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2022 Supreme(Bom) 1663
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sandeep K. Shinde, J.
Bharatiya Bhavan Co-operative Housing Society Ltd. – Petitioners
Versus
Mrs. Krishna Harinarayan Bajaj - Respondents
Writ Petition No.6082 Of 2006
Decided On : 15-12-2022
For the Petitioners: Mr. Shardul Singh, i/b Ms. Swapnila Rane.
For the Respondents: Ms. Sonal, i/b Mr. Ali Kazmi and Mr. Vivek M. Sharma, Mrs. M.S. Bane, Mr. E.B. Sivakumar, a/w Ms. Swati Rane.
Negligence in maintenance of property and breach of contractual obligations led to the entitlement of the Disputant to recover costs and damages, while also denying the Society the right to recover maintenance charges.
Headnote:
JUDGMENT : Negligence - Maintenance of Property - MMC Act, 1988 - BMC Act - Society - Disputant - Recasting of 8th Floor Terrace - Damages - Maintenance Charges - [Sections 354, 73, 74 of the BMC Act, 1988] - The judgment and award dated 17th July, 2016 passed by the President, Maharashtra State Co-operative Appellate Court, Mumbai in Appeal No.36 of 2006 quashed and set aside. Disputant proved entitlement to recover the amount of Rs. 46,78,562.50 with interest @ 12% pa from September, 2004 till realization. Disputant is entitled to recover damages caused to Suit Flat to the tune of Rs.40 Lakhs with simple interest at the rate 12 % pa from the date of dispute till realization. Society is not entitled to recover maintenance charges from April, 2001 upto December, 2005 in respect of Suit Flats except charges payable to BMC.
Fact of the Case:
The case involves a dispute between a Society and a Disputant Member regarding the maintenance and repair of the 8th floor terrace of the building. The Disputant claimed that the Society neglected to carry out necessary repairs, causing damage to her flats. The Society denied negligence and claimed inability to carry out repairs due to financial constraints.
Finding of the Court:
The Court found that the Society was negligent in maintaining the property and causing damage to the Disputant's flats. The Disputant was entitled to recover the costs incurred for recasting the terrace and damages caused to her flats. The Court also held that the Society was not entitled to recover maintenance charges for the specified period.
Issues: The main issues were whether the Society was negligent in maintaining the property, whether the Disputant was entitled to recover costs for recasting the terrace and damages, and whether the Society was entitled to recover maintenance charges.
Ratio Decidendi: The Court held that the Society's negligence caused damage to the Disputant's property, entitling her to recover costs and damages. The Court also found that the Society was not entitled to recover maintenance charges due to its negligence.
Final Decision: The judgment and award of the Appellate Court were quashed and set aside. The Disputant was entitled to recover the specified costs and damages, and the Society was not entitled to recover maintenance charges for the specified period.
JUDGMENT :
1. This Petition under Article 227 of the Constitution of India takes exception to the judgment and award dated 17th July, 2016 passed by the President, Maharashtra State Co-operative Appellate Court, Mumbai in Appeal No.36 of 2006.
2. The operative part of the impugned judgment and award reads as under:
“1] The impugned Judgment and order under challenge passed by Co-operative Court No. 1, Mumbai, on 15/2/2006 is hereby quashed and set aside.
2] The dispute filed by disputant is hereby decreed as under.
3] The disputant is entitled to recover an amount of Rs. 46,78,562.50/-from opponent society being cost of recasting to overhead terrace of the suit flats along with simple interest at the rate of 12% p.a. from September 2004 till realisation of the amount.
4] The disputant is entitled to recover an amount of damages caused to the suit flats to the tune of Rs. 40/-lakhs with simple interest at the rate of 12% p.a. from the date of dispute till realisation of the amount.
5] It is hereby declared and ordered that society is not entitled to recover maintenance charges of the suit flats except charges payable to B. M. C. right from April 2001 upto December 2005.
6] Parties are directed to bear their own costs.
The trial Court is directed to prepare award accordingly.
Appeal disposed of accordingly.”
3. Petition was admitted on 19th September, 2006. Pending Petition, petitioner-society deposited Rs.1.23 crores. Out of which vide order dated 4.4.2008, respondent-decree holder was permitted to withdraw Rs.73 lakhs and balance amount was directed to be invested in Nationalised Bank by way of fixed deposit. The said order was challnged in SLP; however, it was not interfered with.
4. Briefly stated facts of the case are as under :
For the sake brevity hereinafter, petitioners and the respondents shall be referred to as ‘Society’ and the ‘Disputant Members’ respectively. Petitioner is tenant co-partnership housing society. Its’ building consists of ground and seven floors; with 26 flats. Flat Nos.24 and 25 were held by one, Mrs. Priti Umesh Khimji. Some where on 27th April, 1987, Mrs. Khimji sought permission of the Society to carry out certain repairs.
5. Mrs. Khimji had given Undertaking to the Society stating, if any damage would cause to the Society’s property then, in that event, she would make good such loss or damage at her own cost. The Society permitted Mrs. Khimji to carry out repairs/changes, subject to conditions, more particularly set out in the letter dated 8.6.1987.
6. Somewhere on 30.3.1992, Mrs. Priti Khimji agreed to sell her rights, title and interest in the flat nos.24 and 25 on 7th Floor, with car parking spaces to the Disputant (Respondent) for total consideration of Rs.3.29 Crores. Whereafter, Disputant was admitted to the membership of the Society on 19.7.1992.
7. Flat Nos.24 and 25 are situated on entire 7th floor of the Society’s building and lie directly under Society’s terrace situated on 8th floor, which is exposed to open skies.
8. Disputant’s case is, from the very first monsoon of the year 1992, the time she took possession of the aforesaid flats, she observed the leakage from overhead terrace. Thus, she filed various complaints to the officer bearers of the Society and requested them to carry out necessary repairs to the overhead terrace and to the outer wall so as to stop incessant water seepages into her flats.
9. Disputant would allege that Society made no endeavour to redress her various complaints and allowed the overhead eighth floor terrace to deteriorate. Thus, aggrieved, by the passive attitude of the society and due to leakage during monsoons, she filed complaint with Mumbai Municipal Corporation. Whereafter, on inspection of the said slab, Mumbai Municipal Corporation (BMC for short), issued notice under Section 354 of the MMC Act, directing Society to carry out permanent repairs to the overhead terrace on 8th floor.
10. In the meanwhile, Disputant also filed Dispute, bearing No.518
