Final Order 1

Order Details: Copy of Judgment
Pdf Text: S.J.167/2019 SUM. SUIT NO. 971/2018 1
IN THE CITY CIVIL COURT AT MUMBAI
SUMMONS FOR JUDGMENT 167 OF 2019
IN
SUMMARY SUIT NO. 971 of 2018
(UNDER ORDER XXXVII THE CODE OF CIVIL PROCEDURE 1908)
(CNR.NO.MHCC010052022019)
Dadar Vidarbha Vaibhav Mandir Trust,
Apartment owners Association
Through Mr.Gajanan Devidas Nage(Trustee)
having its office at
401, 4th floor, Vaibhav Park 64,
Bhavani Shankar Marg, Dadar (W),
Mumbai400028. ...Plaintiff
Versus
Mr.Abhishek Dalavi,
Age: Adult,
Residing at Flat No.801,
Vaibhav Park 64,Bhavani
Shankar Marg, Dadar(W),
Mumbai 400028. ...Defendant
Appearances:
Advocate Mr.Bhojane for the Plaintiff.
Advoate Mr.Matkar for the Defendant.
CORAM : HIS HONOUR JUDGE
DEEPAK L. BHAGWAT
(C.R.NO.28)
DATE : 07TH JANUARY 2020
J U D G M E N T
1. This is Summons for Judgment for recovery of Rs.3,83,274/
(Rupees Three Lakhs Eighty Three Thousand Two Hundred and Seventy
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Four Only) with Pendente Lite and future interest at the rate of 18%
p.a.
2. According to the plaintiff, it is a Trust registered under the
Bombay Public Trust Act. Vide indenture dtd.31.01.1972 registered on
25.01.1974, the plaintiff had purchased final plot bearing no.475
admeasuring 478 sq.yards. equivalent to 399.67sq.mtrs. situated at
Bhavani Shankar Road Dadar. By virtue of agreement dtd.28.11.1999
between the plaintiff and M/s. Shraddha Builders, said Shraddha
Builders developed the said plot by raising constructing building known
as 'Vidarbh Vaibhav Mandir' consisting of ground + 9 floors. In lieu of
the development rights the developer provided ownership of the entire
1st to 3rd floor and a flat on 4th floor with common area of staircase, lift,
parking, terrace to the grantor. The plaintiff formed and registered
condominium in respect of said building vide deed of declaration
dtd.08.04.2015 of Dadar Vidarbh Vaibhav Mandir Trust's Apartments
Owners Association. Vide same declaration deed it was decided that
administration of said association shall be in accordance with the
provisions of said deed, Lease deed to be executed with apartment
owners and the ByLaws. As per the deed of declaration the builder has
given the owners the contributed share of amount of outgoing incurred
to maintain the administration of the building. The defendant is
purchaser of one of the flats being flat No 801, 8th floor in the said
building. As per the deed of declaration the defendant comes under the
provision of Maharashtra Apartment Ownership Act and accordingly the
individual flat purchaser becomes member of the said association. The
defendant is under obligation to pay the maintenance to the plaintiff as
per the resolution made by the managing committee. Amount of
Rs.3,83,274/ towards maintenance charges was due against the
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defendant from 20122013. Despite sending the maintenance bills and
number of correspondence with the defendant, the defendant
deliberately neglected to pay the said amount. Therefore, the plaintiff
has claimed recovery of said amount with interest at the rate of 18%
p.a..
3. The defendant filed reply contesting the Summons for Judgment.
According to the defendant, though the plaintiff as Apartment Owners
association claimed the maintenance bills, Vaibhav Cooperative
Housing Society has already been functional. Therefore, the plaintiff has
no locus to file the suit. The suit is not based on written contract or
negotiable instrument. Therefore, it is not maintainable. The
maintenance bills are unilateral. As per the agreement executed by the
builder with the defendant Vaibhav Cooperative Housing Society has
been already formed and registered. The said society has already raised
various bills which have been paid by the defendant regularly. The
society has also issued receipts of payment made by the defendant
against the maintenance bills. The defendant has also paid property tax
separately to the BMC. Shraddha Builders had entered into an
agreement with various flat purchasers. As per said agreement nature of
the ultimate organization whether it is firm, association or
condominium or cooperative society was to be decided. Thus,
formation of trust association by the plaintiff is not proper. In these
circumstances the defendant claimed the suit to be not maintainable.
4. Considering material on record and submissions made on behalf
of the parties points arise for determination alongwith my findings
thereon are as under:
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S.J.167/2019 SUM. SUIT NO. 971/2018 4
POINTS FINDINGS
1. Whether the plaintiff is entitled
to Summons for Judgment?
In the Negative
2. Whether the defendant is
entitled to Leave to defend?
If yes, whether conditional/
unconditional?
Unconditional leave to defend.
3. What order and decree? As per final order
REASONS
AS TO POINTS NO.1 to 3 :
5. The Ld Advocate on behalf of the plaintiff argued that the amount
claimed is of maintenance bills which have been due from 2012 till
filing of the suit. The defendant never raised objection till filing of the
suit. The plaintiff should not be compelled to bear the expenditure of
maintenance bill. The record produced before this court proves liability
of the defendant to pay the maintenance bill. Therefore, he requested to
allow the summons for Judgment.
6. On the other hand the Ld Advocate on behalf of the defendant
argued that the amount claimed regarding maintenance is not
liquidated amount. There is no written contract between the parties.
The condominium is alleged to be of 2015, therefore the plaintiff
cannot raise bills in respect of the period before 2015. The bills have
not been signed by the defendant. The deed of declaration has not been
signed by the defendant. Therefore, the declaration deed cannot be
made applicable to the defendant. He submitted there is nothing
showing that the defendant had admitted the liability in respect of the
amount as claimed by the plaintiff. The defendant has substantial
defense. Therefore, he requested to reject the Summons for Judgment
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and grant unconditional leave to defend.
7. The Ld Advocate on behalf of both the parties also raised
contentions regarding the property taxes payable to the local authority.
However, admittedly, the suit is for recovery of maintenance charges
and not for property taxes/outgoings payable to the local authority.
Therefore, rival contentions in respect of the property taxes have no
bearing on the subject matter.
8. The contention of the plaintiff is specifically that as it is the
owner of the property it has right to form a condominium and by
declaration deed subject the property and the unit holders to the
Maharashtra Apartment Ownership Act, and as such vide the
declaration deed dtd.08.04.2015 it formed the association of apartment
owners and subjected the unit holders to the Maharashtra Apartment
Ownership Act. Apparently a sole owner may form deed of declaration
subjecting the property to Apartment Ownership Act. However, as per
section 5(2) it is mandatory that in such cases apartment deed must
have been executed by the apartment owners. Unless such apartment
deed is executed, at least at this stage, it cannot be positively said that
the defendant accepted the deed of declaration and subjected himself to
the formation of the association.
9. The contention of the defendant is that as per the agreement
executed by Shraddha Builder with him a cooperative housing society
has been duly formed and registered. The copy of registration certificate
is also annexed to the reply which shows that Vaibhav Cooperative
Housing Society Ltd has been registered under the Cooperative
Societies Act. The Ld Advocate for the plaintiff argued that the same
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registration is still disputed and proceeding regarding same is pending
before the Hon'ble High Court. The defendant does not dispute about
the pendency of the proceeding before the Hon'ble High Court
regarding registration of cooperative society. This court must note that
the deed of declaration was prepared and formed in 2015. Whereas, the
copy of agreement between the Shraddha Builder and the defendant
shows that it was executed in Oct2014, the application for registration
of cooperative society was given in 2014 itself. Thus, the process for
registration of the cooperative society had started prior to the
preparation of declaration deed. One thing is very clear that since
beginning the defendant has disputed the validity of the status of the
plaintiff being the legal association of the apartment owners. The
defendant himself since the beginning claims to be the member of the
cooperative society and not the apartment ownership association.
Having regard to this glaring circumstance, it will not be proper at this
stage to come to the conclusion that the liability is admitted to the
defendant at any time. The copies of documents as produced on behalf
of the defendant reveal that the defendant has paid the maintenance
charges to the cooperative society. In these circumstance, the liability
of the defendant to the Apartment Owners Association (plaintiff) is
disputed. Thus, the defendant has brought triable issue as to whether it
is liable to the plaintiff to pay the maintenance charges.
10. That apart the association was formed as per the declaration deed
of 2015. However, the maintenance bills produced on behalf of the
plaintiff show that the maintenance have been claimed for the period
from 2012 i.e. prior to the formation of the association. At this stage,
there is nothing to show that the defendant at any time admitted to the
liability to these maintenance bills. Having regard to all these
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circumstances the defendant has put forth triable issues. Resultantly,
the plaintiff is not entitled to the Summons for Judgment. Whereas the
defendant is entitled to the unconditional leave to defend. Hence, point
no.1 is answered in Negative. Whereas, Point no.2 is answered as that
the defendant is entitled to Unconditional leave to defend. In answer to
point No.3 Order as follows is passed:
ORDER
1. The Summons for Judgment 167/2019 is rejected.
2. Unconditional leave to defend is granted to the defendant.
3. The defendant shall file his written statement within four weeks
from the date of uploading of the present order.
4. On filing of the written statement by the defendant, the registrar
shall cause conversion of the suit to short cause suit and register it
accordingly.
(Deepak L. Bhagwat)
AdHoc Judge,
Date: 07/01/2020 City Civil Court,Gr. Mumbai
Dictated on : 07/01/2020
Transcribed on : 08/01/2020
Signed on : 08/01/2020
CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL SIGNED
JUDGMENT/ORDER.”
09/01/2020 at 11.00a.m. Mrs.J.V.Pawar
UPLOAD DATE AND TIME NAME OF STENOGRAPHER
Name of the Judge (With Court Room No.) HHJ Shri.D.L.Bhagwat
(C.R.NO.28)
Date of pronouncement of Judgment/Order 07/01/2020
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Judgment/Order signed by P.O. on 08/01/2020
Judgment/Order uploaded on 09/01/2020
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