One member in society is not paying society maintenance charges for the last about three years. But he has purchased a flat in the same society and he wants NOC from society to mortgage the same in bank. Can society refuse to give NOC and transfer of flat? Seller of the flat has no dues on society. Your expert opinion is requested.
I C Naik
If yours is a reasonably well managed Housing Society
- Start recovery process for unpaid maintenance
- Issue NOC for mortgaging the new flat
- Now the Ordinance issued on the 9th March 2019 is in force: I quote below relevant Provision for Recovery proceedings:
“Section154B-29. (1) Notwithstanding anything contained in sections 91, 93 and 98, on an application made by a housing society for the recovery of its dues or for the recovery of its repairs and maintenance, construction cost and service charges, and on the housing society concerned furnishing a statement of accounts and any other documents as may be prescribed, in respect of the arrears, the Registrar may, after making such inquiries as he deems fit, grant a certificate for the recovery of the amount stated therein, to be due as arrears.
Explanation.— For the purposes of this sub-section, the expression “repairs and maintenance and service charges” means such charges as are so specified in the by-laws of the concerned housing society.
(2) Where the Registrar is satisfied that the concerned society has failed to take action under the foregoing sub-section in respect of any amount due as arrears, the Registrar may, on his motion, after making such inquiries as he deems fit, grant a certificate for the recovery of the amount stated therein, to be due as arrears and such a certificate shall be deemed to have been issued as if on an application made by the society concerned.
(3) A certificate granted by the Registrar under sub-section (1) or (2) shall be final and a conclusive proof of the arrears stated to be due therein, and the same shall be recoverable according to the law for the time being in force, as arrears of land revenue. A revision shall lie against such order or grant of certificate, in the manner laid down under section 154 and such certificate shall not be liable to be questioned in any court.
- (4) It shall be lawful for the Collector and the Registrar to take precautionary measures in accordance with the provisions of the Maharashtra Land Revenue Code, 1966 or any law or provisions corresponding thereto for the time being in force, until the arrears due to the concerned society, together with interest and any incidental charges incurred in the recovery of such arrears, are paid, or security for payment of such arrears is furnished to the satisfaction of the Registrar.
As a member you can take help of Sub-section 2 above and satisfy the Registrar you’re “your society has failed to take action under the foregoing sub-section in respect of any amount due as arrears” and persuade him to grant a certificate for the recovery of the amount due as arrears”
- For NOC to mortgage the flat see Bye-law No 44 extracted below
No Member of the Society shall assign, mortgage or create any charge on his occupancy right in the flat without the previous permission in writing of the Society.
Provided that such permission of the Society will not be required for assigning, mortgaging or creating any charge on the occupancy right in the flat for the purpose of obtaining loan, either for purchase of the flat or for liquidating the liability incurred by him for the said purpose by way of loan or advance from the employer or the Member or from the Life Insurance Corporation of India or from a Bank or the Society or any other agency approved by the Commissioner for Co-operation and Registrar, C.S.M.S. Pune.