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2011(6) ALL MR 546
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ANOOP V. MOHTA, J.
Sai Om Petro Specialities Ltd.
Versus
M Industries
Summons For Judgment No. 383 of 2010 In Summary Suit no. 2853 of 2009
Decided on: 22nd July, 2011.
The bills so raised by the Plaintiff, received or not, is also a matter of dispute and therefore, cannot be the foundation to accept the liability or the claims of the respective heads. The raising of bills based upon the agreement in question, unless proved by leading proper evidence, as the defendant has not admitted or acknowledged the liability, and in fact, apart from the denial, raised the counter claim, cannot be the foundation for such Summery Suit/Summons for Judgment, at this stage of the proceedings itself. Unless the claim based upon each particular, is proved, by supporting documents and/or the material on record, it is difficult to accept the case of the plaintiff that such Summery Suit is maintainable and the Defendant is liable to make the restricted amount with a unagreed interest.
It appears from the averments on record that though the agreement was executed in 2004 with the clauses yet, the occupation certificate was not obtained by the Builder/Promoter when the possession was handed over to the defendant. Some time in the years 2007, the occupation Certificate was granted by the Municipal Corporation. The defendant was in occupation since 5.8.2004 without proper electricity, water and other amenities upto 2007. The case of the Plaintiff that the possession was handed over to them only for interior work and it was never permitted them to use for commercial purpose is again a matter of trial. The defendant as alleged, along with others, unauthorizedly used the said Gala/Unit based upon the agreement, without valid occupation certificate. The plaintiff, therefore, after alleged regularization, in the present Suit, claiming even the share of penalty from the respective defendant/purchaser. The plaintiff has also claimed the service, maintenance and the property taxes paid from time to time, along with the interest on the said amount. The unauthorized occupation and any disputed monetary claim arising out of it, cannot be the subject-matter of such summery suits and the summons for judgment.
In a summary suit as filed, the defendant needs to raise proper defence to oppose such summons for judgment. There is no defence raised in the present case by filing reply to the summons for judgment. Though there is no specific denial/affidavit failed to the summons for judgment based upon the affidavit/documents placed on record itself. The basic points as referred above, are missing in this case. There was no concluded, express or implied contract and/or promise to pay the amount and even if any, the same is not determinable at this stage.
The Plaintiff is a builder/promoter, has filed this Suit for recovery of alleged maintenance charges based upon the bills raised from time to time on the foundation of agreement for sale dated 31 August 2004 (the agreement) between the Developer-Plaintiff and the Defendant the Purchaser individually. The Summons for Judgment is also taken out. Though served, the Defendant has not filed any reply to the Summons for Judgment.
2. The basic case of the Plaintiff/Builder/Promoter is revolving around the agreement. As alleged, the Defendant has purchased an industrial Gala in the Industrial Estate, constructed as Shiva Estate at village Bhandup, Lake Road, Bhandup (West), Taluka Kurla, District Mumbai. The Gala/Unit was intended to sale on ownership basis as contemplated under the Maharashtra Ownership Flats Act, 1963 (The MOFA Act).
3. The Plaintiff, who is a promoter within the meaning of Section 2(e) and as under obligation to execute an agreement for sale of Industrial Gala/Unit, as contemplated under Section 4 of the MOFA Act, has executed the duly stamped registered agreement. The relevant portion of Clause 12 of the agreement reads as follows:
"Until the society is formed and the said land and building transferred to it, the Purchaser shall pay to the Developer such proportionate share of outgoing as may be determined. The Purchaser further agrees that till the Purchaser's share is so determined the Purchaser shall pay to the Developer provisional monthly contribution of Rs.2083/- per month towards the outgoing. The amounts so paid by the Purchaser to the Developer shall not carry any interest and remain with the Developer until a conveyance as executed in favour of the society as aforesaid. Subject to the provision of section 6 of the said Act, on such conveyance being executed the aforesaid deposit (less deduction provided for this agreement) shall be paid over by the Developer to the society as the case may be. The Purchaser undertakes to pay such provisional monthly contribution and such proportionate share of outgoing expenses regularly on the 10th day of each month in advance and shall not withhold the same for any reason."
4. There are various other clauses based upon which the Plaintiff submitted that the Defendant, along with other purchasers, has been enjoying actual possession of the Gala since 5 August 2004, even before the issuance of occupation certificate by the Mumbai Municipal Corporation. The composite bills so raised by the Plaintiff have remained unpaid and therefore, such Summary Suit and Summons for Judgment is maintainable. As per the averments, the occupation certificate was granted by the Municipal Corporation in the year 2007. The water and sewerage charges have been waived.
5. The Suit is based upon the bills of arrears from 2006 only. Those are part of the record. The claim is also made of interest @ 18% p.a. from July 2006. The bills so raised are consist of the following particulars:-
Sr. Particulars
1. MCGM Property Tax 01-12-07 To 31-12-07
2. Service & Maintenance Charges @ 600/- p.m. (01-12-2007 to 31-12-2007)
3. Arrears upto 30-11-2007
4. Interest on arrears @ 21% p.a. On Rs.195168 (01-11-07 to 30-11-07)
5. Penalty @ 10% p.a.
6. Building, Maint. Reserve @ Rs.200/- p.m. Per unit.
6. The Plaintiff, as the Defendant failed to make the payment demanded, inspite of service of those monthly bills, has issued a legal notice on 26/06/2008. The Defendant along with other purchasers/occupiers resisted the said demand by common reply dated 3 July 2008.
7. The Defendant through the common reply to the demand notice contested and raised various grievances about the breaches committed by the Plaintiff, thereby resisted the claim in all respect. The reference was made to the criminal cases pending before the Magistrate, based upon the various provisions of the IPC, as well as, the MOFA Act. There is a counter claim raised to the extent of 3 lacs per Gala, alleging negligence of the Plaintiff.
8. Though there is no
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