Bombay High Court
Giri Chhaya Co Operative Housing ... vs Sushilsa Laliwala (Since Decd.) on 16 October, 2025
Author: Amit Borkar
Bench: Amit Borkar
2025:BHC-AS:45381
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AGK
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.11466 OF 2023
Giri Chhaya Cooperative Hsg.
Society Limited ... Petitioner
V/s.
Sushila Laliwala (since deceased)
through heirs and legal representatives ... Respondent
ATUL Mr. Ranjit Thorat, Senior Advocate with Ms. Shefali
GANESH
KULKARNI Bhasin and Mr. Mohnish Bhasin for the petitioner.
Digitally signed by
ATUL GANESH
KULKARNI
Date: 2025.10.16
19:19:48 +0530
Mr. Kedar B. Dighe, Additional G.P. with Mr. Hamid
Mulla, AGP for the State.
CORAM : AMIT BORKAR, J.
DATED : OCTOBER 16, 2025
P.C.:
1. The petitioner, a Cooperative Housing Society, has filed this
writ petition to challenge the judgment and order dated 27
January 2023 passed by the Cooperative Appellate Court in Appeal
No.54 of 2022. By the said judgment, the Appellate Court
dismissed the petitioner's appeal and confirmed the order rejecting
the society's dispute for recovery of arrears of maintenance
charges.
2. The facts leading to the present petition are that the
petitioner is a Cooperative Housing Society registered under the
Maharashtra Cooperative Societies Act, 1960. One Smt. Sushila
Laliwala, since deceased, was the owner of Flat No.26 situated on
the fifth floor of the society's building. She was a member of the
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petitioner society and held Share Certificate No.26 bearing
distinctive Nos.126 to 130. Smt. Laliwala passed away in the year
1992. Thereafter, the present opponent, claiming through her as a
legal heir, has been occupying the said flat along with his family.
3. The society, with the approval of its general body, fixed
maintenance charges payable by each member for common
services and amenities, such as repairs, electricity, water supply,
sanitation, lift, insurance, security, audit, and wages of the staff.
The opponent, being a person in possession and claiming through
the deceased member, is legally bound to contribute his
proportionate share of such charges regularly to the society.
4. The society has been issuing quarterly bills for Flat No.26
from time to time. However, the opponent neglected to pay the
same and continued to remain in arrears in breach of the society's
bye-laws and regulations. Despite repeated oral and written
requests, he failed to clear the dues. Consequently, the society
issued a demand notice dated 28 September 2015, calling upon
the opponent to pay arrears of Rs.12,15,141/- with interest at 18%
per annum. As the opponent failed to comply, the society filed a
dispute before the Cooperative Court seeking recovery of the said
arrears.
5. The opponent filed his written statement denying all
material allegations. He contended that the claim was vague and
unsupported by particulars. He argued that the interest claimed
was excessive and disproportionate, being higher than the
principal amount. He stated that he had been paying maintenance
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to the society from time to time through a Hindu Undivided Family
account. He further contended that the dispute was hopelessly
barred by limitation and therefore liable to be dismissed with
costs.
6. This Court issued notice to the respondent on 22 April 2024.
The office report dated 18 July 2025 records that the respondent
was duly served through the Court. However, despite service, the
respondent did not appear. The writ petition is therefore being
decided on merits.
7. Learned Senior Advocate Mr. Thorat, appearing for the
petitioner, submitted that the respondent has been in physical
occupation of the flat since 1992 and continues to enjoy all
amenities and facilities of the society without paying any
maintenance. He contended that under Section 92(1)(b) of the
Maharashtra Cooperative Societies Act, 1960, the Courts below
ought to have allowed the society's claim for recovery of arrears
from 2009 onwards, since the dispute was filed in 2015 and was
therefore within the six-year period of limitation. He submitted
that the rejection of the entire claim on the ground of limitation
under clause (b) of Section 92(1) was erroneous and
unsustainable. He accordingly urged that the dispute be allowed.
8. Having considered the record, the submissions advanced,
and the findings of the Courts below, it is clear that the reasoning
adopted by the Cooperative Court and the Appellate Court suffers
from a legal error in interpreting Section 92 of the Maharashtra
Cooperative Societies Act, 1960. Both the Courts proceeded on an
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incorrect assumption that the society's dispute for recovery of
arrears of maintenance charges was barred by limitation under
Section 92(1)(b).
9. The opponent has been in uninterrupted occupation of the
premises since 1992 and has enjoyed the amenities and services of
the society. The society has been issuing quarterly bills regularly.
The opponent has not disputed receipt of such bills. The liability to
pay maintenance, though recurring, continued to arise every
billing period. Thus, the cause of action for recovery of
maintenance charges was continuous and recurring so long as the
opponent continued to occupy the flat and use the common
services.
10. The society, however, restricted its claim to arrears from
2009 onwards and filed the dispute in the year 2015. Even if one
were to assume that limitation under Section 92(1)(b) applies, the
claim from 2009 is within the period of six years prescribed
therein. Therefore, the society's dispute could not have been
rejected as time-barred.
11. The approach adopted by the Cooperative Court and the
Appellate Court overlooks the fact that Section 92 is a special
provision of limitation which overrides the Limitation Act. The
intention of the Legislature is to protect genuine claims of a society
for recovery of its dues from members or their successors in
interest. Once it is shown that the opponent continues to occupy
the flat and enjoys common facilities, he cannot resist payment on
a technical plea of limitation.
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12. The record shows that the opponent has been enjoying all
services of the society such as water supply, lift, security, cleaning,
and other common amenities. Despite repeated demands and
notices, he has failed to pay any amount towards maintenance. A
person claiming through a member and residing in the society
premises cannot evade payment of his proportionate share of
maintenance, as that would amount to unjust enrichment at the
cost of other members.
13. The society has produced copies of the quarterly bills and the
demand notice dated 28 September 2015, which clearly establish
the amount due. The opponent has not produced any material to
show payment of the claimed amount or any part thereof. The
defence taken in the written statement is bald, unsupported by
proof, and contrary to the record.
14. The objection that the interest claimed is excessive or that
the society has charged compound interest is not a ground to deny
the principal liability. The Cooperative Court, at the most, could
have modified the rate of interest, but it could not have dismissed
the entire claim.
15. In the absence of any evidence of payment, and considering
the statutory duty of every member or person claiming through a
member to contribute to maintenance under the bye-laws of the
society, the opponent is liable to pay the maintenance charges
claimed from the year 2009 onwards along with reasonable
interest.
16. The findings of the Cooperative Court and the Appellate
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Court that the dispute is barred by limitation are therefore
unsustainable. Both orders are set aside. The dispute filed by the
petitioner-society stands allowed.
17. The opponent is directed to pay to the petitioner-society
arrears of maintenance charges of Rs. 12,15,141/- from 1 January
2009 till 31 December 2015 as claimed in the dispute, with
interest at the rate of 9% per annum from the respective dates of
default until realization. The society shall be entitled to continue
to recover regular maintenance charges for subsequent periods in
accordance with its bye-laws.
18. Rule is made absolute in the above terms. No order as to
costs.
(AMIT BORKAR, J.)
