Madras High Court
The Above Application Is Filed By The vs Unknown on 20 April, 2021
Author: V.Parthiban
Bench: V.Parthiban
O.A.No.238 of 2021 in
C.S.No.416 of 2020
Reserved on : 16.04.2021
Pronounced on :20.04.2021
O.A.No.238 of 2021 in
C.S.No.416 of 2020
V.PARTHIBAN, J.
The above application is filed by the applicant/plaintiff herein for grant of injunction restraining the respondents/defendants from in any manner interfering with the applicant/plaintiff's repair/renovation works of her apartment No.E9, Raintree Apartment, No.21, Venus Colony, II Street, Alwarpet, Chennai-600 018 pending disposal of the suit.
2. The suit has been filed by the plaintiff to declare as illegal and void the accounts of defendant 6 society for the years 2011-2012, 2012-2013, 2013- 2014, 2014-2015, 2015-2016, and 2016-2017 and consequently, direct defendants 1 to 5 and defendant 7 to jointly and severally pay defendant 6 a sum equal to the loss caused to defendant 6 society and also to declare as illegal and void the notice dated 09.12.2020 convening the general body meeting to be held on 31.12.2020 and also to declare as illegal and void all amendments to the Bye Laws of the defendant 6 society as purportedly 1/12 https://www.mhc.tn.gov.in/judis/ O.A.No.238 of 2021 in C.S.No.416 of 2020 passed on 25.09.2011 and 25.06.2017 and consequential declaration to declare as illegal and void the establishment and constitution of the Advisory Council of the defendant 6 and permanent injunction restraining the defendants 1 to 6 from operating or taking any actions other than in accordance with the Bye Laws and Memorandum of Association as approved and registered by the District Registrar, Chennai Central Registration District and permanent injunction restraining defendants 1 to 5 from holding any office in the management committee of defendant-6 society and to pay costs.
3. Applicant/plaintiff herein is the owner and resident of Plot No.E9, Raintree Apartment, No.21, Venus Colony, II Street, Alwarpet, Chennai-600
018. In 2009, a society was formed by 12 owners including the applicant/plaintiff herein for the purpose of maintaining common properties, to function as trustee-in-charge of all lands, properties and buildings on behalf of the members and to promote and safeguard interests, rights and privileges and to maintain social and recreational associations and to establish and maintain security services etc. The society, which is named as 2/12 https://www.mhc.tn.gov.in/judis/ O.A.No.238 of 2021 in C.S.No.416 of 2020 'Raintree Flat Owners Association', is arrayed as sixth defendant in the suit and sixth respondent herein. The plaintiff is one of the founder members of the association.
4. During the pendency of the above suit, according to the applicant/plaintiff, she had to undertake certain repair works in her apartment, since the apartment being affected by severe termite infestation. In order to utilise the services for undertaking the job of pest control and the removal of termite infestation and its spread in the apartment, she sought the help of the sixth respondent association, by sending an electronic mail on 05th December 2020. In the e-communication, she had informed the association about the termite attack in her apartment, for which she had to take immediate steps to control its spread and infestation. In fact, with the communication, she had also informed the association about the spread of termite infestation in many common areas of the apartment in general and sought viable strategy of rooting out the problem of termite infestation in the apartment complex.
3/12 https://www.mhc.tn.gov.in/judis/ O.A.No.238 of 2021 in C.S.No.416 of 2020
5. According to the applicant, as there was no response forthcoming from the association members and being affected by the termite problem, she had engaged the services of independent contractor for undertaking the work of pest control, change of water pipes and reconstruction of the damage to walls.
6. The private contractor, who was engaged by the applicant/plaintiff, had been executing the work, as he was permitted by the respondents/ defendants without any protest till 29.03.2021, as the engagement of the private contractor was necessitated as the problem of pest infestation was threatening the well being and safety of the inmates of the apartment. According to her, major portion of the work had been completed, but services like pipe replacement, reconstruction of the wall and floors remain to be completed, which could be completed in short duration of time. However, from 29.03.2021 onwards the respondents/ defendants refused to permit the workmen to enter the gate of the apartment complex and coupled with the fact of the indifferent attitude of the respondents towards the 4/12 https://www.mhc.tn.gov.in/judis/ O.A.No.238 of 2021 in C.S.No.416 of 2020 applicant, she has been put to untold suffering and hardship. According to the applicant/plaintiff, no worthwhile reason has been forthcoming from the respondents as to why the workmen engaged by her could not be permitted to enter the complex for executing and completing the work entrusted by her. Therefore, she is before this Court with the present application.
7. The application, when taken up for hearing, Mr.R.Ranganathan, learned counsel for seventh defendant appeared and a strong objection has been placed on behalf of the respondents/defendants. According to the learned counsel for the respondents, due to alarming pandemic situation prevailing as on date, the association is not inclined to permit any outside workmen to enter the complex as their presence in the complex would be detrimental to the safety of the residents of the complex. According to the learned counsel, the association is in-charge of over all maintenance of all the apartments and they would be in a position to provide any assistance for carrying out any repair works in the individual apartments. Instead of seeking assistance of the association, the applicant has deliberately engaged 5/12 https://www.mhc.tn.gov.in/judis/ O.A.No.238 of 2021 in C.S.No.416 of 2020 the services of outsiders against the practice normally adhered to by the residents of the complex.
8. Mr.V.Raghavachari, learned counsel for the applicant/plaintiff, assisted by Mr.R.Bharadwaj, would submit that the objections of the respondents/defendants is contrary to fact for the reason that the applicant herself has approached the association as early as on 05.12.2020 bringing to the knowledge of the association about the termite problem, for which, no action is forthcoming as on date. When the association has been informed about the termite problem by the applicant herself by her communication dated 05.12.2020 and having not chosen to respond to the communication with any tangible action, it does not lie in the mouth of the respondents/defendants, to raise objection to the engagement of the outside workers for undertaking the repair works in the apartment of the applicant.
9. Moreover, the reason for objecting to the outsiders entering the apartment complex due to covid-19 pandemic situation, is also misplaced for 6/12 https://www.mhc.tn.gov.in/judis/ O.A.No.238 of 2021 in C.S.No.416 of 2020 the reason that applicant's apartment is a duplex unit and entry to the apartment will not require the workmen to enter into the common areas of any other apartments. The only common point is the main gate and a short open air path leading to the applicant's apartment. Therefore, the risk factor is absolutely absent.
10. In any case, learned counsel for the applicant/plaintiff would submit that on one hand the association on its own is not willing to provide any assistance to the applicant, but when forced to engage the services of outside contractor, the association or other respondents on the other hand cannot be permitted to come up and raise objection as the objection is per se not for bonafide reasons, but is intended to harass the applicant. According to the learned counsel, because the applicant has filed the suit questioning the state of affairs of the association as a retaliation, the objections are being raised under the garb of Covid-19 situation. In any case, the applicant cannot be forced to live in an apartment with looming termite infestation day-in and day-out and the opposition to the present applicant is for extraneous reasons, 7/12 https://www.mhc.tn.gov.in/judis/ O.A.No.238 of 2021 in C.S.No.416 of 2020 the same is liable to be rejected.
11. This Court has considered the submissions made on behalf of the applicant as well as the objections of the respondents, perused the pleadings and materials placed on record.
12. As regards the objection that the association could render its assistance for undertaking the repairs like pest control etc., the said objection is not supported by any material or action initiated by the association in response to the communication sent by the applicant on 05.12.2020. Nothing has been produced before this Court to show that the association was willing to help the applicant to overcome the termite crisis faced by her in her apartment.
13. The respondents, having failed to address the serious concern of the applicant in tackling the termite crisis, cannot be allowed to or to resist the applicant's efforts to have the services utilised from an outside contractor for 8/12 https://www.mhc.tn.gov.in/judis/ O.A.No.238 of 2021 in C.S.No.416 of 2020 undertaking the repair works as per the applicant's requirements in her apartment. The objection regarding the alarming pandemic crisis, in the opinion of this Court, is mere an afterthought as the issue has been hanging fire for the last several month qua parties and the present crisis is only a few days old. Such objection in the opinion of this Court is a smoke screen to hide behind the dishonest motive of the respondents and the sixth respondent association to harass the applicant by denying her right to live in safe confines of her apartment.
14. The learned counsel for the respondents though submitted that he would get further instructions from his client and file written statement and counter, this Court is not inclined to grant any time for the reason that first, he has made his submissions setting out his objections and secondly, this Court cannot show any indulgence to the respondents for any adjournment as the applicant cannot be denied to address the issue of termite crisis for a longer period of time and thirdly, there cannot be any legitimate objection to deny the applicant the right to engage the services of outside 9/12 https://www.mhc.tn.gov.in/judis/ O.A.No.238 of 2021 in C.S.No.416 of 2020 contractor for cleaning up her apartment and redoing it to the extent indicated in the application in order to secure her own safety and well being of the family members.
15. In view of the above, this Court has no hesitation in allowing the application and therefore, the application stands allowed and the injunction, as prayed for is granted.
16. While granting injunction, the applicant/plaintiff is also directed to ensure that other apartments residents are not put to any undue discomfiture or their safety is not compromised due to the presence of any outside workmen and she is also directed to have the work completed as expeditiously as possible.
mra 20.04.2021
Index : Yes/no
Internet : Yes/no
Speaking/Non-speaking order
10/12
https://www.mhc.tn.gov.in/judis/
O.A.No.238 of 2021 in
C.S.No.416 of 2020
Note :
1) Post the suit for hearing on 04.06.2021.
2) Upload and issue order copy today (20.04.2021) V.PARTHIBAN, J.
mra Pre-delivery order in O.A.No.238 of 2021 in C.S.No.416 of 2020 11/12 https://www.mhc.tn.gov.in/judis/ O.A.No.238 of 2021 in C.S.No.416 of 2020 20.04.2021 12/12 https://www.mhc.tn.gov.in/judis/