July 5, 2018

Special General Meeting – Provisions under Bye-Laws of Co-operative Housing Society

In a recent matter the Queriest has raised following queries:- Whether request for a Special General Meeting is   prerogative of Society Members only? Can Chairman OR management committee call for a Special General Meeting at any time or several times in a year for getting approval of a Agenda prepared by them ((not  against a requisition from  members) ? Can Chairman or Management Committee call for a Special General Meeting against a requisition received from society members, signed by only 5 members? Is it that Chairman or management committee can call Special General Meeting ONLY AND ONLY when they receive a Requisition signed by 20% members of society, OR a request letter from Registering Authority OR a request letter from Housing federation and such SPGM to be called by Chairman or managing committee at any time within one month from the date of such Requisition or letter? Can Chairman OR Managing Committee declare the “Decisions made in a Special General Meeting ” as invalid? Under what circumstances a Conducted Special General Meeting can be declared as invalid by Chairman OR Managing Committee? To understand questions we need to know relevant provisions of law. The Maharashtra Co-operative Society Act,1960 is the parent law which regulates the Co-operative Society. SPECIAL GENERAL MEETING. (1) A special general meeting may be called at any time by the Chairman special or by a majority of the committee and shall be called within one month— (i) on a requisition in writing of one-fifth of the members of the society of members the number of which is specified in the by-laws for the purpose, whichever is lower, or (ii) at the instance of the Registrar, or (iii) in the case of a society, which is a member of a federal society, at the instance of the committee of such federal society. (2) Where any officer or a member of the committee, whose duty it was to call such meeting, without reasonable excuse, fails to call such meeting, the Registrar may by order declare such officer or member disqualified, for being a member of the committee for such period not exceeding three years, as he may specify in such order; and if the officer is a servant of the society, he may impose on him a penalty not  exceeding one hundred rupees. Before making an order under this sub-section, the Registrar shall give, or cause to be given, a reasonable opportunity to the person concerned of showing cause against the action proposed to be taken in regard to him. (3) If a special general meeting of a society is not called in accordance with the requisition referred to in sub-section (1), the Registrar or any person authorised by him in this behalf, shall have power to call such meeting, and that meeting shall be deemed to be a meeting duly called by the committee. (4) The Registrar shall have power to order that the expenditure incurred in calling a meeting under subsection (3) shall be paid out of the funds of the society or by such person or persons who, in the opinion of the Registrar, were […]

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June 30, 2018

Excepted Matters and Arbitration

A very interesting issue came up in an Arbitration matter of engineering contract with our firm. It was an engineering contract and terms were laid down under Tender. Various powers and terms were laid down which were given to the Engineer. However, as far as Arbitration is concerned there was a clause in Tender document by which certain issues only can be referred to arbitration and those which is bestowed upon Engineer cannot be referred to arbitration. The said clause was, in general, we see in most of the engineering contracts. It was as under: Where there was a clause in the Tender Document that, “ Except where otherwise provided in the Contract all questions and disputes, relating to the meaning of specifications, designs, drawings and instructions herein before mentioned and as to the quality of workmanship or materials used on the work or as arising, out of or relating to the Contract, designs, drawings, specifications, estimates, instructions, orders or those conditions concerning the works, or the execution or failure to execute the same whether arising during the progress of the work or after the completion or abandonment thereof shall be referred to arbitration subject to the provisions of the Arbitration Act, 1996 or any statutory modification or re-enactment thereof and the rules made thereunder and for the time being in force.”   The Claimant referred the dispute relating to unpaid running Bill , which was within jurisdiction of the Engineer. The Respondents objected the claims on the grounds that it is Excepted Matters and Tribunal has no jurisdiction. Now let us see the provisions of Arbitration Act,1996 Section 28 of the Arbitration Act,1996 reads as under: Section 28 – Rules applicable to substance of dispute (1) Where the place of arbitration is situated in India,— (a) in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India; (b) in international commercial arbitration— (i) the arbitral tribunal shall decide the dispute in accordance with the rules of law designated by the parties as applicable to the substance of the dispute; (ii) any designation by the parties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country and not to its conflict of laws rules; (iii) failing any designation of the law under clause (a) by the parties, the arbitral tribunal shall apply the rules of law it considers to be appropriate given all the circumstances surrounding the dispute. (2) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorized it to do so. (3) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction. While studying on this terms “Excepted Matters”  we came across a judgment of Queens Bench Decision in Minster Trust Ltd Vs Traps Tractors LD & Ors [1951]  1 […]

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July 9, 2016

Government softens plan to criminalise unwitting offshore tax evasion

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