Madras High Court
Ceebros Bay View Residential Owners ... vs A.Veerendra Kumar on 27 August, 2024
C.R.P.(PD).No. 2192 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 27.08.2024
CORAM
THE HONOURABLE Mr. JUSTICE
V.LAKSHMINARAYANAN
C.R.P.(PD).No. 2192 of 2024
&
C.M.P. No. 11641 of 2024
Ceebros Bay View Residential Owners Association,
a Registered Society as Society No.374/2004,
Rep. by its Honourary Secretary,
having its Office at North Block,
Ceebros Bay View Apartment,
No.5, Raja Rengaswamy Avenue,
4th Seaward Road, Valmiki Nagar,
Tiruvanmiyur, Chennai – 600 041. ...Petitioner
Vs.
1.A.Veerendra Kumar
2.Saranya Zaveri
3.P.N.B.Housing Finance Ltd.,
Rep. by its Branch Manager,
Tambaram Branch,
Plot No.11, 2nd Floor, Door No.2A,
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C.R.P.(PD).No. 2192 of 2024
Venkatesan Street, East Tambaram,
Chennai – 600 059. ...Respondents
Prayer: Civil Revision Petition is filed under Article 227 of the
Constitution of India against the fair and decreetal order dated
23.02.2024 passed in I.A.No.4 of 2022 in O.S.No.1897 of 2021 on the
file of the XXII Assistant Judge, City Civil Court, Chennai.
For Petitioner : Mr. S.Subbiah
Senior Counsel
For Ms. Elizabeth Ravi
For Respondents : Mr. S.Pugalendhi
ORDER
Heard Mr. S.Subbiah, Senior Counsel for Ms. Elizabeth Ravi, for the petitioner and Mr. S.Pugalendhi, for the respondents.
2. This Civil Revision Petition arises against the order passed by the XXII Assistant Judge, City Civil Court, Chennai in I.A.No.4 of 2/10 https://www.mhc.tn.gov.in/judis C.R.P.(PD).No. 2192 of 2024 2022 in O.S.No.1897 of 2021 dated 23.02.2024.
3. O.S.No.1897 of 2021 is an under chapter suit. The plaintiff sought for recovery of a sum of Rs.3,39,758.46/- for Flat No.214 and a sum of Rs.3,40,243.27/- with respect to Flat No.114. There is no dispute that the defendants 1 and 2 are the owners of the flats bearing Nos.114 and 214. The defendants 1 and 2 have mortgaged the property with the 3rd defendant. Claiming that there are arrears of maintenance as well as other charges expended by association for maintenance and upkeep of common amenities, the present suit had been filed.
4. The defendants 1 and 2 entered appearance and sought for leave to defend. These defendants raised many pleas including the fact that they are not two separate entities, as in No.114 and 214, but it is one single unit. They would also plead that the property that was 3/10 https://www.mhc.tn.gov.in/judis C.R.P.(PD).No. 2192 of 2024 sold to them by the developer is an independent house and not as a part of the residential complex that had been developed by them. Nonetheless, they would admit that they are members of the plaintiff association and that they had paid maintenance amount without any demur till 2018. They would state that on account of usurious demands that had been made by the plaintiff association, the defendants stopped paying maintenance charges, which resulted in disconnection of water supply.
5. Notice was issued in leave to defend application and the respondent / plaintiff filed a detailed counter.
6. According to the plaintiff, the defendants 1 and 2 have admitted to a sum of Rs.4,76,819.89/- towards arrears of maintenance and the balance amount reflects the interest payable on the maintenance charges, as well as amounts expended by the association for the upkeep of the residential complex.
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7. The learned Trial Judge on consideration of the submission of both the sides came to the conclusion that whether the Flat Nos.114 and 214 are part of the complex or not will be decided at the time of Trial and consequently granted unconditional leave to defend. Hence, this revision.
8. The principle relating to grant of leave has been settled by the Supreme Court recently in Idbi Trusteeship Services Ltd vs Hubtown Ltd - 2017 (1) SCC 568. The Supreme Court held that where the defendant has no defence or the defence is illusory or a sham or practically moonshine, then the Court should not grant leave to defend. However, if the amount is admitted and there remain other tenable issues, the Court should impose conditions prior to granting leave.
9. In this case there are two components, namely: 5/10
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(i) The maintenance charges that the plaintiff association is entitled to;
and
(ii)The amounts expended by the plaintiff association for the maintenance and upkeep of the common amenities of the residential complex.
10. Insofar as the second issue is concerned, the defendants 1 and 2 would contend that they are not a part of the complex. They would plead that they have separate access and the developer has sold the property to them as an independent unit. Therefore, the liability of the defendants to pay other charges would necessarily have to be decided at the time of trial.
11. A reading of the leave to defend application would show that 6/10 https://www.mhc.tn.gov.in/judis C.R.P.(PD).No. 2192 of 2024 defendants 1 and 2 have admitted that they are members of the plaintiff association and had been paying the maintenance charges regularly and due to issues that arose between office bearers and defendants 1 and 2, they stopped paying the maintenance charges. Thus, this portion of the liability is admitted.
12. From a reading of paragraph nos.31 and 32 of the counter, it becomes clear that maintenance amount comes to Rs.4,76,819.89/-. This figure being undisputed, the Court below erred in not imposing condition on the defendants to deposit this amount to the credit of the suit. Therefore, the Civil Revision Petition is partly allowed. The unconditional leave granted by the learned Judge is modified. The defendants will be entitled to conditional leave to defend the suit. The condition being they shall deposit a sum of Rs.4,76,819.89/-, within a period of 8 weeks from the date of receipt of a copy of this order.
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13. With the above observation, the Civil Revision Petition is partly allowed. Consequently, the connected miscellaneous petition is closed. No costs.
27.08.2024
Index : Yes/No
Internet : Yes/No
kan
To
The XXII Assistant Judge,
City Civil Court,
Chennai.
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V.LAKSHMINARAYANAN, J.
kan
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