Bangalore District Court
Sena Vihar Owners vs Sri.P.T.Monappa on 14 November, 2022
KABC020002522017
IN THE COURT OF SMALL CAUSES (SCCH24)
AT BENGALURU.
DATED THIS THE 14th DAY OF NOVEMBER 2022
Present: Miss.B.T.ANNAPOORNESHWARI
B.A., L.L.B., L.L.M,
C/c XXII ADDL., SCJ & ACMM,
MEMBER MACT,
BENGALURU.
S.C.No.51/2017
Plaintiff/s : SENA VIHAR OWNERS
WELFARE ASSOCIATION,
Kammanahalli main road,
Kalyana Nagara Post,
Bangalore560043.
Represented by its, President,
Col.Dr.Mukesh Kumar V.
S/o late Shri G.A.Venugopal,
R/at F223, Sena Vihar,
Kammanahalli main road,
Kalyana Nagara, Bengaluru43.
(By Sri.Nataraju N.,
Advocate.)
Vs.
Defendant/s : Sri.P.T.Monappa
S/o late P.B.Thimmaya,
Plot No.43, Sena Vihar,
2 SC 51/2017
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Kammanahalli main road,
Kalyana Nagara Post,
Bangalore560043.
(By Sri.George Philip,
Advocate.)
Date of institution of the suit: 06.01.2017
Nature of the suit (suit on pronote,
suit for declaration and possession
suit for injunction etc.): Recovery of money
Date of commencement of
recording of the evidence: 06.10.2017
Date on which the judgment
is pronounced : 14.11.2022
Total duration: Years Month/s Days
05 10 08
C/c XXII Addl. Judge
JUDGMENT
This is suit recovery of a sum of Rs.48,930/ together with interest at 18% per annum from the date of suit till date of realization and cost.
3 SC 51/2017
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2. The case of the Plaintiff in brief is that, the defendant is the owner of plot No.43 in Sena Vihar Housing Complex which was purchased on 10.05.1996 measuring 40X45 from Army Welfare Housing Organization, New Delhi, registered before the sub register's office, Bengaluru North Taluk, Bengaluru, described in 'Schedule B' (hereinafter referred as schedule B property) and after purchase constructed a house and residing along with his family members and has become member of the Sena Vihar Owners Welfare Association and the share certificate No.404 issued by them to him on 25.02.2006 but the defendant has stopped paying the monthly maintenance charges to the plaintiff Association from 01.04.2006 onwards till today even though he is using all the common facilities and become due in a sum of Rs.48,930/ together with interest 18% per annum. Thereafter, they issued notice to the defendant and also reminded him several times, but he not responded 4 SC 51/2017 SCCH24 properly and finally his name was displayed in the notice board and thereafter he wrote a letter to them on 25.12.2015, to show cause why his name is displayed on the notice board. They have submitted the Audit Report for the year 20142015 to the Registrar Societies on 23.07.2015 and also paid fee for this year is Rs.13,200/. They had changed the name of the association from Sena Vihar Flat and House Owners Association to Sena Vihar Owners Welfare Association which amendment was approved during the Special General Body meeting of the Association held on 08.10.2006 and the same was submitted to the Registrar of Societies which is got approved. In the registered sale deed dated 10.5.1996 at internal page 7 the defendant covenants with the vendor are mentioned at para 2(d) to (j). They have registered under the Society's Registration Act was formed by all the Flat and plot owners in the Sena Vihar Housing Complex. 5 SC 51/2017
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3. The plaintiff further pleaded that the Army Welfare Housing Organization Delhi, for the purpose of developing a housing complex for the welfare of Army personnel both retired and serving, at Bangalore, had acquired 14 acres 22 guntas of land at Kammanahalli Main Road, Kalyana Nagar, Banasawadi, Bangalore, in Sy.Nos.24/2, 25, 34/1, 34/3, 35/1, 35/2, 35/3, 36/1 and 36/2 and said land was acquired and developed as a housing complex which is known as Sena Vihar Housing Complex. It had constructed 364 Flats and 71 Plots and all of them have sold to its members, which is described in the schedule A (hereinafter referred to as Schedule A property). As the defendant defaulted in payment of maintenance charges and therefore, prayed for decreeing the suit as prayed.
4. In response to summons issued by this court, the Defendant has appeared through his counsel and filed the written statement submitting that the plaintiff has not 6 SC 51/2017 SCCH24 presented a true picture of the case and has deliberately withheld certain material information crucial for the determination of case and admitted the averments made in para Nos.4 and 5 with regard to his ownership over B schedule property and construction of a house therein. Further submitted that, the Army Welfare Housing Organization (hereinafter referred to as "AWHO") develops housing projects across the country so as to enable both the serving and retired Officers of the Indian Army to construct and establish dwelling houses which would otherwise not be possible for them on account of they being in service and their frequent transferable job. One such project was also proposed to be developed in Bangalore in around October 1979 and thereafter, applications were called for from the members in this regard. The entire Schedule A property of plaint totally measuring about 14 acres 22 Guntas came to the acquired for the said purpose but due to several impediments in 7 SC 51/2017 SCCH24 acquisition process, procuring power and water supply etc., the aforesaid project did not take shape until late 1986 and owing to such failure, it was suggested by the AWHO, to develop various individual plots admeasuring 40X50 feet, so as to enable the members to construct their houses as per their individual taste and design and a part payment of Rs.48,000/ for such purchase had already been made by the most of the members which was further revised to construct apartment complex in lieu of individual plots and this suggestion was accepted by most of the members barring a few opted for flat and as on date there are as many 364 flats as opposed to only 71 independent houses built on these individual plots. He is one of such individual plot who has acquired title vide an absolute sale deed dated 10.5.1996 over the schedule B property to the plaint. He denies the assertion that he becoming a member of the Plaintiff Association by virtue of his purchase of Plot No.43 and also denied that he using 8 SC 51/2017 SCCH24 common facilities as though he has paid the maintenance charges. Further submitted that no conditions/raiders can be imposed on him as he acquired title over the said property by absolute sale deed. The question of payment of maintenance for usage of common facilities does not arise at all, as the plaintiff association itself vide a relinquishment deed dated 18.4.1994 in favour of the Bangalore Development Authority (BDA) relinquished its rights in specific regard to roads, drain, culverts, common areas, and other civic amenities as described in the schedule of the deed and hence the plaintiff has no right whatsoever over the alleged common facilities in question being used by him. Further, the entire allied service of cleaning, sweeping, garbage disposal etc in the area, is being undertaken by the "Bruhath Bengaluru Mahanagara Palike" and therefore an individual owner like him does not receive any service from the Plaintiff association as alleged by it. Further submitted that he has constructed 9 SC 51/2017 SCCH24 the house only after procuring the sanctions in line with the applicable building byelaws and has been promptly paying the betterment charges to concerned revenue departments. The area in question like that of a hybrid arrangement comprising of individual plots and apartments can never be constructed as a gated community and as such it shall not be proper for the plaintiff to levy maintenance charges for the usage of common facilities and the same is evidenced from the fact, there are no locks in the said project and does not restrict entries. Therefore, he has needlessly been arrayed as a party to this proceedings with an ulterior motive to be harassed by the plaintiff. Further denied the averments made in paragraph No.7. The entire constitution of the plaintiff Association is lopsided arrangement which favours only the apartment owners as opposed to the plot owners and further to devise a ploy to subject the plot owners to meet to their unjustly demands. Till date no 10 SC 51/2017 SCCH24 individual plot owner has ever been made a president or even a board member of the Association. He has issued detailed response to the notice issued by the plaintiff but even then arbitrarily and unilaterally displayed his name in the notice board portraying him as a defaulter to tarnish his image and he has caused a detailed reply on 31.10.2009 objecting to such unruly practice as adopted by the plaintiff and after that the list projecting him as a defaulter was removed which action clearly substantiated that he was in no way liable to pay any monies to the plaintiff. He has no knowledge about the averments made in para No.8 of the plaint and denies the averments made in para NO.9. The name change as referred was not a mere change of name as projected therein but such an effort was a calculated one to withdraw from the status of Cooperative society to form an Association in order to benefit from the convenience and to gain unjustly therefrom. The plaintiff by their very own statement in a 11 SC 51/2017 SCCH24 daily paper in Times of India dated 01.08.2012 had conceded to the fact it is a mere maintenance society and not a housing society and such an arrangement was a calculated move to formulate a Society under the Societies Registration Act, as opposed to a Cooperative Society wherein any appointment or dissolution is to be done only after obtaining the consent of the Registrar of Cooperative Society. Such an attempt at the instance of the plaintiff was calculated one so as not to report to the registrar and thereby claim monopoly over the issue. Several officers were forced and coaxed into becoming a member of the Society as constituted under Societies Registration Act. The plaintiff has manipulated which has deliberately concealed the said issue before this court and has not approached with clean hands. He has denied the contents of para Nos.10 to 12 and 14 to 16. Further submitted that the plaintiff by their own statement has conceded to the fact that the purchaser shall become a member only of the 12 SC 51/2017 SCCH24 cooperative society and not as a society like that of the plaintiff registered under the Society Registration Act, 1960. On that count, the entire submission of the plaintiff in this regard should fail. However, in this instant case he has not obliged to become a member of a Cooperative Society as he has not consented to dissolve the same. The plaintiff is in a constant habit of filing cases against him on some or the other frivolous count which is nothing but vindictive nature of the plaintiff. Therefore, prayed for dismissal of the suit.
5. The Plaintiff in order to prove his case, he has examined his present President Mr.Lt Gen K.Nagaraja as PW.1 and produced 12 documents as per Exs.P.1 to P.12. On the other side the Defendant has examined himself as DW.1 and produced 10 documents as per Exs.D.1 to D.10. The Certified copy of Counter claim in OS No.33/2016 is confronted to the defendant and got marked as Ex.D.11. 13 SC 51/2017
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6. Heard the arguments of both counsel and perused the materials on record. The counsel for the plaintiff has filed the written arguments and also relied upon a decision reported in 'AIR 2003 SC 2418 : Roop Kumar Vs. Mohan Thedani' and also relied on the order passed by this Court on I.A filed by the defendant for rejection of plaint(I.A No.XI) on 25.11.2021. The counsel for the defendant has relied upon the decisions reported in, Writ Appeal No.974 of 2019 (GMKSR) and writ Appeal No.12061211 (GM0KSR) : VDB Celadon Apartment owners association v.s Mr.Praveen Prakash & Ors., W.P.No.28624/2003 (LBRESPIL) : Sena Vihar Co operative Society vs. Commissioner, BMP, and copy of bare Act of Karnataka Cooperative Societies Act, 1959.
7. Now the points that arise for the consideration of this court are as under;
1. Whether Plaintiff proves that it is entitled to recover the maintenance 14 SC 51/2017 SCCH24 charges of Rs.48.930/ from the defendant with interest @ 18% per annum from the date of suit till date of realization?
2. Whether the Plaintiff is entitled for the relief sought in the suit?
3. What order or decree?
8. On hearing both sides and on perusal of oral and documentary evidence on record this court answers on the above points as here under:
Point No.1 : In the negative, Point No.2 : In the negative, Point No.3 : As per the final order, for the following:
REASONS
9. Point No.1: It is the case of the Plaintiff that the defendant is the owner of the plot No.43 at Sena Vihar and become member 15 SC 51/2017 SCCH24 of the Sena Vihar Owners Welfare Association and issued with Share certificate and paid the monthly maintenance charges of the Association till 01.4.2006 and thereafter stopped paying monthly maintenance charges to them and became due and even after issuance of notice, displaying his name in the notice Board the defendant wrote a letter on 25.12.2006 to show cause as to why his name displayed without making payment of dues. On the other side, the defendant has denied the allegations made by the plaintiff against him admitting his ownership over the plot No.43 and contended that the plaintiff relinquished its rights in favour of the BDA vide a relinquishment deed dated 18.4.1994 and the entire allied service of cleaning, sweeping, garbage disposal etc., in the area is being undertaken by the BBMP and an individual owner like him does not receive any service from the plaintiff and hence no question arises about payment of maintenance and the purchaser shall become a member only of the cooperative 16 SC 51/2017 SCCH24 society and not as a society like that of the plaintiff registered under the Society Registration Act, 1960.
10. The plaintiff in order to prove its case has examined its President as PW.1 who has reiterated the averments of plaint in his examination in chief and got marked Exs.P.1 to P.12. They are Ex.P.1 is the Registration certificate of the plaintiff Association, Ex.P.2 is the new Registration certificate, Ex.P.3 is the Byelaws of the Association, Ex.P.4 is the Share certificate of the defendant, Ex.P.5 is the Maintenance charge list and due from the house No.43 of defendant, Ex.P.6 is the reply of the defendant, Ex.P.7 is the acknowledgement issued by Cooperative Department in the years 201213, 201617 and 201718, Ex.P.8 is the Certified copy of sale deed of the defendant, Ex.P.9 Notarized copy of undertaking of defendant given to army welfare housing organization, Ex.P.10 is the Byelaw of Sena Vihara Housing Co operative Society (in booklet) and Ex.P.11 is the Master 17 SC 51/2017 SCCH24 Brochure of Army Welfare Housing Organization written to plaintiff.
11. In the crossexamination of the PW.1 it is brought out that he knows that the defendant is a retired Brigadier, from 1.8.2017 he has been selected as the President of plaintiff Association, Sale deeds in respect of the entire plot on which Sena Vihar Housing complex is built was executed between BDA and AWHO entered around 1989, said plot consisting of 14 acres 22 guntas which comprises both 364 flats and 71 houses, originally AWHO has sold plots measuring 40x45 ft. to 71 owners in which the owners have constructed the houses, the sale deed executed in the joint names of defendant and his wife, they have not made the wife as party, plaintiff is not a society but it is welfare association, Exs.P.1, P.2 issued by Registrar of Societies, the plaintiff association earlier was a cooperative society and after approval of resolution the plaintiff association came into existence, the defendant 18 SC 51/2017 SCCH24 and 8 others have filed their objections for formation of new association in the place of cooperative society before the concerned deputy registrar which was rejected, the clean up of the entire complex is done by BBMP as well personnel employed by their Sena Vihar, the maintenance of the road with the complex by the BBMP because the roads have been relinquished to BBMP for maintenance and development, the maintenance charges of the complex is paid to the association, the residents of the complex have also to pay some necessary charges to the BBMP, one more suit is filed against the defendant in O.S.300/2016, in the objection to the IA filed in that case u/O.12 R.5 of CPC he admitted that every executees of the sale deed dated 10.5.1996 shall become the member of the Sena Vihar Cooperative Society, as per clause 6H of Ex.P.8 the defendant agreed to become the member of the Co operative Society, the plaintiff is not a cooperative society, as per Ex.P.9 the defendant has given undertaking to 19 SC 51/2017 SCCH24 AWHO, AWHO is registered organization under the Act of 1860 which deals with facilitating as per the brochure, the relinquishment was entered into between AWHO and BDA on 18.4.1994 for the purpose of maintenance and development of the relinquished area, Ex.P.9 is executed with a view that whoever allotted shall be the member of AWHO and shall abide by all the terms and conditions that are set forth in it, Ex.P.9 was executed before Ex.P.8, in Ex.P.11 chapter8 there is recital about welfare maintenance societies, in the year 200102 the conversion took place, the defendant is residing in an individual plot within Senavihara complex but not in the apartment, the relinquishment deed executed for internal road approaches, drains, culverts, UC drainage, water supply lines laid by BWSSB and 11 numbers of totlots and children park.
12. The defendant in order to prove his defence has examined himself as DW.1 and has reiterated the 20 SC 51/2017 SCCH24 averments of the written statement in his examination in chief and got marked Exs.D.1 to D.10. The Ex.D.1 is the RC tax receipt, Ex.D.2 is the two water bills, Ex.D.3 is the two electricity bills, Ex.D.4 is the circular and consent form of earlier association, Ex.D.5 another circular, Ex.D.6 another consent form, Ex.D.7 is the reply of defendant, Exs.D.8 and D.9 are the two BBMP notice copy and Ex.D.10 is the certified copies of objections and rejoinder filed in O.S.300/2000. The Ex.D.11 is the counter claim filed in O.S.300/2016 got marked in the cross examination of DW.1 by confrontation.
13. In the crossexamination of DW.1 it is elicited that, his plot is measuring 40x45 ft, there is no any common area to the 71 house owners, he filed O.S.No.5917/2002 against the plaintiff association for injunction with regard to the area of trees which he planted, he was a member of the Sena Vihar Housing Co operative Society when it got registered under 1959 Act, he 21 SC 51/2017 SCCH24 paid maintenance charges monthly to the said Society until it got liquidated, the maintenance charges collected by him after liquidation of said society till the plaintiff association came into existence is illegal, the plaintiff is not maintaining the common area and the place in which his house is situated but it is maintained by the BBMP, he used to pay maintenance fee to the earlier Sena Vihar Housing CoOperative Society as that of other members till the plaintiff association coming into existence, he has not signed to the willingness letter and withdrawal forms sent alongwith letters dated 31.5.2002, 4.7.2002, 13.09.2002 of Exs.D.4 to 6, on 20.4.1990 he gave undertaking to the AWHO and admitted the Ex.D.11/counter claim claimed by him in O.S.300/2016.
14. The Ex.P.1 is the registration certificate and as per that Sena Vihar Plot and House Owners Associations registered in the year 200405 under Karnataka Societies Registration Act 1960. As per Ex.P.2 the plaintiff 22 SC 51/2017 SCCH24 association has submitted the accounts from 1.4.2007 31.3.2008 and executive committee members list for the year 200809 and paid the fees of Rs.5,800/. The Ex.P.3 is the Rules and Regulations (Bye Laws) of plaintiff Association of the year 2007. On perusal of the Ex.P.3, the objects of formation of the said association is mentioned in clause 2 from (a) to (aa) under Section 3 of the Karnataka Societies Registration Act but appears to be not covered under said Section 3 of the Act. The Ex.P.4 is the share certificate issued in favour of defendant by the earlier Sena Vihar Cooperative Society but the plaintiff has not stated anything as to why it was not handed over to the defendant. The Ex.P.5 is the maintenance charge list alongwith statement of dues from the defendant's house. Ex.P.6 is the letter by defendant to the plaintiff calling for the reasons for displaying his name in the notice board. The Ex.P.7 are the acknowledgement certificates issued by Registrar of Societies wherein 23 SC 51/2017 SCCH24 mentioned about receipt of accounts, list of members and fee payment.
15. The Ex.P.8/sale deed executed by the AWHO in favour of defendant and his wife, wherein at page 7 the purchaser covenants with the vendor mentioned as follows;
"3. That the purchaser hereby undertakes to abide by the following terms and conditions mutually agreed between the parties to this Deed of sale.
(1) The purchaser shall be bound by the Army Welfare Housing Organization rules as per the Master Brochure as amended from time to time.
(2) The purchaser shall become a member of the Sena Vihar Housing Cooperative Society, Bangalore560084.
(3) The Purchaser shall not sell, transfer, assign or otherwise dispose of the Schedule 'B' property without prior permission in writing from the aforementioned Society. Before granting any such permission, the Society shall obtain prior approval from the Army Welfare Housing Organisation. (4) The Purchaser shall not mortgage or assign the Schedule 'B' property except with the prior permission of the aforesaid Society. (5) The Purchaser hereby undertakes to build the residential building in accordance with the 24 SC 51/2017 SCCH24 sanctioned plan of the Bangalore Development Authority within one year from the date of this Deed of Sale or within such extended period which may be granted by the Managing Committee of the Society on payment of a fee to be fixed by the Managing Committee for extending the period of construction. (6) The purchaser shall bear the enhanced land cost if any awarded by the Land Acquisition Court in future in proportion to the size of his/her/their plot.
As per the above covenants the purchaser shall be bound by the Army Welfare Housing Organisation rules as per the Master Brochure as amended from time to time and shall become a member of the Sena Vihar Housing Cooperative Society, Bangalore.
16. The Ex.P.9 is the notarized copy of the undertaking. The said document has no relevancy under law as it is a notarized copy and cannot even admitted in evidence. The Ex.P.10 is the byelaws of the Sena Vihar Housing Cooperative Society Ltd., to which admittedly the defendant was one of the member and was paying maintenance. The Ex.P.11/Master Brochure July 1987 at 25 SC 51/2017 SCCH24 Chapter VIII in page 36 at clause 79 under the Head of 'Liabilities of the Allottees' it is mentioned that, 'Become a member of the Users Committee or registered Welfare Maintenance Society, whichever is established in his project colony before taking over possession of the dwelling unit. As per the covenants in Ex.P.8 and as per the Ex.P.11 liabilities clause the defendant did become member of the Sena Vihar Housing Cooperative Society Ltd., which is not disputed by the defendant also. The Ex.P.12 is the notarized copy of the letter written to AWHO clarifying that, an AWHO allottee at Sena Vihar, Bangalore, and a member of the erstwhile 'Sena Vihar Housing Cooperative Society will continue to be member of the present 'Sena Vihar Owners Welfare Association' and is obligated to comply with all covenants/Rules laid down by the AWHO from time to time. The Ex.P.12 is a notarized copy which has no evidentiary value and hence cannot be appreciated unless the original is produced and 26 SC 51/2017 SCCH24 the supported documents are produced to the effect that as to on whose clarification it was written to the AWHO and whether it was further replied by the AWHO or not.
17. There is no dispute about the ownership of the defendant over the plot described under the Ex.P.8/sale deed. The Exs.D.1 to D.3 show that the defendant is paying property tax and electricity bill to the concerned authorities. Exs.D.4 to D.6 are the circulation of Forms rendering the willingness of the defendant under Section 72(1) of the Karnataka Cooperative Societies Act, 1959 for the Society to withdraw from the Cooperative Society status and form a Society under 'The Karnataka Registration of Societies Act, 1960'. Particularly letter addressed by the then President Brig AN Suryanarayanan at Ex.D.4 at para Nos.4 to 7 it is mentioned as follows;
"4. Why the Urgency For Your Concurrence & Not Await AGM?
(a) Section 72(1) of 'The Karnataka Cooperative Societies, Act 1959' lays down: 27 SC 51/2017 SCCH24 If the Registrar 'xxxxxxxx' on receipt of an application made by not less than three fourths of the members of a cooperative society, is of the opinion that the society ought to be wound up, he may issue an order directing it to be wound up"
(b) If we wait for AGM of the current year, which may not be held till close to 30 Sep 2002, due to the statutory requirement of completing Co operative audit for 200102, it will only delay matters. If the Cooperative Audit requirement of completing Cooperative audit for 200102, it will only delay matters. If the Cooperative Audit Department has taken 8 years and dozen of reminders from us to complete the audit of first years of our accounts, (at a cost to us of over Rs.2.7 lacs), imagine how much more time and cost would we continue to incur, year after year!
5. Waiting for AGM as such will only delay matters and cost more. The earliest 75% of owners agree and soonest we can withdraw and form a Welfare Society under 'The Karnataka Regn of Societies Act 1960'.
6. Though the informal meeting of members on 19 Apr 2002 unanimously felt that we may go in for an Owners Association under 'The Karnataka Apartment Ownership Association Act 1972,' unfortunately, it is not applicable to plots/houses, hence the only opinion is as stated above, to ensure we all remain as one Society.
7. In order that we get the approval for withdrawal from Coop Society status, we now need you to send your concurrence to move the authorities to relieve us from the Cooperative 28 SC 51/2017 SCCH24 Society status. Please treat this as URGENT & VERY IMPORTANT and send us the attached form duly filled in and signed, by 25 June 2002 WITHOUT FAIL. Outstation members are requested to send the same Under Certificate of posting. All members residing in the complex/in Bangalore are requested to append their signature in one common from held with Chief Executive, again by 25 June 2002."
18. The above Exs.D.4 to D.6 shows that opinion of the members was called for withdrawal of the registration from the Cooperative Society and to remain a Society. Suggestions are put to the DW.1 regarding JRT appeal No:4/200506 but as no documents are produced to that effect by both the parties and as in this case that is not the issue directly involved and needs no much appreciation. The Ex.D.7 is the notice given by the defendant to the AWHO questioning the issuance of notice to the defendant with regard to the subject matter of the ownership of plot No.43 and the residential unit constructed thereon. The Exs.D.8 and D.9 are the complaint lodged by the defendant before the BBMP, in 29 SC 51/2017 SCCH24 turn direction issued by the BBMP AEE to the Contractor directing not to instruct the Labourers not to clean the surroundings of house of defendant. Ex.D.10 is the objections and rejoinder filed in O.S.No:2000. Ex.D.11/certified copy of counter claim filed by the defendant in O.S.300/2016, admittedly the defendant claimed counter claim on the basis of the admitted fact of the plaintiff therein with regard to the property of 1200 sq.ft.. As the filing of other suits and counter claim therein between the parties can only be make out that as the defendant opposed payment of maintenance charges and grown trees lead to filing of said suits which shows difference between the parties.
19. As per the case of plaintiff the earlier Sena Vihar Housing Cooperative Society Ltd., has changed to the present plaintiff association. It is clear from the sale deed/Ex.P.8 of defendant that he admitted to the covenants therein that he shall become member of the 30 SC 51/2017 SCCH24 earlier cooperative society and admittedly as per the defendant also he was the member of the said earlier society. No doubt the as per the defendant itself he was paying maintenance charges till 2006. Further, as per the Exs.D.4 to D.6 referred above the earlier society intended to remain as society as registration is not possible under 'The Karnataka Apartment Ownership Act, 1972' as an Owners Association as it is not applicable to plots/houses. When this being the stand of the earlier society then how the plaintiff Association came into existence contrary to the said view is not explained. No documents are produced to prove that whether AGM was held and under what quorum the said change of the earlier society agreed to be changed as present Association and there is no averment in this regard by the plaintiff. The plaintiff relied on the byelaws of the present association and the definition clause therein pointing out the objects of the plaintiff Association and payment of maintenance by the 31 SC 51/2017 SCCH24 members. But the defendant mainly disputes the formation of present association by change of earlier co Operative society and its maintainability under law to collect maintenance from them. Therefore, before considering the present plaintiff's byelaws and its violation if any committed by the defendant by non payment of maintenance charges and the dues payable by the defendant if any, the aspect of maintainability needs to be considered. As per the evidence on record the common areas are relinquished by the earlier Society to the BBMP for the maintenance of the roads, cleanness and other aspects of the houses situated in the Sena Vihar as narrated above, then whether really the house owners like defendant needs to pay any maintenance charges to the plaintiff, when this is considered there is no necessity arises to collect any maintenance charges from the defendant as they are not using any common areas or facilities provided for the flats.
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20. Though the defendant disputes the right of plaintiff to collect maintenance charges, then also the plaintiff has not produced any documents to prove that earlier 'SenaVihar Housing Cooperative Society Limited, from 200405 has been changed to Sena Vihar Flat and House Owners Association and it has further changed to present Sena Vihar Owners Welfare Association from 11.1.2007 by obtaining permission from the members of the society in the AGM for which except the defendant all other 434 members have accepted the proposal. Though the plaintiff claims that they have filed this suit for recovery of maintenance charges due by the defendant to them towards maintenance of common area and common facilities and hence the registration of the plaintiff association is not germane to the present proceedings and only point this court needs to be considered is whether the defendant is due to pay the maintenance charges as claimed by them and if the defendant is aggrieved by the 33 SC 51/2017 SCCH24 validity of the very registration of the plaintiff association, the same can be challenged by him before the proper forum and this court being a court of limited jurisdiction cannot delve into the validity of the registration of the plaintiff association. Though this court has limited jurisdiction to decide that whether the plaintiff is entitled to recover the maintenance charges from the defendant as claimed but in order to decide this issue/point the entitlement of the plaintiffs needs to be considered and when the plaintiff proves that it is entitled to recover the maintenance charges then only the next aspect whether the defendant is in due or not and entitlement of the relief as claimed by the plaintiff needs to be adjudicated. If the very entitlement of the plaintiff to collect maintenance charges is not proved then no question arises to adjudicate the claim of the plaintiff with regard to dues by the defendant. Therefore, when the defendant contends that the plaintiff association is not entitled to recover 34 SC 51/2017 SCCH24 maintenance and its registration itself is not proper then the plaintiff needs to primafacie prove that it is registered legal body to collect the maintenance as required under law but without proving the said aspect the claim of the plaintiff cannot be adjudicated directly.
21. Further the plaintiff's counsel claims that when as per Ex.P.8 the defendant agreed to become member of the plaintiff association and when the parties have deliberately put their agreement into writing, it is conclusively presumed between them that they intended the writing to form a full and final statement of their intentions and one which should be placed beyond the reach of future controversy and hence the defendant is estopped from defying the covenants of the very sale deed vide which he purchased the plot in the Sena Vihar Housing Complex. In this regard the counsel for the plaintiff has relied upon the decision reported in AIR 2003 SC 2418, wherein it is held by that the registered documents cannot be 35 SC 51/2017 SCCH24 impeached by loose collateral evidence. I have perused the said decision and with due respect to the said decision this court is of the view that the facts and circumstances of that case and this case are different and hence not applicable as the Ex.P.8 is not a disputed document as the defendant also admits the covenants mentioned therein and he being member of earlier society. As per the plaintiff the defendant even paid the maintenance charges to the plaintiff also but even then he is denying the payment of maintenance which is due. But mere payment of maintenance by the defendant itself is not criteria to hold that the plaintiff Association has right as per law to collect maintenance.
22. With regard to encroachment by the defendant and filing suit in that regard is concerned this court has no jurisdiction either to consider that aspect independently and the said aspect is also has no relevance to decide the present issue of recovery of maintenance. Further, in 36 SC 51/2017 SCCH24 W.P.No:28634/2003 the D.B. of our Hon'ble H.C. observed that the encroachment if any made by defendant herein as alleged by the plaintiff herein in the said case then it is for the concerned authority respondent therein to take action and therefore, the said point of encroachment has no relevance to this case.
23. The counsel for the defendant contends that as per Section 4 of the Karnataka CoOperative Societies Act, 1959, the societies which may be registered are, a co operative Society which has as its objects the promotion of the economic interest or general welfare of its members, or of the public, in accordance with cooperative principles, or a Cooperative society established with the object of facilitating the operations of such a society, may be registered and as the plaintiff association has no such any objects and hence its registration itself is void and hence the it has no power to collect the maintenance amount from him. No doubt in Section 4 of the said Act the 37 SC 51/2017 SCCH24 objects are clearly mentioned but as per the claim of the plaintiff it got registered under the Karnataka Societies Registration Act 1960 as it is clear from the Exs.P.1 to 3 and hence said Act needs to be considered for holding whether the plaintiff association is a having right to collect maintenance under registration of said Act.
24. The Section 3 of the Karnataka Societies Registration Act, 1960, reads as under;
"3. Societies to which the act applies The following societies may be registered under this Act. Societies established for.
(a) The promotion of charity;
(b) The promotion of education, science, literature, or the fine arts;
(c) The promotion of sports;
(d) The instruction and the diffusion of knowledge relating to commerce or industry or of any other useful knowledge;
(e) The diffusion of political education;
(f) 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;
(ff) the promotion of conservation and proper use of natural resources and scarce infrastructural facilities like land, power, water, 38 SC 51/2017 SCCH24 forest and such other resources and infrastructural facilities, as may be notified by the State Government from time to time;
(g) The collection of natural history, mechanical and philosophical inventions, instruments or designs; and Which intend to apply their profits, if any, or other income in promoting their objects and prohibit the payment of any dividend or distribution of any income or profits among their members."
25. On plain reading of the above provision of law makes it clear that the Societies with any of the one of the objects mentioned in Section 3 can only be registered under the said Act. Admittedly the plaintiff association is registered under the aforesaid Act but the objects of the plaintiff Association does not fall under the above Section 3 of the Act and hence the registration of the plaintiff association is itself not maintainable under the above Act itself. Further, the Hon'ble H.C. in W.A.No:974/2019 in the case of VDB CELADON APRTMENT OWNERS ASSOCIATION VS. MR.PRAVEEN PRAKASH, at para 6 39 SC 51/2017 SCCH24 after quoting the above Section 3 of the Act has observed as under;
"Section 3.................. Even according to the case of the appellant, the dominant object for the formation of the appellant Association is to administer, maintain and run the building and apartments. Clauses 5.1 and 5.2 are, even according to the learned counsel for the appellant, the dominant objects of the Association, and they read thus:
3.1 To administer, maintain and run the building and apartments known as VDB Celadon No.23/3, 23/4, 26/1, Shivanahalli Hobli, Jakkur Road, Yelahanka, Bangalore560064. 3.2 To carry on the Daydoday work relating to all aspects of the building, apartments, common areas, common facilities and common services therein;
7. On a plan reading of Section 3 of the Said Act of 1960, it is clear that the object of administering, maintaining and running the buildings and apartments and to carry on the daytoday work relating to all the aspects of the buildingsapartments, common areas and common facilities will not be covered by any of the clauses (a) to (g) of Section 3 of the said Act of 1960. Even according to the case of the appellant, Clauses 5.1 and 5.2 are its dominant objects. In fact, on the earlier date, we had granted time to the appellant to take instructions whether it proposes to apply for deletion of certain objects which are a part of the byelaws of the appellant Association.
8........40 SC 51/2017
SCCH24
9.............
10. Thus, after having perused the dominant objects of the appellant Association, we find that the said objects are not covered by Section 3 of the said Act of 1960, and therefore, the appellant could not have been registered under the said Act. We find no error in the view taken by the learned Single Judge when he had proceeded to cancel registration of the appellant...."
26. The above decision is aptly applicable to the present case as the Ex.P.3/Bye laws of the plaintiff association at page 5 under clause 2 mentioned the objectives of the society from (a) to (aa), which does not fall under Section 3 of the Karnataka Societies Registration Act 1960. Therefore, the registration of the plaintiff association under the Karnataka Societies Registration Act itself is not maintainable and hence the plaintiff is not entitled to claim and recover maintenance from the defendant under law as plaintiff objects does not cover within the object of Karnataka Societies Registration Act and mere registration under the said Act does not confer any right to the plaintiff to collect maintenance charges when the registration itself 41 SC 51/2017 SCCH24 does not provide any such right to the registered societies. When the plaintiff has no right to claim the maintenance itself under its alleged registration then it cannot sue the defendant for arrears of maintenance as claimed. Further, the plaintiff even though claims that the defendant is a due in payment of maintenance charges from 2007 but not produced any documents to that effect except the Ex.P.5 heading maintenance charges 201617 without any details of rate of levy of maintenance charges from 2007 to till December 2016. As already discussed above the plaintiff is not entitled to claim maintenance itself as per the objectives of its alleged registered Act and hence the claim is not maintainable. Therefore, the plaintiff is not entitled to recover any dues as claimed from the defendant. Accordingly, this point is answered in the negative.
27. Point No.2: As discussed above the Plaintiff has failed to prove its case that it is entitled to recover the maintenance charges 42 SC 51/2017 SCCH24 from the defendant and the defendant is in due of maintenance amount as claimed and hence the plaintiff is not entitled for any of the reliefs as claimed. Therefore, the point No.2 is answered in the negative.
28. Point No.3: For the reasons and discussions made above and findings given on point Nos.1 and 2, this court proceeds to pass the following: ORDER The suit of the Plaintiff is dismissed.
No order as to cost.
Office to draw decree accordingly.
(Dictated to the stenographer on line, revised, corrected and then pronounced in the open court this the 14th day of November 2022.) (Miss.B.T.ANNAPOORNESHWARI) C/c XXII Addl. Small Causes Judge, Bangalore.
43 SC 51/2017
SCCH24 ANNEXURE List of the witnesses examined on behalf of Plaintiff:
PW.1 Mr.Lt. Gen. K. Nagaraj List of the documents exhibited on behalf of Plaintiff:
Ex.P.1: Registration certificate of the plaintiff Association Ex.P.2: New Registration certificate Ex.P.3: Byelaws of the Association Ex.P.4: Share certificate of the defendant Ex.P.5: Maintenance charge list and due from the house No.43 of defendant Ex.P.6: Reply of the defendant Ex.P.7: Acknowledgment issued by Cooperative Department in the years 201213, 201617 and 201718.
Ex.P.8: Certified copy of sale deed of the defendant. Ex.P.9: Notarized copy of undertaking of defendant given to Army Welfare housing Organization Ex.P.10 Byelaw of Sena Vihara Housing Co operative Society (in booklet) Ex.P.11 Master Brochure of AWHO ( in booklet) Ex.P.12 Notarized copy of Army Welfare Housing Organization written to plaintiff 44 SC 51/2017 SCCH24 List of the witnesses examined on behalf of Defendants:
D.W.1: Mr.Brig P T Monappa List of the documents exhibited on behalf of Defendants:
Ex.D.1: RC tax receipt
Ex.D.2: 2 Water bills
Ex.D.3: 2 electricity Bills
Ex.D.4: Circular and consent Form of earlier
Association
Ex.D.5: Another circular of earlier Association
Ex.D.6: Another consent form of earlier Association
Ex.D.7: Reply of defendant
Ex.D.8: Two BBMP notice copy
P9
Ex.D.10: Certified copies of objections and
rejoinder fined in O.S No.300/2000
Ex.D.11: Counter claim filed in O.S.300/2016
(Miss.B.T.ANNAPOORNESHWARI)
C/c XXII Addl.Small Causes Judge,
Bangalore.
45 SC 51/2017
SCCH24
For Judgment by 14.09.2022
C/c XXII ASCJ & ACMM
14.09.2022
For Judgment by 23.09.2022
C/c XXII ASCJ & ACMM
23.09.2022
For Judgment by 30.09.2022
C/c XXII ASCJ & ACMM
30.09.2022
For Judgment by 11.10.2022
C/c XXII ASCJ & ACMM
11.10.2022
For Judgment by 17.10.2022
C/c XXII ASCJ & ACMM
46 SC 51/2017
SCCH24
17.10.2022
Time is required and as the P.O
will be on leave, hence for judgment
by 07.11.2022
C/c XXII ASCJ & ACMM
07.11.2022
PNN For Judgment by 14.11.2022
DGP
For Judgment
C/c XXII ASCJ & ACMM
14.11.2022
PNN
DGP
For Judgment
Judgment pronounced in open court (vide separate judgment) with the following operative portion: ORDER The suit of the Plaintiff is dismissed.47 SC 51/2017
SCCH24 No order as to cost.
Office to draw decree accordingly.
C/c XXII Addl.Small Causes Judge, Bangalore.
48 SC 51/2017 SCCH24 DECREE COURT OF SMALL CAUSES AT BANGALORE S.C.No.51/2017 Plaintiff/s : SENA VIHAR OWNERS WELFARE ASSOCIATION, Kammanahalli main road, Kalyana Nagara Post, Bangalore560043. Represented by its, President, Col.Dr.Mukesh Kumar V. S/o late Shri G.A.Venugopal, R/at F223, Sena Vihar, Kammanahalli main road, Kalyana Nagara, Bengaluru43. (By Sri.Nataraju N., Advocate.) Vs. Defendant/s : Sri.P.T.Monappa S/o late P.B.Thimmaya, Plot No.43, Sena Vihar, Kammanahalli main road, Kalyana Nagara Post, Bangalore560043. (By Sri.George Philip, Advocate.) 49 SC 51/2017 SCCH24 Claim: Suit filed on prays for directing
Defendant to pay a sum of Rs.......................with interest at the rate of ...........
This suit coming on for final disposal before Miss.B.T.Annapoorneshwari, C/c XXII Addl. Judge, Court of Small Causes, Bangalore, in the presence of Sri/Smt. Advocate, for the Plaintiff and Sri/Smt. Advocate, for the Defendant.
ORDER The suit of the Plaintiff is dismissed.
No order as to cost.
And it is further ordered and decreed that, defendant do pay to the Plaintiff a sum of Rs........................ towards cost.
Given under my hand and the seal of the Court this 15th day of November 2022.
Asst. REGISTRAR, Court of Small Causes, Bangalore.50 SC 51/2017
SCCH24 MEMORANDUM OF COST INCURRED IN THIS SUIT By the Plaintiff Defendant Court fee on plaint Court fee on power Court fee on exhibits Service of process + Postal charges Commissioner's fees Pleaders fee Total of Rs.
Amount payable by the Defendant to the Plaintiff is Rs.
Decree Drafted Scrutinized by Asst.REGISTRAR, Court of Small Causes, Decree Clerk Shirastedar Bangalore.