Bangalore District Court
Ahuja Palace Apartments Owners ... vs Kayumerz P. Dhanbhoora on 1 February, 2024
KABC020174772020
IN THE COURT OF THE IX ASCJ. SMALL CAUSES AND
ADDL. MACT., BENGALURU, (SCCH-7)
BEFORE: SRI.UMESH S. ATNURE,
B.Com.LL.B.(Spl)
IX Addl. Small Causes Judge,
Court of Small Causes,
Member, MACT7, Bengaluru.
S.C. No.987/2020
DATED THIS 1st DAY OF FEBRUARY - 2024
M/s. Ahuja Palace Apartments
Owners Association,
A registered Association having their
office at: No.103,Ahuja Palace,
96, Richmond Road, Bangalore - 560025.
Represented through
its Secretary and Authorised Signatory
Smt.Usha Sekar
...... Plaintiff
Versus
1. Mr.Kayumerz P. Dhanbhoora,
S/o Late Mr. Pesi Dhanbhoora,
SCCH - 7 2 S.C.No.987/2020
Aged about 62 yrs,
Residing at:
Prestige Acropolis,
Sparta 1 #604, Hosur Road,
Bangalore 560029.
2. Mrs. Yasmin F Laskari
W/o Mr. Firdaush B Laskari,
Aged about 59 yrs,
Residing at:
Prestige Acropolis,
Sparta I #604, Hosur Road,
Bangalore 560029.
...... Defendants
====
Plaintiff/s by Sri. K.Prathapan., Advocate
Defendants No.1 and 2 by Sri. B.S.Karthikeyan,
Advocate
====
Date of Institution of Suit 09.11.2020
Nature of Suit Recovery of money
Date of commencement 10.02.2021
of recording of the evidence
Date on which Judgment 01.02.2024
is Pronounced
Total duration Year/s Month/s Day/s
03 02 23
SCCH - 7 3 S.C.No.987/2020
::JUDGMENT::
This suit is for recovery of Rs.1,13,780/ together with current and future interest at 18% p.a., from the date of the suit till the date of actual payment in respect of maintenance charges of the apartment owned by the defendants.
2. It is the case of the plaintiff's that the plaintiff's is an association of apartment owners registered under registration Act, 1908 as per the provision of Karnataka Apartment Ownership Act, 1972 and rules there under and their association is represented Smt.Usha Sekar and she is authorized signatory of their association. In the Ahuja Palace apartments totally there are 24 apartments out of the same their association formed by 17 members who are apartment owners in a multi stored apartment building known Ahuja Palace situated at No.96, Richmond Road, Bangalore. The said apartment is constructed by land SCCH - 7 4 S.C.No.987/2020 owner and builder M/s. Sunrise Builders in accordance with plan bearing No.L.P.No.282/9091 dated 26.02.1991 sanctioned by the BBMP. As per sanction given by BBMP and planning authorities the approval of the construction of basement plus, ground floor plus 2 upper floors, each floor consisting of 6 apartments in all 18 apartments with one Electrical room, one Generator room and 2 A.C office rooms and basement is reserved for Car parking. After obtaining approval from competent authority the builders has constructed the 3rd floor consisting an additional 6 apartments vide modified plan bearing No.L.P.No.174/199596 dated 06.09.1995 and BBMP authority has regularised the as built plan on 19.02.1999. The ground floor consist of 6 apartments bearing No.G1 to G6, first Floor consist 6 apartment bearing No.101 to 106, 2nd floor consist 6 apartment bearing No.201 to 206 and 3 rd floor consist 6 apartment bearing No.301 to 306. In all SCCH - 7 5 S.C.No.987/2020 there are 24 apartments in the building. The builder retained 4 apartments and soled the remaining apartments. As per the agreement to build it was a commitment on the part of the builders M/s. Sunrise Builders to form an Association of Apartment Owners registered under Karnataka Apartment Ownership Act, 1972 for the purpose of maintenance and management of Ahuja Palace Apartment Complex. The construction of the apartment building was completed and occupancy certificate obtained in the year 1997. Till the year 2018 no registered apartment owners association was formed, without fulfilling its contractual obligation. Almost 25 years, the building was managed by an adhoc association of apartment owners without forming registered association for the maintenance and management of the apartments. As such certain problems which could not addressed by the association such as default payment of maintenance SCCH - 7 6 S.C.No.987/2020 charges and parking problems etc. On 20.03.2017 apartment owners Adhoc association, called a meeting for formation of registered association and circular was circulated to all the apartment owners. After series of meetings of apartment owners it was decided to form a registered association under Karnataka Apartment Ownership Act, 1972. Pursuant to this few apartment owners were chosen to form an adhoc committee which was entrusted with the task of building formalities for registration of an association. Accordingly, consent letter was obtained from all apartment owners for formation of registered association under Karnataka Apartment Ownership Act, 1972. The defendant No.1 has also given consent accordingly draft deed of declaration and draft bye laws are prepared and circulated to the all apartment owners and meeting was held on 11.11.2018 to approve the same. In the meeting majority of apartment owners voted SCCH - 7 7 S.C.No.987/2020 in favour of draft deed of declaration and draft by laws. But the defendant No.1 who was represented by his wife in the meeting and she chosen not to vote infavour of draft deed of declaration, accordingly a group of 17 apartment owners have formed an association of apartment owners, by executing deed of declaration on 20.11.2018 and registered the association under Registration Act 1908, under the provision of Karnataka Apartment Ownership Act, 1972. As the defendant No.1 did not join the association, but had been informed by Email dated 01.11.2017 that if the association was formed all apartment owners would be bound by its byelaws but the non members would not be eligible for voting. The M/s.Sunrise Builders has also not join the association despite giving their written consent for registration of the Association under Karnataka Apartment Ownership Act,1972 and they have filed suit against the plaintiff association challenging the formation of SCCH - 7 8 S.C.No.987/2020 association in O.S.No.203/2019 before Additional City Civil Judge, City Civil Court, Bengaluru and said suit is pending for consideration. After formation of association, the plaintiff association taken over the maintenance and management of entire common areas of apartment complex. On and from 09.12.2018 and accordingly, they are assessed the number of apartment which are enjoying the common areas and common facilities and consequently divided the proportionate maintenance charges from all the apartments owners and their individual share of proportion in the apartment complex. The defendants are Coowners of apartment No.104 and they become absolute owners of the apartment, consequent to the death of their parents and they are in joint possession of apartment No.104. They being joint owners of said the apartment, they are duty bound to pay maintenance charges as per they are enjoying the common areas and common facilities along with other SCCH - 7 9 S.C.No.987/2020 apartment owners. The water line, electricity line to common areas, sanitary line, lift, security services etc., are all common in nature and same are enjoyed by the defendant jointly along with other apartment owners, but they have not paid the maintenance charges in respect of their apartment even after service of demand notice. As the defendants are failed to pay the maintenance charges their association sent letter on 23.01.2020 by registered post to the defendant No.1 reminding him payment of outstanding maintenance dues. As per the registered Byelaws and as per provision of Karnataka Apartment Ownership Act, 1972, legal proceedings can be initiated for arrears of maintenance. As the defendants are defaulter in payment of maintenance charges as such they have issued legal notice on 15.02.2020 demanded to defendant to pay outstanding maintenance amount in respect of their apartment No.104. Inspite of receipt of notice the SCCH - 7 10 S.C.No.987/2020 defendants have neither paid the outstanding dues nor given any reply to them. The defendants are in due of Rs.1,13,780/ as arrears of maintenance and penalty thereon for the delay as on 10.10.2020 in respect of apartment No.104. As the defendants are failed to pay the maintenance charges, inspite of receiving legal notice, as such the cause of action arose of them to file the suit. Hence the plaintiff prays to decreed the suit.
3. In pursuance of service of suit summons, the defendants No.1 and 2 have appeared through their counsel and filed their written statement.
4. In the written statement the defendants have denied the entire contention of the plaintiff. Further the defendant No.1 contended that the plaintiff association is illegal at the threshold and it does not fulfill the requirements of the Karnataka Apartment Ownership Act, 1972 hence the suit SCCH - 7 11 S.C.No.987/2020 is not maintainable. Further contended that as there are 17 members are in the association, the plaintiff association not formed in accordance with the Karnataka Apartment Ownership Act, 1972. Further contended that the M/s. Sunrise builders and contractors M/s. Kanara Associates are constructed building and plan was sanctioned by competent authorities for construction of apartment. In ground plus 2nd upper floor and 2 AC office rooms in the basement along with Car parking, construction of 3rd floor consisting of an additional 6 apartments vide modified sanctioned plant. Further there is no registered association of apartment owner was formed till the year 2018 and he came to know about litigation between builders and other owner and also learnt about the differences among owners of several apartment units. The building was managed by an adhoc association consisting of all the owners, but the owners are not faced any such SCCH - 7 12 S.C.No.987/2020 problems when it was managed by adhoc association. Further he denied that the adhoc committee was formed and entrusted registering association and he also denied with regard to the consent letter for formation of an association under Karnataka Apartment Ownership Act, 1972. Further contended that he has not received copy of draft deed of declaration and byelaws and he has not attended meeting on 11.11.2018. Further contended that out of 24 owners only 17 owners and 4 commercial unit could not formed the association under Karnataka Apartment Ownership Act, 1972, the legal requirement of the said act is to be facilities for all owners of the building to join the association, the said contention was not fulfilled by plaintiff association and it is formed by executing deed of declaration and same is absolute illegal as such the suit cannot maintainable against him as he is not a members of plaintiff association. Further he denied that for formation SCCH - 7 13 S.C.No.987/2020 of association the plaintiff has taken over the maintenance and management of entire common areas, the plaintiff association is illegal, as such what ever actions taken by the plaintiff association are all illegal and void abinitio. Further he also denied that the plaintiff association assessed the number of apartments enjoying the common areas and common amenities and demanded proportionate maintenance charges. Further he admitted that he is the owner of apartment No.104 and he being the owner of the said apartment he is duty bond to pay maintenance charges as he has enjoying the common areas and common facilities along with other apartment owners. But he denied that he has not duty bond to pay any maintenance charged to the plaintiff association it is formed illegal and contrary to the law. Further he contended that in the best interest of the building, the owners of 16 units have came forward and formed an association by duly registering SCCH - 7 14 S.C.No.987/2020 company under Karnataka Ownership Flat ( Regulation of the promotion of construction, sale, management and transfer) Act, 1972 and their company is named as Ahuja Palace Flat Owners Association and it is only legal entity i.e., authorized to collect maintenance charges and manage the building. As such the suit filed by the plaintiff association is not maintainable one. Hence defendant No.1 prayed to dismissed the suit.
5. The points that arise for my consideration are as follows:
:: P O I N T S ::
1. Whether the plaintiff proves that the defendants are in due of Rs.1,13,780/ towards maintenance of apartment bearing No.104 owned by defendants?
2. Whether the plaintiff is entitled for relief south for?
3. What order or decree ?
SCCH - 7 15 S.C.No.987/2020
6. In support of case of the plaintiff, the plaintiff got examined authorised signatory as PW.1 and got marked Ex.P.1 to Ex.P.30 and during crossexamination defendant confronted documents and same are marked as Ex.P31 to Ex.P41. The GPA holder of defendants is examined himself as DW.1 and he got marked Ex.D.1 to Ex.D.21 closed their side.
7. Heard the arguments of both side.
8. My findings to the above points are as under;
Point No: 1 : In the Affirmative
Point No: 2 : Partly in the Affirmative
Point No: 3 : As per final order for the following;
// R E A S O N S //
9. Point No: 1 : It is the case of the plaintiff that the defendants are the owners of the Apartment No.104 of Ahuja Palace Apartment and they are in due of Rs.1,13,780/ towards maintenance charges. In spite of SCCH - 7 16 S.C.No.987/2020 their repeated demands the defendants are failed to pay the maintenance charges as such they have filed this suit.
10. It is the contention of the plaintiff that their association is registered under the Karnataka Apartment Ownership Act, 1972 as such their association is the competent to collect the maintenance charges from the other owners of the Ahuja Palace Apartment. Further it is the contention of the plaintiff that in all totally there are 24 apartments in Ahuja Palace Apartment out of which 17 members are joined their association and as per the resolution passed by their association in the General body meeting of the members of the association their association is registered under the Karnataka Apartment Ownership Act, 1972 in the name of M/s Ahuja Palace Apartment Owners Association. On the other hand the defendants are contended that the association formed by the plaintiff is illegal and all the flats owners are not members of the said SCCH - 7 17 S.C.No.987/2020 association as such the plaintiff association is not a registered association and he is not bound to pay any maintenance charges to the plaintiff association. Further contended that there is another association was formed and the same was duly registered as a Company under Karnataka Ownership Flat (Regulation of the Promotion of the construction, Sale, management and transfer) Act, 1972 and the said company is named as Ahuja Palace Flat Owners Association and the same is only legal entity, i.e., authorized to collect the maintenance and maintain the building as such she is not bound to pay any maintenance charges to the plaintiff association.
11. In support of the case of the plaintiff the plaintiff association Secretary and authorized signatory is examined as PW.1 and in her examination in chief she deposed as per contention taken by them and in all she got marked Ex.P.1 to Ex.P.30. Further during the crossexamination of DW.1 SCCH - 7 18 S.C.No.987/2020 they got marked Ex.P.31 to Ex.P.42. Further in the cross examination of PW.1 she deposed that she is the Secretary of their association and totally there are 24 apartments 17 apartments owners are the members of their association.
Further she deposed that those 17 members are the owners of their respective flats based on the Sale Deed executed in their favour and based on the occupation of the flats by the purchaser. Further she deposed that in the year 1997 the occupancy certificate was given to their association at that time there was no any registered association and during that period an ADHOC association was maintaining the maintenance of the building and in the year 2018 their association is registered and after that they were doing the maintenance of the apartment building. Further she denied that there is no any coordination in between their association and other flat owners. Further she denied that as there were difference of opinion in between the members SCCH - 7 19 S.C.No.987/2020 of the association and other flat owners and the defendants along with others were formed another association. Further she denied that in their apartment building there are 4 AC units and those AC units are used for commercial purpose and out of the 4 AC units in one of the AC unit A1 Shelter Pvt. Ltd., is running its office. Further she denied that the Ahuja Palace Apartment is for residential and commercial purpose. Further she admitted that the apartment plan was in accordance with law as such the NOC was issued to the builder after completion of the construction of apartment. She denied that the another association in which the defendant is member they are looking after the maintenance of the apartment. Further she also denied that as their association was refused to maintain the lift of the building as such the another association was repaired of the lift and paid maintenance charges. Further she denied that the Registrar of Co SCCH - 7 20 S.C.No.987/2020 Operative Society was refused to register their society. Further she denied that annual lift maintenance charges was paid by the another association in which the defendant is one of the member. Further she denied that as the defendant is not the members of their association as such the defendant is not liable to pay maintenance charges to their association.
12. By perusing the crossexamination of PW.1 it is clear that in the plaintiff association out of 24 apartment owners 17 apartment owners are the members of the plaintiff association and remaining 7 owners are not the members of the plaintiff association out of which the defendants who being the owners of Apartment No.104 are not the member of the plaintiff association. Further it is clear that the apartments in Ahuja Palace were constructed in accordance with the sanction the plan and in accordance with laws and after completion of construction of the apartments the SCCH - 7 21 S.C.No.987/2020 concerned authority has issued the occupancy certificate. Further it is also clear that under Ahuja Palace Apartment presently two associations are functioning and plaintiff association is one of the association which is undertaking the maintenance of the flats situated in Ahuja Palace. It is also clear that the defendant is not the member of the plaintiff association on the other hand the defendant is member of another association which is formed under Karnataka Ownership Flats (Regulation of the Promotion Of Construction, Sale, Management And Transfer) Act, 1972.
13. Further the plaintiff has produced the copy of the Minute based on the General Body Meeting for filing the suit against the defaulter for recovery of the maintenance of arrears of due which is marked as per Ex.P.1. Further Ex.P.2 is the consent letter which has been given by the owners of the Ahuja Palace apartment for formation of SCCH - 7 22 S.C.No.987/2020 society under the provisions of Karnataka Apartment Ownership Act 1972. By perusing the same it is clear that the defendant No.1 has signed the consent letter for formation of the society. The Ex.P.3 is the Deed of Declaration wherein by perusing the same it goes to shows that totally there are 17 members who have consented for formation of the association as per the Karnataka Apartment Ownership Act, 1972 and all of them have signed the Deed of Declaration and the said Deed of Declaration is registered by the plaintiff association. It shows that the plaintiff association is registered under the Karnataka Apartment Ownership Act, 1972. These documents clearly goes to shows that as per the provisions of the Karnataka Apartment Ownership Act, 1972 the plaintiff association was formed and same is registered association.
SCCH - 7 23 S.C.No.987/2020
14. It is the contention of the defendant that all the flat owners are not the members of the plaintiff association as such the plaintiff association cannot be formed under the provisions of Karnataka Apartment Ownership Act, 1972. Further the defendant contended that she is member of the association which is formed under Karnataka Ownership Flats (Regulation of the Promotion Of Construction, Sale, Management And Transfer) Act, 1972 and she is the member of the said association and the plaintiff association is not the legal association. On the other hand the plaintiff contended that the provisions of the Karnataka Apartment Ownership Act, 1972 are applicable to the apartments which is exclusively meant for residential purpose and Ahuja Palace apartment is exclusively meant for residential purpose as such under the provision of Karnataka Apartment Ownership Act, 1972 they have formed an association and their association is the legal association as SCCH - 7 24 S.C.No.987/2020 such their association is bound to maintain the apartment building by collecting the maintenance charges from the apartment owners.
15. By perusing the Section 2 of the Karnataka Apartment Ownership Act, 1972 it is clear that this act is applies only to property the sole owners or all the owners of which submit the same to the provisions of this Act by duly executing and registering a Declaration as hereinafter provided:
Provided that, no property shall be submitted to the provisions this Act, unless it is mainly used, or prosed to be used as residential purposes.
Hence by going through the above said provision it is clear that the provisions of Karnataka Apartment Ownership Act, 1972 are applicable to the building in which only residential flats are built. The plaintiff contended that in Ahuja Palace there is no any commercial building and all SCCH - 7 25 S.C.No.987/2020 the 24 apartments are meant for residential purpose apart from that ground floor there are Car parking and 4 AC office and entire building is used for residential purpose as such they have registered their society under the provisions Karnataka Apartment Ownership Act, 1972. The defendant contended that in the Ahuja Palace Apartment there are 4 AC office unit and in those units commercial office are established as such the association formed by plaintiff is not the legal association. Hence the association formed by the plaintiff is illegal.
16. In support of the contention of the defendants the GPA holder is examined as DW.1 and in his examination in chief he deposed as per contention taken by them and in all he got marked Ex.D.1 to Ex.D.48 out of which Ex.D.37 to Ex.D.48 are the various Sale Deeds under which the various persons were purchased the flats in Ahuja Palace Apartment. Further Ex.D.1 is GPA executed by the SCCH - 7 26 S.C.No.987/2020 Defendants, Ex.D.2 and Ex.D.3 are the Occupancy Certificates, Ex.D.4 is the Certified copy of the plaint in O.S. No.203/2019, Ex.D.5 is the IA No.I filed in the said suit under order VI rule 14A of CPC, ExD.6 is the certified copy of the plaint in O.S.No.4325/2021, Ex.D.7 to Ex.D.12 are the Katha Certificate and Katha Extracts, Ex.D.13 to Ex.D.15 are the Tax paid receipts, Ex.D.16 to Ex.D.21 are the Electricity bills and receipts, Ex.D.22 is the Sanction plan, Ex.D.23 is the certified copy of the order sheet in O.S. No.4325/2021 wherein Temporary Injunction was granted, Ex.D.24 is the Order passed by the Registrar of Society, Ex.D.25 is the annual maintenance agreement, Ex.P.26 to Ex.D.29 are the Lift repair receipts, Ex.D.30 to Ex.D.32 are the Tax Invoices and Ex.D.33 is the Bank Statement. Further in the crossexamination of DW.1 he deposed that the defendants are the owners of the Flat No.104. Further he deposed that he has not produced the sanction map SCCH - 7 27 S.C.No.987/2020 under L.C. No.174/199596. He denied that there is no 4 AC offices at the basement and he also denied that as per the occupancy certificate in the basement there is no AC office. Further he admitted that he has not produced the order passed by the BBMP Commissioner under BBMP/LC/CR/1144/202021 and order passed by the BBMP in the above said case was shown to the witness by seeing the same he admitted the said document. Hence it is marked as per Ex.P.31. By perusing Ex.P.31 it is clear that the BBMP Commissioner was appointed as was conducted the survey of the building and submitted his report to Hon'ble High Court of Karnataka. The report submitted by the BBMP Commissioner clearly goes to show that the apartments constructed at Ahuja Place are the residential buildings and passed the order as per Ex.P.31. By perusing Ex.P.31 it clearly goes to shows that all the 24 apartments are the residential apartments and there is no any SCCH - 7 28 S.C.No.987/2020 commercial units are in existence in Ahuja Palace apartment. Hence it is clear that the entire building constructed in Ahuja Palace are meant for residential purpose. Further by perusing Ex.P.32 to Ex.P.36 they also clear that while obtaining the construction permission NOC was given by the competent authority as per Ex.P.32. By perusing the same it goes to shows that the entire apartment which is to be constructed is for residential purpose. Further by perusing the affidavit filed by the Builder marked as per Ex.P.33 and Ex.P.34 and Bond executed by the Builder marked as per Ex.P.35 wherein by perusing these documents they goes to shows that the proposed project is meant for residential purpose. Further after completion of the construction of the apartment the competent authority has visited the spot and after satisfaction they have issued the completion certificate marked as per Ex.P.36 and based on the completion SCCH - 7 29 S.C.No.987/2020 certificate the occupancy certificate was issued to the Builders as per Ex.P.38. By perusing these two documents they clearly goes to shows that the said project is purely meant for residential purpose and the contents of these documents are clearly admitted by the DW.1 in his cross examination when the said documents are confronted to the witness. Hence it is clear that there is no any commercial units are in existence in the Ahuja Palace Apartment and all the 24 flats are meant for residential purpose. Hence the contention of the defendant that there are commercial units in the Ahuja Palace Apartment hence association formed by the plaintiff is illegal cannot be acceptable one. Hence by perusing the entire oral and documentary evidence adduced by the both parties it is clear that all 24 units which are in existence in Ahuja Palace apartment are all for residential purpose and out of the 24 members 17 members are consented for formation of the association SCCH - 7 30 S.C.No.987/2020 under Karnataka Apartment Ownership Act, 1972 and accordingly they got registered their society and based on the said registered documents the plaintiff association is maintaining the apartments by collecting the maintenance charges form the respective owners of the apartments as per their share in the apartment. Hence it is clear that the plaintiff association is legally formed association under Karnataka Apartment Ownership Act, 1972.
17. Further by perusing the Agreement to Build marked as per Ex.P.23 it is clear that the person who are interested to purchase the apartment in Ahuja Palace they have executed the Agreement to Build by agreeing terms and conditions imposed by the builders. As per the said terms and conditions after completion of the project the builder has formed an association of the owners of the apartment and handover the maintenance of the apartment to the said association. Further the plaintiff has produced the Circular SCCH - 7 31 S.C.No.987/2020 issued by the Government of Karnataka as per Ex.P.24 and order passed by the Registrar of Society as per Ex.P.25. By perusing these two documents they clearly goes to shows that the Registrar of Cooperative Society Karnataka State issued the Circular on 30.11.2018 stating that the provision of Section 3 of Karnataka Society Registration Act, 1960 provides registration only for promotion of charity, the promotion of education, science, literature, or the fine arts, the promotion of sports, the instruction and the diffusion of knowledge relating to commerce or industry or of any other useful knowledge, the diffusion of political education, the foundation or maintenance of libraries or reading rooms for general use among the members or open to the public, or of public museums and galleries of painting and other works of art, the promotion of conservation and proper use of natural resources and scarce, Infrastructural facilities like land, power, water, forest and such other resources and SCCH - 7 32 S.C.No.987/2020 infrastructural facilities, as may be notified by the State Government from time to time, the collection of natural history, mechanical and philosophical inventions, instruments or designs. Further as per Section 10 of Karnataka Ownership Flat Act, 1972 the promoters to take steps for formation of society or company as such the Registrar of Cooperative Society is not having authority to register of Society under Karnataka Society Registration Act, 1960. Hence it is clear that based on the above said Circular the registration of Societies of the apartment owners is not permissible by the Government of Karnataka in view of the other enactment enacted for registration of the society of the owners of the apartment. Hence it is clear that the society formed under society act is not a competent society and the association of the apartment owners is to be register under the Karnataka Apartment Ownership Act, 1972. Further by perusing the affidavit of SCCH - 7 33 S.C.No.987/2020 the builders, completion certificate, occupancy certificate, agreement to built which are marked as per Ex.P.33 to Ex.P.36, Ex.P.38, Ex.P.39 they also clearly goes to shows that the Apartment which are constructed at the Ahuja Palace are the residential apartment and as the apartments are the residential apartments as such under the provision of Karnataka Apartment Ownership Act, 1972 the society is to be register and not under any other Act. Hence it is clear that the society which is registered by the plaintiff under the Karnataka Apartment Ownership Act,1972 is proper society which is formed as per law.
18. The defendants have produced the Articles of Association and Memorandum of Association of their society as per Ex.D.34 and Ex.D.35. By perusing the same it goes to shows that the association formed by the other group is under the companies Act and not under the Karnataka Apartment Ownership Act, 1972. Hence it is not a proper SCCH - 7 34 S.C.No.987/2020 association which is to be registered in accordance with law. As such I am of the considered view that the plaintiff society is proper society which is registered under the Karnataka Apartment Ownership Act, 1972. Further by perusing the Deed of Declaration marked as per Ex.P.3, Annual Maintenance Contract of Generator marked as per Ex.P.4, Tax Invoice for maintenance of Generator marked as per Ex.P.5, Agreement with M/s Defence Security Services marked as per Ex.P.6, Tank Clean and Service Report marked as per Ex.P.7, Tax Invoice for maintenance of Security Guard room marked as per Ex.P.10. These documents goes to shows that the plaintiff society is doing maintenance of the Apartment of Ahuja Palace apartments and they have entered into contract with the various companies for maintenance of generator, for security, tank cleaning and other services.
SCCH - 7 35 S.C.No.987/2020
19. It is the case of the plaintiff that as per the resolution passed by their association it is decided to recover the maintenance due amount from the owners of the apartment who are failed to pay the maintenance of their apartment. In this regard the plaintiff has produced the outstanding due letter marked as per Ex.P.13 which is issued to the defendants. By perusing the same it goes to shows that the plaintiff has issued outstanding due letter to the defendants under registered post. By perusing Ex.P.13(a) and (b) they clearly goes to shows that the outstanding due letter sent to the defendant is duly served on the defendants. Further by perusing the legal notice issued to the defendant marked as per Ex.P.14 and Postal receipt marked as per Ex.P.14(a) and Postal Acknowledgment marked as per Ex.P.14(b) they clearly goes to shows that inspite of service of legal notice to the defendants demanding to pay the maintenance charges the defendants SCCH - 7 36 S.C.No.987/2020 are failed to pay the maintenance charges. Further the plaintiffs are produced statement of outstanding maintenance due with respect of Apartment No.104 as on 10.10.2020 marked as per Ex.P.15 it goes to shows that the defendant is in due of Rs.1,13,780/ towards maintenance charges of the apartment inspite of issuance of several letters, legal notices, Email the defendant was failed to pay the maintenance amount. By perusing Ex.P.15 it goes to shows that as on the date of the suit the defendants are in due of Rs.1,13,780/ towards maintenance of their apartment. In the crossexamination of PW.1 the defendant contended as the defendant is not the member of the plaintiff association as such the defendant is not liable to pay maintenance charges to the plaintiff association but this contention of the defendant is not acceptable one as the plaintiff association is registered under the Karnataka Apartment Ownership Act, 1972 and the plaintiff SCCH - 7 37 S.C.No.987/2020 association is under taking maintenance of the apartment as such it is duty of the defendant to pay maintenance charges to the plaintiff association for utilizing the common service at the Ahuja Palace apartment. Further in the crossexamination of DW.1 he clearly admitted that the defendant has received the notice sent by the plaintiff association for demanding the dues and the defendant has not paid the due amount. Hence it is clear that the defendant inspite of knowing well that they are in due of Rs.1,13,780/ towards maintenance for their apartment they are not paid the same and they failed to pay the maintenance charges to the plaintiff association. Under such circumstances I am of the considered view that the plaintiff has proved that as per law their association is registered under the Karnataka Apartment Ownership Act, 1972 and they formed an association for maintenance of the apartments and defendants being the owner of the SCCH - 7 38 S.C.No.987/2020 Apartment No.104 and they have used the common utility, but he has not paid the maintenance charges of the Apartment No.104. Hence the plaintiff got issued the Notices, Legal notice and sent Email to the defendants requesting them to pay the maintenance due amount for Rs.1,13,780/ but the defendants are failed to pay the same. Hence the plaintiff has proved that the defendant is in due of Rs.1,13,780/ towards maintenance of their apartment No.104 situated at Ahuja Palace. Hence I answered the Point No.1 in the Affirmative.
20. Point No.2: The plaintiff association has established that their association is registered under Karnataka Apartment Ownership Act, 1972 and their association is formed under the said law and they are maintaining the apartments as such the defendant being the one of the owner of the Apartment No.104 of Ahuja Palace and he has not paid the SCCH - 7 39 S.C.No.987/2020 maintenance charges which is amounting to Rs.1,13,780/. The plaintiff has proved that the defendant is in due of Rs.1,13,780/ towards maintenance of the apartments. When the defendants are failed to pay the maintenance charges the plaintiff has filed this suit by incurring the costs. Under such circumstances the plaintiff is entitled for cost incurred for recovery of Rs.1,13,780/ towards maintenance charges as the defendant has not paid the said amount. The defendant being one of the owner of the Apartment No.104 of Ahuja Palace he has bound to pay the maintenance charges but he has not paid the maintenance charges. Hence the defendant are liable to pay interest at the rate of 6% p.a., from 01.10.2020 till realization of the entire amount. Hence I answered the Point No.2 Partly in the affirmative.
SCCH - 7 40 S.C.No.987/2020
21. POINT No.3: In view of the discussion made above and findings given on point No.1 and 2, I proceed to pass the following;
::ORDER::
The suit is hereby partly decreed with cost.
The defendants are directed to pay maintenance charges of Rs.1,13,780/ to the plaintiff along with interest at the rate of 6% p.a., from 01.10.2020 to till realization of the entire amount within 2 months from the Judgment and decree In the event of failure of the defendants to pay the said amount along with interest the plaintiff is at liberty to recover the same by due process of law.
Draw decree accordingly.
(Dictated to the Stenographer, typed by him, corrected and then, pronounced by me in the open Court on this, the 01.02.2024).
(Umesh S.Atnure) IX ASCJ & ACMM, Court of Small causes, Bengaluru.
SCCH - 7 41 S.C.No.987/2020
: ANNEXURE :
List of witnesses examined on behalf of Plaintiff ::
PW.1 : Mr.Usha Sekar List of exhibited documents marked on behalf of Plaintiff :: Ex.P.1 : Board resolution Ex.P.2 : Consent letter Ex.P.3 : Certified copy of deed of declaration Ex.P.4 : Annual maintenance contract Ex.P.5 : Tax invoice Ex.P.6 : Service Contract Agreement Ex.P.7 : Tank clean Service Report Ex.P.8 : Tax invoice dated 26.05.2020 Ex.P.9 : Tax invoice dated 01.07.2019 Ex.P.10 : Invoice issued by Ramesh Enterprises Ex.P.11 : Certified copy of sale deed Ex.P.12 : Death certificate of Perviz Dhanbhoora Ex.P.13 : Copy of notice dated 23.01.2020 Ex.P.13(a) : Postal receipt Ex.P.13(b) : Postal acknowledgement Ex.P.14 : Office copy of legal notice dated 15.02.2020
Ex.P.14(a) : Postal receipts ( 2 in nos.) SCCH - 7 42 S.C.No.987/2020 Ex.P.14(b) : Postal acknowledgement Ex.P.15 : Statement of Outstanding Maintenance due Ex.P.16 : Audit Report Ex.P.17 : True copy of Balance Sheet Ex.P.18 : Income and Expenditure statement for the period ending 31.03.2020 Ex.P.19 : Receipt and payment account for the period From 01.04.2019 to 31.03.2020 Ex.P.20 : Email correspondence along with certificate U/Sec. 65B of Evidence Act Ex.P.21 : Certified copy of circular dated 20.03.2017 Ex.P.22 : Certified copy of notice of meeting Ex.P.23 : Certified copy of agreement to build Ex.P.24 : Website copy of circular issued by Registrar of Cooperative Society.
Ex.P.25 : Certified copy of letter Ex.P.26 : Proxi form Ex.P.27 : Email Ex.P.28 : Application copy in W.P. No. 31289/2001 Ex.P.29 : Order copy inW.P. No.31289/2001 Ex.P.30 : CD Ex.P.31 : Certified copy of Order issued by BBMP SCCH - 7 43 S.C.No.987/2020 Ex.P.32 : NOC issued by BDA Ex.P.33 : Certificate Ex.P.34 : Certificate Ex.P.35 : Bond Ex.P.36 : Certificate Ex.P.37 : Document Ex.P.38 : Report Ex.P.39 : Sale agreement letter Ex.P.40 : Report Ex.P.41 : Email Ex.P.42 : Dissolution of Partnership
List of witnesses examined for the Defendants ::
DW.1 : Kayumerz P Dhanbhoora
List of exhibited documents marked on behalf of
Defendants ::
Ex.D.1 : Authorization letter
Ex.D.2 &3 : Possession certificate
Ex.D.4 : Certified copy of written statement in
OS No.203/2019
Ex.D.5 : Certified copy of Interim application in OS
No.203/2019
SCCH - 7 44 S.C.No.987/2020
Ex.D.6 : Certified copy of written statement in
OS No.4325/2021
Ex.D.7 : Certified copy of Katha in Municipal NO.96/2
Ex.D.8 : Certified copy of Katha copy in Municipal
NO.96/2
Ex.D.9 : Certified copy of Katha in Municipal NO.96/9
Ex.D.10 : Certified copy of Katha copy in Municipal
NO.96/2
Ex.D.11 : Certified copy of Katha in Municipal NO.96
Ex.D.12 : Certified copy of Katha copy in Municipal
NO.96
Ex.D.13
to 15 : Tax Paid Receipts
Ex.D.16
to 21 : Electricity bills and receipts
Ex.D.22 : Plan Sanction
Ex.D.23 : CC of order sheet in O.S. No.4326/2021
Ex.D.24 : Order of Registrar of Societies
Ex.D.25 : Annual Maintenance Contract
Ex.D.26
to 29 : Service Reports
Ex.D.30
SCCH - 7 45 S.C.No.987/2020
to 32 : Tax Invoices
Ex.D.33 : Bank Statement
Ex.D.34 : Articles of Association
Ex.D.35 : Memorandum of Association
Ex.D.36 : Certificate of Incorporation
Ex.D.37
to 48 : Certified copies of Sale Deeds
(Umesh S.Atnure)
IX ASCJ & ACMM,
Court of Small causes, Bengaluru.
Digitally
signed by
UMESH UMESH S
ATNURE
S Date:
ATNURE 2024.02.16
11:18:37
+0530