Violation of statutory provision is a fraud ?
Ashok Kuvadia
(Querist) 26 March 2013
This query is : Resolved
QUERY : Violation of Statutory Provision is a FRAUD & BREACH OF TRUST ?
Dear Experts,
(01) I have filed a Dispute against our Co-operative Housing Society at Co-operative Court appearing in person.
(02) The Secretary of our Society assigned to himself the Development Right to construct additional floors over existing building. To get this thing done he forged and fabricated General Body resolution by forging my signature. Then created a story that everything got lost. My signature established forged by Opinion of Police Hand writing expert, FIR & then Charge-Sheet filed.
(03) Rule 57 of Maharashtra Co-operative Societies Rules, 1961, prohibits office bearer of a co-operative housing society from being interested in any contract made with or by the Society, is read as under.
Rule 57: Prohibiting against being interested in contracts, etc.,--
(1) “No officer of a society shall have any interest, directly or indirectly, otherwise than as such officer,--
(a) In any contract made with or by the society; or
(b) .... xxx .... xxx .... xxx ....
(c) .... xxx .... xxx .... xxx ....
(2) .... xxx .... xxx .... xxx ....
(04) Thus being office bearer of the Society, the Secretary was debarred and prohibited by rule 57 of MCS Rules 1961, from being interested in any contract with the Society.
MY QUERY :
(a) Can the contract awarded to the Secretary is therefore FRAUD since it is in violation of Rule 57 and is against the public policy ?
[ IF answer is NO to (a) then by considering the definition of Fraud as per S-17 (2) of Indian Contract Act, i.e.- Fraud is the active concealment of a fact by one having knowledge or belief of fact. Can this Act of active concealment of fact being debarred by statute be considered as Fraud ? ]
(b) Can the contract awarded to the Secretary is therefore ILLEGAL, NULL & VOID since it is in violation of Rule 57 and is against the public policy ?
(c) Can the contract awarded to the Secretary is therefore BREACH OF TRUST since it is in violation of Rule 57 and is against the public policy ?
(d) Can the contract awarded to the Secretary is therefore MISAPPROPRIATION OF PROPERTY OF SOCIETY since it is in violation of Rule 57 and is against the public policy ?
(e) Is there any Orders of S.Crt or H.Crts ?
Regards to all and thanks for your valued guidance till date.
Ashok.
Kiran Kumar
(Expert) 26 March 2013
Well definitely concealment is there.
On civil side such a contract can be rescinded after applying the relevant rules.
Find out if the Act and the Rules provide for any punishment for such an activity.
If the Criminal Proceedings are initiated then the other side will definitely raise a point that there was civil dispute only and in my opinion the other side may succeed in this.
