2022:BHC-AS:31710 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6082 OF 2006 1. Bharatiya Bhavan Co-operative Housing Society Ltd., having its ofÏce at Bharatiya Bhavan, 72, Marine Drive, Mumbai 400 020.

2. Mr. Sevantilal Jivanlal Parekh, of Bombay, Indian Inhabitant, the Chairman of Petitioner No.1 above-

named, residing at Bharatiya Bhavan, 72, Marine Drive, Mumbai ...Petitioners.

400 020.

//VERSUS//

1. Mrs. Krishna Harinarayan Bajaj, of Mumbai, Indian Inhabitant, residing at Flat Nos.24 and 25, Bharatiya Bhavan, 72, Marine Drive, Mumbai

400 020.

2. The State of Maharashtra. ...Respondents.

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Mr. Shardul Singh, Advocate i/b Ms. Swapnila Rane, Advocate for Petitioners.

Ms. Sonal, Advocate i/b Mr. Ali Kazmi and Mr. Vivek M. Sharma, Advocates for Respondent No.1.

Mrs. M.S. Bane, AGP for State.

Mr. E.B. Sivakumar First Associate a/w Ms. Swati Rane, ASO from OfÏce of the Court Receiver.

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CORAM : SANDEEP K. SHINDE, J.

RESERVED ON : 16TH SEPTEMBER, 2022.

PRONOUNCED ON : 15TH DECEMBER, 2022.

JUDGMENT :

1. This Petition under Article 227 of the Constitution of India takes exception to the judgment and award dated 17^th 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 19^th 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 27^th 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 7^th the Society’s building and lie directly under Society’s terrace situated on 8th floor