Delhi District Court
Ms Skipper Corner vs V K Malik @ Vaneesh Kumar Malik on 30 November, 2024
IN THE COURT OF SH. SONU AGNIHOTRI
DISTRICT JUDGE-07, SOUTH EAST SAKET COURTS,
NEW DELHI
Civil Suit No. 10647/2016
CNR No.: DLSE01-001888-2014
M/S SKIPPER CORNER (88 NEHRU PLACE)
Flat Owners & Occupants Association (Regd.)
Through Sh. Vineet Garg, Secretary
Having its office at :
203, Skipper Corner,
88, Nehru Place,
New Delhi-110019.
.......... Plaintiff
Versus
V. K. MALIK @ VANEESH KUMAR MALIK
S-370, Greater Kailash-II,
New Delhi-110048.
......... Defendant
SUIT FOR RECOVERY OF AMOUNT OF RS. 11,94,237.20/- (RUPEES
ELEVEN LAKHS NINETY FOUR THOUSAND TWO HUNDRED AND
THIRTY SEVEN AND PAISE TWENTY ONLY) TOWARDS ARREARS
OF MAINTENANCE AND OTHER CHARGES ALONGWITH INTEREST
Date of institution : 01.04.2014
Date when judgment reserved : 06.09.2024
Date of Judgment : 30.11.2024
CS No. 10647/2016 Page No. 1 of 30
M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik
JUDGMENT
1. Vide this judgment, I shall dispose of present suit filed by plaintiff against defendant for recovery of amount of Rs. 11,94,237.20/- alongwith interest.
2. The case of plaintiff in brief as averred in plaint is as under:
3. It is stated that plaintiff is a society registered under Societies Registration Act and present suit has been filed through Secretary of Society Mr. Vineet Garg who has been duly authorized vide meeting of Managing Committee of plaintiff held on 08.02.2014 to institute legal proceedings against defendant and to do all other acts, deeds and things required for proper prosecution of the case.
4. It is stated that defendant is one of the flat owners owning Flat No. 110 in the building known as "Skipper Corner" located at Plot No. 88, Nehru Place, New Delhi. It is stated that said flat is closed from quite long time. Office of plaintiff is also located in the same building.
5. It is stated that defendant at the time of purchase of said flat executed an agreement with M/s Skipper Construction Company Pvt. Ltd. hereinafter referred to as "Skipper Corner". As per terms and conditions of the agreement, plaintiff society was formed and maintenance of building was taken over by society w.e.f. 01.04.1995.
6. It is stated that clause 29 of the agreement between defendant and Builder states that Skipper Corner shall be managed by society, limited company etc. as may be formed by flat owners and CS No. 10647/2016 Page No. 2 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik considered convenient by seller and all the expenses of the said society shall be paid by purchaser /defendant on pro-rata basis for maintenance and upkeep of building in all respects.
7. It is stated that in terms of the agreement, plaintiff took over maintenance w.e.f. 01.04.1995 alongwith existing staff of the builder connected with maintenance of the building including recovery of arrears and also payment of past dues towards labour, water and electricity etc. which were overdue and outstanding for long period. Since then, plaintiff has been maintaining common area, passages and common services such as cleanliness, elevators, fire fighting etc. of the entire building. Since essential fire fighting equipment had not been installed by the builder and its installation became mandatory for multi-storeyed buildings to continue to be habitable and usable under prevailing laws of Delhi, plaintiff installed and got certificate from Delhi Fire Services Department and protected the building from sealing. Further, due to frequent break downs of electricity, commercial use of flat was getting effected and so, plaintiff installed two generators so that amenities of the building are at par with best buildings in Delhi.
8. It is stated that in terms of agreement executed between defendant and the Builder, defendant was liable to pay his share of maintenance charges of the building towards insurance premium, salary to appointed persons, electrical, elevator maintenance, sweepers and other expenses necessary for maintenance and upkeep of the building.
CS No. 10647/2016 Page No. 3 of 30M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik Plaintiff inherited all rights of the builder at the time of take over of maintenance by plaintiff in April-1995 to the extent of maintenance of such amenities and such facilities in the building and recovery of charges thereof. Plaintiff as a matter of abundant caution obtained specific authority from Builder to recover rightful dues from defaulting flat owners including defendant.
9. It is stated that plaintiff society is being controlled and managed by elected body called Management Committee. Office bearers of Management Committee are rendering their services on honorary basis with intention to maintain the building in a good and habitable condition. Non payment or default even by a single flat owner affects heavily usage by other 77 flat owners and resources of society. Payments on account of salary, electricity, water and other statutory dues cannot be delayed merely on the ground that a particular flat owner has not paid its share of expenditure at the right time thereby exposing Managing Committee to several penal actions.
10. It is stated that plaintiff after taking over maintenance in year 1995 has been maintaining entire building to satisfaction of all owners and to the best of abilities of Managing Committee. Almost all the flat owners are regular in making their monthly payments.
11. It is stated that as per the agreement, it was agreed by defendant that he would pay his dues for common services and he further undertook to pay proportionate contributions towards sinking CS No. 10647/2016 Page No. 4 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik funds as per revised rates from time to time. Defendant further agreed to pay all dues as and when they become due and payable without any protest and demur regularly and without fail.
12. It is stated that in terms of accounts maintained by plaintiff for all members of the building, defendant is in arrear of huge amount since long and has always been irregular in making payment towards maintenance charges. As on 01.03.2014, total outstanding amount is Rs. 11,94,237.20/-. Defendant is not willing to pay necessary maintenance charges to detriment of the building and despite repeated requests and reminders.
13. It is stated that defendant did not pay any heed to requests and reminders of plaintiff to clear outstanding and continued delay compelled plaintiff to file present suit. Even for earlier demand, plaintiff had filed a civil suit which was decreed and defendant also tendered payment for principal amount.
14. It is stated that there is continuous delay in payment of maintenance and other ancillary charges by defendant though defendant has been using building and common services. It is stated that delay on part of defendant adversely affects functioning of society and rights of other flat owners in the building. Other flat owners who have been making payment promptly are not likely to get facilities for which they are rightfully entitled for, if default of even a few continues. Plaintiff being a non profit society and Management Committee working on honorary CS No. 10647/2016 Page No. 5 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik basis are put to high level of inconvenience due to deliberate delay and misconduct of defendant. Plaintiff does not have enough funds and resources to enter into such unwarranted litigation which will only increase burden of common charges.
15. It is stated that previously also, plaintiff had to file civil suit for recovery of arrears upto 30.04.2005 and it was only when plaintiff took coercive action against defendant by way of sealing the flat and filing of execution proceedings that defendant gave payment of principal amount of suit by way of demand draft. Present suit is for recovery of maintenance charges w.e.f. 01.05.2005.
16. Plaintiff has prayed for passing decree in sum of Rs. 11,94,237.20/- with interest @ 24 % per annum in favour of plaintiff and against defendant alongwith pendente lite and future interest.
17. Summons of the suit were ordered to be issued to defendant vide order dated 23.04.2014. Defendant put up appearance through counsel and filed written statement.
18. Defendant in his written statement took some preliminary objections. It is stated that suit filed by plaintiff is abuse of process of law and plaintiff has filed suit to harass defendant. It is stated that suit has been filed by plaintiff with ulterior motive to grab property of defendant and is liable to be dismissed on this ground. It is stated that suit filed by plaintiff is barred by limitation and hence, liable to be dismissed.
19. It is stated that suit filed by plaintiff lacks material and CS No. 10647/2016 Page No. 6 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik necessary particulars and thus, is liable to be dismissed U/o 6 Rule 4 and U/o 7 Rule 2 and 9 CPC for want of material particulars. Plaintiff has failed to disclose as to from which date, plaintiff is claiming maintenance charges and upto which date, they are claimed. It is stated that plaintiff has failed to disclose about monthly maintenance charges. Plaintiff has further failed to disclose as to how much is the principal amount and what is interest charged over it and at what rate.
20. It is stated that plaint filed by plaintiff does not disclose any cause of action and hence, plaint is liable to be rejected U/o 7 Rule 11 CPC.
21. It is stated that plaintiff has no authority or power to claim any interest at all. As per agreement between plaintiff society and defendant, it is nowhere mentioned that plaintiff can claim interest and that too @ 24% per annum compounded interest. Even as per documents filed by plaintiff, maintenance charges are not more than Rs. 1500/- per month inclusive of fire fighting, service tax and education tax whereas monthly interest shown in the documents filed by plaintiff is more than Rs. 14,000/- per month and therefore, suit filed by plaintiff is liable to be dismissed with exemplary costs.
22. It is stated that suit filed by plaintiff has not been filed and instituted by a proper and competent person. It is stated that plaintiff cannot claim maintenance charges from 2005 to 12.04.2014 as office bearers of plaintiff society had illegally and unlawfully put seal on flat of CS No. 10647/2016 Page No. 7 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik defendant and it was only on 26.02.2014, court of Sh. Sidharth Malik, the then Ld. Civil Judge, Tis Hazari Courts passed order for removal of seal put by court in execution of suit filed by plaintiff against defendant and further directed to hand over possession to defendant. The said suit was decided Ex-parte and ultimately, defendant during execution proceedings paid decretal amount to plaintiff and court ordered to hand over keys of the flat to defendant which defendant received only in July-2014 from court of Sh. Sidharth Malik, the then Ld. Civil Judge, Tis Hazari Courts as execution was finally decided on 12.04.2014. During all this period, flat of defendant was lying sealed and therefore, plaintiff cannot claim any maintenance for the said period from defendant. Defendant cannot be asked to give maintenance charges for not using flat due to sealing of flat by plaintiff society.
23. It is stated that office bearers of plaintiff society have given approach to shops on first floor of adjoining building bearing No. 87, Nehru Place by removing 9 inch thick walls which were in existence previously. Due to personal gains and vested interest, office bearers of plaintiff society allowed flat owners of adjoining building to have access from building No. 88, Nehru Place, New Delhi. Access of flat owners of adjoining building who have opened shops has resulted into diminishing frontage of flat of defendant which fact shows intention of plaintiff society to grab flat of defendant. Present suit is nothing but merely a ploy against defendant to suppress his voice and objections against the said CS No. 10647/2016 Page No. 8 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik illegal act of plaintiff.
24. It is stated that plaintiff society is in habit of claiming exorbitant amount from defendant. Filing of present suit shows that plaintiff was ready to file fresh suit even before property was not even got released from the court. Present suit has been filed by plaintiff in March-2014 whereas property has been ordered to be released by court only on 12.04.2014 and keys were released from court in July-2014. Hence, present suit deserves dismissal having filed with malafide intentions.
25. On reply on merits, defendant denied for want of knowledge that plaintiff society is registered one. It is denied that Mr. Vineet Garg is authorized or competent person to file suit against defendant. Resolution dated 08.02.2014 is stated to be a bogus document. Defendant denied for want of knowledge that maintenance of building was taken over by plaintiff society w.e.f. 01.04.1995. It is denied that plaintiff has been maintaining passage and common areas and services such as cleanliness, elevators and fire fighters etc.
26. It is stated that entire building is in very bad shape and there has been lack of cleanliness and elevators remain out of order most of the time. Passages are also not cleaned and maintained properly by plaintiff society. The fire fighting equipments are already in existence when defendant purchased flat from builder. Generators mentioned by plaintiff are not in working condition. Authority letters mentioned in para CS No. 10647/2016 Page No. 9 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik No. 7 of the plaint are denied. It is stated that no authority was given by the builder to plaintiff society to recover dues from members by playing fraud upon them or by mis-representation.
27. It is stated that office bearers have been misusing funds generated through collection of maintenance charges. It is stated that officer bearers in connivance with officials of MCD as well as flat holders of adjoining building No. 87, Nehru Place have pocketed huge amount of money by allowing flat holders of adjoining building an access from this building by removing 9 inch thick wall. It is denied that building is being maintained properly to satisfaction of flat owners as alleged.
28. It is denied that defendant is in arrears of huge amount towards maintenance charges. It is denied that amount of Rs.9,38,931.13/- is outstanding against defendant as on 01.03.2014 as alleged. It is stated that plaintiff has failed to disclose from which date, defendant is liable to pay maintenance charges. It is stated that plaintiff society cannot claim amount arbitrarily. Moreover, suit is already barred by limitation. Otherwise also, accounts maintained by plaintiff are totally false and fabricated. It is stated that otherwise also, defendant cannot be forced to pay maintenance charges w.e.f. 2005 till date of receiving keys as premises was lying sealed by plaintiff as plaintiff society and plaintiff illegally put its lock on the said flat of plaintiff.
29. It is admitted that a civil suit was filed by plaintiff against defendant wherein plaintiff obtained ex-parte decree against defendant CS No. 10647/2016 Page No. 10 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik by playing fraud upon the Court as plaintiff deliberately mentioned wrong address of defendant to obtain ex-parte decree. Defendant has already paid amount of Rs.2,55,306.07/- towards decreetal amount despite the fact that suit was barred by limitation.
30. It is stated that defendant has never received any reminders from plaintiff as alleged. It is denied that amount of Rs.9,38,931.13/- is due against defendant on account of surcharge, interest, service tax and other charges. It is stated that as per agreement, plaintiff society is not at all entitled to charge any interest, service tax, surcharge or any other type of charge from defendant.
31. It is stated that plaintiff has deliberately concealed other ancillary charges included in maintenance charges. It is denied that defendant has committed any default or has been using any common services as alleged. It is stated that premises is lying locked by locks of plaintiff since 2005 and defendant got his property released from Court on 12.04.2014. Keys of the premises were released in July 2014 by the Court. It is stated that office bearers of plaintiff have been pocketing huge amount of funds of the society. It is stated that inconvenience has rather been caused to defendant.
32. It is admitted that a suit was filed by plaintiff against defendant. It is also admitted that flat of defendant was sealed by office bearers of plaintiff society. It is stated that ex-parte decree was obtained by plaintiff society by playing fraud upon Court. The suit filed by plaintiff CS No. 10647/2016 Page No. 11 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik is barred by limitation.
33. It is prayed to dismiss suit filed by plaintiff with exemplary costs.
34. Replication to written statement of defendant was filed by plaintiff. In reply to preliminary objections, it is denied that suit filed by plaintiff is abuse of process of law as alleged. It is further denied that present suit has been filed by plaintiff to harass defendant. It is denied that present suit has been filed to grab property of defendant as alleged. It is denied that suit filed by plaintiff is barred by limitation as alleged.
35. It is denied that suit filed by plaintiff lacks material and necessary particulars as alleged. It is denied that suit filed by plaintiff is liable to dismissed under Order VI Rule 4 and under Order VII Rule 2 and 9 CPC as alleged. It is denied that plaintiff has failed to disclose date from which, plaintiff is claiming maintenance charges. It is stated that the same is apparent from statement of accounts filed by plaintiff with the suit. However, plaintiff is claiming maintenance w.e.f. May 2005 till February 2014. It is denied that plaintiff has failed to disclose regarding monthly maintenance charges. It is stated that current consolidated monthly charges of maintenance are Rs.4.20/- per sq. feet excluding service tax as applicable from time to time. It is stated that as per by-laws, rules and regulations, on account of non-payment of monthly charges, plaintiff is entitled to levy interest and penal charges on amount recoverable from owner. It is stated that in present case, CS No. 10647/2016 Page No. 12 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik defendant was in default of maintenance charges since May 2005 and as such, late payment surcharge was also levied upon defendant. Bills sent to defendant may be referred in this regard which are self- explanatory. It is stated that statement of account even otherwise is also elaborative which will show that maintenance charges were being claimed from defendant from time to time. It is denied that plaintiff has failed to disclose principal amount and the interest being charged and at what rate. It is stated that principal amount being claimed from defendant is the same as per bills, late payment surcharge is being levied @ 15% per annum on the amount due from defendant in each consecutive month.
36. It is stated that Flat No. 110 is measuring approximately 335 sq. feet and current maintenance charge is being charged @ Rs.4/- and fire-fighting charges @ Rs.0.20/- per sq. feet from flat owners by plaintiff. In addition to the same, service tax including education cess is also levied upon occupants including defendant. It is stated that irrespective of non-payment of maintenance charges, interest and late payment surcharges, service tax was being deposited by plaintiff for and on behalf of defendant and that defendant is liable to pay service tax on consolidated monthly charges. It is well-settled that service tax law imposes tax on recipient of services and service provider is merely a collecting agency. Recipient of service must reimburse tax to the service provider.
CS No. 10647/2016 Page No. 13 of 30M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik
37. It is denied that plaint filed does not disclose cause of action as alleged and that plaint is liable to be rejected under Order VII Rule 11 CPC. It is denied that plaintiff has no authority or power to claim any interest as alleged. It is denied that monthly maintenance charges are not more than Rs.1,500/- per month as portrayed. Interest of Rs.14,000/- is being wrongly portrayed by defendant with a view to mislead this Court. It is stated that current maintenance charges are @ Rs.4/- per sq. feet, current fire-fund charges are @ Rs.0.20 paisa per sq. feet and service tax @ 12.36% on maintenance charges.
38. It is denied that suit has not been filed by a competent or a proper person. It is denied that Mr. Vineet Garg is not a competent person to file present suit. It is stated that Mr. Vineet Garg is Secretary of plaintiff and as such, otherwise also, he is duly authorized to sign and file present suit. It is stated that CS No. 464/2014 pending before Court of Ms. Jyoti Kler, the then Ld. ASCJ/JSCC/GJ, South-East District, Saket Courts, Delhi filed against defendant by plaintiff has been filed through Mr. Vineet Garg and as such, defendant is estopped from taking this plea in present suit.
39. It is denied that plaintiff cannot claim maintenance charges from 2005 till 12.04.2014 as alleged. It is denied that office bearer of plaintiff society unlawfully put seal on flat of defendant. It is stated that premises of defendant was sealed by order of Ld. Court. It is stated that Court of Sh. Siddharth Malik ordered for release of attachment of flat in CS No. 10647/2016 Page No. 14 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik question to defendant who was JD therein upon payment of decreetal amount. As such, property of defendant was attached by Court in execution proceedings and it was not as if, property was sealed by plaintiff on its own. It is stated that keys of the flat were obtained by defendant from Court as Court officer while attaching property of defendant took lock of the Court and had kept the keys in safe custody of Court. It is stated that property of defendant was attached and subsequently sealed on account of non-payment of maintenance charges by defendant. Plaintiff cannot be held liable for attachment of property of defendant as the same was on account of non-payment of maintenance charges by defendant. It is stated that it is well-settled that even otherwise also, owner is liable to make payment of maintenance charges irrespective of the fact that premises is lying vacant or unoccupied. It is denied that defendant cannot be asked to pay maintenance charges during the period when his flat was attached/sealed by order of the Court.
40. It is denied that any wall was removed by plaintiff for personal games or vested interest as alleged. It is denied that frontage of flat of defendant has been diminished as alleged. It is stated that defendant himself was not operating from his flat for several years and cannot blame plaintiff or its office bearers for his shop not being operated. It is denied that there was any intention to grab property of defendant. It is further denied that defendant has been targeted again or at all. It is CS No. 10647/2016 Page No. 15 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik stated that wall was removed in consultation of shop owners with MCD. It is denied that plaintiff society is habitual of filing false suits as alleged. It is denied that plaintiff society is habitual of claiming exorbitant amount from defendant as alleged. It is stated that amount rightfully due and payable by defendant to plaintiff society is being claimed from defendant in present suit. It is denied that plaintiff has any plan to victimize defendant as alleged.
41. On reply on merits, contents of written statement have been denied by plaintiff. It is stated that defendant by making payment in previous suit admits status of plaintiff society. It is stated that defendant is otherwise owner of premises No. S-370, G.K.-II, New Delhi besides being owner of S-339, G.K-II, New Delhi. It is denied that present suit was filed to obtain ex-parte decree as alleged. It is denied that plaintiff was aware of second address of defendant as alleged. It is denied that in previous suit, plaintiff deliberately mentioned wrong address of defendant.
42. It is stated that defendant is aware of the fact that maintenance of building was taken over by plaintiff society w.e.f. 01.04.1995 as defendant tendered payment for maintenance charges in execution proceedings to plaintiff thereby accepting plaintiff's right to demand and recover maintenance charges from occupants of the buildings where flat of defendant is located. It is denied that plaintiff has not been maintaining passage, common area and services such as CS No. 10647/2016 Page No. 16 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik cleanliness, elevators and fire-fighters etc. It is denied that entire building is in bad shape as alleged. It is denied that there is lack of cleanliness in the building as alleged. It is denied that elevators remained out of order most of the time. It is denied that passages are not clean and maintained properly by plaintiff. It is denied that generators are not in working condition as alleged.
43. It is denied that office bearers of plaintiff society have been misusing funds generated. It is denied that office bearers of plaintiff in connivance with MCD officials as well as flat owners of adjoining building No. 87 pocketed any money as alleged. It is incorrect on part of defendant to state that he is not in arrears of such huge amount of maintenance charges. It is denied that plaintiff society is claiming an arbitrary amount as alleged. It is denied that suit is barred by limitation as alleged. It is denied that defendant is not liable to pay maintenance charges w.e.f. 2005 till date of receiving of keys as alleged. It is denied that ex-parte decree was obtained by plaintiff by playing fraud upon Court as alleged. It is stated that in case, defendant was so aggrieved, he should have filed an appeal against ex-parte decree rather than making frivolous averments. It is denied that defendant never received any reminder from plaintiff as alleged. It is denied that plaintiff is not entitled to charge interest, service tax, surcharge etc. from defendant as alleged.
44. It is prayed that suit of plaintiff may be decreed as prayed for CS No. 10647/2016 Page No. 17 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik in the suit filed by plaintiff.
45. On the basis of the aforesaid pleadings of the parties, issues were framed on 11.08.2016. Additional issues were framed on 16.08.2019. Combined issues are as follows:
1. Whether the plaintiff is entitled to recover an amount of Rs.9,38,931/- or any other amount alongwith interest, pendente lite and future @ 24% per annum or at any other rate from the defendant on the basis of the grounds taken in the plaint?
OPP
2. Whether the suit for recovery is barred by limitation? OPD
3. Whether the suit for recovery as filed is not maintainable? OPD
4. Whether the suit for recovery has been filed without any cause of action? OPD
5. Whether the suit premises was sealed by the plaintiff. If so, what are its effect? OPD
6. Whether the plaintiff is entitled to recover the suit amount during the period the flat of the plaintiff was lying sealed? OPD CS No. 10647/2016 Page No. 18 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik
7. Relief.
46. In order to prove its case, plaintiff examined Mr. Vineet Garg as PW-1 who exhibited his evidence affidavit vide Ex.PW-1/A and additional evidence affidavit vide Ex.PW1/A1. In his deposition, PW1 relied upon and exhibited following documents:-
S.No. Description of Document Exhibit/Mark
1 Amended plaint Ex. PW-1/1
2 Certified copy of minutes dated Ex. PW-1/2
08.02.2014
3 Copy of registration certificate of Ex. PW-1/3
plaintiff society
4 Copy of Agreement dated 31.05.1985 Mark-A
5 Copy of authority letter dated Mark-B
17.11.2003
6 Copy of authority letter dated Mark-C
19.11.2003
7 Invoices issued to defendant Ex. PW-1/4 to
Ex. PW-1/40
8 Statement of account of defendant Ex.PW-1/41
9 Certificate under Section 65B of Indian Ex. PW-1/42
Evidence Act
47. Plaintiff evidence was closed on statement of AR for plaintiff recorded on 26.03.2019.
48. In order to prove his defence, defendant examined himself as DW-1 who exhibited his evidence affidavit vide Ex.DW-1/A. He also relied upon copy of agreement dated 30.05.1985 which was exhibited in CS No. 10647/2016 Page No. 19 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik cross-examination of PW-1 vide Ex.PW-1/D1 and copy of plaint of previous suit filed by plaintiff against defendant bearing No. 230/05 vide Ex.PW-1/D2.
49. Defendant's evidence was closed vide order dated 14.05.2019.
50. I have heard final arguments addressed by respective counsels and perused the record including written submissions filed on behalf of both plaintiff and defendant and judgments filed on behalf of defendant.
51. My issue-wise findings are as below:-
ISSUE No. 1Whether the plaintiff is entitled to recover an amount of Rs.9,38,931/- or any other amount alongwith interest, pendente lite and future @ 24% per annum or at any other rate from the defendant on the basis of the grounds taken in the plaintiff? OPP
52. Onus to prove this issue was upon plaintiff.
53. Plaintiff in order to prove liability of defendant has exhibited maintenance bills Ex.PW-1/4 to Ex.PW-1/40 on record. It is well settled that by mere exhibition of documents, it cannot be said that the said documents have been proved in accordance with law. Documents have CS No. 10647/2016 Page No. 20 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik to be proved in accordance with law. Plaintiff has exhibited maintenance bills Ex.PW-1/4 to Ex.PW-1/40 qua property of defendant in testimony of PW-1 Vineet Garg. The said bills were objected to by counsel for defendant on the ground of mode of proof. PW-1 in his cross-examination stated that accountant hired by association prepares the maintenance bills. He further stated that he prepares the same on basis of minutes of association. He further stated that there is no specific minutes for making bills against defendant. The maintenance charges are fixed for all the flat owners in the minutes of meeting. The minutes of all these years have not been filed. He stated that Accountants appointed by plaintiff society have been changed twice. He on a question asked as to whether bills Ex.PW-1/4 to Ex.PW-1/40 have been prepared by same Accountant stated that he does not remember. He stated that he does not remember when the Accountant who was working in 2011 changed. He stated that he does not know that the Accountant who prepared bills Ex.PW-1/4 to Ex.PW-1/40 is alive. He stated that he does not remember name of Accountant working as on date. He stated that Accountant is working under supervision of Treasurer of Association. He stated that bills Ex.PW-1/4 to Ex.PW-1/40 were not prepared in his presence. He stated that bills Ex.PW-1/4 to Ex.PW-1/40 were also not prepared in presence of Treasurer of plaintiff. He again said that he cannot say about Treasurer. He stated that CA's final report pertaining to year 2005 to 2014 has not been filed on record. He on question asked that you meet and raise CS No. 10647/2016 Page No. 21 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik maintenance charges and even decide to charge interest, penalty and compound interest from time to time in your meetings and that whether he has placed any document in this regard on Court file to which, PW-1 stated that all these documents are in office of plaintiff society. Copy of all the minutes of meetings are given to all the flat owners and hence, these documents have not been filed.
54. Plaintiff has only filed maintenance bills starting from 31.01.2011 till 01.03.2014. Plaintiff has not filed any prior maintenance bills qua property of defendant. Counsel for plaintiff during course of arguments submitted that copy of ledger account of defendant has been filed on record by plaintiff vide Ex.PW-1/41 which is supported with certificate under Section 65B of Indian Evidence Act vide Ex.PW-1/42 to prove liability of defendant qua maintenance charges of plaintiff society.
55. Plaintiff has not examined the Accountant who has made maintenance bills Ex.PW-1/4 to Ex.PW-1/40. Plaintiff has not brought on record minutes of any meeting vide which, amount of maintenance for a particular period for Skipper building was decided by plaintiff society. Plaintiff has also not explained as to on what basis delayed payment surcharge has been levied in these bills. Bills were admittedly not made in presence of PW-1. Hence, these bills cannot be said to have been proved in accordance with law by plaintiff society. So far as ledger account of plaintiff is concerned, Section 34 of Indian Evidence Act provides that "Entries in books of account, including those maintained in CS No. 10647/2016 Page No. 22 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik an electronic form, regularly kept in course of business, are relevant whenever they refer to a matter into which, the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability."
56. It is very clear from wording of Section 34 of Indian Evidence Act entries in account books regularly kept in the course of business are admissible though they by themselves cannot create any liability (Ishwar Dass Vs. Sohan Lal AIR 2000 SC 426).
57. In "Central Bureau of Investigation Vs. V.C. Shukla (1998) 3 SCC 410", Hon'ble Supreme Court of India held that for the purpose of Section 34 Indian Evidence Act, loose sheets of paper or scraps of papers cannot be termed as "book" for they can be easily detached and replaced.
58. Substance of Section 34 of Indian Evidence Act is that solely ledger account statements do not constitute sufficient evidence to hold any person responsible. Further perusal of certificate under Section 65B of Indian Evidence Act filed by plaintiff on record (Ex.PW-1/42) shows that neither make, model of computer has been stated in the same nor it has been stated that if computer was not changed for period of about 10 years in ledger account pertaining to defendant which is from year 2005 till 2014. Further, it is not mentioned that in whose actual control the said computer is and who else can have access to the said computer. It is CS No. 10647/2016 Page No. 23 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik also not stated that access to information stored in the said computer is password protected so as to ensure accuracy of data produced through it. In these circumstances, Ex.PW-1/42 cannot be said to be reliable so as to prove Ex.PW-1/41 which alone is not sufficient to charge defendant for any liability whatsoever. When plaintiff has not been able to prove primary liability of defendant, there is no question of grant of any interest.
59. In view of my abovemade discussion, I am of the view that plaintiff has failed to discharge its burden qua this issue and accordingly, this issue is decided in favour of defendant and against plaintiff.
ISSUE No. 2Whether the suit for recovery is barred by limitation? OPD
60. Onus to prove this issue was upon defendant.
61. There is no specific article in Schedule appended to Limitation Act dealing directly with recovery of maintenance dues. Nearest corresponding article is Article 52 in the Schedule which is for recovery of arrears of rent wherein period of limitation is 03 years from the time when arrears become due. Plaintiff filed present suit on 01.04.2014 and from plaint filed by plaintiff, it is not clear as to from what period plaintiff is claiming arrears of maintenance from defendant but from ledger account Ex.PW-1/41, it appears that plaintiff is claiming arrears from 01.04.2005 till filing of present suit. Keeping in view analogy of Article 52, plaintiff can claim arrears of maintenance only for period of CS No. 10647/2016 Page No. 24 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik 03 years prior to filing of present suit as present suit was instituted by plaintiff on 01.04.2014, plaintiff can claim arrears of maintenance 03 years prior to 01.04.2014. Claim of plaintiff from 2005 till 31.03.2011 is thus, time barred and is not maintainable.
62. Section 3(1) of Limitation Act provides that "Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application may after the prescribed period shall be dismissed, although limitation has not been set-up as a defence."
63. Section 3 of Limitation Act casts duty upon Court to dismiss suit instituted after prescribed period of limitation though limitation has not been set-up as defence by defendant.
64. In view of my above-made discussion, I am of the view that claim of plaintiff prior to 31.03.2011 is not maintainable and claim of plaintiff qua defendant prior to 31.03.2011 thus stands dismissed though it is a separate matter that plaintiff has not been able to establish its claim against defendant for period even after 31.03.2011. This issue thus stands decided in favour of defendant and against plaintiff.
ISSUES No. 3 TO 6Whether the suit for recovery as filed is not maintainable? OPD And
4. Whether the suit for recovery has been filed CS No. 10647/2016 Page No. 25 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik without any cause of action? OPD And
5. Whether the suit premises was sealed by the plaintiff. If so, what are its effect? OPD And
6. Whether the plaintiff is entitled to recover the suit amount during the period the flat of the plaintiff was lying sealed? OPD
65. Issues No. 3 to 6 are taken up together being inter-connected. Onus to prove these issues was upon defendant.
66. PW-1 in his cross-examination was asked question that agreement Ex.PW-1/D1 empowers the society as per clause 35 that in case, flat owner does not pay maintenance then his premises is liable to be locked up to which PW-1 admitted that society has powers as per clause 35 to lock the premises. On further question asked, PW-1 stated that locking of premises and charging of interest, penalty and compound interest are two separate things and that all actions of the association have been taken under legal advice.
67. Attention of PW-1 in his cross-examination was drawn towards Para No. 15 of Ex.PW-1/D2 and it was asked that whether it is written in the said para that plaintiff has sealed premises of defendant in that suit to which, PW-1 replied that he has read para No. 15. It is written CS No. 10647/2016 Page No. 26 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik that the premises were ordered to be sealed by the plaintiff. He stated that he is not aware whether the premises in the earlier suit filed in Tis Hazari were actually sealed prior to the filing of the said suit or not.
68. Ex.PW-1/D2 is copy of plaint in Civil Suit No. 230/05 filed earlier by plaintiff against defendant (filing of the suit admitted by PW-1 in his cross-examination) towards earlier arrears of maintenance charges qua property of defendant in Skipper Corner Building. Para No. 15 of the plaint in the said suit deals with arising of cause of action in the said suit. It is mentioned in para No. 15 of the plaint that cause of action further arose on 10.06.2004, when the premises was ordered to be sealed by plaintiff.
69. PW-1 admitted that as per clause 35 of Ex.PW-1/D1, society has power to lock premises of flat owner who does not pay maintenance. PW-1 further admitted that in para No. 15 of Ex.PW-1/D2, it is written that premises were ordered to be sealed by plaintiff. Para No. 15 of Ex.PW-1/D2 clearly record that cause of action inter-alia arose on 10.06.2004 when the premises were ordered to be sealed by plaintiff.
70. Ex.PW-1/D4 is copy of legal notice dated 15.03.2005 sent by plaintiff to defendant prior to institution of Suit No. 230/05 which PW-1 has admitted in his cross-examination dated 05.12.2022. In the said legal notice, it is mentioned that flat of defendant in Skipper Corner Building was sealed on 10.06.2004 by plaintiff as per clause 35 of agreement to sell executed by defendant after serving legal notice dated 28.05.2004 on CS No. 10647/2016 Page No. 27 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik defendant.
71. From Ex.PW-1/D4, it becomes clear that premises of defendant was sealed by plaintiff on 10.06.2004 i.e. prior to filing of earlier suit by plaintiff against defendant in Tis Hazari Courts vide Suit No. 230/05. Copy of order dated 18.04.2008 in Execution No. 843/06 (Execution pertaining to Suit No. 230/05) was proved by defendant in cross-examination of PW-1. In order dated 18.04.2008, it was observed by Court of Ms. Charu Aggarwal, the then Ld. Civil Judge, Delhi that in present execution, W/A were issued against movable properties of JD and permission for break open of the locks of the flat bearing No. 110, Skipper Corner, 88, Nehru Place, New Delhi has been also ordered but after breaking open the locks of the aforesaid flat, the premises is found vacant and there was no movable properties available in the aforesaid flat to satisfy the decree passed in favour of DH. Therefore, W/A of movable property could not be executed thereafter the bailiff and DH put their own lock in the aforesaid premises and submitted keys in the Court. Court further observed that a prayer is made by the DH in the present application that aforesaid flat be sold cannot be granted since the aforesaid flat has not been attached by this Court. Only putting a lock by DH and bailiff and submitting keys in the Court does not mean that the property have been attached by this Court, therefore, the prayer sought by the DH in the present application that the aforesaid flat be sold cannot be granted....
CS No. 10647/2016 Page No. 28 of 30M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik
72. From whatever has been observed by Court of Ms. Charu Aggarwal, the then Ld. Civil Judge, Delhi in order dated 18.04.2008, it is clear that DH and bailiff put their own lock over flat of defendant in Skipper Corner Building after breaking open lock of premises of defendant meaning thereby that flat of defendant was lying locked when representative of DH and bailiff went to execute warrants of attachment of movable properties of defendant in execution of Civil Suit No. 230/05. As discussed above, it is clear from Ex.PW-1/D4 that flat of defendant was locked by plaintiff on 10.06.2004 and it has not been proved on record by plaintiff that the same was opened by plaintiff at any point of time particularly before the same was locked again after breaking open of locks in Execution No.843/06 taken by plaintiff as DH. In execution proceedings, Bailiff would have put up his own lock and there was no necessity of plaintiff/DH putting up its own lock on premises of defendant which shows nothing but intention of plaintiff to keep premises of defendant locked. It is not disputed that flat of defendant was opened after keys of flat of defendant were released to defendant in Execution No. 843/06 on 03.06.2014 as reflected from order-sheet dated 03.06.2014 in Execution No. 843/06 as filed by plaintiff itself along with its written submissions meaning thereby that flat belonging to defendant was opened by defendant after institution of present suit.
73. From above-made discussion, it is clear that flat of defendant qua which maintenance charges have been claimed by plaintiff remained CS No. 10647/2016 Page No. 29 of 30 M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik locked for the period for which maintenance charges have been claimed by plaintiff in present suit and even thereafter. If a person is not allowed for whatever reason to use his premises, claim of maintenance charges from the said person are not justified. So it can be said that defendant has been able to discharge his burden qua issues No. 3 to 6. It is held that flat of defendant was lying locked initially by plaintiff and later on, also, due to plaintiff for the period for which, maintenance charges are being claimed by plaintiff from defendant. As such, there was no cause of action available to plaintiff to file present suit against defendant. Issues No. 3 to 6 are therefore decided in favour of defendant and against plaintiff.
RELIEF
74. In view of my findings qua Issues No. 1 to 6, I am of the view that suit filed by plaintiff is without merits and is accordingly dismissed. No order as to costs.
Decree-Sheet be prepared accordingly.
File be consigned to Record Room.
Digitally signed by SONU SONU AGNIHOTRI
AGNIHOTRI Date: 2024.12.11
17:33:41 +0530
Announced in open Court (Sonu Agnihotri)
today on 30.11.2024 DJ-07, South East District,
Saket Courts/Delhi
CS No. 10647/2016 Page No. 30 of 30
M/s Skipper Corner (88 Nehru Place) Vs. V. K. Malik @ Vaneesh Kumar Malik