Bharatiya Bhavan Co-Operative ... vs Krishna Harinarayan Bajaj And Anr
2022 Latest Caselaw 13060 Bom

                                     1                   WP.6082.2006



        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
         office 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.

                          -----
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 Office of the Court Receiver.
                          -----


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                                    2                        WP.6082.2006



               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

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

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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

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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 7 th

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 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


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                                  5                     WP.6082.2006

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 of 1999 in the first Co-operative Court ('First Dispute'

for short) against the Society. Pending dispute, Judge, Co-

operative Court vide order dated 22.2.2000, directed Society to

carry out permanent water-proofing repairs to overhead

terrace.

11. Disputant would allege, that even after aforesaid order

dated 22.2.2000 and notice dated 27.4.2000 issued by the

BMC, Society deliberately neglected and failed to carry out any

repairs to the overhead terrace, which had not only affected

Disputant's flat, but also damaged furniture, fixtures, interiors,

and structural elements of the building on account of huge

water seepage and severally led to corrosion of the structural

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steel present in the said slab.

12. Thereafter, Disputant again complained to BMC.

Whereupon, notice dated 12.1.2001 was issued under Section

354 of the BMC Act, thereby giving the Society one final

opportunity to carry out permanent repairs to the overhead

eighth floor terrace.

13. Disputant would allege that society again chose to

neglect notice issued by the BMC and thus, BMC was

constrained to give permission to Disputant on 25.1.2001, to

carry out water-proofing repairs to the overhead eighth floor

terrace.

14. It is Disputant's case that the society instead of

allowing her, to carry out the said repairs, chose to file Suit

No.851 of 2001 in the City Civil Court, Bombay. Whereupon,

learned Judge, City Civil Court, Bombay, vide order dated

16.4.2001, directed the Society to carry out permanent repairs

to overhead eighth floor terrace, and outer walls of the

Disputant's flats and directed to complete the said work on or

before 10.6.2001.

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                                7                     WP.6082.2006

15. It is Disputant's case that respondent-society was fully

aware that the entire slab above 7th floor would require re-

casting which could not be rectified by mere water-proofing

repairs, in terms of opinion that had been given by M/s.

Mahimpura Consultants, Society's own Structural Engineers.

Even then, under the pretext of re-casting of 8 th floor slab,

Society removed false ceiling of Disputant's flat and put up

wooden props over the flat area. Although Society was under

obligation to recast the slab on or before 10.6.2001 in terms of

the order of the City Civil Court, Society neglected to take any

further steps in spite of putting props in half of her flats and

making the said area completely inhabitable for her and her

family members.

16. In light of the abovesaid approach, Disputant filed

contempt notice of motion no.4565 of 2001 in the City Civil

Court, Bombay, against the Society.

Reply of the Society in Contempt Motion

17. The Society denied that they have committed wilful

disobedience of the order dated 16.4.2001. Society contended

that at the time of passing of order on 16.4.2001, the Society

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as well as the learned Judge, who had personally visited the

premises and then passed the order was of the view that

repairs were to be carried out to the Suit Premises. That, in

pursuance of the order, Society had employed the architect.

However, when the work was undertaken, new things came to

the notice of the architect, which was not within the knowledge

of either of the parties. Thus, contended when coba of terrace

between 7th and 8th floors were removed for water-proofing and

ceiling was partially removed, it was revealed that entire slab

was in damaged condition and could not be repaired by way of

water-proofing. As such, architect opined that whole slab will

have to be re-casted and for that purpose, permissions will

have to be obtained from the authorities. Thus, upon realising

the difficulty, Society decided to carry out the work after

monsoon. To that end, Society applied for repair permission.

Besides, Society contended, that re-casting would cost around

Rs.10 Lakhs and that the Disputant being in arrears of

maintenance charges since July, 2000, unless Disputant would

pay the arrears, it was not possible to carry out the repairs. As

such, Society expressed its inability to carry out the repairs.

18. The Contempt Motion was disposed of by the learned

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Judge vide order dated 30.4.2002, by which the earlier order

dated 16.4.2001 inter-alia permitting society to carry out

repairs to overhead terrace was set aside and disputant was

granted liberty to carry out the repairs after obtaining

necessary permission from the BMC, if required under the law.

19. The learned Judge found, the Society had not, wilfully

disobeyed the order dated 16.4.2001 and, therefore, relief

seeking to initiate contempt against the society was refused.

20. In the interregnum on 9.7.2002, Disputant filed the

Dispute bearing no.185 of 2002 (Second Dispute) in the First

Co-operative Court inter-alia to claim the sum of monies to be

spent towards the repairs to be undertaken by her to 8 th floor

terrace and other related structural repairs in view of the order

dated 30.4.2001.

21. Feeling aggrieved by the order granting liberty to the

disputant to carry out the repairs, the Society filed an Appeal

From Order No.641 of 2002 in this Court.

22. It appears, few suggestions from the Court resulted in

the parties coming to amicable settlement atleast in so far as

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the controversy relating to casting slab on the top of the 7 th

floor and thus, on 24.9.2002, this Court passed the following

order:

"Heard forthwith.

2. Without going into the controversy the entire issue can be decided by the present order. The matter pertains to casting slab on the top of the 7 th floor. A few suggestion from the Court has resulted in the parties coming to an amicable settlement atleast in so fa as the present controversy is concerned. Hence, the following order:-

(i) The Registrar of this Court to appoint a Valuer from the Panel maintained for the purpose of carrying out the work of casting the slab.

(ii) The Respondent No. 2 will carry out the work as recommended and advised by the Structural Engineer initially at her own cost. It will be open to the respondent No. 2 to claim recovery from the Appellants if in law so entitled to.

(iii) It is open to the Appellants and Respondent No. 2 to give their suggestions through their Architect/Engineer to the Structural Engineer to be appointed for the purpose of carrying out the work. The Structural Engineer will bear in mind the suggestions before allowing the Respondent to carry out the work.

(iv) The cost of commission will be borne equally by the Appellants and respondent No. 2. The entire work to be completed within four months of the Appellants obtaining permission for casting the slab/repairs.

Liberty to the parties to apply if permission has not been applied for and obtained within a period of two months from today.

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Appeal From Order disposed of accordingly. No order as to costs.

Parties to act on an ordinary copy of the order duly authenticated by the Sheristedar/Personal Secretary of this Court."

23. That, in view of the consent order dated 24.9.2022

passed, by this Court in AO NO.641 of 2002, M/s. Parlekar and

Dallas were appointed as structural engineer/valuer by the

Registrar of the High Court, by consent of both the parties to

supervise the work of casting.

24. In January, 2004, work of re-casting of 8 th floor terrace

was commenced by the contractors of Disputant under the

supervision of M/s. Parlekar and Dallas and Co-supervision of

the Structural Engineer of the Society, and completed in

December, 2005.

25. Disputant claims, that she had incurred an

expenditure of Rs. 46,78,562.50 paise for the said re-casting

and allied work. She affected the said payment, which was

ratified by M/s. Parlekar and Dallas. Disputant claimed that

respondent-society, all throughout was kept informed about

the said expenditure incurred by her, Society never raised any

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objection to it.

26. Disputant after completion of said work of re-casting

moved the second amendment application in the Dispute

No.185 of 2002, whereby she claimed a specific amount of Rs.

46,78,562.50 paise alongwith interest from the Society, which

had been spent by her for re-casting and its allied repairs. The

amendment was allowed and parties to the dispute were

allowed to file fresh documents and lead fresh evidence in the

said dispute.

27. The learned Co-operative Court framed 14 issues

amongst which following two issues are relevant, to decide

controversy.

1. Whether the Disputant proved that she was entitled to

recover the amount of Rs. 46,78,562.50 paise expended

for re-casting 8th floor slab, as certified by the Structural

Engineer appointed by the High Court, from the Society

with interest at the rate of 21% p.a. ?

2. Whether Disputant proves, that due to negligence on the

part of opponent Society, there were heavy leakages to

the Disputant's flats from the overhead terrace, which

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caused damage/loss to furniture, fixtures, paintings worth

Rs.51 lakhs ?

28. The learned Judge, Co-operative Court dismissed the

dispute by Judgment and Award dated 15.2.2002 on the

following grounds;

i. that, for want of leave under Order II Rule 2 of the CPC

for omitting to claim damages while instituting the first

dispute, Disputant could not have sued the Society in

respect thereof, in the second dispute i.e. 185/2002,

inasmuch as whole claim arose out of one and the same

cause of action;

ii. that, extensive additions and alterations including

removal and re-building of 90% of internal walls carried

out by Mrs. Priti Khimji-(predecessor-in-tile of the

Disputant) and further alterations by Disputant in a quite

old building caused damage to the structure for which

Society cannot be held responsible;

iii. that, the disputant failed to prove that negligence on part

of the Society, caused damage to overhead 8th floor

terrace, causing damage to furniture, fixtures and

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interiors in the flats.

29. The said Judgment and Award dated 15.2.2002 was

carried in appeal by the Disputant-member, before the

Maharashtra State Co-operative Appellate Tribunal Mumbai.

30. The learned Appellate Court, vide judgment and award

dated 18th July, 2006 held thus;

(i) Dispute was not barred by Order 2 Rule 2 of the CPC;

(ii) Disputant has proved her entitlement to recover the amount of Rs. 46,78,562.50 with interest @ 12% pa from September, 2004 till realisation;

(iii) 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 realisation;

(iv) That Society is not entitled to recover maintenance charges from April, 2001 upto December, 2005 in respect of Suit Flats except charges payable to BMC;

31. Feeling aggrieved by the judgment and award passed

by the Maharashtra State Co-operative Appellate Court

Mumbai, Society has preferred this Writ Petition.

32. As stated, Writ Petition was admitted on 19.9.2006.

Pending Petition society deposited Rs.1.23 Crores in this Court

out of that amount respondent was permitted to withdraw Rs.

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                                 15                     WP.6082.2006

73 lakhs and balance amount has been invested in fixed

deposit with Nationalised Bank.

33. Heard learned counsel for the Parties. Perused the

evidence.

34. Well, before adverting to the arguments of Counsel for

the respective parties, it may be stated that this Court, in

exercise of its power of superintendence, can interfere in

findings of facts, only, when there has been a patent perversity

in the orders of Tribunals and Courts sub-ordinate to it or

where there has been a gross and manifest failure of justice or

basic principles of natural justice have been flouted. As such, in

exercise of its power of superintendence, High Court cannot

interfere to correct mere errors of law or fact or just because

another view than the one taken by the Tribunals or Courts

subordinate to it, is a possible view. Herein findings of the Trial

Court and the Appellate Court are at variance and conflicting.

Therefore, it is but, essential to re-look at evidence, to

ascertain whether findings on the following points were

perverse, warranting interference;

i. whether evidence admits that, damage caused to

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overhead 8th floor terrace slab of the Society's building

was due to extensive alterations/additions carried out by

the Disputant and/or her predecessor or whether slab

deteriorated over the period of years for want of its

timely maintenance by the Society?

ii. whether the damage caused to furniture and fittings and

interiors in the Flat No.25/26, of the Disputant, was due

to negligence on the part of the Respondent-Society to

repair overhead 8th floor terrace?

iii. whether the Respondent/Disputant, has proved her

entitlement to recover costs of Rs.46,78,562/- with

interest at the rate of 21% till its realization from the

Society?

35. The Trial Court categorically held, that extensive

additions, alterations including removal and re-building of

95% of internal walls, carried out by Mrs. Preeti Umesh Khimji,

(predecessor-in-title of the Disputant) and further alteration

by Disputant in quite old building, caused damage to the

structure and therefore, Society cannot be held responsible.

The Trial Court further held that Disputant failed to prove

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negligence on the part of the Society resulted into and caused

damage to furniture and fixtures and interiors in the flats. The

Appellate Court in appeal reversed both the findings and held

that Disputant has proved to recover the cost incurred by her

for recasting of slab from the Society with interest at the rate

of 12% per annum and further held that Disputant Member is

entitled to recover Rs.40,00,000/- towards damages with

interest at the rate of 12% per annum from the Society.

Therefore, core issue is, who caused the damage to the

overhead terrace on the 8th floor of the building? Whether the

Disputant Member or whether it was due to negligence on the

part of the Society. Because, this issue has been answered by

the Appellate Court, contrary to the Trial Court's answer, I

deem it appropriate to answer this issue first.

Discussion

36. Initially, the building of the Society consisted of

ground and five floors. In the year 1971 and in 1972, two

additional floors were constructed. Mrs. Preeti Khimji, was the

Member of the Society and owner of Flat Nos.24 and 25 on

the 7th Floor (top most floor) of the building. She sold these

two flats to the Disputant vide agreement for sale dated 30th

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March, 1992. Whereafter in July, 1992, the Disputant occupied

these two flats. Evidence admits that, in the month of April,

1987, Mrs. Preeti Khimji - erstwhile owner of the flats, sought

permission from the Society to carry out the repairs of the

following nature:

(i) Extensive additions, alterations including removal and re- building of 95% of internal walls. (emphasized)

(ii) Removal, waterproofing and reconstruction of toilets. (emphasized)

(iii) Enclosing of Balconeys. (emphasized)

(iv) Blocking of one or two windows and finishing them with plaster. (emphasized)

(v) Making new window opening and providing operable windows. (emphasized)

(vi) Removal, waterproofing and reconstruction of the open terrace at the rear of my flat for the purpose of landscaping.

(vii) Construction of planter bags in rooms and landscaping on the terrace.

(viii) Removal of existing electrical wiring, installation and providing new.

(ix) Construction of plaster of paris false ceiling in the entire apartment.

(x) Painting of internal walls and external walls and ceiling.

37. Whereafter, on 8th June, 1987, the Society granted

permission to carry out the above repairs, alterations and

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additions in Flat Nos.24 and 25 upon certain terms and

conditions. It appears that the erstwhile owner of the flats had

given undertaking that she would not cause nuisance to the

Members while making additions and alterations in the said

flats and will make good if loss or damage caused to the

building of the Society at her cost. It is also not in dispute that

Mrs. Preeti Khimji amalgamated Flat Nos.24 and 25. Thus, it

could be seen from the above facts that Mrs. Preeti Khimji had

carried out substantial structural alterations and additions in

the flats by re-building 95% of internal walls; blocking of one

or two windows; making new window opening and enclosing

balconeys. In any case, evidence, confirms, the Disputant,

after taking possession of the flats in July, 1992, noticed a

seepage/leakage in Flat Nos.24 and 25 from the overhead

terrace and thus vide letter dated 30th July, 1992, requested

the Society to take remedial steps at the earliest. However,

Society did not take its cognizance. Therefore, Disputant,

again vide letter dated 11th August, 1992, complained about

grave leakage problem in one of her bedrooms due to huge

crack in side wall of her flat. It was followed by written

complaints' on 17th November, 1993 and 25th April, 1994. The

complaint dated 25th April, 1994 clearly conveys, that the

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Society overlooked Disputant's request. However, since

monsoon was approaching fast, the Disputant was willing to

get the terrace tarred, as a temporary solution to overcome

the leakage problem. The Disputant's evidence shows the

letter dated 25th April, 1994 was followed by not less than 7 to

8 written complaints; yet the Society did not pay heed nor

had taken remedial measures to stop the leakage and/or to

repair the overhead terrace on the 8 th floor. On the contrary,

in the Annual General Meeting held on 25 th January, 1998,

Society resolved not to attend any repair work to the Society's

building above 5th floor. Under these circumstances, in

November-December, 1998 and February, 1999, the

Disputant complained about inaction of the Society, to the

BMC in respect of leakage into her flats. Whereupon, the BMC

issued a notice on 4th December, 1999 and directed the

Society to carry out repair and submit Structural Audit Report.

Pursuant thereto, the Society engaged M/s. Mahimtura

Consultants Pvt. Ltd. to submit the Structural Audit Report.

Consultants opined, that overhead terrace slab was heavily

deteriorated, the steel area in the same had corroded and

reduced in size to great extent and therefore, advised to

recast the slab altogether (emphasis supplied). In spite of it,

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Society did not bother to carry out waterproofing work and

therefore, Disputant requested BMC to grant her permission

to carry out the waterproofing work.

38. Responding thereto, on 25th January, 2001, the BMC

granted permission to Disputant to carry out waterproofing

work to terrace on the 8th floor level, as the Society had failed

to carry out repairs. The validity of this permission was

questioned by the Society in the suit, contending that the

Disputant has no right to carry out the repairs on the 8 th Floor

terrace slab, as it is the property of the Society. Rather,

Society had shown its willingness to carry out repairs. In view

of the said circumstance, learned Judge of the City Civil Court

visited the site on 13th April, 2001 and further by order dated

16th April, 2001 observed that "there is a leakage to the 7 th

floor. The leakage on clear perusal to a layman as well, would

indicate that this leakage is not man-made leakage, but it is

on account of natural forces". As such, Society was directed

to carry out the repairs at its own costs. Thereafter, the

Society, caused the false ceiling of Disputant flat opened and

the terrace slab was supported by props. But, Society did not

carry out the repair work, on the pretext of obtaining the

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permission from various authorities. Under the circumstances,

the City Civil Court, vide order dated 30th April, 2002,

recorded a prima facie finding that Society had no bona fide

intention to resolve the grievance of the Disputant in respect

of repairs and held that the Disputant was at liberty to carry

out the repair by obtaining necessary permissions from BMC.

The Society being aggrieved by the permission granted, by

the Court to the Disputant to repair the terrace, preferred an

Appeal from Order in the High Court. In the appeal from order

proceedings, this Court permitted the Disputant to carry out

the work, as recommended and advised by a panel Structural

Engineer, initially at her cost; and clarified that it will be open

to the Disputant to claim the recovery from the Appellant, if in

the law so entitled. The Disputant accordingly in consultation

with the M/s. Parlekar and Dallas carried out the repair of

recasting on the 8th floor terrace slab and bore the costs of

Rs.46,78,562/-. The repair began in June 2004 and completed

in 2005.

39. Thus, it could be seen from the above facts that the

Society's structural consultant M/s. Mahimtura opined that

overhead terrace slab was heavily deteriorated and steel area

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in the same had reduced in size to great extent due to

corrosion. The report of M/s. Mahimtura, being opinion of

experts and not disputed by the Society, it could be said and

held that the overhead slab was deteriorated due to reduction

in the size of steel area due to corrosion over a period of

years and therefore, damage to it, was not attributable to acts

and omissions at least to the Disputant. Evidence, convey,

that, Disputant started occupying the flats in July, 1992 and

soon thereafter, on 30th July, 1992, she wrote a letter to the

Society complaining seepage from her overhead terrace.

Moreso, there is no evidence on record suggesting, after

Disputant purchased flats in March, 1992, she had carried out

extensive alterations/additions in the flats. On the contrary,

evidence, in no uncertain terms, suggest, the predecessor-in-

title of the Disputant, had carried out extensive structural

repairs in the flat by re-building 95% of internal walls, which I

have highlighted above. Now, whether such structural

alterations and additions made by the predecessor of the

Disputant aggravated and/or triggered the degeneration of

the overhead slab or not was a disputed question, but has not

been addressed by the Trial Court. Nonetheless, the fact

remains the evidence on record does not suggest damage to

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overhead terrace slab, was attributable to acts and/or

omissions of the Disputant.

40. On the contrary, the evidence led by the Disputant,

has proved that the Society at every possible occasion

avoided and/or neglected to carry out the repair to the

overhead terrace on 8th floor. Not only that, but as and when

the Disputant was permitted to carry out repair by BMC or

under the Court's orders, it was objected to by the Society by

filing the Suit and Appeals, yet did nothing. Above all,

Society's attitude was visible from the resolution, passed in its

Annual General Meeting on 25th January, 1998, wherein it was

resolved not to attend any repair work to the Society's

building above 5th Floor.

41. As such, Society's deliberate avoidance and

negligence to repair its property, i.e. the overhead terrace on

the 8th floor was very much visible and has been proved by

the Disputant. Therefore, the finding recorded by the Trial

Court, that Society was not negligent in carrying out the

repair work to the overhead terrace, but the acts of the

Disputant and her predecessor-in-title had caused damage to

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the overhead terrace on the 8th floor is not only erroneous, but

was perverse. On the other hand, the finding recorded by the

Appellate Court that the Society was negligent in maintaining

its property and attributing the lapses to the Society in

discharging their duty to repair/maintain the overhead terrace

on 8th floor, cannot be faulted with.

42. For all abovesaid reasons, I hold that the finding,

recorded by the Appellate Court, that sheer negligence of the

Society caused damage to the overhead terrace on the 8 th

floor, calls for no interference.

43. The next question that arises is, whether the Disputant

is entitled to recover the costs incurred by her in recasting the

overhead slab on 8th floor. Having regard to the finding

recorded by the Appellate Court that overhead terrace being

the property of the Society and the Society having overlooked

report of its own Structural Engineer coupled with the lapses on

its' part to take the cognizance upon various complaints, made

by the Disputant and its approach towards issue even by

avoiding the judicial orders passed by the Co-operative Court

and the City Civil Court, it is to be held that the finding of the

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Appellate Court that Disputant is entitled to recover the costs

of Rs.46,78,562/- from the Society at the rate of 12% per

annum, calls for no interference. In any case, the amount

expended by the Disputant for recasting the slab was certified

by the structural engineers appointed by the High Court. The

evidence has proved that the amount so expended was paid by

the Disputant through bank. The overhead terrace being the

property of the Society, but having failed to maintain and

repair the same and further Disputant had expended

Rs.46,78,562/- for its repairs, she is entitled to recover it from

the Society, with interest at the rate of 12% per annum.

44. The next question is, whether the impugned Judgment

awarding damages to the Disputant, in the sum of

Rs.40,00,000/- with simple interest at the rate of 12% per

annum from the Society, calls for interference?

45. Sections 73 and 74 of the Contract Act, 1972 ('said

Act' for short), contain provisions, relating to breach of

contractual obligations. Section 73 of the said Act, deals with

damages arising from breach of a contractual obligation,

resulting in losses to the aggrieved party. Under this Section,

Vijay 27 WP.6082.2006

the damages, that are awarded to the aggrieved party, are in

the nature of unliquidated damages, upon assessment of loss

and injury suffered and does not compensate for indirect or

remote losses, arising from such breach. Thus, for awarding

damages, regardless of the extent of damages, there must be

a breach of contract before damages can be claimed. In the

case at hand, the Disputant claims that her furniture, fixtures,

fittings and interiors in the flats got damaged due to heavy

seepage from overhead terrace. The overhead terrace is the

property of the Society and it is obligation of the Society to

maintain its property in good condition, in terms of its bye-

laws. The bye-laws of the co-operative society constitutes a

contract between the Society and its constituents.

46. I have concluded hereinabove, that Society neglected

and/or avoided to maintain the overhead terrace on the 8 th

floor and thereby, breached the bye-laws (contract). Therefore,

I hold the Disputant was entitled to claim damages for loss

caused to property, fixtures, fittings, paintings and interiors in

her flats, due to seepage of water from overhead terrace.

However, in order to seek damages, the person making the

claim, must show that he/she has suffered a loss.

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                               28                   WP.6082.2006

47. The Hon'ble Supreme Court in the case of Maula Bux

Vs. Union of India [(1969) 2 SCC 554] held, that the Court is

competent to award reasonable compensation, in case of a

breach even if no actual damage is proved to have been

suffered in consequence of breach of contract. However, the

Hon'ble Supreme Court also held, that in case of breach of

some contracts, it may be impossible for the Court to assess

compensation, arising from breach. In such a case, the sum

named by the parties, if it be regarded as genuine pre-

estimate, may be taken into consideration, as the major of the

reasonable compensation, but not, if the sum named is in the

nature of the penalty. Where loss in terms of money can be

determined, the party claiming compensation must prove the

loss suffered by him.

48. Herein, claim for damages was declined by the Trial

Court; but granted by the Appellate Court. The Disputant

claimed Rs.51,00,000/- damages from the Society, under two

heads; one, Rs.21,00,000/- for damage caused to fittings,

furniture and fixtures in the flats, AND Rs.30,00,000/- on

account of damage caused to extensive painting work,

Vijay 29 WP.6082.2006

paintings and beautification in the flats. The Disputant, to

substantiate the claim of Rs.21,00,000/-, relied on the

agreement dated 30th March, 1992, contending that she had

purchased the furniture worth Rs.21,00,000/- from Mrs. Khimji-

erstwhile owner of the flats. To put it differently, the Disputant

claimed, that consideration for flats paid to Mrs. Khimji, was

inclusive of cost of furniture worth Rs.21,00,000/-, and to that

end, placed on record agreement to sell dated 30.12.1992.

Except that, Disputant did not plead material facts, like kind of

fittings, furniture its' particulars like make, age, and cost of

each of the items, in the plaint. Thus, only evidence produced,

was agreement to sell and nothing more. Even otherwise, the

annexure appended to the agreement listing out furniture

items, did not bear the signatures of the parties. Thus, for want

of pleadings of material facts required to be pleaded in terms

of Order VI of the CPC, the Society could not effectively meet

and/or dispute the claim of the Disputant on this count. Even in

the affidavit of evidence, the Disputant did not describe the

nature and kind of furniture and fittings, purchased by her from

Mrs. Khimji. Insofar as the evidence of Mr. Shailesh Bajaj

(husband of the Disputant) is concerned, he simply produced

the agreement to sell in support of the claim for damages.

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                                30                     WP.6082.2006

Moreover, Disputant did not take pains to examine Mrs. Khimji,

from whom the furniture and fixtures were purchased by her.

In the light of this kind of evidence, finding of the Trial Court

that the Disputant failed to prove that she had purchased

furniture worth Rs.21,00,000/- from the erstwhile owner of the

flats, cannot be said to be perverse.

49. Now, even assuming, the Disputant had purchased the

furniture worth Rs.21,00,000/-, but whether the evidence on

record admits, that said furniture and fixtures were damaged

due to heavy seepage of water from the overhead terrace of

the flat. The Disputant, to prove the factum of damage caused

to the furniture, examined Mr. Sandeep Sikchi. The evidence

reveals, that Mr. Sikchi had visited the flats on or around in

December, 2003 i.e. soon after, it was purchased by the

Disputant. At the material time, he found that there was no

damage to the flat. Thus, evidence of Mr. Sikchi was of no

assistance to the Disputant. In course of the trial, Mr. Agrawal,

was appointed, as a Court Commissioner, to inspect the

Disputant's flat. The Court Commissioner submitted report in

the year 2003. However, report does not support support

Disputant's case, in the sense, the Court Commissioner had

Vijay 31 WP.6082.2006

observed in report, that while re-casting of terrace slab, further

damage will be caused to the walls, windows, door, toilet

paints, fittings, fixtures, false ceiling and also wall paintings,

which are not movable type and which are presently not

damaged. Thus, his report neither assessed kind of damage

caused to property of the Disputant nor quantified amount of

loss suffered. Moreover, it is evident from record, that though

the report was supported with the photographs of the suit flat,

nevertheless, Mr. Agrawal admitted in the cross-examination,

that neither he personally clicked the photographs nor had

gone to take the measurement of damaged portion of the flat.

In that manner, taking into account the evidence of Mr.

Harinarayan Bajaj (husband of the plaintiff), Mr. Agrawal, Court

Commissioner, and Mr. Sandeep Sikchi, in my view, the

Disputant, at the first place, failed to prove, (i) furniture worth

Rs.21,00,000/- was purchased by her from Mrs. Khimji-

erstwhile owner of along with flats, and (ii) cost of interior was

around Rs.30,00,000/-, and further failed to prove by

acceptable evidence, that she had suffered loss due to damage

caused to furniture, fittings, interiors etc. Even otherwise,

evidence indicates, Disputant had noticed seepage from

terrace in June, 2003 i.e. soon after, she purchased the flats. If

Vijay 32 WP.6082.2006

that was the fact, Disputant, as a prudent person, was

expected to take measures to prevent damage being caused to

movable property. Evidence does not indicate any such

measures or precautions were taken by the Disputant. This

renders the Disputant's claim indefinite. Moreover, Disputant

neither examined herself as a witness nor examined interior

decorator to prove factum of damage caused to the property.

All these factors, which had bearing over the issue, were

neither deliberated nor considered by the Appellate Court at

all. That being the case, findings of the Appellate Court on this

count/issue, call for interference. As a consequence, judgment

and order, awarding damages in the sum of Rs.40,00,000/- to

the Disputant, are quashed and set aside.

50. Yet, legality of another finding rendered by the

Appellate Court, that Society is not entitled to recover

maintenance charges of the suit flats, except property taxes,

for the period April, 2001 to December, 2005, is questioned

and challenged in this petition. It appears, Appellate Court was

of the view that, during April, 2001 to December, 2005, since

wooden props were fixed up by the Society in Disputant's half

portion of flat, family members of the Disputant were required

Vijay 33 WP.6082.2006

to stay in the remaining half portion. On this Count, Appellate

Court, held the acts of the Society caused inconvenience to

family members of the Disputant and thus, Society is not

entitled to recover maintenance charges. This finding calls for

interference for want of evidence and therefore, is quashed

and set aside.

51. Having regard to facts of the case and evidence, Court

is of the view, had the Society repaired and maintained

overhead terrace on the 8th floor and Disputant would not have

suffered over a period, since 1992 till date. Indisputably, acts

and omissions of the Society call for interference in Disputant's

rights to live peacefully and enjoy the flats for not less than 14

years. In that view of the matter, though the petition is partly

allowed, it is subject to cost of Rs.2,00,000/-, which would meet

the ends of justice, in the facts and circumstances of the case.

52. Pending petition, Petitioner-Society has deposited

Rs.1,23,00,000/-, out of which, Disputant was permitted to

withdraw Rs.73,00,000/- against the security of flat and

balance amount has been invested in Nationalised Bank by

way of fixed deposits. Now, in terms of this judgment,

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Disputant is entitled to recover an amount of Rs.46,78,562/-

from the Society, with simple interest at the rate of 12% p.a.

from September, 2004 till its realisation. In addition thereto,

Disputant is entitled to recover the cost of Rs.2,00,000/- from

the Society, imposed by this Court.

53. Needless to say, that in view of the findings recorded

by this Court, the security, offered by the Disputant as against

the amount of Rs.73,00,000/- withdrawn by her, stands

released. As such, Registry shall calculate the net amount

payable to the Disputant, if any, above Rs.73,00,000/- and the

balance amount shall be refunded to the Society, subject to

fees of Court Receiver, if any, payable in terms of Bombay High

Court (Original Side) Rules, 1980. Let, this exercise be done,

within four weeks from the date of uploading this Judgment on

the website of this Court.

54. At this stage, the request of learned Counsel for the

Respondent-Disputant to stay the order, directing to refund the

balance amount of the Society, is rejected. Likewise, the

request made by the learned Counsel for the Petitioner to stay

effect of the Judgment for the period of six weeks, stands

rejected.

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                                                         35                     WP.6082.2006

55. Petition is partly allowed and the rule is made absolute

in terms thereof. Petition is disposed of accordingly.

(SANDEEP K. SHINDE, J.)

Digitally Signed By:VIJAY KUMAR Personal Assistant to Hon'ble JUDGE Vijay Signing Date:15.12.2022 19:35