra as null
and void by suppressing the fact that the first defendant association
was constituted in the year 2009 and the association is functioning in
terms of Karnataka Apartment Ownership Act. Further the first
plaintiff was a Secretary of the Association from July 2012 to January
2014 and during his tenure, the bank account was opened in the name
of the Association and was operated. There is no relief sought for with
reference to various resolutions passed during his tenure as Secretary.
Therefore, the present suit is filed with a mala fide intention. Further,
Minutes of the meeting taken place from 2009 refers to the Act which
clearly implies that the constitution of the Association is in terms of
the Act and accepted by all the members. Apart from the above,
Auditor was appointed to conduct the auditing in terms of 1972 Act.
Therefore, the plaintiff is estopped from contending that constitution
of the association is void. The averments made in para 2 is
substantially incorrect. Para 3 is correct. Para 4 is correct. Insofar as
para 5 is concerned, defendant No.28 had constructed the apartment
and filed a declaration on 02.03.2009 as per the provisions of
16 OS No.6162/2016
Karnataka Apartment Ownership Act along with by-laws of the first
defendant association and plaintiff himself has resolved for
installation of an additional borewell, installation of water softener
unit, installation of an intercom system., agreement signed with the
essential service providers like security services etc., appointment of
auditor, appointment of manager and collection of Rs.50,000 per
member towards corpus. Further, in the meeting held on 19.01.2014,
plaintiff was appointed as one of the members of Executive
Committee of the Association and has signed on the minutes.
Therefore various allegations regarding non compliance of provisions
of Act is false. Further, the averments made in Para 6 to 23 are denied.
The plaintiffs have questioned the terms of by-laws which is
impermissible as the same will have to be placed before the general
body of members. The court cannot go into the same. In OS No.4990/
2015, all manner of d violations of by-laws are alleged. While in the
current suit, the same set of by-laws is stated to be statutory violation,
which clearly establishes mala fide intention of the plaintiffs. The
waiver of notice is contemplated under Bylaws which is in accordance
with the law and the averments made in the plaint is contrary. The
managing committee constituted on 19.01.2014 continued till May
2014. In May 2014, the members of the committee for the reasons
best known to them decided resign. For the purpose of taking care of
17 OS No.6162/2016
day to day affairs of the Association, Ad hoc Committee comprising
of Mrs. Uma Basad, Mrs. Padmamala and Mrs. Sujatha Jagadeesh
were appointed after May 2014. The Management Committee
constituted by Elected members of the Association who shall govern
the affairs of the association. Therefore the allegation that 4 to 5 plaint
or taking decision in any association, presence of all the owners of the
apartment is not mandatory to take a decision. Otherwise, the election
of office bearers who shall look after or govern the affairs of the
association become redundant.
5. The office bearers of the association are acting in terms of by-
laws and the averments made by the plaint is contrary to it. The
plaintiff has not attended a single meeting since February 2014 to
redress grievances and sends unacceptable notices in response to
meeting invitations. The plaintiff is a defaulter, does not accept even
auditor’s recommendation for maintenance rate chargeable despite
using facility without interruption. The plaintiff has also not paid dues
as required as per the Resolution in the meeting dated 09.01.2014.
Non resolution of the issues cannot be a ground to declare that by-
laws or declarations are invalid. In any event, the owners of individual
apartments including the plaintiffs have accepted the association and
18 OS No.6162/2016
the association has been functioning since 2009 and the plaintiff No. 1
himself was the helm of the affairs for long duration. Therefore, it is
not open for him to question the constitution of the Association.
Hence prayed to dismiss suit on the ground that there is no cause of
action for the suit.
6. Further, defendant No. 2, 4 to 9, 12, 14 to 18, 20 and 24 have
adopted the written statement of defendant Nos. 21, 23 and 27.
7. Based on rival pleadings, the following issues are framed :
1. Whether the plaintiffs prove that deed of
declaration in respect of Hoysala Dreams
Apartment made by the defendant No.28 is
illegal, unilateral and it is not in accordance with
the provision sof Karnataka Apartment
Ownership Act, 1972 as such same is null and
void ?
2. Whether the plaintiffs prove that the declaration
made by the defendant No.28 and bylaws of
defendant No.1 Association is in violation of the
statutory provisions of Karnataka Apartment
Ownership Act 1972 and the rules framed
thereon ?
3. Whether the defendant No.1 Association is not
constituted as per the statutory requirements of
Karnataka Apartment Ownership Act 1972 and
rules thereon as it has no legal existence ?
19 OS No.6162/2016
4. Whether the plaintiffs are entitled for
mandatory injunction directing the defendant
No.1 to constitute the bylaw in accordance with
the provisions of Karnataka Apartment
Ownership Act ?
5. Whether the plaintiffs are entitled for the
declaration that the resolution dated 31.01.2015,
05.04.2015, 10.04.2015, 05.04.2013, 17.04.2016
and 31.07.2016 passed by office bearers of
defendant No.1 is null and void ?
6. Whether the plaintiff proves that the defendant
No.1 has not audited the accounts of it from
2009 till date ?
7. Whether plaintiffs are entitled for appointment
of receiver for the management of defendant
No.1 in accordance with the provisions of
Karnataka Apartment Ownership Act, and rules
framed thereon ?
8. Whether the plaintiffs are entitled for
consequential relief of Permanent Injunction as
prayed for ?
9. What order or decree ?
8. In order to substantiate the contention of the plaintiff, Power of
Attorney Holder of the plaintiff No.1 P.G. Shenoy is examined as P.W.1
and got marked 19 documents as per Exs.P.1 to P.19. After closure of
evidence of the plaintiffs, the defendant No.27 K.S. Sreedhar is examined
as D.W.1 and got marked 7 documents as per Exs.D.1 to D.7.
20 OS No.6162/2016
9. Heard the arguments.
10. My findings on the above issues are as they are under :
Issue No.1 : In the negative
Issue No.2 : In the negative
Issue No.3 : In the negative
Issue No.4 : In the negative
Issue No.5 : In the negative
Issue No.6 : In the negative
Issue No.7 : In the negative
Issue No.8 : In the negative
Issue No.9 : as per the final order
below for the following
REASO NS
11. Issue Nos. 1 to 4. :- These four issues are taken up together for
discussion for the sake of convenience and to avoid repetition of facts
because they are interconnected with each other. Here in this case, it is
undisputed that plaintiff No. 1 and 2 and the defendant No.2 to 27 are
all purchasers of individual apartment premises in multi-storied
apartment. The plaintiff has produced certified copy of deed of
declaration as per Ex.P2. A perusal of this document would show that
as many as 28 apartments are involved in the multi-storied buildings.
21 OS No.6162/2016
The contents of Ex. P2 would also show that the same was made and
executed by the sole owner subjecting his property to the provisions
of the Karnataka Apartment Ownership Act, 1972 as provided in
Section 2 of the Act. Further reading of this document would show
that M/s Hoysala Developers as Grantor is fully empowered and
qualified to execute the deed of declaration. The purpose of
declaration was to submit the property to the provisions of Karnataka
Apartment Ownership Act, 1972.
12. Here in this case, in order to substantiate the contention of the
plaintiffs, Power of Attorney Holder of the first plaintiff by name P. G.
Shenoy is examined as P.W.1. His evidence that M/S Hoysala
Developpers a proprietary business concern engaged in the business
of as a Builder and Developer and who has been arraigned as
defendant No.28 is not denied or disputed. Here in this case, in order
to substantiate the contention of the defendants, 27th defendant is
examined as D.W.1. However on behalf of defendant No. 28, no
evidence either oral or documentary is produced to substantiate its/ his
contention.
22 OS No.6162/2016
13. The fact that the apartment styled as Hoysala Dream’s
apartment was constructed in an area measuring 20,278 square feet in
Property No. 2, PID No. 100-674-2 in New BHEL Road is admitted .
It is the evidence of P.W.1 that the apartment has been constructed
with certain deviations, having been undertaken pertaining to the
construction. His evidence would show that on representation, being a
compoundable deviation, there was no impediment for the purchasers
to purchase individual apartment with common areas, common
amenities, and the facilities.
14. According to P.W.1, first plaintiff purchased apartment bearing
No. 202 and the second plaintiff purchased Apartment No. 207. It
emanates from the evidence of P.W.1 that, Apartment No. 207 was
purchased by the second plaintiff with co-ownership of one CC. Rama
Mohan, but he has not been made as party. Thus, from the evidence of
P.W.1 it is clear that the plaintiff no 1 had purchased apartment No.
202 and whereas plaintiff No. 2 and CC Ram Mohan have purchased
apartment No. 207. This fact is not denied or disputed. Thus from the
evidence of P.W.1, it is shown to the satisfaction of the court that the
first plaintiff is the owner of Apartment No. 202 and whereas the
23 OS No.6162/2016
plaintiff No. 2 and CC Ramamohan are the owners of Apartment No.
207.
15. It is the evidence of P.W.1 that defendants Nos.2 to 27 are
purchasers of individual Apartments in the multi-storied apartment
complex named as Hoysala Dreams. It is also the evidence of P.W.1
that the Defendant No. 2 to 27 are individual owners having their
respective right, title, interest and joint and common interest for the
management of larger interests regarding peaceful and quiet
enjoyment of their individual Apartment and undivided interest over
the property.
16. According to P.W.1, on careful perusal of sale deeds, commonly
executed by the defendant No.28, provide for execution of a deed of
declaration as contemplated under Section 2 of Karnataka Apartment
Ownership Act, 1972. The sum and substance of evidence of P.W.1 is
that defendant No.28 has unilaterally executed a deed of declaration
before the Office of Sub-Registrar. According to P.W.1, deed of
declaration cannot be executed unilaterally. It is the contention of
P.W.1 that it is incumbent upon the builder/developer to formulate
and constitute by-laws and name the residential apartment complex
24 OS No.6162/2016
association as Hoysala apartment owners’ association. Thus, the
evidence of P.W.1 is that the Declaration and by-laws are made in
violation of statutory provisions of the Karnataka Apartment
Ownership Act, 1972 and rules framed thereunder. Therefore, it is for
this Court to appreciate deed of declaration, by-laws, and the
provisions of Karnataka Apartment Ownership Act, 1972 and Rules
framed thereunder.
17. It is the evidence of P.W.1 that defendant No.28 without taking
confidence/consent of individual apartment owners has executed the
document thereby implementing the declaration and by-laws forcibly
upon the occupants. The plaintiffs and other defendants were unable
to notice that declaration and the by-laws was not in accordance with
statutory provisions. It is the evidence of P.W.1 that every occupant
occupying the premises will have to agree with the terms and
conditions of by-laws which was proper and correct. According to
P.W.1, by-laws will have to be framed after all owners agreeing to all
the terms and conditions suggested, acceptable and incorporated.
18. It is also the evidence of P.W.1 that the Provisions of Karnataka
Apartment Ownership Act, 1972, indicates that each apartment owner
25 OS No.6162/2016
shall be entitled to exclusive ownership and possession of his
apartment premises. Thus, according to P.W.1, it is each apartment
owner shall execute a declaration that constitutes his apartment to the
provisions of the Act and a deed of apartment in relation to his
apartment in the manner prescribed for the purpose. It is also the
evidence of P.W.1 that defendant No.28 being the owner of the
property with an intention to release monetary benefit has unilatrally
executed the deed of declaration and by-laws by a self-styled
unilateral Act. The provisions are mandatory to indicate that on an
administration of every property the which allowed to be governed by
laws to be framed in terms of statutory provisions of the Karnataka
Apartment Ownership Act of 1972. But Existing By-laws is in
violation of Statutory Rules.
19. It is the evidence of P.W.1 that the owners of the apartment
building did not know the object of the association at all. The reason
is that at the time of drafting and preparation of by-laws, they were
not present. Further in the by-laws, there is a clause pertaining to
waiver of notice. The waiver of notice is contrary to any right of the
occupants. None of the persons who have got themselves elected as
Managers/President, Secretary and Treasurer are capable in managing
26 OS No.6162/2016
the affairs of the apartment building. Their incompetency is looked
upon. Further, they have been appointed without there being a
quorum. They have taken the decision dehorsing the minimum
quorum. It is the evidence of P.W.1 that existing Apartment Owner’s
Association is not constituted on the statutory requirement of
Karnataka Apartment Ownership Act of 1972 and rules. The deed of
declaration is not in accordance with rules framed thereunder.
20. In fact, this P.W.1 is subjected to the process of cross-
examination. His evidence would show that he has given evidence on
behalf of the first plaintiff only. It emanates from his evidence that all
the 28 owners of the flats are the members of first defendant society.
The suggestion that, the first defendant association came into
existence in the year 2009 is denied. His evidence would show that
from 2012 to 2014 he had worked as a Secretary of the first defendant.
Sri GBS advocate has submitted that there is no estoppel to the
provisions of the Act. According to him, merely because of the fact
that P.W.1 was worked as a Secretary from 2012 to 2014, it will not
take away his right to challenge the declaration and by-laws
formulated by the defendant No.28. At juncture itself, it is relevant to
note that a person who has functioned as a Secretary under the same
27 OS No.6162/2016
declaration, has accepted its validity in practice and has acted under
its authority cannot ordinarily challenge it later, except on strong legal
grounds such as fraud or fundamental Illegality. Therefore, in the
given circumstances, the principles of estoppel, acquiescence and
doctrine of consistency in conduct come into play. However, it is for
the plaintiffs to establish the fact that declaration and by-laws so made
by defendant No.28 is unilateral act and contrary to the provisions of
the Karnataka Apartment Ownership Act of 1972.
21. It is also the evidence of P.W.1 that as on 19.01.2014 he was the
member of Executive Committee of the first defendant. His evidence
would also show that when he was working as a Secretary, he had
taken several decisions and passed resolutions. His evidence would
show that it was decided to collect Rs. 50,000 each from the members
as corpus fund. His evidence would show that as has been resolved he
had paid only Rs. 30,000 and failed to pay remaining 20,000 as
Corpus fund. Therefore, his evidence would show that he has not
adhered to the resolution passed by himself.
22. Further his evidence would show that during his tenure and he
is not aware as to how many members have given contribution to
28 OS No.6162/2016
Corpus fund. When a specific suggestion was directed to P.W.1 to the
effect that every year there was general body meeting of the first
defendant association, he has deposed that the same was not done in
accordance with rules and laws. Therefore, its for the plaintiff to
explain to the satisfaction of the court that as to how, General Body
meeting so held was not in accordance with rules and laws. This is
because for a good number of years he worked as a Secretary and
passed Several Resolutions. The suggestion that for each annual
general body meeting he received the notice is admitted by him.
Therefore, it is for P.W.1 to explain to the satisfaction of the court as
to how, general body meetings so conducted was not in accordance
with rules and laws enumerated under the Declaration and by-laws so
available as per EX.P 2.
23. It is his evidence that, it was for the members to pay monthly
maintenance to the first defendant Association. Though P.W.1 was
worked as Secretary and active member of the Association, has
admitted that in the notice, quantum of contribution with respect to
monthly maintenance is also mentioned. Therefore, it can be gathered
from the evidence of P.W.1 that every year, annual General Body
meeting was being conducted by issuing notice to all the members.
29 OS No.6162/2016
So, even if their is a clause for waiver of notice, then also notice was
issued to the members. Thus, it is clear that, the said clause inserted
in Ex.P.2 is not acted in its letter and spirit.
24. The evidence of P.W.1 would show that every month, the first
defendant used to collect fee towards maintenance and due to
acceleration of price, there was enhancement of maintenance charges.
According to him, when he received notice for payment of
maintenance, he protested the same and had written a letter to the
Association. But in this aspect of the matter, the plaintiffs have not
produced any such notice to the judicial scrutiny of this Court.
25. The suggestion that as on 30.09.2023, P.W.1 was liable to pay
maintenance charges of Rs. 1,98,336 is denied. However, he has not
produced any evidence to show that as has been resolved, he had
regularly paid maintenance charges to the first defendant Association.
Merely saying the fact that the resolution passed by the first defendant
Association is contrary to the rules and laws is not suffice. On the
contrary, it is for the plaintiffs to substantiate as to how the resolutions
are not in accordance with By-laws and rules framed thereunder.
30 OS No.6162/2016
26. The evidence of P.W.1 would also show that, out of 28
members, majority of the members have paid maintenance charges.
According to him, when he was working as a Secretary of the
Association during 2012, he has not submitted any written
representation stating that the Association is not running in
accordance with law. His evidence would show that when he was
serving as a Secretary, a resolution were passed for the appointment of
Auditor. Further, from 2009 till the date of evidence of P.W.1, the first
defendant association has been taking care of all the affairs of the
Association. The fact that the second defendant had paid maintenance
charges regularly is admitted by P.W.1. His evidence would also show
that every year Audit has been conducted and account has been
maintained. The evidence of P.W.1 in cross-examination would show
that as per the provisions of Karnataka Apartment Owners Act of
1972, it is for the Association to appoint the Auditor. His evidence
would also show that during his tenure as a Secretary, Resolution was
passed for the appointment of the Auditor. Therefore, one thing is
clear that based on Bylaws of the first defendant, Auditor has been
appointed and the accounts of the association is being audited.
31 OS No.6162/2016
27. His evidence would show that the relief which he has claimed
in the present suit, was claimed by him in the earlier suit. So it is for
this Court to consider Order II Rule 2 of CPC and the material
pleading placed on record and appreciate the same in accordance with
said provisions of CPC. The plaintiff has produced certified copy of
plaint in OS No. 499/2015 as per Ex P18. A reading of this document
would show that first plaintiff alone had instituted suit against the first
defendant association and has pleaded that the Association was
formed during 2009 under a deed of declaration, registered as
Document No. YPR-4-0018-2008-9 in CD No. YPRD8 on 13.03.2009
in the office of the Sub Registrar Yashawanthpura , Bengaluru. Thus,
at an undisputed point of time, plaintiff No.1 has admitted the deed of
declaration dated 13.03.2009, now produced at Ex.P2.
28. Therefore, by virtue of this judicial admission, the plaintiff
No.1 is estopped from challenging the deed of declaration dated
13.03.2009. Further, in OS No. 4990/2015, it was also admitted by the
first plaintiff that the defendant’s association was formed under date of
declaration dated 13.03.2009 along with its Bylaws and that as per the
Bylaws, the management of the defendant is to be governed by a
management committee comprising of elected members of the
32 OS No.6162/2016
defendant. Further, according to her, the decisions of the defendant
and the management committee would have to be taken at the
meetings which have to be held by duly notifying the same to all the
members as per Bylaws. Further, according to her, Bylaws provides
for audited accounts should be accessible to the members of the
defendant. Thus, in the earlier suit, plaintiff No.1 has admitted the
Bylaws which is attached to the declaration dated 13.03.2009.
Therefore, formation of defendant association by virtue of declaration
dated 13.03.2009 was admitted by the plaintiff No.1 at the earliest
point of time.
29. Sri. G.B.S., Advocate appearing on behalf of the plaintiffs has
placed reliance on the decision of the Hon’ble Apex Court in Kewal
Singh v. Mt. Lajwanti AIR 1980 SC 161 and argued that Order II Rule
2 of CPC is of no application in this case. It is pertinent to note that in
OS No. 4990/2015, the plaintiff had filed IA No. 5 under Order XXIII
Rule 1 of CPC and requested the court to permit her to withdraw the
suit with a liberty to file fresh suit on the same cause of action. The
court has placed reliance on the decision reported in 2015 4 SCC 3977
and 2016 (1) KLJ 316 and applied the ratio therein and and granted
33 OS No.6162/2016
permission to the plaintiff to withdraw the suit with a liberty to file the
suit on the same cause of action.
30. But, it is relevant to note that even before securing liberty to
file a fresh suit, she and second plaintiff has filed present suit in OS
No. 6162 / 2016. It is appropriate note here itself that the present suit
is not filed after securing liberty in OS No. 4990/2015. Since, the
plaintiffs have filed the present suit before securing permission to
withdraw the suit to file the fresh suit on the same cause of action,
they are stopped from taking any contention contrary to the admission
given in OS No. 4990/2015. Further, P.W.1 has given evidence on
behalf of plaintiff No.1 only. Therefore, the contentions that are taken
in OS No.4990/2015 binds the 1st plaintiff. However, on behalf of 2nd
plaintiff no evidence is produced.
31. In OS No. 4990/2015, the plaintiff had taken the contention that
the decisions of the meeting were not taken in accordance with
Bylaws. By virtue of this pleading in OS No. 4990/2015, it has to be
said that the plaintiff by admitting the declaration and Bylaws has
contented that Meetings and the decisions were not taken in
accordance with Bylaws. But in the present suit, the plaintiffs have
34 OS No.6162/2016
challenged the very same declaration and Bylaws contending that the
declaration and Bylaws are not according to statutory provisions of
Karnataka Apartment Ownership Act, 1972.
32. It is appropriate to note that it was PW-1 who had taken
decision to collect a sum of Rs.50,000 as Corpus fund from each of
the owners of 28 apartments. Now one thing is clear that other than
Corpus fund, no other fund is collected towards maintenance. The
plaintiffs have not produced any evidence to show that they have paid
Corpus fund and maintenance charges regularly. The plaintiff has
pleaded about the mismanagement of the account. But the pleading is
very much silent as to how much amount was collected towards
maintenance charges and how much amount was collected towards
corpus fund and how much amount was spent towards maintenance
and other expenses. Therefore, based on the sole testimony of P.W.1, it
cannot be said that there is mismanagement of accounts of the
Association. This is also because other owners i.e. Defendant No. 2 to
27, have not raised any objection. On the contrary, they are adhered to
the terms of Declaration and Bylaws.
35 OS No.6162/2016
33. Further it is relevant to note that from the year 2009 till the
filing of the suit in the year 2015, the association was being run on the
basis of document i.e. deed of declaration and Bylaws. In the earlier
suit, the plaintiff, being the Secretary of the 1 st Defendant Association,
has not challenged the declaration and Bylaws. Merely as there is
some displeasure over the manner in which the association being run,
it cannot be a ground to hold that the resolutions passed earlier are not
in accordance with the provisions of declaration and Bylaws produced
at Ex.P.2.
34. Sri.B.N.P advocate for defendant No.27 has argued that plaintiff
No.1 was appointed as Secretary of the Association during 2009 and
served as for quite some years and at the time, he had no grievance
about formation of defendant No.1. Association. This submission
made is in tune with the contents of the plaint filed in O.S
No.4990/2015 produced at Ex.P.18. Since because Declaration was
not challenged at the earliest point of time, by virtue of Order II Rule
2, the plaintiffs are estopped from denying the genuinity of the same
in the subsequent suit.
36 OS No.6162/2016
35. Further, the admission given by P.W.1 would show that he had
taken several decisions in the matter. Therefore, he is estopped from
taking any contention contrary to the decisions that were taken.
Further, the evidence of P.W.1 would show that as has been resolved,
the plaintiff no 1 has not paid maintenance charges. What was the
quantum of money paid by the plaintiff, is not stated in the plaint or in
the evidence given as P.W.1. The submission of learned counsel for
defendant no 27 that the plaintiffs have taken all facilities and now
challenging the declaration without attending to general body meeting
is stands for reasons. The evidence of P.W.1 would show that account
of the association is being audited. Therefore, there is substance in the
contention of defendant No. 27 that only to harass the defendants, the
present suit is filed.
36. Here in this case, in order to substantiate the contention of
defendant No. 27, one K. S. Sreedhar is examined as DW-1. It is the
evidence of DW-1 that at the earliest point of time, the plaintiff No.1
had filed the suit in O.S No. 4990/2015 for the relief of Declaration
of Resolution and also for Permanent Injunction and she had obtained
ex-parte interim order and subsequently, it was vacated. It is the
37 OS No.6162/2016
evidence of DW-1 that the present suit is filed by the plaintiffs only to
harass the defendants.
37. According to DW-1, when the plaintiff was working as a
Secretary of the Association, bank account was opened and he had
passed various Resolutions. In the earlier suit, the plaintiffs have not
sought for declaration of Bylaws and declaration as contrary to the
provisions of Karnataka Apartment Ownership Act, 1972. Since
because the plaintiff No.1 has accepted the constitution of the
Association and applicability of Declaration, she is estopped from
filing the present suit. Therefore, the gist of evidence of DW-1 is that
the very suit itself is not maintainable . In fact DW-1 is subjected to
the process of cross-examination and he has admitted that Hoysala
Dreams Apartment Owner’s Association has not been registered.
38. Further according to him, apartment Bylaws also not registered.
His evidence would show that defendant No.28 had executed Bylaws
on behalf of the first defendant association. His evidence would show
that there was contract between the purchasers and the owner of the
apartment with regard to providing service and other facilities.
38 OS No.6162/2016
39. It is the evidence if DW-1 that, as per Ex.P.2, it was for the
Association to register the Association under the Provisions of
Karnataka Apartment Ownership Act of 1972, but they have not
registered accordingly. Further, his evidence would also show that in
order to convene a meeting, it was for the Association to issue notice
to its members. His evidence would show that when he was working
as a Secretary, every year audit was conducted and he has no
impediment to produce Audit Report to the court. His evidence would
show that Audit Reports were not sent to Registrar of Co-operative
Society.
40. It is relevant to make a mention that, under the Karnataka
Apartment Ownership Framework, the declaration and Bylaws are
typically executed and registered by the promoter/developer at the
time of formation of the apartment scheme. The purpose is to legally
bring the apartment into a statutory ownership regime. It is for the
sub-registrar to register the document based on the execution and
compliance with registration requirements. The developer acts as the
originator and executing authority of the declaration and Bylaws
before handing over apartments to its owner /prospective purchasers.
Further, defects or lacunas in Bylaws can be corrected, by way of
39 OS No.6162/2016
amendment in accordance with existing Bylaws, approval by requisite
majority of Apartment Owners and proper registration of amended
document. The procedural defects in governance of the documents can
be cured by lawful amendment and not unilateral alteration.
41. The decision, in the case of Shantharam Prabhu and another Vs
K K Dayananda Rai and Others in CRP No. 96/21 clubbed with CRP
No. 64/2021 dated 08.09.2021, our Hon’ble High Court has held that
all the apartment owners are not required to sign and execute the
Declaration, Deed of apartment and Bylaws. The promoter, before
registration of a sale deed can execute and register the Declaration,
deed of apartment and Bylaws with the jurisdictional Sub-Registrar
being the owner of the apartment, building and property. The ratio of
this decision is squarely applicable to the present case. This is
because, the defendant No.28 had executed Ex.P.2 contains all the
particulars including measurement of the property, plan structure etc.
If the Bylaws is not adhering to the demand of the residents, it is for
them to change necessary covenants with the approval of General
Body as provided. Now, the document at Ex.P.2 was registered before
the Senior Registrar Yashvantapura Bengaluru by the defendant
40 OS No.6162/2016
No.28. By accepting this Ex.P.2, plaintiffs and the defendant No.2 to
27 and become the active members of the 1st defendant Association.
42. Further, in the above decision, it was held that if declaration is
executed in terms of Rule 6, the promoter/developer, as the sole owner
of all the apartments, would be entitled to execute and register the
declaration under Section 2 of the Act. Here in this case also, the
plaintiffs and defendant No. 2 to 27 have purchased the apartment,
they were aware of the apartment having been subjected to the
provisions of the Act by virtue of execution of Ex.P.2, they are bound
by the deed of declaration and Bylaws relating to the Apartment. In
addition to it, absolutely no malafides can be attached to Ex.P.2.
43. It is contented by the plaintiffs that as has been required, the
purchasers have not executed Form B and therefore, declaration and
Bylaws does not bind them. But here in this case, the deed of
declaration and the Bylaws were already been executed and registered
by the sole owner/developer/Defendant No. 28 and this was accepted
by all the purchasers as there is reference of the same in their sale
deeds. Therefore, subsequent non-execution of Form B by the
41 OS No.6162/2016
purchasers is not a ground to declare that the declaration and Bylaws
so framed are not in accordance with the provisions of the Act.
44. Further, it was argued that if defendant No.28 is the sole owner
then only he can execute and register deed of declaration and Bylaws
with the jurisdictional Sub-Registrar being the owner of the
apartment, building and property. But here in this case, it is not the
contention of the plaintiffs and defendant No. 2 to 27 that before
purchase of the apartment, they were owners of the land in which, the
apartment being constructed. The fact that the defendant No.28 is the
promoter and sole owner of the property in which the apartment being
constructed is not in dispute.
45. Thus, Section 2 of the Act requires / empowers the
promoter/developer/Defendant No.28 to execute an registered
declaration, deed of apartment and Bylaws in the Sub-Registrar.
Further, the above decision would also say that the persons or entities
who have registered title in respect to property, are required to execute
and register the documents. In this case, it is not the contention of the
plaintiffs that they had registered title over the property in which the
Apartment being constructed. Therefore, the act of the 28 th defendant
42 OS No.6162/2016
in execution of Ex.P.2 is strictly in accordance with the provisions of
the Act.
46. The plaintiff has produced certified copy of sale deed dated
20.06.2008 as per Ex.P.3 under which, the plaintiff No.2 and her
husband had purchased apartment number 207. A reading of this
document would show that the name of the apartment was narrated as
Hoysala Dreams Apartment. Further Ex.P.4 is the Sale Deed of the
Plaintiff No.1, which is dated 16.06.2018. Now, from the perusal of
these two documents, it is clear that the plaintiffs are the owners of the
suit schedule apartments. However, the document at Ex.P.2
demonstratively indicate that the plaintiffs have accepted the same.
However in the suit of the year 2015 also, the plaintiff has
unequivocally admitted declaration and Bylaws.
47. Further, in the above decision, it was held that on the purchase
of the property and registration of the sale deed, the purchaser or
apartment taker would have to execute necessary declaration under
Form B of the Act, agreeing to be bound by the said declaration, deed
of apartment and Bylaws. The association, when formed, could
always amend the same in terms of the provisions applicable thereto.
43 OS No.6162/2016
Therefore ratio of the above decision is squarely applicable to the
present case. to hold that the act of defendant No.28 in execution of
Ex. P2 deed of declaration and Bylaws is strictly in terms of the
provisions of the Act and therefore, option available for the
purchasers to to seek amendment of such provisions which is not
beneficial for the enjoyment of the Apartment.
48. Thus on appreciation of material evidence on record this Court
is of the opinion that the act of Registration of Ex.P.2 is not unilateral
act of 28th defendent. On the contrary, statute provides for as he was
the sole owner of the property he complied the provisions of the
Karnataka Apartment Ownership Act of 1972. Therefore, it is held
that first defendant Association is constituted in accordance with
requirement of Karnataka Apartment Ownership Act. Hence, question
of granting a mandatory injunction against the defendant No. 1 as
prayed in the suit does not arise at all. Accordingly Issue Nos.1 to 4
are answered in the negative.
49. Issue No.5: It is the contention of the plaintiffs that resolutions
dated 31.01.2015, 05.04.2015, 10.04.2015, 05.04.2013, 17.04.2016
and 31.07.2016 passed by the office bearers of defendant No.1 is null
44 OS No.6162/2016
and void. Insofar as these contentions are concerned, the defendants
No. 21, 23 and 27 have contented that the plaintiffs have taken such
contention by suppressing the fact that first defendant association was
constituted in the year 2009 and the Association is functioning in
terms of the Karnataka Apartment Ownership Act. Further the first
plaintiff was a secretary of the association from July 2012 to January
2014 and during her tenure, bank account was opened in the name of
Association. The first plaintiff has not made any reference of various
Resolutions passed during his tenure as a Secretary. Therefore, it is
clear that with a mala fide intention to ensure that the functioning of
the Association should come to a standstill, such contention was taken
by the plaintiffs. The resolutions taken place from 2009 refers to the
Act and implies that constitution of Association in terms of the Act
and accepted by all the members.
50. Though the plaintiffs have challenged several resolutions, they
have produced a resolution dated 01.10.2013 as per Ex.P.6, which was
signed by as many as 47 members and they have also produced
Resolution dated 01.10.2013. Except these two resolutions, other
resolutions are not produced by the plaintiffs.
45 OS No.6162/2016
51. The evidence of P.W.1 in cross-examination would show that he
received the notice with regard to payment of maintenance amount to
the first defendant Association. Further the suggestion that since from
2009 the first defendant has been maintaining the apartment and that
the second plaintiff had paid entire maintenance charges and corpus
fund is admitted by P.W.1. When second plaintiff had paid Corpus
fund and maintenance charges regularly, there is no substance in
P.W.1 saying that the Resolution with regard to payment of corpus
fund is contrary to the provisions of the statute.
52. The evidence of P.W.1 would show that the resolutions referred
to herein above, are null and void. But based on the oral say of P.W.1,
it is not possible to come to such conclusion because it was resolved
in the meeting held in the first defendant Association. It is submitted
that the resolutions were passed contrary to minutes and agenda as per
the notice. But such material particulars are not forthcoming from the
side of the plaintiffs. Therefore, based on the oral testimony of P.W.1,
it is not safe to come to the conclusion that resolutions referred to
herein above are bad in law or contrary to the statute.
46 OS No.6162/2016
53. Here in this case on appreciation of the material evidence on
record this Court is of the opinion that the plaintiffs have not
challenged the resolutions that are passed during the tenure of PW-1
as a Secretary of the Association. Further, the plaintiffs have failed to
explain to the satisfaction of the court as to how the referred
resolutions are null and void. Hence, they have failed prove this issue.
Accordingly, Issue No.5 is answered in the negative.
54. Issue No.6: It is the contention of the plaintiffs that the first
defendant has not audited the account from 2009 till date. This fact is
deposed by P.W.1 in his chief examination. His evidence would show
that he has not participated in the general body meeting of 2014. His
evidence would also show that as per the provisions of Karnataka
Apartment Ownership Act, it was incumbent for the Association to
appoint auditor. His evidence would show that during his tenure, there
was resolution to Appoint the auditor to the first defendant
Association. His evidence would show that the Association has been
maintaining the apartment out of corpus fund being received by the
members of the first defendant Association.
47 OS No.6162/2016
55. When a specific suggestion was directed to PW-1 to the effect
that every year, first defendant has conducted audit, he has admitted
the same. Thus, this portion of evidence of PW-1 would show that
contrary to the contention taken in the plaint, PW-1 has deposed that
the accounts of the first defendant is being audited every year.
56. In addition to the above, the defendants have produced balance
sheet as on 31.03.2024 at Ex.D.1, income and expenses statement as
on 31.03.2024 is produced at Ex.D.2. Receipt and payment is
produced at Ex.D.3. Monthly maintenance charge is produced at
Ex.D.4 and whereas corpus fund received statement is produced at
Ex.D.5 and depreciation report on fixed assets is produced at Ex.D.6.
Further notes forming part of financial statement is produced at
Ex.D.7. The genuineness or otherwise of these documents is not
denied or disputed by the plaintiffs. No suggestion was directed to
DW-1 to the effect that Ex D1 to D7 are not genuine documents.
57. Thus, on appreciation of materials on record, this Court is of the
view that the account of the First Defendant Association has been
audited by virtue of resolution passed during the tenure of P.W.1.
Hence, it is said that the plaintiffs have failed to prove that the
accounts of the First Defendant Association is not audited from 2009
48 OS No.6162/2016
till the date of filing of the suit. Accordingly, issue No. 6 is answered
in the negative.
58. Issue No.7: It is the contradiction of the plaintiffs that
appointment of a receiver for the management of first defendant is
required. Therefore, it is for the plaintiffs to show that there is
mismanagement of the funds in the hands of defendant No.1
Association. However, the evidence of PW-1 would show that as has
been resolved, he himself has not paid corpus fund and maintenance
charges.
59. This Court has already held that registration of declaration and
Bylaws is within the domain of Developer/defendant No.28. The
plaint pleadings would show that there are lacunas, irregularities and
irregular management of first defendant association. If that being the
case, it is for the members to discuss the same in General Body and
then take necessary action and to pass the Resolutions to rectify the
irregularities found in the Bylaws. In this view of the matter, without
there being material particulars, appointment of Receiver in a suit like
instance one is not warranted.
49 OS No.6162/2016
60. Order XL Rule 1 of CPC is the governing provision to appoint a
receiver of any property. The appointment of receiver is to prevent
misuse, mismanagement and to preserve the property and to safeguard
the rights of the parties until final adjudication. In order to claim such
relief, there should be strong prima facie case, the property in danger
of being wasted, damaged and alienation or serious dispute over rights
and control of the property. But here in this case, the evidence on
record would show that auditor has been appointed and audit has been
conducted every year. Further, the material particulars with regard to
mismanagement of the property or the account is not placed for legal
scrutiny. Further, misuse of maintenance funds and illegal decision of
affecting the property is also not proved.
61. It is relevant to note that, the management of the apartment is a
collective democratic structure. Appointment of receiver interferes
with internal administration. Here in this case, the materials on record
would show that the association has been functioning properly and the
dispute is only legal in nature and alternative remedy exists and
therefore, if there is any lacuna or defect in the Bylaws, it is for
members to go for amendment. Appointment of a receiver is a harsh
50 OS No.6162/2016
remedy and should be granted only when there is clear necessity to
preserve the property and prevent irreparable harm.
62. But here in this case, no cogent and convincing evidence is
produced to the effect that there is mismanagement of property and
funds of the first defendant association by the other defendants.
Therefore, absolutely there is no necessity to appoint the Receiver for
the management of affairs of the first defendant association. This also
because, the execution of Ex.P.2 Declaration and Bylaws is in
accordance with the provisions of the Act and for which the defendant
No.28 had sole authority. Accordingly, issue No.7 is answered in the
negative.
63. Issue No 8: Here in this case the plaintiff No.1 at the earliest
point of time filed the suit in OS No.4990/2015 and in that suit, placed
reliance on the declaration and Bylaws made by defendant No.28. No
doubt as has been submitted by Sri GBS advocate for the plaintiff,
there is no estoppel against statute. But here in this case, the conduct
of the first plaintiff would show that without seeking liberty in OS
No.4990/2015, the present suit is being instituted in a comprehensive
51 OS No.6162/2016
manner. A perusal of prayer claimed in the suit would show that the
plaintiffs intend to have scheme suit.
64. Learned counsel has invited the attention of this Court with
regard to Section 2(d) of the Karnataka Apartment Ownership Act,
1972. This provision of law states that association of apartment
owners means all of the apartment owners acting as a group in
accordance with Bylaws and declaration. Now, except the plaintiffs,
other owners of the apartment, have not at all challenged or expressed
their dissatisfaction about the declaration and Bylaws produced as
Ex.P.2.
65. Further by placing reliance on Section 2 (i) of the Act, Learned
counsel for the plaintiffs has submitted the competent authority means
in relation to buildings constructed or to be constructed by the housing
board, the Secretary of the housing board and in any other case, the
register of co-operative societies as defined in the Karnataka Co-
operative Societies Act of 1959. So by virtue of above provision of
law, insofar as the defendant association is concerned, competent
authority is Registrar of Co-operative society as defined in the statute
of the year 1959.
52 OS No.6162/2016
66. Learned counsel has also invited the attention of this Court
regarding Section 2 (J) of the Act which deals with declaration. As per
this provision of law, declaration means the instrument by which the
property is submitted to the provisions of the Act. And such
declaration, as from time to time, may be lawfully amended. Thus,
this provision of law itself provides for amendment of declaration on
the majority of apartment owners. In this view of the matter, Section 2
(n) deals about majority or majority of apartment owners. As per this
provision of law, majority means apartment owners with 51% or more
of the votes. In accordance with the percentage assaigned in the
declaration to the apartments for voting purpose.
67. Further Section 7 of the Act deals compliance with covenants,
Bylaws and administrative provisions. As per this provision of law
each apartment owner shall comply strictly with the Bylaws and with
the administrative rules and regulations adopted pursuant to thereto as
either of the same may be lawfully amended from from time to time,
and with the covenants, conditions and restrictions set forth in the
declaration or in the Deed to his apartment. Failure to comply with
53 OS No.6162/2016
any of the same shall be a ground for an action to recover damages or
injunctive relief or both maintainable.
68. In his affidavit filed in lieu of chief examination at para 17,
P.W.1 has deposed that if the grievance in respect of the noisy
methods that are adopted or keeping pets or unlawful animals inside
the premises, the neighboring apartment owners would definitely be
put to immense mental harassment. Understanding other pets by the
apartment owners who would be the strangers to it would be a cause
concern. If such of the grievances have been put forward by the said
individual owners for keeping the pets contrary to the apartment
bylaws, managers or present office bearers who are unable to resolve
this issue. And also unable to adopt the suggestive methods. Thereby
it need to be said that it assumes inability to manage the association.
Therefore, the plaintiffs have approached this Court.
69. If the evidence of P.W.1 is taken into consideration, then it is for
the association or its office bearers to take action as provided under
Section 7 of the Act .The evidence of P.W.1 or the plaint pleading is
not very specific as to which member is indulged in causing noisy
54 OS No.6162/2016
methods or keeping pets or unlawful animals inside the premises.
Merely on a stray statement of P.W.1, it is not possible to come to the
conclusion that some of the apartment owners are keeping pets and
unlawful animals inside the premises. Further, no material particulars
including any documentary evidence is produced to show that the
plaintiffs have complained that some of the owners keeping pets or
unlawful animals inside the premises but the association or its office
bearers have not taken any action into the matter. Therefore, if the
plaintiffs have got any grievance, it is for them to invoke Section 7 of
the Act before the general body of the Association.
70. Sri. G.B.S., Advocate for the plaintiffs has invited the attention
of the court with regard to provisions of Section 11 of the Act. It deals
with contents of declaration. As per this provision of law, the
declaration shall contain the following particulars: (a) description of
the land on which the building is situated and improvements, (b)
Description of the building stating number of storayes and basements
and number of apartments. (C). Apartment number of each apartment
and a statement of its location, approximate area, number of rooms
and immediate common area to have access to (d) description of
common areas and facilities, (e) description of limited common areas
55 OS No.6162/2016
and facilities, (f) value of the property and of each apartment and
percentage of undivided interest in the common area and facilities. (g)
The statement of the purpose for which the building and each
apartment are intended are restricted as to use, (h) the name of persons
to receive service of process in the cases, (i) provisions as to
percentage of votes by the apartment owners which shall be
determinative of whether to rebuild, repair, resolve etc. (J). Any other
details in connection with property which the person executing the
declaration may seem desirable to set forth consistent with the Act
(K). the method by which declaration may be amended, consistent
with the provisions of the Act.
71. Here in this matter, Ex.P.2 would show that the defendant No.28
being the sole owner of Hoysala Dream’s multi-storied apartment built
up in Site No. 2, has registered the document with an intention to
submit the property to the provisions of Karnataka Apartment
Ownership Act of 1972 as per Section 2 of the Act. In Ex.P.2 site is
also described. Further Covenant No. 5 of Ex.P.2 states that,
apartment in the said building have been sold to one or other owners,
each owner obtaining a particular and exclusive property right thereto
and each apartment constituting a heritable and transferable property
56 OS No.6162/2016
right within the meaning of any law for the time being in force in the
State of Karnataka and also undivided interest in the general and
restricted to common area facilities or buildings, as listed in the
document of declaration, necessary for their adequate use and
enjoyment. A meaningful reading of Ex.P.2 would show that all the
ingredients of Section 11 of the Act is complied by the defendant
No.28.
72. Further, it is relevant to note that the provisions of Karnataka
Apartment Ownership Act of 1972 provides for amendment not only
to the declaration but also to the Bylaws. Under such circumstances if
there are any irregularities in Ex.P.2 the Bylaws, definitely the
Association has got every right to amend the declaration and Bylaws.
However, subject to a condition that there shall be majority within the
meaning of Section 3 (n) of the Act.
73. It is submitted by learned counsel for the plaintiffs that the
declaration shall be placed before Registrar of co-operative societies
and not before sub-registrar. This submission is contrary to Section 13
of the Act. This Section 13 of the Act deals with declaration, deeds of
apartment, copies of floor plans to be registered. The declaration and
57 OS No.6162/2016
all amendments thereto and the deed of apartment in respect of each
apartment and floor plans of the building referred to in Section 2 shall
be registered under the Registration Act of 1908. Therefore, a reading
of this provision of law makes it very clear that declaration shall have
to be registered before the Office of Sub-Registrar under the
Provisions of Registration Act, 1908.
74. Further, Section 11(2) of the Act provides that a true copy of
each declaration and Bylaws and all amendments to the declaration or
the Bylaws shall be filed in the office of the competent authority.
Therefore, it is clear that by virtue of Section 13 of the Act, the
defendant No.28 got registered Ex.P.2 which includes not only
declaration but also Bylaws. At this juncture, it is relevant to note that
the plaintiffs have acted upon Ex.P.2 and they have passed several
resolutions in respect of the plaint schedule apartment. Therefore, if
there are irregularities in the declaration and Bylaws, it is for the
majority of the owners to take action in this regard. There are no
material particulars to the effect that by virtue of such registration of
Ex.P.2, the 20th defendant has been benefited.
58 OS No.6162/2016
75. Further Section 24 of the Act deals binding effect of declaration
and the Bylaws of the association of the apartment owners adopted
pursuant to the provisions of the Act. Therefore, it is clear that Ex.P.2
declaration and Bylaws binds the plaintiffs and defendant No. 2 to 27.
Further here in this case, even if it is said that defendant No.28 has
unilaterally got registered Ex.P.2 then also, there are no material
particulars to establish the fact that by virtue of the same he has been
financially benefited. Thus in the given circumstances,if material
irregularities found in the Ex.P.2 and Bylaws annexed to it, can be
amended by the majority of the members of the association.
76. Here in this case, the evidence of P.W.1 would clearly indicate
and establish that not only the plaintiffs but also defendant No. 2 to 27
are members of the first defendant Association. When such being the
circumstances, instead of seeking for declaring the declaration and
Bylaws as null and void, it is appropriate for the Association to amend
the relevant provisions of declaration and Bylaws if required. In
addition to it, at the cost of repetition it is appropriate to note that at
the earliest point of time, P.W.1 being the Secretary of the Association
has passed several resolutions including opening of bank account and
appointment of Auditor. Therefore, it is for the apartment owners who
59 OS No.6162/2016
have purchased the apartments in Hoysala Dreamz to adhere to the
terms of Ex.P. 2 and provisions of the Karnataka Apartment Owners
Act, 1972.
77. The evidence of P.W.1 would show that the declaration and the
Bylaws are to be altered and brought within the purview of the
provisions of Karnataka Apartment Ownership Act, 1972, to declare
the resolutions as null and void, to direct the present office bearers to
demit their office, to remove the pets occupied along with the
residents, to audit the accounts of the association since from the year
2009, to maintain bank account in accordance with the provisions of
Apartment Owners Act and there shall be a list of owners who are the
title owners to be made members of the association. If the above
grievance is complied, then only Hoysala Dreams Apartment Owners
Association will have a recognition within the meaning of statute.
78. But here in this case, it is clear that at the earliest point of time
the plaintiffs have not challenged the declaration and Bylaws Even if
it is said that there are certain material irregularities, it can be
amended by way of resolution. Such being the circumstances, this
Court is of the opinion that the plaintiff no 1 being the Secretary has
60 OS No.6162/2016
acted in accordence with the declaration and Bylaws and majority of
members including defendant No. 2 to 27 have accepted declaration
and Bylaws. Therefore, based on the request of two members Ex.P.2
cannot be declared as null and void. Hence it is not a fit case to grant
the relief of permanent injunction.
79. In addition to it, by virtue of the decision of the Hon’ble High
Court referred to herein above, all the apartment owners are not
required to sign and execute declaration, deed of apartment and
Bylaws. The promoter before registration of the sale deed can execute
and register the declaration deed of apartment and Bylaws with
jurisdictional sub-register being the owner of the apartment, building
and property. Here in this case, after the execution of sale deed as per
Ex.P.3 and Ex.P.4, Ex.P.2 dated 09.03.2009 was registered on
13.03.2009.
80. The reason for registration of declaration was to bring the
apartment property under statutory regime. It converts a single
property into individual apartment units with undivided share.
Therefore, the declaration becomes binding on all present and future
61 OS No.6162/2016
apartment owners. Hence, every purchaser is deemed to have notice of
its contents and accepted its terms.
81. The registration of declaration is the foundation for forming the
apartment association because it provides for governance of structure,
voting rights, and maintenance obligation. Therefore, only registered
document can be relied upon in legal proceedings and enforced
through courts. Thus, registration of declaration is not a mere
formality but a statutory necessity that transforms the property into a
legally recognized apartment resume, ensures public notice and binds
all purchasers and hence its options or challenge must be examined
within the framework of the Registration Act and the Apartment
Ownership Act.
82. Therefore, declaration as per Ex.P.2 and Bylaws annexed to it,
is in consonance with the ratio of the decision relied. Hence, action
taken by the defendant No.28 in the form of registration of Ex.P.2
before the Office of Sub-Registrar Yashvantapura under the provisions
of Indian Registration Act of 1908 is strictly in terms of prevailing law
in force. Therefore the plaintiffs are not entitled for relief of
62 OS No.6162/2016
permanent injunction or other reliefs claimed in the suit. Accordingly,
Issue No. 8 is answered in the negative.
83. Issue No. 9 :- In my findings on issue Nos.1 to 8 in the
negative, I proceed to pass the following :
ORDER
The suit of the plaintiffs is hereby
dismissed.
No order as to costs.
Draw decree accordingly.
(Dictated to Adalat AI with the assistance of Stenographer Grade-III formatted by her and corrected by me
then pronounced by me in the open court on this the 21st day of April 2026.)(Sri. GOPALKRISHNA RAI. T)
XXV ADDL. CITY CIVIL & SESSIONS
JUDGE, BENGALURU.
63 OS No.6162/2016
AN N E XU R E
Witnesses examined for the plaintiff/s :
P.W.1 - P.G. Shenoy Documents marked for the plaintiff/s : Ex.P.1 Power of Attorney Ex.P.2 Deed of Declaration Ex.P.3 Absolute Sale Deed Ex.P.4 Absolute Sale Deed Ex.P.5 Letter Ex.P.6 Notice Ex.P.7 Minutes of the Meeting Exs.P.8 to 16 E-mails Ex.P.17 Certificate filed under Section 65-B of Indian Evidence Act 1872 Ex.P.18 Plaint in O.S No.4990/2015 Ex.P.19 Order in O.S.No.4990/2015 Witness examined for the defendant/s : D.W.1 - K.S. Sreedhar Documents marked for the defendant/s : Ex.D.1 Balance Sheet Ex.D.2 Income and Expenses Statement Ex.D.3 Receipt and Payment Ex.D.4 Monthly maintenance charge 64 OS No.6162/2016 Ex.D.5 Corpus fund received statement Ex.D.6 Depreciation for the year 2023-2024 Ex.D.7 Notes forming part of Financial Statement (Sri. GOPALKRISHNA RAI. T) XXV ADDL. CITY CIVIL & SESSIONS JUDGE, BENGALURU.
