Shantharam Prabhu Vs Mr.K. Dayanand Rai On 8 September, 2021

20/03/2022, 08:09 Shantharam Prabhu vs Mr.K.
Dayanand Rai on 8 September, 2021
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Karnataka High Court

Shantharam Prabhu vs Mr.K. Dayanand Rai on 8 September, 2021
Author: Suraj Govindaraj
CRP NO.96 OF 2021
1 C/W CRP NO.64 OF 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF SEPTEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
CRP NO.96 OF 2021 (SC)
C/W
CRP NO.64 OF 2021 (SC)
BETWEEN:
1. SHANTHARAM PRABHU
S/O LATE RAMDAS MADHAV PRABHU,
AGED ABOUT 53 YEARS
2. VEENA SHANTHARAM
W/O SHRI.SHANTHARAM PRABHU
AGED ABOUT 53 YEARS
BOTH ARE R/AT: 'B' BLOCK

APARTMENT NO.403
MAURISHKA PARK
OPPOSITE SHARADA VIDYALAYA
KODIYALBAIL
MANGALURU-575003
... PETITIONERS
(COMMON)
(BY SRI. ARAVIND BABU.J, ADVOCATE
SRI. SURIYA NARAYNAN.G, ADVOCATE)
https://indiankanoon.org/doc/144810388/ 1/32
20/03/2022, 08:09 Shantharam Prabhu vs Mr.K. Dayanand Rai on 8 September, 2021
AND:
1. MR. K. DAYANAND RAI
PRESIDENT
MAURISHKA PARK APARTMENT

OWNERS ASSOCIATION
OPP. SHARADA VIDYALAYA
KODIYALBAIL
MANGALURU-575003
2. MRS. ANITHA PRABHU
CRP NO.96 OF 2021
2 C/W CRP NO.64 OF 2021
VICE PRESIDENT
OWNERS ASSOCIATION

MANGALURU-575003
3. MR. DEVDAS S. HEGDE
SECRETARY
OWNERS ASSOCIATION

MANGALURU-575003
4. MRS. APARNA P
JOINT SECRETARY
OWNERS ASSOCIATION

MANGALURU-575003
5. MR. G.P. PADMANABHA SHETTY

TREASURER
OWNERS ASSOCIATION

MANGALURU-575003
6. AMARNATH KUMAR SHETTY
JOINT TREASURER
OWNERS ASSOCIATION

MANGALURU-575003
... RESPONDENTS
(COMMON)
(BY SRI.VIJAYAKRISHNA BHAT.M, ADVOCATE)
IN CRP NO.96 OF 2021 IS FILED UNDER SECTION 18 OF THE
KARNATAKA SMALL CAUSE COURT ACT, 1964 AGAINST THE ORDER
DATED 04.04.2019 PASSED ON IN SC.NO.26/2019 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU,
D.K. DISMISSING THE IA NO.2 FILED UNDER ORDER 39 RULE 1
AND 2 OF CPC FOR RESTORE THE ELECTRICITY TO HIS SCHEDULE
APARTMENT.
CRP NO.96 OF 2021
3 C/W CRP NO.64 OF 2021
IN CRP NO.64 OF 2021 IS FILED UNDER SECTION 18 OF THE
KARNATAKA SMALL CAUSE COURT ACT, 1964 AGAINST THE ORDER
DATED 04.04.2019 PASSED ON IN SC.NO.26/2019 ON THE FILE OF
THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU,
D.K. DISMISSING THE IA NO.3 FILED UNDER ORDER 7 RULE 11(A)
AND (D) OF CPC FOR REJECTION OF PLANT.
THESE PETITIONS COMING ON FOR ADMISSION AND
HAVING BEEN RESERVED FOR ORDERS ON 12.08.2021, THIS DAY,
PRONOUNCED THE FOLLOWING:
ORDER
CRP No.64/2021:
1. The Plaintiffs are before this Court seeking to set

aside the judgment and decree dated 04.04.2019
passed by II Additional Senior Civil Judge & CJM.,
Mangaluru in S.C.No.26/2019 inasmuch as the
plaint in the said suit came to be rejected by
allowing I.A.No.3 filed by the respondent therein.
CRP
No.96/2021:
2. The Plaintiffs are before this Court seeking to set

aside the order dated 04.04.2019 passed by the II
Additional Senior Civil Judge & CJM., Mangaluru,
D.K., in S.C.No.26/2019 dismissing I.A.No.2 filed
by the Plaintiffs for restoration of electricity supply
to the Plaintiff's Apartment.
CRP NO.96 OF 2021
4 C/W CRP NO.64 OF 2021
FACTS:
3. The suit in S.C.No.26/2019 was filed before the

Court of Small Causes, Mangalore under Section 26
read with Order VII Rule 1, 2 and 3 of CPC read
with Section 13 of the Karnataka Ownership Flats
(Regulation of the Promotion of Construction, Sale,
Management and transfer) Act, 1972 (hereinafter
for brevity referred to as 'the KOFA'). In the said
suit, the Plaintiffs had sought the following reliefs:
"(a) pass a decree of mandatory injunction in

favour of the Plaintiffs and against the
Defendant, directing the Defendant, its
agents, servants, employees to restore the
electricity
supply to the apartment No.403
mentioned in schedule:
(b) Pass any orders or orders which this Hon'ble

Court may deem fit and proper in the facts
and circumstances in favour of the Plaintiffs
and against the Defendant."
4. In the plaint, it was contended that

4.1. The Plaintiffs are the owners of the Apartment
bearing
No.403 of Maurishka Park "B"
Condominium, having purchased the same by
CRP NO.96 OF 2021
5
C/W CRP NO.64 OF 2021

virtue of the sale deed dated 24.10.2014 as
document No.4554 in the office
of the Sub-
Registrar, Mangalore.
4.2. The Plaintiffs contended that they were

regular and prompt in making payment of
electricity bills
and had never refused the
payment of any amounts.
4.3. It is alleged that recently an association by

the name 'Mourishka Park Apartment Owners
Association' was formed illegally by few
members of the condominium without
following the requisite
conditions mentioned in
the Declaration and Deed of Apartment or
mentioned in the Karnataka State
Apartment
Ownership Act, 1972 or any other law
governing the same.
4.4. The Association was formed by a few of the

owners, not by all the owners; it is not a
registered
association. The Plaintiffs are not
CRP NO.96 OF 2021
6 C/W CRP NO.64 OF 2021
agreeable for the
same or for certain persons
being elected as President or Secretary, or
Treasurer.
4.5. The said Association is not a legal entity; it is

an illegal one and not binding on the plaintiffs.
The
Plaintiffs approached the trial Court, being
aggrieved by the threats held out by the office
bearers of the
said Association on 06.10.2018
that in the absence of making payments of
demands made by them,
electricity, water
supply, and diesel generator set, etc., would
be disconnected.
4.6. It was alleged that the Plaintiffs had paid the

electricity bills as and when due on invoices
raised by
the concerned supplier like MESCOM
towards actual consumption made by the
Plaintiffs month on
month.
4.7. Electricity was disconnected from time to

time, and from 06.10.2018 until 09.11.2018
CRP NO.96
OF 2021
7 C/W CRP NO.64 OF 2021
when the suit was filed electricity connection
was under
disconnection.
5. The Plaintiffs had filed an application under Order

XXXIX Rule 1 and 2 of CPC seeking a
mandatory
injunction to the defendants, their agents, etc., to
restore the electricity supply and grant
such other
reliefs.
6. The defendants filed their counter-statement to the

application filed under Order XXXIX Rule 1 and
2 of
CPC. It was contended that
6.1. Plaintiffs had earlier filed a suit in
S.C.No.4/2018 on the file of
the Civil Judge,
Mangaluru, D.K., where identical relief and a
mandatory injunction were sought for.
6.2. The mandatory interim injunction sought for in
terms of I.A.No.2 filed therein came to be
rejected
after hearing both sides. Having
CRP NO.96 OF 2021
8 C/W CRP NO.64 OF 2021
failed in obtaining
an order in S.C.No.4/2018,
the present application is not maintainable.
6.3. The plaint in
S.C.No.4/2018 had been
returned for presentation before the Court of
competent Jurisdiction, and it is
thereafter
that the plaint was presented before the II
Additional Senior Civil Judge & CJM.,
Mangaluru. It is therefore contended that the
very same reliefs having been refused earlier,
Plaintiffs
cannot seek the same reliefs once
again.
6.4. All the averments in the plaint were denied. It

was contended that all the other apartment
owners
were making payment of the due
amount; it was only the Plaintiffs who are not
making the payments.
6.5. Necessary accounts have been maintained by

the Association, which is always available for
inspection. It is only on account of non-
CRP NO.96 OF 2021

9 C/W CRP NO.64 OF 2021
payment of the amount due, the
services to
the Apartment provided by the Association,
including the electric supply was
disconnected.
6.6. It was further stated that there are 360

apartments in the said complex, none of
whom have
complained or defaulted. The
Association has been formed in terms of the
Karnataka Apartment
Ownership Act 1972 (for
short, 'KAOA').
6.7. KAOA is applicable and not the Karnataka

Ownership Flats (Regulation of the Promotion
of
Construction, Sale, Management and
Transfer Act, 1972) (for short, KOFA) and
therefore, Section 13
thereof is not applicable,
and the suit has to be dismissed.
7. Subsequent thereto, an application under Order VII

Rule 11(a) and (d) of CPC came to be filed
seeking
for rejection of the plaint on the ground that:
CRP NO.96 OF 2021

10 C/W CRP NO.64 OF 2021
7.1. There does not exist a cause of action, and
that the relief sought for is barred by law.
7.2. It was contended that Section 13 of the KOFA,
which
had been invoked by Plaintiff, is not
applicable inasmuch as it was KAOA which will
be applicable
and in terms of Declaration and
Deed of Apartment, necessary steps were
taken by the Association in
respect of
defaulters like the plaintiffs.
7.3. Section 13 of KOFA not being applicable, the
suit being
wrongly framed is barred under the
law and has to be rejected.
8. In reply thereto, the Plaintiffs contended that

Section 13 of the KOFA is applicable in terms of the
decision of this Court in CRP No.190/2010
(Mr.Gregory Peres vs. Mr.Eigan Alexander
Salins) and
therefore, sought for dismissal of the
said application.
CRP NO.96 OF 2021
11 C/W CRP NO.64 OF 2021
8.1. The Plaintiffs have also relied upon the order

dated 04.07.2013 passed by this Court in
Review
Petition No.20/2013 in CRP
No.190/2010 (Mr.Eigan Alexander Salins
vs. Mr.Gregory Peres) to
contend that the
grievance against the Manager of the flat and
the relief sought for would be covered
under
Section 13 of KOFA and therefore, it is only
KOFA which would be applicable.
9. The trial court, after hearing the parties and

considering the application filed under Order VII
Rule
11(a) and (d) of CPC, allowed the same and
dismissed the application filed by Plaintiffs under
Order
XXXIX Rule 1 and 2 of CPC for an injunction.
While doing so, the trial Court held that:
9.1. The
ownership of the Plaintiffs is not in
dispute, the Declaration and Deed of
Apartment having been
submitted are also not
in dispute, the Declaration and Deed of
CRP NO.96 OF 2021
12 C/W CRP
NO.64 OF 2021
Apartment were executed prior to the date of
sale in favour of the Plaintiffs and the
contents
of the Declaration and Deed of Apartment
would be binding on the Plaintiffs.
9.2. In terms of
Declaration and Deed of
Apartment, there are certain covenants that
have been agreed to be bound to
by the
owners. In terms thereof, any demand made
by the Association is required to be paid by
the
owners of the Apartments.
9.3. If at all they are aggrieved by the amount of

payment sought for, the same is required to
be
challenged, but so long as there was no
challenge, the due amount would be required
to be paid.
9.4. In terms of Section 11 of the KAOA, the

Declaration and Deed of Apartment have been
drafted
and contents thereof incorporated in
the said Deed, no one can claim exemption of
CRP NO.96 OF
2021
13 C/W CRP NO.64 OF 2021
payment of the due amounts, and the Court
has come to the
conclusion that it is the
KAOA, which is applicable and not the KOFA.
10. It is aggrieved by the said order that the petitioners

who are Plaintiffs are before this Court.
11. Sri Suriya Narayana, learned Counsel for Plaintiffs,

would submit that:
11.1. The intent of KAOA is only to make each

Apartment heritable and provide for the
transfer of the
Apartment, and in this regard,
he relies upon the object and purpose of
KAOA. The same is extracted
hereunder.
"Consequent upon the shortage of lands in

urban areas, the majority of the citizens of
urban
areas of the State cannot think in
terms of owning houses on individual
basis. Though there
is a tendency to
construct multi-storeyed flats, apartments
and the like on ownership basis,
intending
persons cannot purchase flats, tenements,
or apartments in multi-storied building
as
they will not have a marketable title
thereto and cannot obtain any loan by
mortgaging
such flats, tenements, etc.
Consequently tenements constructed by
the Housing Board for
example cannot be
CRP NO.96 OF 2021
14 C/W CRP NO.64 OF 2021
sold to the tenants
who cannot raise any
loan on the security of such tenements
with the result that an
enormous amount
of capital will be locked up, which can be
utilised for new constructions
to meet the
increasing demands for housing. It is,
therefore, considered expedient that each
Apartment should for all purposes
constitute a heritable and transferable
immovable
property, and that suitable
legislation should provide for all matters
connected therewith. It
is felt that such a
measure will not only enable many a
person to own his Apartment but it
will at
the same time enable institutions like
Housing Boards to utilise their locked up
capital in the construction of new
buildings."
11.2. Hence he submits that KAOA only deals with

the transfer of apartments and does not deal
with
the maintenance thereof.
11.3. In this regard, he refers to the Statement of

Objects and reasons of KOFA, which are
reproduced
hereunder for easy reference:
"Separate law is being made to declare that
flats or apartments in
multistoried building
may, for all purposes, be heritable and
transferable immovable Property. Owners
of
such flats or apartments enjoy exclusive
ownership of their flats or apartments while
retaining an
undivided interest in the
common areas and facilities which are to be
used and owned by all such
owners jointly.
CRP NO.96 OF 2021
15 C/W CRP NO.64 OF 2021
An enterprising individual or group of

individuals may either construct out of his or
their own funds
multistoried buildings
consisting of a number of self contained flats
or apartments and sell them to
individuals on
ownership basis, or construct such buildings
after collecting contributions from
intending
purchasers of such flats or apartments.
In the interest of the intending purchasers
who
advance funds it is necessary to
regulate the construction, sale, Management
and transfer of flats or
apartments by
individuals or group of individuals who
construct such multistoried buildings.
Hence the
Bill".
11.4. It is the KOFA which deals with the

safeguarding of the interest of purchasers of
the flats. Hence,
it is the KOFA that is
applicable to the present case.
11.5. The competent authority under Section 3 (i) of

KAOA is the Registrar of the Co-operative
Societies.
11.6. In terms of Section 2(d) of KOFA, the

Registrar is defined to be the Registrar under
the
Karnataka Co-operative Societies Act,
CRP NO.96 OF 2021
16 C/W CRP NO.64 OF 2021
1959 or the
Registrar as defined under the
Companies Act, 1956.
11.7. In both cases, where a company has not been

formed, the Registrar is the Registrar of Co-
operative Societies.
11.8. The KAOA does not provide for the

Management of the Apartment. Sections 11
and 12 of
KAOA relate to particulars to be
included in the Declaration and the Deed of
Apartment.
11.9. Section 13 of KAOA provides for the

registration of Declaration and the Deed of
Apartment and
annexing of copies of floor
plans, which has nothing to do with the
Management of the Apartment.
11.10. Sections 10 to 13 of KOFA specifically deal

with the responsibility of the Promoter for the
formation of Co-operative Society or
CRP NO.96 OF 2021
17 C/W CRP NO.64 OF 2021
Company,
conveying title to the Property,
execution of the documents and liabilities of a
person who purchases an
apartment as also
the duties of a manager of the complex.
11.11. Section 12 of KOFA provides for the
general
liabilities of a person who takes the flat, and
Section 13 of KOFA provides for safeguarding
of
the interest of a person who takes a flat
and the right of such person to approach the
Court.
11.12. By relying on Rule 9 of the Karnataka

of
Construction, Sales, Management and
Transfer) Rules, 1975 (for short, 'KOFA
Rules'), he submits that
there is a period
prescribed for submission of an application for
registration of Co-operative Society or
Company of flat purchasers.
CRP NO.96 OF 2021
18 C/W CRP NO.64 OF 2021
11.13. In the event of the apartment owners
proposing to submit the Apartment to the

provision of KAOA by executing Declaration
and the Deed
of Apartment, the same is
required to be informed to the Registrar as
defined under Karnataka Co-
operative
Societies Act, 1959 as soon as possible after
the apartment owner/s (not being less than
five)
have executed such Declaration of deeds
of Apartment.
11.14. Declaration and the Deed of Apartment even if

executed, would not take away the ambit,
scope
and purview of Section 13 of KOFA.
11.15. As regards the facts of the present case, he
submits that the
Declaration and the Deed of
Apartment were executed only by the
Promoter on 16.03.2007, and none
of the
apartment takérs/purchasers has signed the
Declaration and the Deed of Apartment. The
CRP
NO.96 OF 2021
19 C/W CRP NO.64 OF 2021
fact of execution of registration of Declaration
and the
Deed of Apartment has not been
informed to the Registrar of Co-operative
Societies. Hence, he
submits that KAOA would
also not be applicable. On this ground, he
submits that the Plaintiffs have
the necessary
right in terms of Section 13(2) of KOFA to
approach the jurisdictional Court, which
cannot be faulted with.
12. Shri Vijaykrishna Bhat learned Counsel for the

Defendant in the suit submitted as under:
12.1.
Mourishka apartment is a residential
apartment complex consisting of 360
apartments which is
submitted to the
provision of KAOA by executing Declaration
and the Deed of Apartment on
16.03.2007 as
per Section 2 of KAOA.
12.2. The Plaintiffs are the purchasers of one

Apartment vide sale deed dated 24.10.2008.
CRP NO.96 OF 2021
20 C/W CRP NO.64 OF 2021
In terms of Clause 11 of the sale deed, the

Plaintiffs undertook that they will hold and
enjoy the
Apartment subject to the provision
of the KAOA, Declaration and the Deed of
Apartment, bye-laws,
etc.
12.3. The apartment complex is managed by the
Association of Apartment Owners constituted
under Declaration and the Deed of Apartment.
12.4. The aspects of maintenance, expenses
relating
thereto, etc., are handled by the
Association. The expenses collected by the
Association are expended
on the Property.
12.5. The bye-laws provide for the manner in which
the amounts collected by the
Association are
to be expended, and there is a proper audited
account maintained in relation thereto,
which
is available for anyone to inspect.
CRP NO.96 OF 2021
21 C/W CRP NO.64 OF 2021
12.6. The Plaintiffs had not paid the due amounts of

maintenance despite several requests and
reminders. It is only after follow up, left with
no option, the Association disconnected the
electricity
connection.
12.7. KAOA and KOFA are two different enactments.
They are not supplemental to each other, nor

would they apply concurrently to an
apartment, they
being mutually exclusive.
12.8. KOFA applies only in respect of the protection
of interest of a
purchaser who has made
payment of advances for the construction of
the Apartment, liabilities of the
Promoter and
protection of interest of intending purchasers.
12.9. Under KOFA, society or company of
owners for
Management of the Apartment by such society
or company is contemplated. The primary
liability to form such a society is on the
Promoter and thereafter, once the society is
CRP NO.96 OF
2021
22 C/W CRP NO.64 OF 2021
formed, the Management of common areas
and facilities would be
with the said society.
12.10. KAOA applies to the transfer of the
apartments and all matters relating to
the
apartments, which would include
maintenance.
12.11. By referring to Rule 9 of the Rules framed

under KOFA, he submits that the said Rule 9
recognises the right of the apartment owners
to submit to the provisions of the KAOA by
executing a
Declaration and Deed Of
Apartment.
12.12. Thus, on such submission to KAOA, he states

that KOFA would not apply. The provision of
KAOA is self-contained. Once the Apartment is
submitted to KAOA, the apartment owners
would be
governed by the provision of KAOA

and Declaration and Deed Of Apartment
CRP NO.96 OF 2021
23
C/W CRP NO.64 OF 2021
submitted thereunder. Hence, KOFA would not
be applicable.
13. In rejoinder Shri Suriya Narayan Learned Counsel

for the Plaintiffs submits as under:
13.1. In
terms of Section 10 of KOFA, it was for the
Promoter to take steps for formation of the
co-operative
society for Management of the
apartment complex, as such, Board had been
formed, and the demands
made by the Board
had already been paid by the plaintiffs, though
of course no co-operative society or
company
has been formed.
13.2. The Management of the apartment complex

cannot cut off, withhold or curtail any services
and if
any such action is taken, a remedy
available to the Plaintiffs was in terms of
Section 13 of the KOFA,
which Section is
reproduced hereunder for easy reference:
CRP NO.96 OF 2021

24 C/W CRP NO.64 OF 2021
13. Manager not to cut off, withhold, curtail

or reduce essential supply or service.-
1. No person, who is a promoter, or who is

in charge of Management or connected
with the
Management of a block or
building of flats whether as member of a
managing committee, Director,
Secretary
or otherwise, or is responsible for the
maintenance thereof (hereinafter in this
section
referred to as "the manager"),
shall, without just and sufficient cause,
either by himself or through any
person,
cut off, withhold or in any manner curtail
or reduce, any essential supply or service
enjoyed by
the person who has taken a
flat (or by any person in occupation
thereof through or under him) in
respect
of the flat taken, or agreed to be taken by
him.
2. The person who has taken or agreed to

take the flat or the occupier may, if the
Manager has
contravened the provisions
of sub-section (1), make an application to
the Court for a direction to
restore such
supply or service.
3. If the Court on enquiry finds that the

applicant or the person through or under
whom he is in
occupation has been in
enjoyment of the essential supply or
service and that it was cut off or withheld
or curtailed or reduced by the Manager
without just and sufficient cause, the
Court shall make an order
directing the
Manager to restore such supply or service
before a date to be specified in the order.
4. The Manager who fails to restore the

supply or service before the date so
specified, shall for each
day during which
the default continues thereafter be liable
upon a further direction by the Court to
that
effect, to fine which may extend to
one hundred rupees.
CRP NO.96 OF 2021
25 C/W CRP NO.64 OF 2021
5. Notwithstanding anything contained in

any law for the time being in force,-
(a) in any area for which a Court of Small

Causes is established under the
Karnataka Small Causes
Courts Act 1964,
that Court; and
(b) elsewhere, the Court of the Civil

Judge, shall have Jurisdiction to decide
any application made
under sub-section
(2) of and no other court shall have
Jurisdiction to entertain such application.
No
appeal shall lie from any order made
on such application.
6. The District Court, may, for the purpose

of satisfying itself that the order made on
an application
made under sub-section
(2) was according to law, call for the case
in which such order was made and
pass
such order with respect thereto as it
thinks fit.
7. Any manager who contravenes the

provisions of sub-section (1) shall, on
conviction, be punished
with
imprisonment for a term which may
extend to three months or with fine or
with both.
8. An offence under sub-section (7) shall be

a cognisable offence".
13.3. He relies upon the decision of this Court in the

Review Petition No.20/2013 filed in CRP
No.190/2010 (Mr.Eigan Alexander Salins
vs. Mr.Gregory Peres), more particularly
CRP NO.96 OF
2021
26 C/W CRP NO.64 OF 2021
paras 10 and 15 thereto which are extracted
hereunder:
"10. As could be seen from the aims and

objects of the second enactment, the
Legislature was
conscious of both the
enactments. The enactment called Karnataka
Ownership Flats (Regulation of the
Promotion
of Construction, Sale, Management and
Transfer) Act, 1972 is the result of Act
No.16/73
and was brought into force with
effect from 1.4.1975. During that period, the
other enactment was also
brought into force.
If the intention of the Legislature was to make
Act No.16/73 to be applicable only
to
residential buildings, Act No. 16/73 would
have indicated so. There is no mention of the
word
'residential flat' in Act No.17/73. It must
further be noticed from the aims and objects
of Act No.17/73
that it provides for ownership
of individual apartments in a building and to
make such Apartment
heritable and
transferable Property and to provide for
matters connected thereto. It does not provide
for
Management of the said Apartment. Thus
the intention of the Legislature is clear: to
provide for
ownership of individual Apartment
and to make such Apartment heritable and
transferable Property for
which purpose the
provisions of the Act requires registration
under Section 17.
15. Therefore it is seen that this enactment

caters to all situations, particularly in the
instant case the
main grievance of the
Plaintiffs is essential services have been
disconnected. His grievance is against
the
Manager of the flat and undoubtedly the relief
sought for is covered under Section 13 of the
Act.
Therefore, it is only the Karnataka
of Construction,
Sale, Management and
Transfer) Act, 1972, which is applicable".
CRP NO.96 OF 2021
27 C/W CRP NO.64 OF 2021
13.4. By relying upon the said decision, he submits

that the KOFA is an Act enacted for the
purpose of
protecting the rights of the owners
of the premises and delivering the services
required by such owners,
whereas the KAOA is
only as regards the marketability of title and
facility of the Apartment.
13.5. In this regard he once again relies upon the

statement of objects and reasons of KAOA
which is
extracted hereinabove and the
statement of objects and reasons of KOFA; by
extrapolating the
statement of objects of
KAOA and KOFA he submits that KAOA does
not relate to the maintenance
and or
Management of the Apartment. None of the
provisions under the said Act refer thereto,
the
Management of the Apartment is taken
care of by the KOFA and it is the provisions of
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2021
28 C/W CRP NO.64 OF 2021
KOFA which would be applicable to the dispute
between the
parties.
13.6. He, therefore, submits that the plaint as filed

under Order VII Rule 11 read with Section 26
and
further read with Section 13 of the KOFA
is proper and correct, the trial Court ought not
to have
rejected it. Therefore, he submits that
the impugned order be set-aside and the
matter be remanded for
fresh consideration of
the trial Court on the ground that the said
Court has the necessary Jurisdiction,
more so
in terms of Section 13(5)(a) of the KOFA.
14. Heard Sri.Aravind Babu, learned Counsel for the

Plaintiffs and Sri. Vijayakumar, learned Counsel
for
the respondents. Perused papers.
15. On the basis of the submissions made, the points

which would arise for determination of this Court
are:
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29 C/W CRP NO.64 OF 2021
1) Whether the provisions of KAOA and

KOFA are mutually exclusive or are
they supplementary to
each other?
2) Whether once an apartment is

submitted to KAOA by execution of a
Apartment
under KAOA, would the provisions of
KOFA apply?
3) Would the provisions of KOFA apply

if there is no Declaration and Deed
of Apartment executed
and/or
submissions made under the KAOA ?
4) What is the scope and purview of

KAOA and KOFA?
5) Would the purchasers be personally

required to be parties to the
Declaration, Deed of Apartment and
bye-laws?
6) In the event of KOFA being

applicable would the present suit
filed before the Small Causes Court
at
Mangaluru in S.C.No.26/2018 be
maintainable?
7) What order?
16. I answer the above points as under.
17. Answer to Point No.1: Whether the provisions

of KAOA and KOFA are mutually exclusive or
are
they supplementary to each other?
17.1. The contention of Sri.Suriya Narayan, learned
counsel for the
petitioner is that the decision
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30 C/W CRP NO.64 OF 2021
of this Court in CRP
No.190/2010 and the
Review Petition No.20/2013 in CRP
No.190/2010 is applicable which has also
decided the matter in issue that KAOA is a
supplementary enactment to KOFA and as
such, any
grievance against the Manager of an
apartment would have to be taken up as
provided under Section
13 of KOFA.
17.2. CRP No.190/2010 had been filed assailing the
order dated 02.02.2010 in
M.A.No.45/2009 by
the II Additional Civil Judge (Sr.Dn.).,
Mangalore, D.K., confirming the order
dated
15.12.2009 in O.S.No.843/2009 by the IV
Additional Civil Judge (Jr.Dn.) & JMFC.,
Mangalore
allowing I.A.No.2 filed under Order
XXXIX Rule 1 and 2 of CPC for temporary
injunction. The
Revision Petition was allowed
and this Court held that the suit filed by the
Plaintiffs for the relief under
Section 13(2) of
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31 C/W CRP NO.64 OF 2021
the Act in the Court of Civil
Judge (Jr.Dn.) and
JMFC., Mangalore was not maintainable and
the said Court had no legal
competence or
jurisdiction to entertain it. The said suit had
to be filed in terms of Sub-Section 5(a) of
Section 13 of KOFA before a Court of Small
Causes.
17.3. The entire grievance of the Association which

had come up in revision was as regards
whether
the suit could have been filed before
the Civil Judge (Jr.Dn.) or it would have to be
filed before the
Small Causes Court.
17.4. In the Revision Petition as filed and as is clear
from the order dated
07.03.2011, there is no
contention raised as regards the applicability
of KAOA and/or inapplicability of
KOFA to the
said dispute.
17.5. In Review Petition No.20/2013 filed by the

apartment owner, the apartment owner had
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32 C/W CRP NO.64 OF 2021
contended that KOFA is not applicable and
therefore, it
is KAOA, which is applicable and
in terms of KAOA, the suit filed before the
Civil Judge (Jr.Dn.) &
JMFC., Mangalore was
maintainable. It is the apartment owner who
had contended that the Apartment
is covered
under the KAOA.
17.6. It is in that background that the matter was

considered by this Court in review and this
Court was
of the opinion that as regards any
grievance relating to disconnection of the
services, Section 13 of
KOFA would be
applicable and dismissed the Review Petition.
17.7. The said decision relied upon by
the learned
counsel for the petitioner is in different
perspective of facts inasmuch as it is the
apartment
owner who had contended that
KAOA and not KOFA is applicable. In the
present case, the apartment
owner contends
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33 C/W CRP NO.64 OF 2021
that KOFA is applicable and not
KAOA. A
reading of the order passed in the Revision
Petition as also the order passed in the Review
Petition does not indicate as to whether the
Apartment was subjected to KAOA by
execution of a
Declaration, Deed of Apartment
and/or byelaws. Only an averment was made
by the apartment owner
that KAOA would
apply.
17.8. The contention raised in the present Review

Petition are detailed hereinabove. The
contention
raised which exfacie are different
from that raised in CRP No.190/2010 and/or
Review Petition
No.20/2013. Hence, I am of
the considered opinion that the decision in
CRP No.190/2010 or Review
Petition
No.20/2013 are not applicable to the present
facts.
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34 C/W CRP NO.64 OF 2021
17.9. This Court would have to adjudicate on the

issues raised by considering all the issues and
the
relevant provisions applicable thereto,
which I propose to do as under:-
17.10. KAOA is stated to be an Act to provide for the

ownership of an individual apartment in a
building and to make such an Apartment
heritable and transferable Property. KAOA is
applicable if the
owners of the Apartment
submit to the provision of the KAOA by duly
executing and registering a
Declaration and
Deed of Apartment. Some of the definitions of
the KAOA which are relevant are
Sections 3
(a), (b), (d), (e) (f), (g), (i), (j) and (q) which
are reproduced hereunder for easy reference:.
"3(a)
Apartment" means a part of the Property
intended for any type of independent use,
including one or
more rooms or enclosed spaces
located on one or more floors (or part or parts
thereof) in a building,
intended to be used for
residential purposes and with a direct exit to a
public street, road or highway or
to a common
area leading to such street, road, or highway."
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35 C/W CRP NO.64 OF 2021
3(b) "apartment owner" means the person or
persons owning an apartment and an undivided
interest in the common areas and facilities in the
percentage specified and established in the
Declaration;
3(d) "association of apartment owners"

means all of the apartment owners acting as a
group in
accordance with the bye-laws and
Declaration.
"3(e) Building" means a building containing

four or more Apartment, or two or more
buildings, each
containing two or more
apartments, with a total of four or more
apartments for all such buildings, and
comprising
a part of the Property."
3(f) "common areas and facilities" unless

otherwise provided in the Declaration or lawful
amendments
thereto, means,-
(1) the land on which the building is located;

(2) the foundations, columns, girders, beams,
supports,
main walls, roofs, halls, corridors,
lobbies, stairs, stairways, fire-escapes ,entrances
and exits of the
building;
(3) the basements, cellars, yards, gardens,

parking areas and storage spaces;
(4) the premises for the
lodging of janitors or
persons employed for the management of the
property;
(5) installations of central services, such as

power, light, gas, hot and cold water, heating,
refrigeration,
air-conditioning and incinerating;
(6) the elevators, tanks, pumps, motors, fans,
compressors, ducts and
in general all apparatus
and installations existing for common use;
(7) such community and
commercial facilities as
may be provided for in the Declaration; and
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CRP NO.64 OF 2021
(8) all other parts of the property necessary or
convenient to its existence,
maintenance and
safety, or normally in common use;
3(g) "common expenses" means,-
(1) all sums lawfully assessed against the

apartment owners by the Association of
Apartment Owners,
(2) expenses of administration, maintenance,
repair or replacement of the common areas and
facilities;
(3) expenses agreed upon as common expenses

by the bye- laws;
(4) expenses declared as common expenses by

the provisions of this Act or by the Declaration or
the
bye-laws:
3(i) "competent authority" means in relation

to building constructed or to be constructed by
the
Housing Board, the Secretary of the Housing
Board and in any other case, the Registrar of Co-
operative Societies as defined in the Karnataka
Co-operative Societies Act, 1959;
3 (j) "Declaration"
means the instrument by
which the property is submitted to the provisions
of this Act, as hereinafter
provided, and such
Declaration as form time to time may be lawfully
amended;
"3(q) property" means the land, the building,

all improvements and structures thereon, all
owned in
freehold or held on lease or as occupant
under any law relating to land revenue and all
easements,
rights and appurtenances belonging
thereto, and all articles of personal Property
intended for use in
connection therewith, which
have been, or are intended to be submitted to the
provisions of this Act."
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37 C/W CRP NO.64 OF 2021
17.11. In terms of Section 5 of the KAOA, each
apartment owner shall be entitled to the
exclusive ownership and possession of his
Apartment, and
each apartment owner is
required to execute a Declaration that he/she
submits his/her Apartment to the
provisions of
the Act and a Deed of Apartment in relation to
his Apartment. Section 5 of the KAOA is
5. Ownership of apartments.-
(1) Each apartment owner shall be entitled to the

exclusive ownership and possession of his
Apartment.
(2) Each apartment owner shall execute a

Declaration that he submits his Apartment to the
provisions
of this Act and a Deed of Apartment in
relation to his Apartment in the manner
prescribed for the
purpose.
17.12. Section 6 of KAOA deals with common areas

and facilities. Section 6 of KAOA is reproduced
6. Common areas and facilities.-

(1) Each apartment owner shall be entitled to an
undivided interest in
the common areas and
facilities in the percentage expressed in the
Declaration. Such percentage shall
be computed
by taking as a basis the value of the Apartment in
relation to the value of the property and
such
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38 C/W CRP NO.64 OF 2021
percentage shall reflect limited common
areas
and facilities.
(2) The percentage of the undivided interest of

each apartment owner in the common areas and
facilities as expressed in the Declaration shall
have permanent character, and shall not be
altered
without the consent of all of the
apartment owners expressed in an amended
Declaration duly executed
and registered as
provided in this Act. The percentage of the
undivided interest in the common areas
and
facilities shall not be separated from the
Apartment to which it appertains, and shall be
deemed to
be conveyed or encumbered with the
Apartment even though such interest is not
expressly mentioned
in the conveyance or other
instrument.
(3) The common areas and facilities shall remain

undivided and no apartment owner or any other
person shall bring any action for partition or
division of any part thereof, unless the property
has been
removed from the provisions of this Act
as provided in sections 14 and 22. Any covenant
to the
contrary shall be null and void.
(4) Each apartment owner may use the common
areas and facilities in
accordance with the
purpose for which they are intended without
hindering or encroaching upon the
lawful rights of
the other apartment owners.
(5) The necessary work of maintenance, repair

and replacement of the common areas and
facilities and
the making of any additions or
improvements thereto shall be carried out only as
provided herein and
in the bye-laws.
(6) The Association of Apartment Owners shall
have the irrevocable right, to be
exercised by the
Manager or Board of Managers, to have access to
each apartment form time to time
during
reasonable hours as may be necessary for the
maintenance, repair and replacement of any of
the
common areas and facilities therein or
accessible therefrom, or for making emergency
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2021
39 C/W CRP NO.64 OF 2021
repairs therein necessary to prevent damage to
the common area
and facilities or to another
apartment or apartments.
17.13. Section 6(5) of KAOA deals with the necessary

work of maintenance, repair and replacement
of
the common areas and facilities.
17.14. Section 7 of KAOA mandates that each
apartment owner shall
comply strictly with the
bye-laws and with the administrative rules
and regulations adopted by the
Association as
set forth in the Declaration and Deed Of
Apartment. Section 7 of KAOA is reproduced
7. Compliance with covenants, bye-laws and

administrative provisions.- Each apartment
owner shall
comply strictly with the bye-laws and
with the administrative rules and regulations
adopted pursuant
thereto, as either of the same
may be lawfully amended form 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 any of the
same shall be a ground for an action to recover
sums due for damages or
injunctive relief or both
maintainable by the Manager or Board of
Managers on behalf of the
Association of
Apartment Owners or, in a proper case by an
aggrieved apartment owner.
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40 C/W CRP NO.64 OF 2021
17.15. Section 11 of KAOA deals with Contents of

Declaration, which is reproduced hereunder
for
easy reference:
11. Contents of Declaration.-
(1) The Declaration shall contain the following

particulars, namely:-
(a) description of the land on which the building and

improvements are or are to be located; and
whether
the land is freehold or leasehold;
(b) description of the building stating the number of

storeys and basements, the number of apartments
and the principal materials of which it is or is to be
constructed;
(c) the apartment number of each Apartment, and a

statement of its location, approximate area, number
of rooms, and immediate common area to which it
has access, and any other data necessary for its
proper identification;
(d) description of the common areas and facilities;
(e) description of the limited common areas and

facilities, if any, stating to which apartments their
use
is reserved;
(f) value of the Property and of each Apartment, and

the percentage of undivided interest in the
common
areas and facilities appurtaining to each Apartment
and its owner for all purposes, including
voting; and
a statement that the apartment and such percentage
of undivided interest are not
encumbered in any
manner whatsoever on the date of the Declaration;
(g) statement of the purposes for which the building

and each of the apartments are intended and
restricted as to use;
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41 C/W CRP NO.64 OF 2021
(h) the name of a person to receive service of

process in the cases hereinafter provided, together
with
the residence or place of business of such
person which shall be within the city, town or village
in
which the building is located:
(i) provision as to the percentage of votes by the

apartment owners which shall be determinative of
whether to rebuild, repair, restore, or sell the
Property in the event of damage or destruction of all
or
part of the Property;
(j) any other details in connection with the Property

which the person executing the Declaration may
seem desirable to set forth consistent with this Act:
and
(k) the method by which the Declaration may be

amended, consistent with the provisions of this Act.
(2) A true copy each of the Declaration and bye-laws
and all amendments to the Declaration or the
bye-laws
shall be filed in the office of the competent authority.
17.16. Section 12 of KAOA deals with
Contents of
deeds of Apartments, which is reproduced
12. Contents of Deeds of Apartments.-

(1) Deeds of Apartments shall include the following
particulars,
namely:-
(a) description of the land as provided in section 11

of this Act or the post office address of the
Property,
including in either case the book, page and date of
executing the Declaration the date and
serial number
of its registration under the Registration Act, 1908
and the date and other reference if
any, of its filing
with the competent authority;
(b) the apartment number of the Apartment in the

Declaration and any other data necessary for its
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42 C/W CRP NO.64 OF 2021
(c) statement of the use for which the Apartment is

intended and restrictions on its use, if any;
(d) the percentage of undivided interest appurtaining

to the Apartment in the common areas and
facilities;
and
(e) any further details which the parties to the Deed

may deem desirable to set forth consistent with the
Declaration and this Act.
(2) A true copy of every Deed of Apartment shall be

filed in the office of the competent authority.
17.17. Section 13 of KAOA deals with the Declaration
and all amendments thereto. Section 13 of
KAOA is reproduced hereunder for easy
reference:
13. Declarations, deeds of apartments and

copies of floor plans to be registered.-
(1) The Declaration
and all amendments thereto and
the Deed of Apartment in respect of each Apartment
and the floor
plans of the buildings referred to in
subsection (2) shall be registered under the
Registration Act, 1908.
(2) Simultaneously with the registration of the

Declaration there shall be filed along with it a set of
the
floor plans of the building showing the layout,
location, apartment numbers and dimensions of the
apartments, stating the name of the building or that
it has no name, and bearing the verified statement
of an architect certifying that it is an accurate copy
of portions of the plans of the buildings as filed
with
and approved by the local authority within whose
jurisdiction the building is located. If such plans
do
not include a verified statement by such architect
that such plans fully and accurately depict the
layout
location, apartment number and dimensions of the
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43 C/W CRP NO.64
OF 2021
apartments as built, there shall be recorded prior to
the first conveyance of any apartment, an
amendment to the Declaration to which shall be
attached a verified statement of an architect
certifying
that the plans theretofore filed, or being
filed simultaneously with such amendment, fully and
accurately depict the layout, location, apartment
number and dimensions of the Apartment as built.
(3)
In all registration offices a book called " Register
of Declarations and Deeds of Apartments under the
Karnataka Apartment Ownership Act, 1972" and
Index relating thereto shall be kept. The book and
the
Index shall be kept in such form and shall
contain such particulars as may be prescribed.
(4) It shall be
the duty of every Manager or Board of
Managers to send to the SubRegistrar of the sub-
district in
which the property containing the
Apartment is situate, or if there is no Sub-Registrar
for the area, to
the Registrar of the district in which
such property is situate, a certified copy of the
Declaration and
Deed of Apartment made in respect
of every Apartment contained in the building forming
part of the
property together with a memorandum
containing such particulars as may be prescribed.
(5) The Sub-
Registrar, or as the case may be, the
Registrar shall register the Declaration along with
floor plans of
the building and the Deed of Apartment
in the "Register of Declaration and Deeds of
Apartments under
the Karnataka Apartment
Ownership Act, 1972" and shall also enter particulars
in the Index kept under
sub-section (3). Any person
acquiring any apartment or any apartment owner
shall be deemed to have
notice of the Declaration
and of the Deed of Apartment as from the date of its
registration under this
section.
(6) Except as provided in this section, the provisions
of the Registration Act, 1908, shall
mutatis mutandis
apply to the registration of such Declarations and
Deeds of Apartments, and the
words and expression
used in the section but not defined in this Act shall
have the meaning assigned to
them in the
Registration Act, 1908.
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44 C/W CRP NO.64 OF 2021
17.18. Declaration and the Deed of Apartment in

respect of each Apartment as also the floor
plans of
the building showing layout, location,
apartment numbers and dimensions of the
apartments along with
a verified statement of
an architect are required to be submitted and
registered under the Registration
Act, 1908
with the Registrar of Assurances/Sub-
Registrar.
17.19. In terms of Section 13 (5) of KAOA, which

deals with any person acquiring any
Apartment, it is
deemed that such person has
notice of the Declaration and the Deed of
Apartment as from the date of
its registration
under Section 13 of KAOA.
17.20. Section 14 of KAOA provides for removal of

the Apartment from the provision of the Act
by
effecting an instrument in that regard with
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45 C/W CRP NO.64 OF 2021
the
concurrence of all holders of all charges
and other encumbrances on the Property.
Section 14 of KAOA
is reproduced hereunder
for easy reference:
14. Removal from provisions of this Act.-

(1) All the apartment owners may remove a property
form
the provisions of this Act by an instrument to
that effect duly executed:
Provided that, the holders of all charges and

other encumbrances affecting any of the apartments
consent thereto or agree, in either case by
instruments duly executed, that their charges or
encumbrances be transferred to the percentage of
the undivided interest of the apartment owner in the
property as hereinafter provided.
(2) Upon the removal of the property from the
provisions of this Act
the property shall be deemed
to be owned in common by the apartment owners.
The undivided interest
in the property owned in
common which shall apportion to each apartment
owner shall be the
percentage of undivided interest
previously owned by such owner in the common
areas and facilities.
17.21. Section 16 of KAOA provides for bye-laws and

their contents and further provides that the
administration of every Property shall be
governed by bye-laws, which shall be annexed
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OF 2021
46 C/W CRP NO.64 OF 2021
to the Declaration. Section 16 of KAOA is
reproduced
16. Bye-laws and their contents.-

(1) The administration of every property shall be
governed by bye-
laws, a true copy of which shall be
annexed to the Declaration. No modification of or
amendment to
the bye-law shall be valid, unless set
forth in an amendment to the Declaration and such
amendment is
duly recorded and a copy thereof is
duly filed with the competent authority.
(2) The bye-laws shall
provide for the following
matters, namely:-
(a) The election from among the apartment owners,

of a Board of Managers, the number of persons
constituting the same, and that the terms of at least
one-third of the members of such Board shall expire
annually: the powers and duties of the Board; the
compensation, if any, of the members of the Board;
the method of removal from office of members of the
Board; and whether or not the Board may engage
the services of a Secretary, a Manager or Managing

Agent, and specifying which of the powers and
duties
granted to the Board by this Act or otherwise may be
delegated by the Board to either or both of
them;
(b) method of calling meetings of the apartment

owners; what percentage, if other than a majority of
Apartment Owners, shall constitute a quorum;
(c) election of a President from among members of

the Board of managers who shall preside over the
meetings of such Board and of the Association of
Apartment Owners;
(d) election of a Secretary who shall keep a minute

book wherein resolutions shall be recorded;
(e) election of a Treasurer who shall keep the

financial records and books of accounts;
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47 C/W CRP NO.64 OF 2021
(f) maintenance, repairs and replacement of the

common areas and facilities and payments therefor;
(g) manner of collecting from the apartment owners

their share of the common expenses;
(h) designation and removal of persons employed for

the maintenance, repair and replacement of the
common areas and facilities;
(i) the method of adopting and of amending

administrative rules and regulations governing the
details
of the operation and use of the common
areas and facilities;
(j) such restrictions on the requirements respecting

the use and maintenance of the apartments and the
use of the common areas and facilities not set forth
in the Declaration, as are designed to prevent
unreasonable interference with the use of their
respective apartments and of the common areas and
facilities by the several apartment owners; and
(k) the percentage of the votes required to amend

the bye-laws.
(3) The bye-laws may also provide for the following

matters namely:-
(a) subject to the provisions of this Act, provision for

regulating transfer or partition of any apartment
and
percentage of undivided interest in the common
areas and facilities appurtenant to such Apartment,
subject to such terms and conditions as may be
specified in the bye-laws:
(b) provisions enabling the Board of Managers to

retain certain areas of the building and lease to non-
residents for commercial purposes and for
distribution of resulting proceeds to the apartment
owners as
income or application thereof in reduction
of their common charges for maintaining the
building; and
(c) any other provisions, not inconsistent with the

provisions of this Act, relating to the audit and
accounts and administration of the property and
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48 C/W CRP NO.64 OF 2021
annual and special general meetings, annual report
and the like.
17.22. No modification or amendment to the bye-
laws would be valid unless duly recorded with

the competent authority. In terms of Section
16(2) of KAOA, the bye-laws shall provide for
the election, method of calling meetings,
election of a President, Secretary, etc.,
maintenance, repair and replacement, manner
of
collection of common expenses, designation
and removal of persons employed for the
maintenance, restrictions on the requirements
and use of common areas, voting, etc.
17.23.
Section 19 of KAOA provides for charge on the
Property on account of common expenses.
Section 19 of KAOA is reproduced hereunder

for easy reference:
19. Charge on property for common

expenses.- All sums assessed by the
Association of
Apartment owners but unpaid for
the share of common expenses chargeable to
any
apartment shall constitute a charge on such
Apartment prior to all other charges, except
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49 C/W CRP NO.64 OF 2021
only (i) charge if any on the
Apartment for
payment of Government and Municipal taxes
and (ii) all sums unpaid on a
first mortgage of
the Apartment.
17.24. Section 20 of KAOA deals with joint and

several liability of vendor, etc, for upaid
common
expenses. Section 20 of KAOA is
20. Joint and several liability of vendor,

etc, for unpaid common expenses.-
(1) Upon the sale of an
apartment, the
purchaser of the Apartment shall be jointly and
severally liable with the vendor for all
unpaid
assessments against the latter for his share of
the common expenses upto the time of the sale
without prejudice to the purchaser's or
grantee's right to recover from the vendor the
amount paid by
the purchaser or grantee
therefor.
(2) A purchaser referred to in sub-section (1)

shall be entitled to a statement from the
Secretary or
Board of Managers, setting forth
the amount of the unpaid assessment against
the vendor and such
purchaser or grantee shall
not be liable for, nor shall the Apartment sold
be subject to a charge for any
unpaid share of
common expenses against such Apartment
accrued prior to such sale or bequest in
excess
of the amount therein set forth.
17.25. Section 21 of KAOA deals with the aspect of

insurance.
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50 C/W CRP NO.64 OF 2021
17.26. Section 22 of KAOA deals with the disposition

of Property., etc.
17.27. In terms of Section 25
of KAOA, the Karnataka
Apartment Ownership Rules, 1974 (for short,
'KAOR') has also been
formulated.
17.28. In terms of Rule 3 of KAOR, a format for
Declaration under Section 2 has been
provided.
17.29. In terms of Rule 4 of KAOR, a format for

Declaration under Section 5 (2) of each
apartment
owner has been provided.
17.30. Conveyance of apartments is provided under
Rule 5 of KAOR.
17.31. A provision for parties to Deeds of Apartments

is made under Rule 6 of KAOR, which reads as
under:
6. Parties to Deeds of Apartments. In the case

of the first Deed of Apartment, the party of the
first part
shall be either the sole owner or all the
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51 C/W CRP NO.64 OF 2021
owners of
the Property who has or have executed
and registered the Declaration under Section 2
and the party of
the second part shall be the
apartment owner. In the case of subsequent
Deeds of Apartment, the party
of the first part
shall be the apartment owner and the party of the
second part shall be his transferee.
17.32. Rule 7 of KAOR deals with contents of Deeds
of Apartment, which are reproduced
hereunder
for easy reference:
7. Contents of Deeds of Apartment.

(1) The first Deed of Apartment shall be
accompanied by a copy of
the relevant floor plans
of the building field under subsection (2) of
Section 13 and by a certificate of
an architect
certifying that the said floor plan shows the
number and dimensions of the Apartment
being
conveyed and of the immediately adjoining
apartments and that said floor plan fully and
accurately depicts the layout of the Apartment, its
location, dimensions, approximate area, main
entrance, common areas and facilities and limited
common areas and facilities, if any, to which it
has
access as built.
(2) The first and every subsequent Deed of

Apartment shall also include the following
particulars,
namely.
(a) description of the land as provided Section 11

or the post office address of the Property,
including,
in either case, the book, page and date
of executing the Declaration, the date and serial
number of its
registration under the Registration
Act, 1908, and the date and other reference, if
any, of its filing with
the competent authority;
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(b) the apartment number of the Apartment in

the Declaration and any other data necessary for
its
(c) statement of the use for which the Apartment

is intended and restriction on its use, if any;
(d) the percentage of undivided interest

appertaining to the Apartment in the common
areas and
facilities;
(e) any further details which the parties to the

Deed may deem desirable to set forth consistent
with the
Declaration and the Act.
(3) The provisions of this Rule may be given
effect to by referring to the
relevant provisions
made in the Declaration for the purpose of
avoiding repetition of those relevant
provisions in
the Deed of Apartment
(4) The apartment owner shall file a true copy of
every Deed of
Apartment to which he is a party in
the office of the competent authority within thirty
days from the
date of its execution.
17.33. Form B to the KAOR provides a Form of
Declaration to be executed by
the owner of
the Apartment whereunder it is required that
the said owner of the Apartment shall
mention
about how he derived his ownership and the
document under which, he derived his
ownership.
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KOFA
17.34. The Statement of Objects and reasons for

KOFA are extracted hereinabove.
17.35. KOFA is
stated to be an act to regulate in the
State of Karnataka the promotion of the
construction of, the sale
and Management and
the transfer of flats on ownership basis.
17.36. Section 2(c) of KOFA defines
"Promoter".
Section 2 (c) is extracted below for easy

reference
2(c) "Promoter" means a person who constructs
or
causes to be constructed a block or building or
flats or apartments for the purpose of selling
some or all
of them to other persons or to a
company, co-operative society or other
Association of persons and
includes his assignees;

and where the person who builds and the person
who sells are different persons,
the terms
includes both;
17.37. Section 3 of KOFA relates to the General

liabilities of promoters. Section 3 is extracted
below
for easy reference
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3. General liabilities of Promoter.-

(1) Notwithstanding anything contained in any
other law, a
promoter who intends to construct or
constructs a block or building of flats, all or some
of which are to
be taken or are taken on
ownership basis, shall in all transactions with
persons intending to take or
taking one or more
of such flats, be liable to give or produce or cause
to be given or produced the
information and the
documents hereinafter in this section mentioned.
(2) A promoter, who constructs
or intends to
construct such block or building of flats, shall,-
(a) make full and true disclosure of the nature of

his title to the land on which the flats are
constructed,
or are to be constructed; such title
to the land as aforesaid having been duly certified
by an Advocate of
not less than seven years
standing;
(b) make full and true disclosure of all

encumbrances on such land, including any right,
title, interest or
claim of any party in or over such
land;
(c) allow inspection on reasonable notice of the

plans and specifications of the building built or to
be
built on the land; such plans and specifications
having been approved by the local authority
which he is
required so to do under any law for
the time being in force;
(d) disclose the nature of fixtures, fittings and

amenities (including the provision for one or more
lifts)
provided or to be provided;
(e) disclose on reasonable notice or demand if the

Promoter is himself the builder, the prescribed
particulars as respects the design and the
materials to be used in the construction of the
building and if
the Promoter is not himself the
builder disclose, on such notice or demand, all
agreements (and where
there is no written
agreement, the details of all agreements) entered
into by him with the architects and
contractors
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regarding the design, materials and
construction
of the building;
(f) specify in writing the date by which possession

of the flat is to be handed over;
(g) prepare and maintain a list of flats with their

numbers already taken or agreed to be taken and
the
names and addresses of the parties and the
price charged or agreed to be charged therefor,
and the
terms and conditions if any on which the
flats are taken or agreed to be taken;
(h) state in writing, the precise nature of the

organisation of persons to be constituted and to
which title
is to be passed, and the terms and
conditions governing such organisation of persons
who have taken or
are to take the flats;
(i) not allow persons to enter into possession until

a completion certificate where such certificate is
required to be given under any law, is duly given
to the local authority;
(j) make a full and true disclosure of all outgoings

(including ground rent if any, municipal or other
local taxes, taxes on income, water charges and
electricity charges, revenue assessment, interest
on any
mortgage or other encumbrances, if any);
(k) make a full and true disclosure of such other

information and documents in such manner as
may be
prescribed and give or demand true
copies of such of the documents referred to in
any of the clauses of
this subsection as may be
prescribed at a reasonable charge therefor.
17.38. Section 4 of KOFA
imposes an obligation on
the Promoter to execute an agreement and for
the agreement to be registered
before
receiving any advance payment.
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17.39. In terms of Section 5 of KOFA, the
Promoter is
required to maintain a separate account of
sums taken as advance.
17.40. Section 6 of KOFA imposes responsibility on

the Promoter for payment of outgoings on the
Property including all types of charges, etc.,
until he transfers the Property to the persons
taking over
the flats.
17.41. In terms of Section 7 of KOFA, the Promoter is

not barred from carrying out any alterations
or
additions.
17.42. In terms of Section 8 of KOFA, the Promoter is

required to refund amount paid with interest
in
the event if he being unable to give
possession within the specified time.
17.43. There is an embargo
under Section 9 of KOFA
not to create any mortgage etc., subsequent
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CRP NO.64 OF 2021
to the execution of sale without the consent of
such agreement holder.
17.44. In terms of Section 10 of KOFA, a promoter is

required to take steps for the formation of a
Co-
operative Society or Company as soon as
the minimum number of persons required to
form a Co-
operative society or a Company
having taken flats. Section 10 of KOFA is
extracted below for easy
reference
10. Promoter to take steps for formation of

co-operative society or company.-
(1) As soon as a
minimum number of persons
required to form a cooperative society or a
company have taken flats, the
Promoter shall
within the prescribed period submit an application
to the Registrar for registration of the
organisation of persons who take the flats as a
co-operative society, or as the case may be, as a
company; and the Promoter shall join, in respect
of the flats which have not been taken, in such
application for membership of a co-operative
society or as the case may be, of a company.
(2) Nothing
in sub-section (1) shall affect the
right of the Promoter to dispose of the remaining
flats in accordance
with the provisions of this Act.
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17.45. In terms of Section 11 of KOFA, Promoter is

required to convey title and execute
documents.
17.46. Section 12 of KOFA relates to general

liabilities of a person who takes a flat viz., to
pay at a
proper time and place the price of the
Apartment, municipal taxes, water and
electrical charges, ground
rent etc. Section 12
of KOFA is extracted below for easy reference
12. General liabilities of a person who takes

a flat.-
(1) Every person who has executed an agreement

to take a flat shall pay at the proper time and
place,
the price, the municipal taxes, water and
electricity charges, ground rent (if any), and
other public
charges payable in respect of the flat
taken by him and where a co-operative society or
a company of
persons taking the flats is to be
constituted co-operate in the formation of such
society or company as
the case may be.
(2) Any person who has executed an agreement
to take a flat and who, without
reasonable excuse
fails to comply with or contravenes sub-section
(1) shall, on conviction, be punished
with fine
which may extend to one thousand rupees.
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17.47. In terms of Section 13 of KOFA, there is a

restriction on a promoter or a person who is in
charge
of the Management or connected with
the Management from cutting, withhold or any
manner
curtailing or abusing or reducing any
essential supply or service enjoyed by a
person who has taken a
flat without just and
sufficient cause. Section 13 is extracted
below for easy reference
13. Manager not to cut off, with-hold, curtail

or reduce essential supply or service.- (1) No
person, who
is a promoter, or who is in charge of
management or connected with the management
of a block or
building of flats whether as member
of a managing committee, Director, Secretary or
otherwise, or is
responsible for the maintenance
thereof (hereinafter in this section referred to as
"the manager"), shall,
without just and sufficient
cause, either by himself or through any person,
cut off, with-hold or in any
manner curtail or
reduce, any essential supply or service enjoyed
by the person who has taken a flat (or
by any
person in occupation thereof through or under
him) in respect of the flat taken, or agreed to be
taken by him.
(2) The person who has taken or agreed to take

the flat or the occupier may, if the Manager has
contravened the provisions of sub-section (1),
make an application to the Court for a direction to
restore such supply or service.
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(3) If the Court on enquiry finds that the

applicant or the person through or under whom
he is in
occupation has been in enjoyment of the
essential supply or service and that it was cut off
or with-held
or curtailed or reduced by the
Manager without just and sufficient cause, the
Court shall make an order
directing the Manager
to restore such supply or service before a date to
be specified in the order.
(4) The Manager who fails to restore the supply

or service before the date so specified, shall for
each
day during which the default continues
thereafter be liable upon a further direction by
the Court to that
effect, to fine which may extend
to one hundred rupees.
(5) Notwithstanding anything contained in any

law for the time being in force,-
(a) in any area for which a Court of Small Causes

is established under the Karnataka Small Causes
Courts Act 1964, that Court; and
(b) elsewhere, the Court of the Civil Judge, shall

have jurisdiction to decide any application made
under sub-section (2) of and no other court shall
have jurisdiction to entertain such application. No
appeal shall lie from any order made on such
application.
(6) The District Court, may, for the purpose of

satisfying itself that the order made on an
application
made under sub-section (2) was
according to law, call for the case in which such
order was made and
pass such order with respect
thereto as it thinks fit.
(7) Any manager who contravenes the provisions

of sub-section (1) shall, on conviction, be
punished
with imprisonment for a term which
may extend to three months or with fine or with
both.
(8) An offence under sub-section (7) shall be a

cognizable offence.
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17.48. In the event of a Court coming to a conclusion

that the said withholding of service is without
a
just and sufficient cause, the Court could
direct the Manager to restore such supply or
service.
17.49. In terms of Section 13 (5) of KOFA, a person

who takes the flat can approach the Court of
Small Causes where established or elsewhere
the Court of Civil Judge who has Jurisdiction to
decide
the same.
17.50. Section 14 of KOFA deals with the offences by

Promoter.
17.51. Section 15 of KOFA deals with the offences by

a company.
17.52. Section 16 of KOFA provides powers to the

State Government to make rules.
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17.53. In furtherance of Section 16, the Karnataka

of
Construction, Sale, Management and
Transfer) Rules, 1975 (for short, 'KOF Rules')
have been
effected.
17.54. Rule 3 of KOF Rules provides the manner of

making disclosure by the Promoter.
17.55. Rule 4
of KOF Rules requires the Promoter to
provide copies of various documents after
receipt of legal
charges.
17.56. Rule 5 of KOF Rules provides for particulars to

be contained in agreement of sale.
17.57. Rule 6
of KOF Rules provides for documents
which are required to be annexed to the
agreement of sale.
17.58. Rule 9 of KOF Rules provides for submission of

application for registration of co-operative
society which reads as under:
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9. Form of Memorandum under Section

13(4):- The memorandum required to be filed
by the Manager
or Board of Managers for the
purpose of sub-section (4) of Section 13 shall
be in Form E.
17.59. Rule 10 of KOF Rules provides for the time

period within which the conveyance has to be
effected.
Comparison of KAOA and KOFA

17.60. From the above, it is seen that KAOA deals
with all aspects
of an apartment used for
residential purposes, including ownership of
an apartment and matters relating
thereto
namely details as mentioned above viz.,
insurance, repairs, assessment, payment of
taxes.
KAOA is basically premised on
Declaration, Deed Of Apartment and Bye-Laws
and contents thereof.
17.61. Section 16 of KAOA relates to bye-laws and

the contents thereof, which provides for
election,
method of calling a meeting,
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maintenance, repair
and replacement,
employment of persons, etc. The relevant
provision for the purposes of this matter
would be Section 16 (2) (g), which relates to
the manner of collecting from the apartment
owners their
share of the common expenses.
The common expenses could be in relation to
maintenance of common
areas and the like,
which is defined under Section 3(g) of the
KAOA, which is reproduced
hereinabove.
17.62. Section 20 of KAOA deals with liability for
unpaid common expenses, which is
stated to
be that of the owner of the Property. In terms
of Section 19 of KAOA, a charge is created on
the Property for common expenses.
17.63. Section 12 of the KOFA deals with the
payment of
municipal taxes, water and
electricity charges etc., and the right to
disconnect such services.
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17.64. In terms of Rule 9 of the Karnataka Ownership

Flats (Regulation of the Promotion of
Construction, Sale, Management and Transfer)
Rules, 1975, it is stated that where a co-
operative
society or a company of persons
taking a flat is to be constituted, the Promoter
is required to submit an
application to the
Registrar for registration of the Co-operative
Society or a company as the case may
be
within four months from the date on which the
minimum number of persons required to form
such
organisation have taken flats.
17.65. Rule 9 of KOFA Rules, however, provides that
where the
apartment takers propose to submit
the apartments to the provisions of KAOA by
executing
Declaration and Deeds of
Apartment, the Promoter shall inform the
Registrar as defined in the
Karnataka Co-
operative Societies Act, 1959 as soon as
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2021
possible after the date on which all the
apartment owners (being not less than five)
have executed
such Declarations and Deeds of
Apartment.
17.66. Thus, a reading of Rule 9 of KOFA Rules

makes it clear that it is not necessary to form
a Co-
operative Society or a Company. The
decision is of the owners and the same could
be submitted to the
provisions KAOA by
executing Declaration and Deed Of Apartment
in which case, there is no need to
form a Co-
operative Society or Company but only
information of the execution of Declaration
and
Deed Of Apartment is to be
communicated to the Registrar of the Co-
operative Societies, registration
thereof
having been done before the Registrar of
Assurances/Sub-Registrar.
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17.67. In view of the above discussion, KAOA is

clearly dealing with the ownership of the
Apartment,
transfer of apartments, formation
of the Association for the Management of the
Building, Property and
the management
thereof etc.,
17.68. Rule 7 of KAOR extracted hereinabove
provides for each
apartment owner to comply
strictly with the bye-laws and with the
administration rules and regulations
which
includes the payment of common expenses in
terms of Section 3(g) read with Section
16(2)(g).
17.69. In view thereof, KAOA and KOFA though

cannot be said to be mutually exclusive, they
cannot
also be said to be supplemental to
each other.
17.70. Both Acts would apply in different time periods

in that KOFA would be applicable until the
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Apartment is subjected to the provisions of
KAOA, if the Apartment is not subjected to
KAOA, KOFA would continue to apply. Once an
Apartment, Building, Property is subjected to
the provisions of KAOA by execution of
Declaration,
Deed of Apartment and Bye Laws
KOFA would stop being applicable.
17.71. Thus I Answer Point
No.1 by holding that
KAOA and KOFA cannot be said to be
mutually exclusive nor can they be said
to
be supplementary to each other in as
much as both the acts cannot apply at the
same time.
18. Answer to point No.2: Whether once an

apartment is submitted to KAOA by execution
of a
declaration and Deed of Apartment under
KAOA, would the provisions of KOFA apply?
18.1. Rule 9
of the KOF Rules, which has been
extracted hereinabove, would indicate that a
promoter is required to
submit an application
for registration to the Registrar of a Co-
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operative Society or the Registrar of
Companies,
as the case may be, within 4
months from the date on which the minimum
number of persons required
to form such
organisation have taken flats.
18.2. The said KOF Rules also provides for a

situation where the apartment takers propose
to submit
the apartments to the provisions of
KAOA by executing Declaration and Deeds of
Apartment as
required by that Act, the
promoters shall inform the Registrar as
defined in the Karnataka Co-operative
Societies Act, 1959 as soon as possible after a
date on which all the Apartment Owners have
executed
such Declaration and Deeds of
Apartment.
18.3. Though the said Rule or any other provisions

of KOFA or Rules framed thereunder do not
specifically indicate that when such
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Declaration
and Deeds of Apartment is
executed under KAOA the Jurisdiction of KOFA
is excluded, a meaningful
reading would
indicate that if Declaration and deeds of
Apartment is executed under KAOA and
Apartment is subjected to the provisions of
KAOA, it is only information that is required to
be
provided to the Registrar of Co-operative
Societies. Such providing of information would
essentially
imply that there is no registration
of a co-operative society which is
contemplated since this is an
exception
created under the said Rule.
18.4. It is only if a Co-operative Society is

registered, the said Co-operative society
would come within
the preview of KOFA and
not an Association formed by way of a
Declaration and Deed of Apartment
being
executed under KAOA.
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18.5. As discussed in answer to point no.1, above

Section 7 of KAOA requires compliance with
covenants, bye-laws and administrative
provisions of the Declaration, Section 11 deals
with contents of
declaration, Section 12 deals
with contents of deeds of Apartment and
Section 16 with bye-laws and
their contents.
18.6. The bye-laws deal not only with ownership of
the Apartment but also deal with all
the
aspects relating thereto including common
areas, maintenance expenses to be borne by
apartment
owners, more particularly Section
16 (2)(g) relates to the manner of collecting
from the apartment
owners their share of
common expenses which common expenses is
defined under Section 3 (g).
18.7. Thus in a sense, the Declaration, Deed of

Apartment and the bye-laws provide for all
aspects
relating to the Apartment, Building
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and Property.
The interse rights and liabilities
of parties being reflected and covered by the
said document, it can not
be that the
provision of KAOA and KOFA would apply at
the same time.
18.8. Once a Declaration and Deed of Apartment is

executed, then the Apartment, Building and
Property will come within the preview of the
KAOA, it is only in the absence there of that
KOFA
would apply.
18.9. Hence, I answer Point No.2 by holding

that once an apartment is submitted to
KAOA by
execution of a Declaration and
Deed of Apartment under KAOA, the
provisions of KOFA would not
apply, it is
only the provisions of KAOA which would
apply.
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19. Answer to point No.3: Would the provisions of

KOFA apply if there is no Declaration and Deed of
Apartment executed and/or submissions made
under the KAOA?
19.1. In pursuance of the discussion and the answer

to point Nos. 1 and 2, it is clear that when
there is
a Declaration and Deed of Apartment
executed, then it is the KAOA which would be
applicable to all
the matters relating to the
ownership of an apartment and or
Management of the Building and Property
which would be covered by the Declaration,
Deed of Apartment and Bye-laws formulated.
Such being
the case, it is not envisaged that
KOFA is also made applicable.
19.2. In terms of Rule 9 of the KOFA Rules, the

execution of a Declaration and Deed of
Apartment as
also the bye-laws would only
have to be informed to the Registrar of Co-
operative society.
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19.3. Thus, conversely if there is no declaration and

Deed of Apartment executed, then the
Apartment
as also the apartment complex
would not have been submitted to the KAOA
and in such a situation, it
is the KOFA which
would be applicable, of course many of the
provisions of KOFA overlapping with
the Real
Estate (Regulation and Development) Act,
2016, the provisions thereof would also be
applicable.
19.4. I answer Point No.3 by holding that the

provision of KOFA would apply if there is
no
declaration, Deed of Apartment or
bye-laws executed and or if the Building
and Property not having
been submitted
to the provision of KAOA.
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20. Answer to Point No.4: What is the scope and

purview of KAOA and KOFA?
20.1. As discussed in point Nos.1 and 2, both KAOA

and KOFA apply as regards apartments/flats
used
for residential purpose. In KAOA, it is
referred to as Apartment, in KOFA, it is
referred to as flat.
20.2. In KOFA, the definition of flat is wider and

would also cater to an office unit, whereas an
apartment under KAOA relates only to a
residential unit.
20.3. Under KOFA a co-operative society or a

company to manage the affairs of an
apartment complex
would have to be formed
and registered, if in the case of the co-
operative society before the Registrar
of a co-
operative society and in the case of the
company before the Registrar of companies.
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20.4. When such a co-operative society or a
company is formed, it is the Rules and

regulations contained in the said constitutional
documents of the
co-operative society or a
company which will apply to a flat as defined
under the KOFA under Section
2(a) thereof,
which is reproduced hereunder for easy
reference:
"2(a) Flats:- means a separate and self-

contained set of premises used or intended to be
used for
residence or office or show room or shop
or godown (and includes a garage), the premises
forming part
of a building;
Explanation: Notwithstanding that provision is

made for sanitary, washing, bathing or other
conveniences as common to two or more sets of
premises, the premises shall be deemed to be
separate
and self-contained:"
20.5. Thus, KOFA has a larger application in respect

of the residence or office or showroom or shop
or
godown (including garage).
20.6. The perusal of the definition of Apartment in

terms of Section 3 (a) of the KAOA indicates
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that it would only apply to an apartment that
is used for
residential purposes and not as an
office or showroom or shop, or godown. Under
the KAOA, the
Apartment and Bye-laws would have to be
executed to deal with and cater to
an
apartment, Building or Property.
20.7. Section 3(e) of KAOA defines a building as one
containing
four or more Apartments, or two or
more buildings, each containing two or more
apartments, with a
total of four or more

apartments for all such buildings, and
comprising a part of the Property.
20.8.
Property is defined under Section 3(q) in
terms thereof any land, building, all
improvements, and
structures thereon, all
owned in freehold or held on lease or as
occupant under any law relating to land
revenue and all easements, rights and
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appurtenances belonging thereto, and all
articles of personal property intended for use
in connection
therewith, which have been, or
are intended to be submitted to the provisions
of KAOA.
20.9. Thus, KAOA deals with only a subset of items

dealt with by KOFA that is only Apartment
used
for residential purposes. KAOA would
only be applicable if a Declaration, Deed of
Apartment and
Bye-laws are executed in
respect of the said Apartment, Building and
Property as defined under
Section 3 (a), (e)
and (q) of the KAOA respectively.
20.10. In view of the above it is clear that KAOA
will
not apply in respect of an office or showroom
or shop or godown (and includes a garage),
dealt
with by the KOFA. Thus KOFA will apply
to an office or showroom or shop or godown.
This being so,
for the reason that they cannot
CRP NO.96 OF 2021
79 C/W CRP NO.64 OF 2021
be made subject to
KAOA which only deals
with Apartment used for residential purpose.
20.11. Thus, I answer point no.4
by holding that
KAOA would apply to Apartment as defined
under Section 3(a) of the KAOA used for
residential purposes when a Declaration, Deed
of Apartment and bye-laws are executed in
relation
thereto. KOFA would apply to flats as
defined under Section 2(a) of the KOFA which
includes flats,
used or intended to be used for
residence, office or showroom or shop or
godown. However, if the flat
is used for
residential purpose and is made subject to
KAOA by execution of a declaration, Deed of
Apartment and bye-laws KOFA would not
apply to residential Apartment, building or
Property. KOFA
would always apply to an
office or showroom or shops or godown since,
they cannot be made subject
to KAOA. KOFA
CRP NO.96 OF 2021
80 C/W CRP NO.64 OF 2021
would apply if the Apartment is
removed from
the purview of KAOA, from and after such
removal.
20.12. Declaration, Deed of Apartment and Bye-laws

in respect of an apartment building or
Property
can be executed at any point of time
and not necessarily when the Apartment
complex is ready or sale
made there of. As
and when the Declaration, Deed of Apartment
and bye-laws is executed under the
KAOA the
said Apartment, building and Property would
come out of the preview of the KOFA and be
subject to the provisions of KAOA.
21. Answer to Point No.5: Would purchasers be

required to be parties to the Declaration, Deed
of
Apartment and Bye-laws or could the
Promoter or owner/developer subject the
same to KAOA by
execution of Declaration,
Deed of Apartment and Bye-laws prior to such
sale?
21.1. One of the contentions raised by Sri. Suriya

Narayanan, learned Counsel for the Plaintiff, is
CRP
NO.96 OF 2021
81 C/W CRP NO.64 OF 2021
that the Declaration, Deed of Apartment and
Bye-laws
were executed by the Promoter of
the Property prior to the Plaintiffs purchasing
the Property, the
Plaintiffs not having
executed the same the question of the
Plaintiffs being bound by the said
Declaration,
Deed of Apartment and Bye-laws would not
arise.
21.2. Rule 6 of the KAOA Rules, 1974, reads as

under as under:-
"6. parties to Deeds of Apartment:- In the case

of the first Deed of Apartment, the party of the first
part
shall be either the sole owner or all the
owners of the Property who has or have executed
and registered
the Declaration under Section 2 and
the party of the second part shall be the apartment
owner. In the
case of subsequent Deeds of
Apartment, the party of the first part shall be the
apartment owner and the
party of the second part
shall be his transferee".
21.3. In the present case, Declaration and Deed of

Apartment were executed prior to the sale of
the
Apartment, that is, at a point of time when
the sole owner of all the apartments and
Property was the
promoter/developer, there
CRP NO.96 OF 2021
82 C/W CRP NO.64 OF 2021
being no sale deed
executed in respect of any

particular apartment till then.
21.4. In view thereof, in terms of Rule 6
provides
that in case of execution of the first Deed of
Apartment, 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 KAOA.
21.5. Rule 6 also provides for subsequent Deed of
Apartment where the party of first part
would
be the owner of the Apartment and party of
the second part would be his transferee.
21.6. It is
not in dispute that Form-B in terms of
Rule 4 of the KAOA Rules, 1974 which relates
Section 5(2) of
the KAOA has been executed
by the Plaintiffs when they took sale of the
Apartment in question. In the
Declaration the
Plaintiffs have declared that they are the
present owners of the Apartment and that
CRP
NO.96 OF 2021
83 C/W CRP NO.64 OF 2021
they will be bound by the Deed of Apartment
and the
provision of the KAOA, such being the
case Plaintiffs having executed form of
Declaration in terms of
Form-B, it is not open
for the Plaintiffs now to contend that they are
not signatories to the first Deed of
Apartment
and or bye-laws and therefore they are not
bound by it.
21.7. When the Plaintiffs purchased the Apartment,

they were aware of the Apartment having
been
subjected to the provision of KAOA. They
executed a form of Declaration, and therefore
in my
considered opinion, they are bound by
the Deed of Apartment and bye-laws relating
to the Apartment,
and they cannot continue to
hold the Promoter liable for the maintenance
of the Apartment since
maintenance of the
Apartment is now vested with the owners
association constituted under KAOA and
are
CRP NO.96 OF 2021
84 C/W CRP NO.64 OF 2021
therefore liable to make payment of all
common expenses as may be demanded by
such Association, if there is any doubt the
Plaintiffs could
have inspected the accounts of
the Association as they are entitled to do so in
terms of the bye-laws.
21.8. I answer point no.5 by holding that the

purchasers as such are not required to be
signatories to the
Declaration, Deed of
Apartment and bye-laws. The promoters
could, before the sale of the Apartment
being
the owner/developer of the Property or in the
case of joint development, along with the
owner of
the land, subject the Apartment,
building and Property to KAOA by execution of
Declaration Deed of
Apartment and Bye-laws.
Execution of Form B by any purchaser would
automatically bind them to the
contents of
Declaration Deed of Apartment and Bye-laws
already executed and registered.
CRP NO.96 OF 2021
85 C/W CRP NO.64 OF 2021
22. Answer to point no.6: In the event of KOFA

being applicable, would the present suit filed
before
the Small Causes Court at Mangaluru in
S.C.No.26/2018 be maintainable?
22.1. As afore discussed on
account of Declaration,
Deed of Apartment and Bye-laws having been
executed the present Apartment
would not
come within the preview of KOFA, it is only in
the event of such a declaration, Deed of
Apartment, bye-laws not being executed then
the Apartment would come within the purview
of KOFA
in terms of Section 13 thereof
extracted hereinabove.
22.2. Section 13 (4) and (5) of the KOFA are

extracted hereinabove.
22.3. A flat owner coming within the purview of

KOFA can approach as against the action
taken by the
Manager of the flats for having
disconnected any supply or service to the
Court of Small Causes
established under
Karnataka Small Causes Court Act, 1964 or
the Court of Civil Judge having
Jurisdiction
CRP NO.96 OF 2021
86 C/W CRP NO.64 OF 2021
seeking for restoration of the supply
or
service.
22.4. In the present case, there being Small Cause

Court established in Mangalore, the Court of
small
causes would have Jurisdiction to
adjudicate such a claim made by the flat
owners, and SC No.26 of
2018 would be
maintainable.
22.5. However, since in the present case, the

Apartment has been subjected to the
provisions of KAOA
by execution of
Declaration Deed of Apartment and Bye-laws,
the remedy provided under Section 13
of the
KOFA is not available to the Plaintiffs.
23. To Summarise:
23.1. KAOA would only apply to an apartment

where it is used for residential purposes.
A flat or an apartment which is used for

an office or showroom or shop or godown
(and
includes garage) cannot be
CRP NO.96 OF 2021
87 C/W CRP NO.64 OF 2021
subjected
to KAOA and would always
continue to be governed by KOFA.
23.2. When an apartment is proposed to be

constructed or under construction and
agreements are
entered into, KOFA would
apply insofar as the relationship and/or
dispute between the purchaser and
the
Promoter.
23.3. KOFA would continue to apply if the

Apartment is not subjected to KAOA as
afore detailed.
23.4. Once an apartment is subjected to KAOA,

KOFA would cease to apply and it is only
the KAOA,
Apartment and bye-laws which would be
applicable.
23.5. In the event of an apartment being

removed from the provisions of KAOA in
CRP NO.96 OF
2021
88 C/W CRP NO.64 OF 2021
terms of Section 14 of KAOA, KOFA would
come into operation.
23.6. Essentially KAOA, Declaration, Deed of

Apartment and bye-laws would be the
provisions under
which the relationship
between an apartment owner and
Association of the Apartment, building,
property, which would be governed.
23.7. KOFA would apply insofar as the
relationship and/or dispute
between the
purchaser of an apartment and Promoter
and any defaults on part of the Promoter.
The
other enactments like RERA would
also be applicable.
23.8. Even when an Apartment is not subjected

to KAOA and KOFA applies, the dispute
and the
relationship between the
apartment owner and the Association
would be governed in terms of the rules
CRP NO.96 OF 2021
89 C/W CRP NO.64 OF 2021
and regulations under the Co-operative
Society
under which the said Association
is registered or the terms of articles and
memorandum of Association
of company
under which the said Association is
registered.
23.9. If the Association is formed under KOFA,

registration of the Association would be
required
under the Karnataka Co-
operative Societies Registration Act
and/or the Companies Act depending on
whether it is a Co-operative Society or a
Company which is to be registered.
23.10. In the event of a
declaration, Deed
of Apartment and byelaws being
executed and the Apartment, building,
property is
subjected to KAOA, the said
documents would have to be registered
before the jurisdictional Sub-
Registrar
CRP NO.96 OF 2021
90 C/W CRP NO.64 OF 2021
and the same be informed to the
Registrar of the Co-operative Societies.
23.11. There would be no requirement for
registration of the
Apartment and/or bye-laws with the
Registrar of the Co-operative Societies.
23.12. If the property is subjected to KAOA, the
proceedings if any would have to be filed
before the
Civil Court of competent
jurisdiction.
23.13. If a Co-operative Society or a Company is

formed to manage the property, and the
provision of
KOFA being applicable the
proceedings would have to be filed in
terms of Section 13(5) before a
Small
Causes Court where a Small Causes Court
is established, in the absence thereof,
before a Civil
Court of competent
jurisdiction.
CRP NO.96 OF 2021
91 C/W CRP NO.64 OF 2021
23.14. All the apartment owners are not
required to sign and execute the
Declaration, Deed of Apartment and bye-

laws. The Promoter before registration
of a sale deed can
execute and register
the Declaration, Deed of Apartment and
bye-laws with the jurisdictional Sub-
Registrar being the owner of the
Apartment, building and property. If
there is a joint development
agreement,
the owner of the property would also
have to join the execution of the
registration of the
above documents.
Suffice it to say, it is only the persons or
entities who have registered title in
respect
of the property who are required
to execute and register the above
documents.
CRP NO.96 OF 2021
92 C/W CRP NO.64 OF 2021
23.15. 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 KAOR agreeing to be bound by
the said Declaration, Deed of Apartment
and bye-laws. The Association when
formed could always
amend the same in
terms of the provisions applicable
thereto.
24. Answer to point No.7: What Order?
24.1. In view of the discussion above, since the

Apartment in question is subjected to
KAOA
by execution of a Declaration, Deed of
Apartment and bye-laws KOFA would not
be
applicable, no proceedings could have been
initiated under Section 13 (5) before the
Small
Causes Court, Mangalore the said proceedings
not being maintainable is barred
under
provision of the KAOA, the trial court has
CRP NO.96 OF 2021
93 C/W CRP
NO.64 OF 2021
rightly allowed the application under Order VII
of the Rule 11(a) and (b)
of the CPC.
The petitions stand dismissed

Sd/-
JUDGE
ln/Prs*

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Karnataka High Court

CRP NO.96 OF 2021

1 C/W CRP NO.64 OF 2021

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 8TH DAY OF SEPTEMBER, 2021

THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ

CRP NO.96 OF 2021 (SC)

CRP NO.64 OF 2021 (SC)

S/O LATE RAMDAS MADHAV PRABHU,

AGED ABOUT 53 YEARS

W/O SHRI.SHANTHARAM PRABHU

AGED ABOUT 53 YEARS

BOTH ARE R/AT: 'B' BLOCK

OPPOSITE SHARADA VIDYALAYA

(BY SRI. ARAVIND BABU.J, ADVOCATE

SRI. SURIYA NARAYNAN.G, ADVOCATE)

1. MR. K. DAYANAND RAI

MAURISHKA PARK APARTMENT

OPP. SHARADA VIDYALAYA

2. MRS. ANITHA PRABHU

CRP NO.96 OF 2021

2 C/W CRP NO.64 OF 2021

MAURISHKA PARK APARTMENT

OPPOSITE SHARADA VIDYALAYA

3. MR. DEVDAS S. HEGDE

MAURISHKA PARK APARTMENT

OPPOSITE SHARADA VIDYALAYA

MAURISHKA PARK APARTMENT

OPPOSITE SHARADA VIDYALAYA

5. MR. G.P. PADMANABHA SHETTY

MAURISHKA PARK APARTMENT

OPPOSITE SHARADA VIDYALAYA

6. AMARNATH KUMAR SHETTY

MAURISHKA PARK APARTMENT

OPPOSITE SHARADA VIDYALAYA

(BY SRI.VIJAYAKRISHNA BHAT.M, ADVOCATE)

IN CRP NO.96 OF 2021 IS FILED UNDER SECTION 18 OF THE

KARNATAKA SMALL CAUSE COURT ACT, 1964 AGAINST THE ORDER

DATED 04.04.2019 PASSED ON IN SC.NO.26/2019 ON THE FILE OF

THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU,

D.K. DISMISSING THE IA NO.2 FILED UNDER ORDER 39 RULE 1

AND 2 OF CPC FOR RESTORE THE ELECTRICITY TO HIS SCHEDULE

3 C/W CRP NO.64 OF 2021

IN CRP NO.64 OF 2021 IS FILED UNDER SECTION 18 OF THE

KARNATAKA SMALL CAUSE COURT ACT, 1964 AGAINST THE ORDER

DATED 04.04.2019 PASSED ON IN SC.NO.26/2019 ON THE FILE OF

THE II ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU,

D.K. DISMISSING THE IA NO.3 FILED UNDER ORDER 7 RULE 11(A)

AND (D) OF CPC FOR REJECTION OF PLANT.

THESE PETITIONS COMING ON FOR ADMISSION AND

HAVING BEEN RESERVED FOR ORDERS ON 12.08.2021, THIS DAY,

PRONOUNCED THE FOLLOWING:

1. The Plaintiffs are before this Court seeking to set

2. The Plaintiffs are before this Court seeking to set

CRP NO.96 OF 2021