Dinesh Monga vs Sh. V.P. Duggal & Ors
2011 Latest Caselaw 3032 Del

35
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*         IN THE HIGH COURT OF DELHI AT NEW DELHI

+         CONT.CAS(C) 430/2011 in W.P.(C) No.3629/2011

          DINESH MONGA                                                        ..... Petitioner
                                           Through:   Mr. A.B. Pandey, Adv.

                                                Versus

          SH. V.P. DUGGAL & ORS                                            ..... Respondents
                        Through:                      Dr.    Subhash     Gupta,      General
                                                      Secretary, Mr. V.P. Duggal, Secretary
                                                      Finance & Mr. J.K. Sharma,
                                                      Advocates.
          CORAM:
          HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                                                ORDER

% 03.06.2011

1. Dr. Subhash Gupta, General Secretary of the Mount Kailash Tower-

III Avasiya Committee appears in person and states that the order dated 25 th

May, 2011 in W.P.(C) No.3629/2011 was served on the Committee on 28 th

May, 2011; that on Monday i.e. 30th May, 2011 an attempt was made to

restore the water supply but the plumber was not available; that the

petitioner was asked to arrange for his own plumber and to also pay arrears

due from him. On enquiry, as to what arrears are due from the petitioner, it

is informed that the petitioner has not paid any common maintenance

charges with effect from July, 2007 and a sum of `1,11,100/- is due from

the petitioner as of 31st May, 2011.

2. The petitioner has as a condition to the order of which contempt is

averred, deposited a sum of `1 lac in the Registry of this Court.

3. It has been put to the counsel for the petitioner that the respondents

cannot be expected to run/operate the common maintenance services in the

building without contribution from all the residents /occupants of the

building and thus the amount of `1 lac lying deposited in this Court would

not enable the respondents to make provision for the services and non-

payment by one resident may affect the facilities to the other residents also.

It has as such been suggested that the amount of `1 lac deposited be allowed

to be released to the respondents subject to further orders.

4. The counsel for the petitioner however states that maintenance

charges at the rate of `1200/- per month only are due; at the said rate from

July, 2007 till 31st May, 2011 a sum of `56, 600/- only is due.

5. Dr. Subhash Gupta responds that besides the maintenance charges at

the rate of `1200/- per month, other charges including towards sinking fund

are also levied on all the residents and who are paying the same and the

same are levied on the petitioner also and the amount disclosed of

`1,11,100/- is inclusive of the said sinking fund. It is explained that the

sinking fund is for incurring capital expenditure on the building from time

to time.

6. The counsel for the petitioner controverts that the sinking fund is

being paid by the others.

7. The counsel for the petitioner on instructions from the petitioner, a

practicing advocate present in the Court states that the petitioner is not

agreeable to the release of the amount deposited and the matter be posted

after vacation.

8. In the circumstances, it is not deemed expedient to allow the

petitioner to benefit in the manner aforesaid by granting any relief of

restoration of water supply as sought. The petitioner, to be entitled to equity

must take a reasonable stand. The stand taken of a litigious nature, does not

behove an advocate of this Court and does not entitle the petitioner to any

relief at this stage. It may be mentioned that the writ petition of order wherein contempt is

averred was filed averring disconnection of water supply by the Delhi Jal

Board (DJB). However DJB stated that disconnection was not by DJB but

by the respondents herein. The same was not controverted by the

petitioner. In such state of affairs, the writ petition was not even

maintainable to resolve private disputes between petitioner and respondents

and indulgence appears to have been shown to the petitioner by issuing

notice of writ petition and directing restoration of water supply on deposit of

money in Court. However the petitioner, by taking such unreasonable

stand, appears to be misusing the indulgence shown to him. Sinking fund is

collected with respect to all apartments/condominiums; while monthly

maintenance charges are prorata share of recurring common maintenance

expenses, the sinking fund is for contingencies like replacement of

elevators, generators, pumps etc.--without such collection, the Association

will have no funds to meet such sudden common expenditures.

9. Reply be filed within four weeks. Rejoinder, if any be filed before

the next date of hearing.

List on 25th July, 2011.

RAJIV SAHAI ENDLAW, J JUNE 03, 2011 bs..