Bangalore District Court
Mr. Tamojoy Mitra vs Shriram Samrudhi Association on 3 February, 2020
IN THE COURT OF XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (C.C.H.16)
Dated this 3 rd Day of February, 2020
Present: Sri. R. Ravi,
B.Sc., LL.B.
XVII Addl. City Civil & Sessions Judge.
O.S.No. 3360/2015
Plaintiff/s : 1. Mr. Tamojoy Mitra
S/o Madhusudhan Mitra
Aged about 42 years,
Resident of Apartment No.G-205.
2. Mr. Saurabh Kishore
S/o Rajendra Kishore
Aged about 40 years,
Resident of Apartment No.Q-204.
3. Mr. Nimit Kumar Patel
S/o Madhukant Patel
Aged about 34 years,
Resident of Apartment No.G-304.
4. Mr. Anindya Adhikari
S/o Debendra Nath Adhikari
Aged about 38 years,
Resident of Apartment No.G-203.
5. Mr. Piyush Roy
S/o K.C.Roy
Aged about 29 years,
Resident of Apartment No.Q-105.
6. Mr. Sharad Julka
S/o Harish Kumar Julka
Aged about 37 years,
Resident of Apartment No.Q-308.
2 OS.No.3360/2015
7. Mr. Mohul Sihna
S/o Ajit Kumar Sihna
Aged about 38 years,
Resident of Apartment No.G-601.
8. Mrs. Uma Maheshwari
W/o Sukumar
Aged about 47 years,
Resident of Apartment No.Q-102.
9. Mr. Harish A.
S/o P.Ananthrao Devale
Aged about 35 years,
Resident of Apartment No.Q-103.
10 Mrs. Vidya Balakrishnan
W/o Sabri
Aged about 32 years,
Resident of Apartment No.H-602.
11 Mr. Ashish Benarjee
S/o Ajit Kumar Benarjee
Aged about 39 years,
Resident of Apartment No.G-801.
12 Mr. Gautam Gaikwad
S/o Ramachandra N.
Aged about 35 years,
Resident of Apartment No.Q-008.
13 Mr. Basavaraj Pawar
S/o Balachandra Pawar
Aged about 37 years,
Resident of Apartment No.F-603.
14 Mr. Pranab Kiran Nath
S/o Himangshu Sekhar Nath
Aged about 44 years,
Resident of Apartment No.G-705.
15 Mrs. Fly Slysmrith
W/o G.Manmhan Shankar
Aged about 49 years,
3 OS.No.3360/2015
Resident of Apartment No.Q-212.
16 Mrs. Vishalakshi Sudheer
W/o Late Sudheer M.V.
Aged about 52 years,
Resident of Apartment No.Q-211.
17 Mr. Somu Rudrakshi
S/o Late Viswanath B.Rudrakshi
Aged about 37 years,
Resident of Apartment No.Q-008.
18 Mr. TMH Avinash
S/o TMH Kumaraswamy
Aged about 34 years,
Resident of Apartment No.H-203.
19 Mr. Vivek Kumar Saffer
S/o Basant Kumar Saffer
Aged about 29 years,
Resident of Apartment No.G-802.
20 Mrs. Chira Devi
W/o Shanmugaraja
Aged about 40 years,
Resident of Apartment No.Q-201.
21 Mr. Krishna S.
S/o B.K.Srinivasamurthy
Aged about 42 years,
Resident of Apartment No.G-206.
22 Mr. Sharad Julka
S/o Harish Kumar Julka
Aged about 37 years,
Resident of Apartment No.Q-209.
23 Mr. Goergie Paul
S/o V.S. Paulose
Aged about 31 years,
Resident of Apartment No.Q-315.
4 OS.No.3360/2015
24 Mr. Bri R.P. Iyer
S/o Late Shri A Rama Iyer
Aged about 69 years,
Resident of Apartment No.G-905.
25 Mr. Chandrachud
S/o Basavarajaiah
Aged about 37 years,
Resident of Apartment No.Q-107.
26 Mrs. Rajeshwari
W/o Raghu
Aged about 43 years,
Resident of Apartment No.Q-012.
27 Mr. Venkata Jaganmohan Rao
S/o T.V.R.Narasinha Rao
Aged about 43 years,
Resident of Apartment No.H-702.
28 Mrs. Meena Mishra
W/o Ravindra Nath Mishra
Aged about 60 years,
Resident of Apartment No.Q-202.
29 Mr. Lakshmikant
S/o Govindaiah
Aged about 41 years,
Resident of Apartment No.Q-104.
30 Mr. H.S. Uberoi
S/o Late S.S. Uberoi
Aged about 62 years,
Resident of Apartment No.Q-113.
31 Mr. H.S. Uberoi
S/o Late S.S. Uberoi
Aged about 62 years,
Resident of Apartment No.Q-114.
32 Mr. H.S. Uberoi
S/o Late S.S. Uberoi
Aged about 62 years,
5 OS.No.3360/2015
Resident of Apartment No.Q-115.
33 Mrs. Davinder Kaur Uberoi
W/o H.S.Uberoi
Aged about 60 years,
Resident of Apartment No.Q-110.
34 Mrs. H.S. Uberoi
W/o H.S. Uberoi
Aged about 60 years,
Resident of Apartment No.Q-306.
All of the above are Residents of
Shriram Samrudhi Apartments
No.67/68, Tubarahalli Village
Varthur Hobli, Bengaluru South,
Bengaluru - 560 066 and
No.2 to 37 are represented by their
Constituted Attorney
Mr. Tamojoy Mitra [No.1 above]
[By Sri. S.R.Hegde, Adv.]
-Vs-
Defendant/s : 1. Shriram Samrudhi Association
Rep. by its President
Mr. Venkatesh R. Shenoy
67-68, Tubarahalli Village,
Bengaluru South Taluk,
Bengaluru - 560 066.
2. The Managing Committee
Shriram Samrudhi Association
Rep. by its Secretary
Mr. Shivaprasad Gummadi
67-68, Tubarahalli Village,
Bengaluru South Taluk,
Bengaluru - 560 066.
[By Sri. V.Vijay Kumar, Adv.]
6 OS.No.3360/2015
Date of institution of the suit 10.4.2015
Nature of the suit Declaration & Injunction
Date of commencement of 01.6.2017
recording the evidence
Date on which the judgment 03.02.2020
was pronounced
Total duration Years Months Days
04 09 24
(R. Ravi),
XVII Addl. City Civil & Sessions Judge.
***********
J UD GM E N T
This is a suit for declaration and permanent injunction.
2. The case of the plaintiffs is that the 1st defendant
Shriram Samrudhi Association is an association constituted
as per bylaws, which is a part of registered Deed of
Declaration dated 5.9.2007 executed and registered under
the provisions of Karnataka Apartment Ownership Act, 1972
(KAO Act). The 2nd defendant is the Managing Committee
through which the defendants function. The defendant
association is the authority for the maintenance and
management of the common areas and facilities of the
defendant association, acting through the defendant No.2.
The plaintiffs being the owners of the respective apartments
7 OS.No.3360/2015
in Shriram Samrudhi Complex are the members of the
association. There are 15 blocks consisting of 504
apartments of different sizes varying from 514 sq.ft. to 2827
sq.ft. super built up area. All the apartments are separately
numbered and are having independent access to the common
areas. As per the provisions of Karnataka Apartment
Ownership Act, each apartment shall be entitled to an
undivided interest in the common areas and facilities in the
percentage expressed in the deed of declaration. The said
percentage is calculated virtually on the basis of the super
built up area of each apartment. As per Section 10 of KAO
Act, the common profits of the defendant association is
required to be distributed and expenses is required to be
levied according to the percentage of the undivided interest in
the common areas and facilities. As per bylaw No.28 of
defendant association, each member is required to contribute
and pay the periodical assessment, levied from time to time
by the defendant association at pro-rata, according to the
percentage of the UDS. The plaintiffs are the occupants of the
smaller apartments in size and their voting rights are also
smaller compared to the members owning larger size
apartments and thus, the plaintiffs form minority. The law
8 OS.No.3360/2015
and bylaw prescribes the collection of maintenance and other
charges to be levied and collected virtually, on pro-rata/per
sq.ft. basis, but the majority members, using their brute
majority by suppressing and oppressing the minority
members are collecting the charges arbitrarily and majority
members are enjoying all the benefits of common areas and
facilities, at the cost of the minority members. Though the 2 nd
defendant had proposed and put up the proposal in the
General Body meetings, for the levy and collection of charges
on pro-rata/per sq.ft. basis, but invariably the majority
members overruled the same and fixed the charges arbitrarily
with the malafide intention of enjoying the unlawful benefits
at the cost of the minority members. Even the legal opinion
obtained by the managing committee is not considered by the
General Body. The proviso to bylaw No.28 enables the
managing committee to collect the charges on apartments
basis, under special circumstances for availing certain
additional facilities like holding any public or community
events, cable T.V., celebration of festivals, sports and
entertainment programs. The specific proposal put up by the
Managing Committee in the General Body held on 17.3.2013
and again on 1.11.2014 for levy and collection of charges as
9 OS.No.3360/2015
per the bylaw, has been negated by the majority members in
violation of the law and specific bylaws. The defendant
association has been collecting the painting charges since
July, 2014 and have already collected 3 installments on
arbitrary manner contrary to the provisions of KAO Act and
bylaws. It is learnt that the defendant is contemplating to
collect huge amount for the external painting of the building
from April, 2015 and preparations are being made to collect
again on arbitrary basis and not on pro-rata/per sq.ft. basis.
The defendant association has acted and is acting
unreasonably and irrationally. The large apartment owners
who are in large number are oppressing the minority
members owning smaller apartments. Though the plaintiffs
and other members have made representation to the
defendant association to set right the arbitrary levy and
collection of maintenance, it has not rendered any result.
Further the plaintiffs have also got issued the legal notice to
the defendants on 11.2.2015 to abandon the said illegal
resolutions and start effecting the levy and collection of such
charges as provided by the Bylaws and KAO Act and also
adjust the excess amount collected from them so far towards
the future dues and since the defendant has neither gave
10 OS.No.3360/2015
effect to the said demands nor even cared to reply then the
plaintiffs are constrained to file this suit for declaration and
permanent injunction.
3. On the other hand, the defendants have filed their
written statement and denied the averments of the plaint as
false and incorrect and further contended that the Deed of
declaration dated 5.9.2007 was executed and registered on
7.9.2007 and plaintiffs had accepted and acquiesced to the
provisions of said document which includes the rules and
regulations and bylaws of the 1st defendant association
without there being any complaint till March, 2013. The
defendant has stated that there are different types of
apartments consisting of One BHK, Two BHK, large flats etc.,
and stated that One BHK and Two BHK owners are 142 in
number and constitute 28% of total 504 number of flats and
are having 17% of the voting rights. It is stated that the large
flats owners consisting of Duplex and Penthouse are 36 in
members and constitute 7% of flats and are having voting
right of 13%. The defendants have stated that the definition
of common expenses makes it clear that, it pertains to
administration, maintenance, repair and replacement of
common areas and facilities and there is no specific mention
11 OS.No.3360/2015
or direction for expenses which are of consumption of nature
like raw water and sewage treatment charges, electricity
charges, gas, diesel for DG etc. It is stated that there is also
no clarity on expenses which are of services in nature like
technology and communication expenses, waste collection,
security and safety related, etc. It is stated that Rule 28(1) of
the bylaw gives a direction with regard to certain items of
expenditure which are not obviously contemplated in those
provisions of the Act and contemplates a distinction with
regard to classification of certain items of expenditure to be
included for the purpose of pro-rata calculation but certain
other expenses should be calculated per Apartment basis. It
is stated that in view of peculiar and varied nature of general
and common maintenance expenditure in large apartment
complexes which are also expected to provide consumption
items like water and provide individual flat services which are
no relation to the common areas and facilities Rule 28(1) of
the bylaw is formulated and incorporated in the bylaw and
quoted. It is stated that proviso to Rule 28(1) empowers the
General Body to resolve to make such categorization based
on some equitable, reasonable and intelligible differentia and
it was existing from the beginning. Plaintiffs are not justified
12 OS.No.3360/2015
in law and in equity in taking umbrage to the above
classification for levy of normal maintenance charges on
expenses of consumption or usage related and those which
are serves related and applying per flat or any other rationale.
It is stated that the defendant has followed the provisions of
the Act and bylaws in apportioning while charging the
expenses. The method of charging was discussed, deliberated
and finalized with select and representative group of all stake
holders. It is stated that in the General Body meeting of
March, 2014, the method was approved and implemented as
stated in the written statement and some of the expenses are
treated pro-rata basis and some are on the basis of
consumption like water and electricity charge and some
expenses for services are considered on the basis of per
apartment. Though the proviso to Rule 28(1) to the bylaw was
existing from the beginning, the plaintiffs have not objected
the same and now belated protest cannot be accepted. It is
stated that voting rights is also worked out on the basis of
rationale/intelligible differentia and equity rights
proportionate to the size of the flats in terms of the Rule 15 of
the bylaw. It is stated that the contention of the plaintiffs that
they are small flat holders is not correct, as both in numbers
13 OS.No.3360/2015
and voting, rights they are more. All other allegations made in
the plaint has been denied by the defendants. It is stated
that various resolution which are assailed in the suit are
passed by the General Body and Special General Body of the
1st defendant association and are very well in conformity with
and as empowered in the bylaw and plaintiffs have been part
of this process and have participated in approval of all
resolutions. It is stated that even among the small flat
owners, the plaintiffs are only a small minority, as though
there are 142 small apartments, only 34 of them have come
to the court and have filed the suit. On all these grounds, the
suit is prayed to be dismissed.
4. On the basis of the pleadings, one of my learned
predecessor has framed the following issues: -
1) Whether the plaintiffs prove that the
Resolution No.1 passed in the General
Body Meeting of the 1st defendant held
on 17.3.2013 in respect of collection of
maintenance charges is illegal, null and
void and not binding on the plaintiffs?
2) Whether the plaintiffs prove that
Resolution No.4 & 5 passed in the
General Body Meeting of 1st defendant
dated 1.1.2013 and Resolution No.5
passed in General Body Meeting on
1.1.2014 are illegal, null and void?
3) Whether the suit is barred by limitation?
14 OS.No.3360/2015
4) Whether the plaintiffs are entitled for the
relief prayed in the suit ?
5) What decree or order?
5. In order to prove the above issues, the plaintiff
No.1, 27, 6, 21 and 25 got examined themselves as PW.1 to 5
respectively and got marked the documents at Ex.P1 to P14.
On the other hand, the defendants got examined its President
as DW.1 and got marked the documents at Ex.D1 to D3 and
thereafter the matter was posted for arguments.
6. And I have heard the arguments of both sides
perused the entire materials placed on record.
7. And my findings on the above issues are as
under:-
Issue No.1: In the negative
Issue No.2: In the negative
Issue No.3: In the affirmative
Issue No.4: In the negative
Issue No.5: As per final order, for the following:
R E A S ON S
8. Issue No.1 to 4:- Since these issues are inter-
related then they are hereby discussed commonly in order to
avoid repetition of facts.
15 OS.No.3360/2015
9. In order to prove the facts of above issues, though
the plaintiff No.1, 27, 6, 21 and 25 got examined themselves
as PW.1 to 5 respectively and got marked the documents at
Ex.P1 to P14, the same do not hold any water as there is a lot
of variance in the pleadings and proof of the plaintiffs that
are placed on record. Now let me examine it.
10. First of all though the plaintiffs have specifically
pleaded that the resolution No.1 passed in the General body
meeting of the 1st defendant dated 17.3.2013 and so also the
Resolution No.4 dated 1.1.2013 and resolution No.5 dated
1.1.2014 in respect of the collection of the maintenance
charges are null and void, the same do not hold any water as
the above facts are not at all proved by the plaintiffs with
cogent material evidence.
11. And in fact in order to prove the above material
facts though the the plaintiff No.1 got himself examined as
PW.1 and got marked the documents at Ex.P1 to P14, the
same are also of no help to the case of the plaintiffs as
contrary to their pleadings and evidence the said plaintiff
No.1/PW.1 at page-16 & 17 of his cross-examination has
clearly admitted that "It is true to suggest that none of the
16 OS.No.3360/2015
plaintiffs have challenged the Rule No.28 of the Bye-laws
which is comprised in the deed of declaration and the same is
marked as Ex.D1".
12. And even at page-17 also the said plaintiff
No.1/PW.1 has further admitted that "It is true to suggest
that some items of maintenance i.e., approximately 50% are
charged per Flat equal basis. I cannot classify and tell the
names of the item which are charges as stated above. Before
filing of this suit the plaintiffs have not at all have any
information with regard to the charging of the specific items".
13. And even at page-19 also the said plaintiff
No.1/PW.1 has further admitted that "I do not remember
whether I have attended the General Body meetings dated
1.10.2010, 1.11.2011 and 1.11.2012. I have got the minutes
of the above said four general body meetings through e-mail.
I have not at all protested the above minutes of the general
body meetings through any reply e-mails or any other written
modes. I do not remember whether I had attended the general
body meetings on 1.11.2013 and 1.11.2014. I have received
the minutes of the said two general body meetings through e-
mails, but I have not at all protested the above minutes of the
17 OS.No.3360/2015
general body meetings through any reply e-mails or any other
written modes", which is rather fatal to the case of the
plaintiffs because as the above material admission of Plaintiff
No.1/PW.1 clearly rebuts the alleged contention of the
plaintiffs that the Resolution No.1 dated 17.3.2013 and so
also the Resolution No.4 & 5 dated 1.1.2013 and 1.1.2014
are illegal, null and void.
14. In support of their case though the plaintiffs have
relied upon the rulings of (2005) 2 SCC 345, (2004) 8 SCC
556 and LAWS (SC) - 1954 - 3 & 5, the same are of no help
to the case of the plaintiffs as the facts and circumstances of
the present case and that of the above rulings are quite
together different. And in fact the above said ruling of (2005)
2 SCC 345 are rather pertain to Debt Laws of Bombay Money
Lender's Act, 1946 and the ruling of (2004) 8 SCC 556
pertains to Registration Act, 1908 and the ruling of LAWS
(SC) - 1954 - 3 & 5 pertains to the Madras Hindu Religious
Endowments Act.
15. And even otherwise since Section 3(g) of the
Karnataka Apartments Ownership Act, 1972 clearly defines,
"common expenses" means (1) All sums assessed against the
18 OS.No.3360/2015
apartment owners by the Association of Apartment owners,
(2) expenses of administration, maintenance, repair or
replacement of the common areas and facilities, (3) expenses
agreed upon as common expenses by the bye-laws, (4)
expenses declared as common expenses by the provisions of
this Act or by the declaration or by the Bye-laws and since
Section 10 of the Karnataka Apartments Ownership Act,
1972 clearly defines, "common profits and expenses" means -
common profits of the property shall be distributed among
and common expenses shall be charged to the apartment
owners according to the percentage of the undivided interest
in the common areas and facilities and since in the ruling of
LAWS (BOM) 2002 7 127 i.e., Venus Co-operative Society
Vs. J.Y.Detwani, one relied on by the defendants it has been
clearly held that "It cannot be said that the big Flat
owners are getting higher or more services to make them
liable to pay more on the basis of area of the Flat.
Aforesaid services are enjoyed by all the members
equally and therefore, there was no reason for the
society to have made the large Flat owners to pay more
on the basis of the area of the Flat. There is absolutely
no rational or any reason to required the large Flat
19 OS.No.3360/2015
owners to pay more for the aforesaid service charge " then
it cannot be held that the alleged Resolution No.1 dated
17.3.2013 and so also the Resolution No.4 & 5 dated
1.1.2013 and 1.1.2014 are illegal, null and void.
16. Secondly though the plaintiff No.27, 6, 21 and 25
also got examined themselves as PW.2 to 5, their versions are
also of no help to the case of the plaintiffs as the said PW.2 to
5 witnesses were not at all subjected for cross-examination
and in fact on 11.6.2018 the counsel for the plaintiffs has
filed a memo to give up the evidence of the above witnesses.
17. Thirdly though the plaintiffs at para-22 of their
plaint have specifically pleaded that their suit before this
court is maintainable as per Order 1 Rule 1 of CPC and even
though the said Order 1 Rule 1 of CPC says that "Any right to
relief in respect of or arising out of the same act or
transaction or series of acts or transaction is alleged to exists
in such persons, whether jointly, severally or in the
alternative then all persons may be joined in one suit", the
same are of no help to the case of the plaintiffs as admittedly
Rule No.48 of the Bye-laws one attached to the documentary
evidence of Ex.P2/Deed of declaration clearly shows that any
20 OS.No.3360/2015
dispute between or amongst the Apartment owners may be
referred to the managing committee of the association for
redressal and if any party is aggrieved by the decision of the
management committee, the same may be referred to
Arbitration in accordance with the Arbitration Act and any
dispute between any Apartment owner and the Association
may be referred to the Managing committee to be forwarded
to the competent authority for redressal and the decision of
the competent authority shall be final.
18. For better appreciation of the above facts, the said
Bye-law Rule No.48 is hereby reiterated as below :-
48. Resolution of disputes :
(1) Any dispute between or amongst the Apartment
owners may be referred to the managing committee of
the association for redressal. If any party is aggrieved
by the decision of the management committee, the same
may be referred to Arbitration in accordance with the
Arbitration Act.
(2) Any dispute between any Apartment owner and the
Association may be referred to the Managing committee
to be forwarded to the competent authority for redressal
and the decision of the Competent Authority shall be
final.
21 OS.No.3360/2015
19. And admittedly since the plaintiffs claim that they
are governed by the provisions of the Karnataka Apartment
Ownership Act, 1972 and the Karnataka Apartment
Ownership Rules, 1975 and since section 3(i) of the said
Karnataka Apartment Ownership Act, 1972 clearly defines
the "Competent Authority" means in relation to building
constructed or to be constructed by the Housing Board, the
Secretary of the Housing Board and in any other case, the
Registrar of Co-operatives Societies as defined in the
Karnataka Co-operative Societies Act, 1959 and since it is
not at all the case of the plaintiffs that they have exhausted
their remedies before the above forums then it has to be held
in unequivocal terms that the present suit of the plaintiff
before this court is not at all maintainable in law.
20. On the above point the defendants have relied
upon a ruling of LAWS (BOM) 2002 7 127 i.e., Venus Co-
operative Society Vs. J.Y.Detwani wherein it clearly showed
that at the first instance the parties have redressed their
remedy before the concerned Co-operative Court and
thereafter before the Appellate Tribunal and lastly before the
Hon'ble High Court of Bombay.
22 OS.No.3360/2015
21. On the other hand the defendants by leading the
oral evidence of defendant No.1 at DW.1 and further got
marking the documents at Ex.D1 to D3 and further eliciting
from the mouth of plaintiff No.1/PW.1 have clearly rebutted
the case of the plaintiffs and further proved that since the
plaintiffs have accepted the registered deed of declaration
dated 5.9.2007 including the Bye-laws and since the
plaintiffs have not at all challenged the provisions of the Bye-
law particularly Rule No.28(1) including its proviso which
enabled the General Body to take appropriate decision to
calculate and levy general maintenance charges, pro-rata and
cost of other facilities according to the
measurements/consumption wise then the suit of the
plaintiffs is not at all maintainable in law & also time barred.
22. Even though the defendants have not at all lead
the oral evidence of any witnesses, the same is not at all fatal
to their case as the contention of the defendants are rather
admitted by the plaintiff No.1/PW.1 at page-16 & 17 of his
cross-examination that "It is true to suggest that none of the
plaintiffs have challenged the Rule No.28 of the Bye-laws
which is comprised in the deed of declaration and the same is
marked as Ex.D1".
23 OS.No.3360/2015
23. And moreover since the said Bye-laws Rule No.28
clearly says that "All the apartment owners are obliged to pay
periodical assessment fixed from time to time by the
managing committee or the General Body as the case may be
to meet the expenses relating to the Sri. Samrudhi
Apartments, which may include payment of insurance
Premium for a policy to cover, repair and construction work
in case of fire, earthquake, hurricane or other hazards or
calamities. The assessment shall be made on pro-rata,
according to the percentage of the value of the apartment
owned as stipulated in the deed of declaration. Such
assessment shall also include remittance to the general
operating reserve and a reserve fund for placements. Provided
that the General Body may specify or classify certain items of
expenditure, not to be included for the purpose of pro-rata
calculation but the same should be calculated for apartment
owner basis" and since Bye-laws Rule No.50 clearly says that
"No action against the association, any members of the
managing committee or any apartment owner shall lie in any
forum or court of law for any bonafide action taken, in
accordance with these Bye-laws" and since Bye-laws Rule
No.49 clearly says that "if any dispute arises in the
24 OS.No.3360/2015
interpretation of any provisions of this Bye-laws, the decision
of the Managing Committee is binding on all the apartment
owners and the residents, subject to review of the same by
the General Body, if so required" then on these grounds also
it has to be held in unequivocal terms that the Resolution
No.1 passed in the General Body Meeting of defendant No.1
dated 17.3.2013 and so also the Resolution No.4 & 5 dated
1.1.2013 and 1.1.2014 are rather binding on the plaintiffs
and as such the suit of the plaintiffs is barred by law of
limitation.
24. So in view of the discussion made above, I am of
the opinion that since the plaintiffs have failed to prove that
the alleged Resolution No.1 dated 17.3.2013 and so also the
Resolution No.4 & 5 dated 1.1.2013 and 1.1.2014 are illegal,
null and void with cogent material evidence and since the
defendants have proved that since the plaintiffs have
accepted the registered deed of declaration dated 5.9.2007
including the Bye-laws and since the plaintiffs have not at all
challenged the provisions of the Bye-law particularly Rule
No.28(1) including its proviso which enabled the General
Body to take appropriate decision to calculate and levy
general maintenance charges, pro-rata and cost of other
25 OS.No.3360/2015
facilities according to the measurements/consumption wise
then the suit of the plaintiffs is not at all maintainable in law
with cogent material evidence and since the materials placed
on record by the plaintiffs i.e., the Rule No.50 of the Bye-laws
one attached to the Deed of declaration of Ex.P2 clearly
shows that no action against the association shall lie in any
forum or court of law and since Rule No.48(2) of the said Bye-
laws clearly shows that any dispute between the apartment
owners and the Association may be referred to the Managing
Committee to be forwarded to the Competent Authority for
redressal and since Section 3(i) of the Karnataka Apartment
Ownership Act, 1972 clearly says that 'Competent Authority'
means the Registrar of Co-operative Societies as defined in
the Karnataka Co-operative Societies Act, 1959 then the
present suit of the plaintiffs is at all maintainable before this
court and as such the plaintiffs are not at all entitled to any
reliefs as sought by them and accordingly I have answered
issue No.1 & 2 in the negative, issue No.3 in the affirmative
and issue No.4 in the negative.
25. Issue No.5:- In view of the discussion made on
issue No.1 to 4 and further holding issue No.1 & 2 in the
26 OS.No.3360/2015
negative, issue No.3 in the affirmative and issue No.4 in the
negative, I proceed to pass the following order:-
ORDER
The suit of the plaintiffs for the relief of declaration and permanent injunction against the defendants is hereby dismissed.
In view of the peculiar circumstances, the parties are directed to bear their own cost.
Draw a decree accordingly.
(Dictated to the judgment writer on computer, corrected and then pronounced by me in the open court, on this the 3rd day of February, 2020).
(R. Ravi), XVII Addl. City Civil & Sessions Judge, Bengaluru.
ANNEXURE List of witnesses examined for plaintiffs:
P.W.1 Tamojoy Mitra PW.2 Venkata Jagan Mohan Rao Tarigoppula PW.3 Sharad Julka PW.4 Krishna PW.5 Chandradhud
List of documents exhibited for plaintiffs:
Ex.P1 G.P.A. dated 30.3.2015 Ex.P2 Certified copy of Deed of Declaration Ex.P3 Minutes of Special GBM dtd.25.5.2008 27 OS.No.3360/2015 Ex.P4 Minutes of Special GBM dtd.1.11.2009 Ex.P5 Minutes of Special GBM dtd.1.11.2010 Ex.P6 Minutes of Special GBM dtd.1.11.2011 Ex.P7 Minutes of Special GBM dtd.1.11.2012 Ex.P8 Minutes of Special GBM dtd.17.3.2013 Ex.P9 Minutes of Special GBM dtd.1.11.2014 Ex.P10 Minutes of Special GBM dtd.11.2.2015 Ex.P12 & 13 2 Postal acknowledgements Ex.P14 Certified copy of representation letter dated 24.8.2014 List of witnesses examined for defendants:
DW.1 V.R.Shenoy List of documents exhibited for defendants:
Ex.D1 Copy of Minutes of Special GBM dtd.16.3.2014 Ex.D2 Copy of resolution Ex.D3 Copy of maintenance project of 2015-16 XVII Addl. City Civil & Sessions Judge, Bengaluru.