Calcutta High Court
Vidyawati Gupta & S.C. & Ors vs Cic Society on 6 May, 2010
Author: Nadira Patherya
Bench: Patherya
GA No. 1542 of 2010
EC NO.83 OF 2010
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
VIDYAWATI GUPTA & S.C. & ORS.
Versus
CIC SOCIETY
MR. ABHRAJIT MITRA, MR. J. CHOWDHURY, ADVOCATES APPEAR.
MR. P.C. SEN, MR. S.N.MOOKHERJEE, SENIOR ADVOCATES WITH MR.R.
BANERJEE, MR. RAJ RATNA SEN, ADVOCATES APPEAR.
BEFORE:
The Hon'ble JUSTICE PATHERYA
Date : 6th May, 2010.
The Court : By this application filed under Section 47 of the
Code of Civil Procedure the petitioners seek to challenge bills, which have been
raised in March 2010.
The case of the petitioners is that a settlement was reached between the
parties on 23.6.2008 whereby the petitioners were to make payment of Rs.1.25
crores on account of arrears maintenance charges. Such sums have been paid
and, thereafter, as postulated by the order dated 23.6.2008, maintenance
2
charges have been paid. On 27.3.2007 bills have been raised on account of
differential sums payable by the petitioners from January 2001 to March 2010.
Such bills could not have been raised till 2008 as all sums till June 2008 was
paid pursuant to order dated 23.6.2008. Hence, the instant application has been
filed and orders sought. Reliance has also been placed on AIR 2004 CAL 258
wherefrom it will appear that the area in occupation of the petitioners has been
determined. In fact, the arrears alleged in the letter dated 27.3.2010 is on
account of area, which area was also accepted during the tenure of the present
General Secretary i.e. between 2002 to 2008. Therefore, the question of increase
in area is baseless and does not justify the bills raised.
Counsel for the respondent submits that the question sought to be
answered in this application does not arise in execution proceeding and, therefore, this application is not maintainable. From a reading of the letter dated 22.3.2010 it will appear that the arrears has been calculated on the rental area in respect of the petitioners and not in respect of the covered area as calculated in respect of the other occupants. At the meeting held on 13.3.2010 it was decided that as maintenance and electricity charges were calculated on the covered area of the flats owned by the occupants so also in the case of the petitioners the covered area should form the basis of payment of maintenance charges. It is on this basis that bills dated 27.3.2010 have been raised. In fact, all occupants of the said premises paid the maintenance charges on the covered area except the petitioners and the aforesaid is known to the petitioners. In fact, 3 there is no reply to the letter dated 22.3.2010 and the contents therein have been accepted.
Having considered the submissions of the parties by order dated 23.6.2008 the parties resolved their respective disputes and, in particular, the issue of arrears maintenance charges by crystallizing the amount to be paid at Rs.1.25 crores. Such amount was the arrears maintenance charges till June 2008. The bill of 27.3.2010 has been raised for payment of the differential amount on account of maintenance, common electricity and repair and renovation charges. The period for which such bill has been raised is January 2001 to March 2010. As on 23.6.2008 the parties resolved their disputes by making payment and accepting such payment at Rs.1.25 crores, prima facie, will not entitle the respondent to raise a bill till June 2008. Therefore, the respondent is restrained from realising sums on account of the differential amount till June 2008. For the period on and from July 2008 the respondent may be entitled to raise such bills but as an interim measure, the petitioners will continue to pay sums on the basis of the bills raised earlier and the differential amount be deposited by the petitioners with its advocate on record, who will invest the said sums in a fixed deposit account. Particulars of such fixed deposit will be furnished to the advocate on record of the respondent no.1 within a week from the date of such deposit. Such arrangement will continue till disposal of this application or until further orders including any order that may be obtained by the respondent. 4
Directions are given for filing affidavits. Affidavit in opposition within two weeks after the summer vacation; reply thereto, if any, within two weeks thereafter. Matter to appear in the monthly list of July, 2010.
Time to file affidavit in opposition in EC No.83 of 2010, by consent of the parties, is extended and the directions given hereinabove will also be applicable to EC NO.83 of 2010.
All parties concerned to act on a photostat signed copy of this order on the usual undertakings.
[PATHERYA, J.] pkd.
Asstt. Registrar [C.R.]