M/S. Vortex Facilities ... vs M/S Varindera Constructions Ltd.
2018 Latest Caselaw 7204 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 766/2017

%                                                   6th December, 2018

M/S. VORTEX FACILITIES MANAGEMENT PVT. LTD.
FORMERLY KNOWN AS M/S ISKON BUILDCON PVT. LTD.
                                           ..... Appellant
                   Through: Mr.     Sandeep       Sharma,
                            Advocate with Mr. Aman
                            Dhyani, Advocate (M. No.
                            9717464364).
                          versus

M/S VARINDERA CONSTRUCTIONS LTD.
                                                       ..... Respondent

                          Through:     Mr. Pankaj Batra, Advocate (M.
                                       No.9810036745).

CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not? YES


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit

impugning the Judgment of the trial court dated 18.10.2016 by which

the trial court has, by exercising powers under Order VII Rule 11

CPC, rejected the plaint filed by the appellant/plaintiff for recovery of

an amount of Rs. 22,87,312/- against the respondent/defendant, a

company known as M/s Varindera Constructions Ltd. The suit amount

claimed is towards maintenance charges of the multi-storeyed

complex in which two flats are owned by the respondent/defendant.

The multi-storeyed building in question is located at Silverton Project,

Sector 50, Gurgaon. The respondent/defendant owns two units bearing

nos. 404 and 405 and the same were purchased by the

respondent/defendant from the developer M/s Sana Realtors Private

Limited as per the 'Developer Buyer Agreement' dated 18.05.2011.

2. The facts of the case are that the appellant/plaintiff filed

the subject suit for recovery of Rs. 22,87,312/- by pleading that the

respondent/defendant being owner of two units bearing nos. 404 and

405 in the subject multi-storeyed apartment complex, was liable to pay

maintenance charges for the common area and facilities, which were

being maintained by the appellant/plaintiff, and that the

respondent/defendant had not paid maintenance charges right from the

inception. After the appellant/plaintiff served Legal Notices dated

10.01.2015 and 16.02.2015 on the respondent/defendant, the subject

suit was filed.

3. The respondent/defendant contested the suit by filing the

written statement. After filing the written statement, the

respondent/defendant filed an application under Order VII Rule 11

CPC for rejection of the plaint on the ground that the suit is barred by

the provisions of The Haryana Apartment Ownership Act, 1983

(hereinafter referred to as 'the Act') alongwith its relevant Rules and

bye-laws as applicable to the apartment owners. The trial court has

rejected the plaint under Order VII Rule 11 CPC by holding that the

Act applies and as per the Act it is the association of apartment owners

who have to provide maintenance facilities and take charges for the

same but since there is no association of apartment owners, and only

such association is entitled to claim maintenance charges, a

maintenance agency such as the appellant/plaintiff cannot claim the

maintenance charges which will be in violation of the provisions of

the Act.

4. The Ld. counsels for both the parties have taken this

Court through the relevant provisions of the Act which define

apartment ownership, common facilities, maintenance of common

facilities by common expenses. Other provisions referred to, pertain to

the apartment owners being liable to pay for the maintenance charges,

all parties to comply with the provisions of the Act and the bye-laws

etc. The most important aspect which was vehemently and strongly

urged on behalf of the respondent/defendant was by placing reliance

upon the provisions of Sections 2, 7, 11, 16, 23 and 24 of the Act to

argue that the entitlement to make a claim for maintenance charges is

only by the association of apartment owners, and in this regard, the

builder is deemed to have filed the necessary declaration at the time of

taking completion certificate under Section 2 of the Act that the bye-

laws which will govern the apartment association have been framed

and shall apply.

5. At the outset, I may note that the impugned order though

rejects the plaint under Order VII Rule 11 CPC, but really it is agreed

by the counsels for both the parties that the trial court has exercised its

powers under Order XII Rule 6 CPC to dismiss the suit. The

impugned judgment therefore will be a judgment dismissing the suit

on merits under Order XII Rule 6 CPC on the ground of existence of

admitted facts that provisions of the Act bar the maintenance agency,

which is not a maintenance agency of the association of apartment

owners, to claim maintenance charges.

6. In my opinion, the trial court has clearly erred in

dismissing the suit, and in fact the application filed by the

respondent/defendant under Order VII Rule 11 CPC was a gross abuse

of the process of law. I say so because the respondent/defendant is an

outright dishonest company who from the year 2011, owns two flats in

the multi-storeyed complex and yet till date despite enjoying all

maintenance facilities and common areas, has not paid a single rupee

towards the maintenance charges of such common areas and common

facilities. It does not lie in the mouth of the respondent/defendant, and

who is the owner of two flats enjoying the benefit of various common

areas and facilities including lifts, water supply etc. to claim that

because of the provisions of the Act the respondent/defendant is not

liable to pay any charges to the maintenance agency being the

appellant/plaintiff although the respondent/defendant is very much

enjoying the maintenance facilities. If the case of the

respondent/defendant is that there is deficiency of service or some

services are not provided or inadequate services are provided or a

particular amount is not payable and only certain amounts are payable,

all these are disputed questions of facts which cannot be decided in an

Order XII Rule 6 CPC application or an Order VII Rule 11 CPC

application.

7. Reliance placed by the respondent/defendant on the

provisions of the Act at the first blush seemed to have merits, but

admittedly, there is no association of apartment owners till date with

respect to the subject multi-storeyed building. In such a situation, if

the other apartment owners are paying the maintenance charges to the

appellant/plaintiff, really it can be taken that the appellant/plaintiff

will be the nominee of all the apartment owners to carry on the

maintenance of the entire complex including incurring necessary

expenses therewith, and such expenses are recovered by the

appellant/plaintiff from the apartment owners. If the case of the

respondent/defendant and as argued before this Court is that the

maintenance agency is claiming illegal charges or the maintenance

agency is earning illegal profits, again these are aspects which are

disputed questions of facts and could not have been decided by the

impugned judgment on an application of Order VII Rule 11 CPC or

for that matter by applying the provisions of Order XII Rule 6 CPC.

8. In my opinion, prima facie, in case there is a maintenance

agency who is providing the maintenance services of the common

areas and facilities, then under Section 70 of the Indian Contract Act,

1872, all such persons who utilize such maintenance services

including the respondent/defendant, and who are not receiving these

services gratuitously, are therefore liable to pay for the same. The

issue with respect to what is the amount which is payable, and not the

amount as claimed by the appellant/plaintiff is a disputed question of

fact which requires trial, and could not have been decided summarily

in favour of the respondent/defendant by the impugned judgment

while dismissing the suit for recovery of moneys towards maintenance

charges. In my opinion, provisions of the Act are no doubt to be

complied with, but in such a scenario when they are not being

complied with, and there is a maintenance agency being the

appellant/plaintiff, which is taking care of the maintenance, and no

other apartment owner has any objection to the maintenance agency

and doing its work, then only one apartment owner who owns two

flats being the respondent/defendant cannot stand up as a complete

owner of the all the flats together to contend that the appellant/plaintiff

should not be carrying on maintenance of the common areas and

facilities and the respondent/defendant is not liable to pay towards

maintenance and common areas and facilities. In my opinion, in fact

prima facie, the entitlement of the respondent/defendant is to get an

association created of the apartment owners of the said multi-storeyed

building and when such an association is created, and the said

association appoints an agency, then at that stage to claim that

appellant/plaintiff will not be entitled to do the maintenance with

respect to the subject multi-storeyed building. Till that time, the

appellant/plaintiff who is performing the maintenance service of the

common area and facilities cannot be denied the charges by a

whimsical owner of two units in the said multi-storeyed building.

9. In view of the aforesaid discussion, this appeal is

allowed. Since the respondent/defendant is a grossly dishonest

company which has not paid any maintenance charges from the year

2011 till date i.e. for around as many as seven years, and the

respondent/defendant is only resorting to technical aspects to harass

the appellant/plaintiff, this appeal is allowed with costs of Rs.

2,00,000/- and this cost shall be paid by the respondent/defendant to

the appellant/plaintiff within a period of six weeks from today. The

payment of cost shall be a condition precedent to the

respondent/defendant to pursue its defence in the trial court.

10. Parties to appear before the District & Sessions Judge,

West, Tis Hazari Courts, Delhi on 20th December, 2018 and the

District & Sessions Judge will now mark the suit for disposal to a

competent court in accordance with law.

DECEMBER 06, 2018                            VALMIKI J. MEHTA, J
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