Karnataka High Court
M/S. Mayur Apartment Owners ... vs Mr. Mohamed Ameen on 2 November, 2022
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RSA No. 565 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO. 565 OF 2020 (MON)
BETWEEN:
1. M/S. MAYUR APARTMENT
OWNERS ASSOCIATION
HAVING ITS REGISTERED OFFICE AT
MAYUR RESIDENCY
B.R. KARKERA ROAD
PANDESHWARA, MANGALORE
KANKANDY MANGALORE - 575 001
REPRESENTED BY ITS PRESIDENT
MR. MADHUSUDAN G. RAO
AGED 46 YEARS
S/O K. SEETHARAMA RAO
R/AT: APARTMENT NO.503
Digitally
MAYUR RESIDENCY
signed by
NANDINI B G B.R. KARKERA ROAD
PANDESHWARA
Location:
High Court Of MANGALORE - 575 003
Karnataka
2. THE PRESIDENT
M/S. MAYUR APARTMENT
OWNERS ASSOCIATION
R/AT: APARTMENT NO.503
MAYUR RESIDENCY
B.R. KARKERA ROAD
PANDESHWARA
MANGALORE - 575 003
3. MRS. GEETHA ACHARYA
AGED 38 YEARS
R/AT: APARTMENT NO.201
MAYUR RESIDENCY
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RSA No. 565 of 2020
B.R. KARKERA ROAD
PANDESHWARA
MANGALORE - 575 003
...APPELLANTS
(BY MR: RAJASHEKAR .S., ADVOCATE)
AND:
Mr.MOHAMED AMEEN
S/O LATE MOHAMMED HUSSAIN
AGED 50 YEARS
R/AT: FLAT NO.801
MAYUR RESIDENCY
B.R. KARKERA ROAD
PANDESHWARA
MANGALORE - 575 005
...RESPONDENT
(BY MRS: HALEEMA AMEEN, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 31.08.2019 PASSED IN
RA.NO.5/2019 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE AND CJM., MANGALURU D.K, DISMISSING THE APPEAL
CONFIRMING THE JUDGMENT AND DECREE DATED 14.11.2018
PASSED IN OS.NO.1291/2015 ON THE FILE OF THE II ADDITIONAL
CIVIL JUDGE AND JMFC., MANGALURU.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Even though the matter is listed for admission, with the consent of learned counsel for both the parties, the same is taken up for final disposal.
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2. The defendants are before this Court impugning the judgment and decree dated 14.11.2018 passed in OS No.1291 of 2015 on the file of the learned II Additional Civil Judge and JMFC, Mangaluru, DK (hereinafter referred to as 'the Trial Court' for brevity), wherein the suit of the plaintiff was decreed partly for recovery of money and the defendants were directed to pay a sum of Rs.1,36,179/- with interest at 9% per annum from 05.08.2015 till its realization, which was confirmed vide judgment dated 31.08.2019 passed in RA No.5 of 2019 on the file of the learned Principal Senior Civil Judge and CJM, Mangaluru, DK (hereinafter referred to as 'the First Appellate Court' for brevity).
3. For the sake of convenience, parties are referred to as per their status and rank before the Trial Court.
4. Brief facts of the case are that, the plaintiff contended that he is the absolute owner in possession of the Apartment bearing No.801, situated at 8th floor and defendant No.1 is the Association of Apartment Owners represented by its President and Secretary. It is stated that the house of the plaintiff is situated on the 8th floor of the building and above it, -4- RSA No. 565 of 2020 there is common terrace meant for use of all the owners. Defendant No.1 is responsible to maintain the common area and the amenities and also to keep up the facilities including maintenance of the terrace. The terrace above 8th floor is un- protected from sun and rain and it has developed superficial cracks. It started leaking, resulting in darkness in the walls of the house of the plaintiff. When it reached dangerous stage and there is leaking in the roof, it has become difficult to stay in Apartment No.801.
5. It is stated that the plaintiff requested defendant No.1 several times to get it repaired, but he has not taken it seriously. Even the matter was discussed in the annual general meeting that was held on 26.08.2014 and a decision was taken to put up aluminum sheets above the terrace to protect the building. No such work was carried out. The plaintiff issued legal notice on 02.02.2015 to the defendants calling upon them to do the needful in order to maintain the terrace. He once again addressed a letter dated 04.05.2015 cautioning the defendants that if they fail to carry on the work, the plaintiff himself will carry on the required work. The President of the -5- RSA No. 565 of 2020 Association in his official capacity approved carrying on the work by the plaintiff. Accordingly, the plaintiff got the terrace repaired as per the instructions of the Association and its Secretary. Plaintiff spent Rs.1,36,179/- towards the repair work, but the defendants were not ready to reimburse the same. Therefore, the plaintiff filed suit for recovery of the said amount.
6. The defendants have appeared before the Trial Court and contended that the suit of the plaintiff is not maintainable. However, they admitted that the plaintiff is one of the member of the Association being the owner of the Apartment in question. They denied the allegations that there was leakage in the slab or in the wall and there was danger to the building. It is contended that since defendant No.1 is the Association and a decision will have to be taken in the meeting. But no such decision was taken. It is also contended that the plaintiff might have undertaken the work unilaterally for his personal benefits. He is not entitled to be reimbursed. The Board never authorized the plaintiff to carry on the work. Therefore, they prayed for dismissal of the suit. -6- RSA No. 565 of 2020
7. On the basis of these pleadings, the Trial Court framed the following issues for consideration:
"1. Whether the plaintiff proves that President of defendant No1. Association in his official capacity has approved for the work of repairing of terrace?
2. Whether the plaintiff proves that he had made payment to the contracts for carrying out of repair work?
3. Whether defendant proves that there is no resolution for carrying repairing work?
4. Whether plaintiff is entitled for recovery of money of Rs.1,36,179? If so, what rate of interest?
5. What order or decree?"
8. The plaintiff examined himself as PW1 and got examined PW2 and got marked Exs.P1 to P15 in support of his contention. The defendants examined DW1 and got marked Ex.D1 in support of their defence. The Trial Court after taking into consideration all these materials on record, answered issue Nos.1, 2 and 4 in the Affirmative and issue No.3 in the -7- RSA No. 565 of 2020 Negative. As a result, the suit of the plaintiff is decreed directing the defendants to pay a sum of Rs.1,36,179/- with interest at 9% p.a. from 05.08.2015 till realization.
9. Being aggrieved by the same, the defendants have preferred RA No.5 of 2019. The First Appellate Court on re- appreciation of the entire materials on record, dismissed the appeal by confirming the impugned judgment and decree passed by the Trial Court. Being aggrieved by the same, the defendants are before this Court.
10. Heard Sri S Rajashekar, learned counsel for the appellants and Smt Haleema Ameen, learned counsel for the respondent. Perused the entire materials on record including the Trial Court records.
11. Learned counsel for the appellants submitted that even if there was leakage from the terrace, the Association cannot undertake major repair works without taking a decision in the Board meeting. In the present case, no such decision was taken. The plaintiff said to have proceeded to repair the building unilaterally, without there being any authorization from -8- RSA No. 565 of 2020 the defendants. Moreover, Exs.P1 to 3 are said to be the quotations from different persons but the TIN number and the mobile number mentioned in all the three quotations are one and the same. Therefore, the plaintiff is not entitled for the amount claimed in the plaint. The Trial Court and the First Appellate Court have not considered these facts and proceeded to decree the suit of the plaintiff with interest at 9% p.a. without any basis. Therefore, he prays for allowing the appeal and to dismiss the suit of the plaintiff, in the interest of justice.
12. Per contra, learned counsel for the respondent supporting the impugned judgment and decree contended that there was leakage in the terrace and the same was brought to the notice of the Association by the plaintiff as he was residing in the top most floor of the building. Legal notice as per Ex.P6 was given on 02.02.2015, which was served on the defendants. In spite of that, there was no response from the defendants. A letter was addressed to defendant No.2 seeking permission to get the work done by the plaintiff. Defendant No.2 in his official capacity as President of the Association, permitted the plaintiff to carry on the work. Accordingly, the plaintiff carried -9- RSA No. 565 of 2020 on the work by getting different quotations. The bill is produced as per Ex.P4 and a receipt is as per Ex.P5. None of these documents were disputed by the defendants. Therefore, the Trial Court and the First Appellate Court were right in decreeing the suit of the plaintiff. Accordingly, he prays for dismissal of the appeal with costs.
13. I have considered the entire materials on record in light of the submissions made by learned counsel for both the parties.
14. There is no serious dispute with regard to occupation of the plaintiff in the top most floor in the Apartment and leakage in the terrace. Admittedly, the plaintiff issued the legal notice on 02.02.2015 to the defendants and as per the acknowledgement - Exs.P7 and 8, the notice was served on the defendants. The plaintiff has written the letter as per Ex.P10 on 04.05.2015 addressed to defendant No.2 who endorsed on the letter. Admittedly, there is no reply to either Ex.P6 or Ex.P10. The only contention taken by defendant No.1 is that as it is the Apartment Owners Association, the decision
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RSA No. 565 of 2020will have to be taken in the meeting to carry out necessary repair work.
15. When admittedly, the plaintiff issued legal notice to the defendants regarding leakage, during February 2015, nothing prevented the defendants to take a decision in that regard and to carry out necessary repair works before onset of the monsoon. But the defendants have not done so. There is no justification by the defendants to keep the matter pending without taking any decision, leaving the plaintiff to suffer with leakage and dampness in the wall. After getting the endorsement on Ex.P10, the plaintiff proceeded to get the work done and produced the bill and receipt as per Exs.P4 and 5. Therefore, the defendants are liable to reimburse the amount that was spent by the plaintiff for repairing the building. The defendants cannot find fault with the plaintiff for getting the work done through the individual contractor.
16. Even though learned counsel for the appellants contended that Exs.P1 to 3 - the quotations have the same TIN and mobile number and therefore, those are the concocted documents, no such specific defence was taken by the
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RSA No. 565 of 2020defendants before the Trial Court nor there is any cross examination to that effect. Under such circumstances, the Trial Court and the First Appellate Court have taken into consideration the materials placed before the Court and have arrived at a right conclusion. I do not find any reason to interfere with the same.
17. The Trial Court granted interest at 9% p.a. and the same was confirmed by the First Appellate Court. No special reason is assigned by the Trial Court for grant of interest at 9% per annum, when admittedly it is not a commercial transaction. Learned counsel for the defendants fairly conceded that the rate of interest granted is on the higher side. Therefore, I am of the opinion that while confirming the judgment and decree passed by the Trial Court and the First Appellate Court, the rate of interest could be reduced from 9% to 6% per annum, in the interest of justice.
18. In view of the above, I proceed to pass the following:
ORDER
(i) The appeal is allowed in part with costs.
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RSA No. 565 of 2020
(ii) The judgment and decree dated 14.11.2018 passed in OS No.1291 of 2015 on the file of the learned II Additional Civil Judge and JMFC, Mangaluru, DK, which was confirmed vide judgment dated 31.08.2019 passed in RA No.5 of 2019 on the file of the learned Principal Senior Civil Judge and CJM, Mangaluru, DK, is hereby modified.
(iii) The rate of interest granted by the Trial Court at the rate of 9% per annum is reduced to 6% per annum.
Registry is directed to draw the decree accordingly send back the Trial Court records along with copy of this judgment.
Sd/-
JUDGE *bgn/-