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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.