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Delhi District Court

Date vs Devika Flat Owners And Occupiers ... on 31 October, 2019

           IN THE COURT OF SH. SANJEEV JAIN,
       ADDITIONAL DISTRICT JUDGE­04, SOUTH­EAST,
               SAKET COURTS, NEW DELHI

Presiding Officer: Sh. Sanjeev Jain, ADJ­04
                                                                                   Digitally
CS No. 8380/16                                                                     signed by
                                                                                   SANJEEV JAIN
                                                                     SANJEEV
In the matter of:                                                    JAIN
                                                                                   Date:
                                                                                   2019.10.31
                                                                                   16:15:37
                                                                                   +0530

DEVIKA ESTATE MANAGEMENT PVT LTD
A company incorporated under the Companies Act.
Having its Office at
Basement, Devika Tower,
6, Nehru Place,
New Delhi­110019
                                                                      ..........Plaintiff.
                                Vs.

1. DEVIKA FLAT OWNERS AND OCCUPIERS SOCIETY
1001A, Devika Tower,
6, Nehru Place, New Delhi­110019
Service to be effected through its President
Sh. Sunil Dutt Malik,
or any of its principal officer.

2. SHRI SUNIL DUTT MALIK
1001A, Devika Tower,
6, Nehru Place, New Delhi­110019
                                                                   .........Defendants.
Date of institution                                     :       30.03.2011
Date on which judgment was reserved                     :       01.10.2019
Date of pronouncement of the judgment :                         31.10.2019

Case No.8380 /16                                                             Page 1 of 24
       Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society
                    The suit for Permanent Injunction
                                    JUDGMENT

1. Plaintiff's Case 1.1 In brief, plaintiff is a private limited company incorporated under the Company's Act and filed the suit for Permanent Injunction against the defendants through one of its directors Sh. Arun Bahuguna for the following reliefs:

A: To pass a decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants from interfering in any manner in the right of the plaintiff to provide maintenance in Devika Towrers, 6, Nehru Place, New Delhi and from claiming in any manner any maintenance charges from any flat owners / occupiers whatsoever in Devika Towers, 6, Nehru Place, New Delhi and from in any manner what so ever taking control of the maintenance, safety, security and functioning of the said building known as Devika Towers, 6, Nehru Place, New Delhi. 1.2 As disclosed in the plaint, in the public auction held by DDA on 05.08.1980, M/s Pragati Construction Company (referred to as 'Promoter and Buyers'), gave the highest bid which was accepted by the DDA and accordingly, plot no. 6 was Case No.8380 /16 Page 2 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society alloted on lease basis to the said promoter and builder. The promoter and builders constructed 689 flats in the building known as Devika Towers, 6, Nehru Place, New Delhi, (hereinafter referred to as 'Devika Towers'). The said 689 flats were sold by promoter and builders by means of different purchase agreement to the different persons.

1.3 Since building in question i.e. 'Devika Towers' required continuous maintenance and upkeep, therefore, the said promoter and builders vide letter dated 15.10.1984 (Ex.

PW2/1) approached the plaintiff to carry out the maintenance and upkeep of the said Devika Towers. Subsequently, a Memorandum of Understanding dated 25.06.1985 was entered between the plaintiff and Promoter & Developers and the plaintiff was to provide the maintenance and upkeep in the building and for the said purpose interalia, receive payments from the buyers / tenants under the maintenance agreement executed between the plaintiff and the buyers.

1.4 The said promoter and builder while executing purchase agreements in favour of purchasers of flats in the said building indicated about the identity of plaintiff in such agreements. It was made clear that buyers agreed that plaintiff will provide maintenance and up­keep, water supply, lifts, fire­ fighting equipment, air conditioning plant and equipment operation of common services therein on permanent basis. One Case No.8380 /16 Page 3 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society such purchase agreement dated 10.07.1985 is placed on record as Ex. PW2/2 by the plaintiff. It was provided in the purchase agreement that plaintiff shall manage, up­keep and preserve the building and maintain the water supply, lift, firefighting equipments, air­conditioned plants and equipment including the common services in the building and a separate agreement would be entered into between the purchasers and the plaintiff.

1.5 Maintenance agreement were executed between the plaintiff and the flat buyers. As per plaintiff such agreement were endorsed in favour of M/s Crystal Hues from whom defendant no. 2 claims to have purchased the flat. The execution and existence of the said maintenance agreement dated 10.07.1985 has not been denied by the defendants.

1.6 As per the case of the plaintiff, plaintiff company has been maintaining the said building Devika Towers and claiming maintenance charges from all purchasers of the said building. The purchasers have been paying the maintenance charges to the plaintiff and are happy with the services rendered by the plaintiff. It is disclosed that Delhi Apartment Ownership Act was promulgated and came into force with effect from 17.11.1987 but despite the said Act coming into force, Apartment Owners Association was not formed by the apartment owners of the said building nor has it been so formed till the date of filing of the present suit.

Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society 1.7 As per plaintiff, on 21.02.2011, the defendant no. 1 had written a letter to the promoter and builders intimating that defendant no. 1 has been constituted as per the directions of Delhi High Court passed vide order dated 28.05.2010 and asked for handing over the maintenance of the building to them. The said letter was written by an unauthorized association / society, a self styled society formed by Sh. Sunil Dutt Malik and Shri Sanjay Kapoor as Secretary, joined by a small number of flat buyers who have failed to pay maintenance charges to plaintiff and are in arrears of maintenance charges, so as to make an attempt to avoid payment of maintenance charges to the plaintiff.

1.8 Plaintiff was shocked to receive a notice which was circulated by the defendant on 09.03.2011 (Ex. P­1 to Ex. P­3) to all the flat owners and occupiers wherein the defendant which is a self­styled society created by one Sh. Sunil Dutt Malik i.e. defendant no. 2 herein representing himself to be the President of the defendant society, asserting that defendant society shall take control of the management of various maintenance, safety and security functions of the building from 01.04.2011. The said public notice is on record as Ex. P­4, which was also issued in the newspaper intimating that the meeting has been convened for the purpose of takeover of all functions relating to the management of the building.

Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society 1.9 A notice was received by various occupants of the said building who have informed the plaintiff (Ex. PW1/5 colly) that they have not formed any such association, nor the defendant no. 1 has been properly constituted, nor has been formed with the consent of all the apartment owners of the building. The occupants of Devika Towers further represented to plaintiff that since they were happy with the maintenance being carried out by the plaintiff, therefore, a request was made with the plaintiff to continue the maintenance of the said building and not to take the cognizance of the aforesaid notice. Upon the said request made by majority of the flat owners, the plaintiff had asked them to write a letter under their signatures about the same so that necessary action may be taken by the plaintiff against the defendants. Accordingly, vide letter dated 13.03.2011, a signature campaign was launched by the apartment / flat owners and / or occupiers of the said building and obtained signatures of 449 flat owners / occupiers to the effect that they were happy with the services rendered by the plaintiff and they have no complaint of any nature whatsoever against the plaintiff in regard to the maintenance and upkeep of the said building and that they have not consented to the formation of defendant no. 1 society.

1.10 It is submitted by plaintiff that there were hardly 30­ 35 defaulter members who are occupants of different flats out of Case No.8380 /16 Page 6 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society 689 flats in the said building who have joined hands and formed defendant no. 1 society so as to make an attempt to avoid their liability towards the plaintiff.

1.11 The Hon'ble High Court of Delhi vide order dated 30.03.2011 thereby directed the parties to maintain status quo, as of today, in respect of the maintenance of Devika Tower be maintained till further orders. The said interim order dated 30.03.2011 was made absolute vide the order dated 19.09.2013.

2. Defendant's case 2.1 Defendants in their written statement submitted that the said building Devika towers was not properly maintained by the plaintiff as per agreed terms and conditions and therefore, the owners and occupiers of the flats of the said society had formed a welfare association in the name and style of 'Devika Flat Owners and Occupiers Association'. The said association i.e. defendant no. 1 was registered with the Registrar of Societies for the purpose of maintenance of building and for pertaining essential services from civic agencies like Municipal Corporation of Delhi, Delhi Jal Board, Delhi Police, Delhi Development Authority etc. in compliance of directions of Hon'ble High Court in wp(c) no. 1959/07 titled as 'O.S. Vajpayee Vs. Administrator (Lieutenant Governor of Delhi) and others'. Further the plaintiff failed to hand over the maintenance of society to defendant no. 1 who has right to control the said society.

Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society

3. Admission and denial of the documents were carried out by the parties. Defendants admitted four documents of the plaintiff which were marked P­1 to P­4. Plaintiff denied all documents of the defendants.

4. After completion of the pleadings following issues were framed vide order dated 19.09.2013:

1. Whether the plaintiff has any right to maintain and claim maintenance charges in respect of the building Devika Tower, 6, Nehru Place, New Delhi ? (OPP)

2. Whether the plaintiff has no locus standi to file the present suit as has been alleged by the defendant ? (OPD)

3. Whether the plaint does not disclose any cause of action against the defendant ? (OPD)

4. Whether the defendant society fulfills the criteria laid down under section 15 of the Delhi Development Act ? (OPD)

5. Whether the defendant can claim any right to claim maintenance from any occupant of the said building ? (OPD)

6. Relief.

5. Plaintiff's Evidence In plaintiff's evidence PW1 Sh. Arun Bahuguna & Case No.8380 /16 Page 8 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society PW­2 Sh. Vinod Kumar Goel appeared in the witness box. Both the witnesses filed their respective affidavits and the same were tendered.

PW1 proved the following documents i.e. resolution dated 23.03.2011 as Ex. PW1/1; maintenance agreement as Ex. PW1/2; list of defaulters as Ex. PW1/3 (colly); notice dated 09.03.2011 as Ex. P­1; various letters as Ex. PW1/5 (colly).

PW2 proved the following documents i.e. letter dated 15.10.1984 as Ex. PW2/1 & purchase agreement dated 10.07.1985 as Ex. PW2/2 (colly).

During cross examination the witnesses supported the plaintiff's case on material averments of plaintiff's case.

6. Defendant's Evidence In defendant's evidence Sh. Sunil Dutt Malik filed his affidavit Ex. DW1/A. He tendered his affidavit.

7. I have heard the ld. Counsel for parties and carefully gone through the pleadings, documents proved on record and the written submissions filed by the parties.

8. Issue wise discussion is as follows:

Issue no. 1 & Issue no. 3.

Ld. Counsel for the plaintiff submitted that it is established on record that vide letter dated 15.10.84 (Ex. P2/1), the promoter and builders approached the plaintiff and subsequently Memorandum of Understanding dated 25.06.1985 Case No.8380 /16 Page 9 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society (Mark­PW1/D1) was entered into between the plaintiff and M/s Pragati Construction Company. As per this, the agreement between the promoter and builder and the plaintiff, there is a contract on permanent basis in favour of the plaintiff to provide maintenance and up­keep in Devika Towers. It was further argued that separate maintenance agreements were executed between plaintiffs and all the buyers and one of the said agreement is Ex. PW1/2 which also established a separate agreement between the plaintiff and all the buyers about the maintenance and up­keep of Devika Towers by the plaintiff. It was further submitted that plaintiff is providing maintenance in Devika Towers for last about 34 years and most of the owners / occupiers of Devika Towers are happy with the services rendered by the plaintiff. Ld. Counsel submitted that in accordance with the Memorandum of Understanding between the promoter and builders and plaintiff as well as agreement between the buyers and the plaintiff, the plaintiff has the rightful claim to provide maintenance in Devika Towers and to charge maintenance from the owners / occupiers of the flat. Ld. Counsel also submitted that defendant no. 1 is a self styled society created by the defendant no. 2 which has support of hardly 30/35 members and the said society is not in accordance with law and therefore, defendant no. 2 can not take over the premises of Devika Towers from the plaintiff for maintenance and upkeep.

Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society

9. Ld Counsel for the defendant submitted that plaintiff was not providing the maintenance as per the terms and conditions of the agreement and members were not happy with the services provided by the plaintiff. The society i.e. defendant no. 1 has been registered with the Registrar of Societies. Owners and occupiers of the societies have every right to maintain and upkeep the society and to make the decisions about the service of the plaintiff.

10. The maintainability of the suit and the cause of action can be considered by the court on the basis of material on record presented before the court at the time of institution of the suit. Plaintiff has based its claim on the basis of Memorandum of Understanding executed between the plaintiff and the promoter & buyers as well as the support agreement executed between the plaintiff and the buyers of different flats. As per the case of the plaintiff in pursuance to the Memorandum of Understanding and agreement placed on record, defendant can not interfere in his right to provide maintenance in Devika Towers and to charge maintenance from its owners / occupiers.

11. The term "Cause of action" is used under the Civil Procedure Code which includes all essential facts and circumstances which are required in a suit to establish the claim of plaintiff in respect of the relief prayed in the suit. It is the suit for permanent injunction against the defendant for the prayer Case No.8380 /16 Page 11 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society that defendant to be permanently restrained by way of injunction from interfering in the right of the plaintiff to provide maintenance in Devika Towers and from claiming in any manner any maintenance charges from the flat owners / occupiers.

12. In essence, a careful perusal of Memorandum of Understanding executed between promoter and builders and the plaintiff and the agreements executed between the plaintiff and the flat owners are contract for services pertaining to the maintenance and upkeep of Devika Towers in lieu of charges paid by the flat owners / occupiers. The contract for services can not be claimed by the plaintiff in perpetualy. The contract for service is an ongoing process and flat buyers / occupiers can not be forced to avail maintenance services of plaintiff company on permanent basis without having option to change the service provider. The flat owners / occupiers and the plaintiff have service contract between them and under the contract they may have their rights. Question is whether the service contract relied by the plaintiff can be specifically enforced. In my opinion, in view of section 14 (a), 14 (b) and 14 (d) of Specific Relief Act, the contract between the promoter and builder and the plaintiff as well as between flat owners / occupiers and the plaintiff can not be specifically enforced. Section 14 (a), 14 (b) and 14 (d) are reproduced here below:

Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society

14. Contracts not specifically enforceable.­ (1) The following contracts can not be specially enforced, namely.­

(a) a contract for the non­performance of which compensation in money is an adequate relief;

(b) a contract which runs into such minute for numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;

.............

(d) a contract the performance of which involves the performance of a continuous duty which the court cannot supervise.

13. Section 38 (2) of Specific Relief Act, 1963 provides as follows:

(2) When any such obligations arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.

14. Section 41 (g) and section 41 (h) of Specific Relief Act, 1963 are reproduced here below, which provides as:

(g) to prevent a continuing breach in which the plaintiff Case No.8380 /16 Page 13 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society has acequiesced;

(h) when equally efficacious relief can certainly be obtained by an other usual mode of proceeding except in case of breach of trust;

Specific Relief Act provides injunction that can not be granted.

15. The reading of section 14(a), 14(b) and 14(d) provides when contract cannot be specifically enforced and in my opinion, the contract relied by the plaintiff are clearly covered under the said provisions of the Specific Relief Act. Similarly, the relief claimed by plaintiff are squarely barred by sub­clause g & h of section 41 of the Specific Relief Act. A service contract is an ongoing process and its breach of contract may be continued one. On the other hand, plaintiff has equally efficacious remedy to claim reliefs for breach of contract in accordance with the terms and conditions of the contract relied by the plaintiff. In my opinion, plaintiff has failed to establish cause of action by the averments of his plaint as well as documents for the relief to permanent injunction in respect of the service contract relied by the plaintiff. It is established position of law that plaintiff has to stand on his own legs and to establish his case by necessary pleadings and documents and plaintiff can not take benefit from the weakness of the case of Case No.8380 /16 Page 14 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society the defendants. It is the duty of the plaintiff to establish necessary facts for making him entitled for the relief claimed in the plaint.

16. In my opinion, plaintiff has failed to disclose the necessary facts i.e. cause of action to establish his entitlement for relief of permanent injunction. Plaintiff has also failed to establish his right to maintenance and claim the maintenance charges in respect of the building Devika Towers on permanent basis seeking the relief of permanent injunction. Issue no. 1 and 3 are accordingly decided against the plaintiff and in favour of the defendants.

17. Issue no. 2.

Plaintiff is a private limited company and the suit has been filed by its one of the directors for seeking relief of permanent injunction. The onus of this issue was upon the defendant. No evidence has been led by the defendant on this issue. In my view defendants has failed to discharge its onus. The issue is decided in favour of the plaintiff and against the defendants.

18. Issue no. 4.

Ld. Counsel for the plaintiff submits that defendant no. 1 has been registered under the Societies Registration Act. As per section 1 of said act, societies may be registered for promotion of literature, science, fine arts, for the diffusion of Case No.8380 /16 Page 15 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society useful knowledge, the diffusion of political education and for charitable purposes. It was also submitted that as per section 14 of the Societies Registration Act, upon the dissolution of Registered Society, the assets can not be paid or distributed among the members of the society but it has to be given to some other society to be determined by the votes of the members of the society but under the Delhi Apartment Ownership Act, 1986, the profit / excess funds may be distributed among the members of the association. Ld. Counsel for the plaintiff submitted that the society registered under the Societies Registration Act as in the case of defendant no. 1 cannot fulfill the criteria of association required under the Delhi Apartment Ownership Act. On the contrary it was submitted on behalf of the defendant that defendant no. 1 is a legally constituted society under Societies Registration Act and it also fulfills the requirements under the Delhi Apartment Ownership Act.

19. Chapter IV of the Delhi Apartment Ownership Act provides about association of the apartment owners and the bye­ laws for the regulation of the affairs of such association. The relevant section 15 of the said act is reproduced here below:

"15. Association of Apartment Owners and bye­laws relating thereto (1) There shall be an Association of Apartment Case No.8380 /16 Page 16 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society Owners for the administration of the affairs in relation to the apartments and the property appertaining thereto and for the management of common areas and facilities:

Provided that where any area has been demarcated for the construction of multi­storeyed buildings, whether such area is called a block or pocket or by any other name, there shall be a single Association of Apartment Owners in such demarcated area.

(2) The Administrator may, by notification in the Official Gazzatte, frame model bye­laws in accordance with which the property referred to in such­ section (1) shall be administered by the Association Owners and every such Association shall, at its first meeting, make its bye­laws in accordance with the model bye­laws so framed, and in making its bye­laws the Association of Apartment Owners shall not make any depart are from, variation of, addition, to or omission from, the model bye­laws aforesaid except with the prior approval of the Administrator and no such approval shall be given if, in the opinion of the Administrator, such departure, variation, addition or Case No.8380 /16 Page 17 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society omission will have the effect of altering the basic structure of the model bye laws framed by him.

(3) The model bye­laws framed under sub­ section (2) shall provide for the following, among other matters namely­

(a) the manner in which the Association of Apartment Owners is to be formed;

(b) the election, from among apartment owners of a Board of Management by the members of the Association of Apartments Owners;

(c) the number of apartment owners constituting the Board, the composition of the Board and that one­third of members of the Board shall retire annually;

(d) the powers and duties of the Board;

(e) the honorarium, if any, of the members of the Board;

(f) the method of removal from office of the members of the Board;

(g) the powers of the Board to engage the services of a Manager;

(h) delegation of the powers and duties of the Board to such Manager;

Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society

(i) method of calling meetings of the Association of Apartment Owners and the number of members of such Association who shall constitute a quorum for such meetings;

(j) election of a President of the Association of Apartment Owners from among the apartment owners, who shall preside over the meetings of the Board and of the Association of Apartment Owners;

(k) election of a Secretary to the Association of Apartment Owners from among the apartment owners, who shall be an ex officio member of the Board and shall keep two separate minutes books one for the Association of Apartment Owners and other for the Board, pages of each of which shall be consecutively numbered and authenticated by the President of the Association of Apartment Owners, and shall record, in the respective minutes books, the resolutions adopted by the Association of Apartment Owners or the Board, as the case may be;

(l) election of a Treasurer from among the apartment owners, who shall keep the financial Case No.8380 /16 Page 19 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society records of the Association of Apartment Owners as also of the Board.

(m) maintenance, repair and replacement of the common areas and facilities and payment therefore;

(n) manner of collecting from the apartment owners or any other occupant of apartments, share of the common expenses;

(o) resignation and removal of persons employed for maintenance and repair and replacement of the common areas and facilities.

(p) restrictions with regard to the use and maintenance of the apartments and the use of the common areas and facilities, as many be necessary to prevent unreasonable interference in the use of each apartment and of the common areas and facilities by the several apartment owners;

(q) any matter which may be required by the Administrator to be provided for in the bye­laws for the proper or better administration of the property.

(r) such other matters as are required to be, or Case No.8380 /16 Page 20 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society may be, provided for in the bye­laws. (4) The bye­laws framed under sub­section (2) may also contain provisions, not inconsistent with this Act

(a) enabling the Board to retain certain areas of the building of commercial purposes and to grant lease of the areas so retained, and to apply the proceeds of such lease for the reduction of the common expenses for maintaining the building, common areas and facilities, and if any surplus is left after meeting such expenses, to distribute such surplus to the apartment owners as income;

(b) relating to the audit of the account of the Association of Apartment Owners and of the Board, and of the administration of the property;

(c) specifying the time at which and the manner in which annual general meetings and special general meetings of the Association of Apartment Owners shall be held and conducted;

(d) specifying the time at which and the manner in which, the annual report relating to the activities of the Association of Apartment Owners shall be submitted;

(e) specifying the time at which the income Case No.8380 /16 Page 21 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society derived and expenditure incurred by the Association of Apartment Owners shall be dealt with, or as the case may be, accounted for."

20. From a careful perusal of the provisions of Delhi Apartment Ownership Act specially section 15, it is clear that association has to be formed under this act by the owners as per the bye­laws framed by the Administrator. The bye­laws are required to be framed under sub­section 2 as provided under sub­section 3 and sub­section 4 of section 15. The requirement of section 15 is that there shall be a single association of Apartment Owners in such demarcated areas; its election will be held regularly; it may appoint office bearers and a manager for maintenance and up­keep of the premises.

Sub­clause 3 and 4 of section 15 gives detailed legislative scheme and requirements for framing of bye­laws by the apartment owners. As per evidence there are 689 flat owners in Devika Towers but hardly names of 100 owners / occupiers were given by the defendant before the Hon'ble Court who have supported the said society. Otherwise also, the purpose of the Societies Registration Act is entirely different than the association required to be formed under section 15 of Delhi Apartment Ownership Act, 1986.

In my opinion, as per the testimony of witness and documents on records, defendant society does not fulfill the Case No.8380 /16 Page 22 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society criteria laid down under section 15 of Delhi Apartment Ownership Act. Issue is accordingly decided in favour of the plaintiff and against the defendants.

21. Issue no. 5 In view of the discussion of Issue no. 4, defendant does not fulfill the criteria laid down under section 15 of Delhi Apartment Ownership Act. Therefore, being only the Registered Society under Societies Registration Act defendant can not claim any right to claim maintenance from any occupant of the said building in view of the provisions of the Delhi Apartment Ownership Act. No evidence has been led by the defendants on this issue justifying their claim or right to claim maintenance from the occupant of the said building. In my view defendants have failed to discharge onus in respect of this issue and, therefore, issue is decided against the defendants.

22. Relief In view of the above findings of the issue no. 1 and 3, plaintiff has failed to establish cause of action against the defendants for the relief of permanent injunction. Plaintiff has also failed to establish any right to maintenance and claim maintenance charges in respect of the building Devika Towers on permanent basis by getting permanent injunction. Essentially, plaintiff is claiming the relief of permanent injunction in respect of service contracts with flat owners / occupiers. The contract Case No.8380 /16 Page 23 of 24 Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society for service can neither be specially enforced nor such permanent injunction can be granted in respect of the service contract and maintenance. In my opinion, in case the permanent injunction is granted in favour of plaintiff as prayed in the case, it will be an injunction against every one including the flat owners / occupiers and will be contrary to the provisions of Delhi Apartment Ownership Act. Such an injunction cannot be monitored and enforced by the court.

23. In my view, keeping in view the principles of law; provisions of Specific Relief Act; the provisions of Delhi Apartment Ownership Act and principle of equity and good conscience, plaintiff is not entitled for the relief of permanent injunction as claimed. Therefore, suit of the plaintiff is hereby dismissed with cost.

24. Decree sheet be prepared accordingly.

25. File be consigned to record room after due compliance.

Pronounced in the open Court (Sanjeev Jain) on this 31st of October., 2019 Addl. District Judge­04, South­East, Saket Court, New Delhi.

The judgment contains 24 pages all checked and signed by me.

Devika Estate Management Pvt Ltd Vs Devika Flat Owners And Occupiers Society