Madras High Court
S.Nagaraja vs Victoria Gardens Flat Owners ... on 9 February, 2021
S.A. No.381 of 2017, dt.09.02.2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 09.02.2021
CORAM
THE HONOURABLE MR. JUSTICE KRISHNAN RAMASAMY
S.A.No.381 of 2017
and
CMP.No.8907 of 2017
S.Nagaraja ... Appellant
Versus
Victoria Gardens Flat Owners Association
Rep.by the Secretary,
No.20, Victoria Gardens
Inner Ring Road, Koyambedu,
Chennai – 600 007. ... Respondent
The Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and Decree dated 30th November 2016
passed in A.S.No.63 of 2016, on the file of the XVIII -Additional City Civil
Court, Chennai, thereby reversed the Judgment and Decree, dated
30.04.2015 passed in O.S.No.609 of 2014 by the XI-Assistant City Civil
Court, Chennai.
For Appellant : Mr.T.Ganesan
For Respondent : Mr.S.J.Jagadev
https://www.mhc.tn.gov.in/judis/
1/11
S.A. No.381 of 2017, dt.09.02.2021
JUDGMENT
The second appeal has been filed challenging the Judgment and
Decree dated 30.11.2016 made in A.S.No.63 of 2016 on the file of the
XVIII -Additional City Civil Court, Chennai, reversing the Judgment and
Decree, dated 30.04.2015 passed in O.S.No.609 of 2014 by the XI-
Assistant City Civil Court, Chennai.
2.The learned counsel for the Appellant submitted that the
appellant is owner of one of the flats in Victoria Gardens and also a
member of the Victoria Gardens Flat Owners Association/respondent
herein. He is the owner of a flat measuring 851 sq.ft. There are 10 Flats
measuring of 851 sq.ft, 30 Flats having measurements of 998 sq.ft, 10 flats
measuring 851 sq.ft, There are also larger flats measuring 1200 sq.ft and
2200 sq.ft Flats and 30 Flats with 1400 sq.ft, plinth area.
3.According to the appellant, as an owner of a flat measuring 851
sq.ft, he is liable to pay the maintenance charge proportionate to the
undivided share of common area purchased by him as stated in the Sale
deed. However, the Respondent/Association has been charging a flat rate
of Rs.1,500/- as maintenance charge every month from all the flat owners
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S.A. No.381 of 2017, dt.09.02.2021
irrespective of the area of undivided share purchased by them. It is also
stated that such amount is being charged since 2007 and the appellant is
also paying the maintenance charges from 2001 to 2014, until the date of
filing the suit.
4.The main contention raised by the Appellant in the present case
is that as per Section 19(1) of the Tamil Nadu Apartments Ownerships Act,
1994, the Respondent/Association cannot charge a flat rate for maintenance
from all the flat owners irrespective of the area of undivided share of land
purchased by him. On the other hand, in terms under Section 19(1) of the
above said Act, the respondent should charge according to the percentage
of undivided share of land purchased by the owner in the common area
specified in the sale deed. He fairly admitted that there is no undivided
share indicated in the any of the Sale Deeds. Hence, he submits that the
receipt of maintenance charge by the respondent is contrary to Section
19(1) of the Tamil Nadu Apartments Ownerships Act, 1994. This aspect
was not considered by the Appellate Court, though it was rightly
appreciated by the trial court while decreeing the suit. Therefore, he
pleaded to admit the Second Appeal on the following substantial questions
of law:-
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S.A. No.381 of 2017, dt.09.02.2021
“a) Whether the by-law of the individual apartment
prevailed over the Tamil Nadu Apartment Ownership
Act,1994?
b) Whether the defendant collecting the
maintenance charges in the basic of flat rate is against the
Constitution of India?
c) Whether the defandant charging the maintenance
charge on the basic of the flat rate is against law and natural
justice?”
5.Earlier when the appeal came up for hearing before this Court,
this Court was not inclined to admit the appeal, but this Court ordered
notice to the respondent with regard to admission. Therefore, the learned
counsel for the Respondent also made his submissions by stating that the
Appellant has been paying maintenance charges to the respondent from
2001 to 2014 without any dispute. The association was incorporated in the
year 2007. Thereafter, a resolution was passed on 18.07.2010 by the
respondent, as the power has been conferred to the respondent in terms of
By-law No.9(b)(i), in the Special General Body meeting. A special
resolution was passed to charge maintenance at flat rate and it was also
admitted by the Appellant herein and paid the same for more than three
years. The appellant filed the present suit after a period of four years from
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S.A. No.381 of 2017, dt.09.02.2021
the date of passing the said resolution.
6.Furthermore, he has brought to the notice of this Court that the
resolution was not challenged by the Appellant. As long as the resolution
was not challenged in the present suit and the present suit has not been filed
within the period of limitation, it is not maintainable and it is liable to be
dismissed. These aspects were well-considered by the First Appellate Court
and the same have not considered by the Trial Court in proper perspective.
Therefore, he submits that the Appellant has not made out any case for
admission and there are no substantial questions of law that arise, as
proposed by the Appellant in the Appeal. Therefore, he pleaded for
dismissal of the Second Appeal.
7.Heard the learned counsel for the Appellant and the learned
counsel appearing for the Respondent and perused the materials available
on record.
8.Admittedly, the Appellant herein is one of the Flat Owners
residing in a flat measuring 851 sq.ft. There are five types of Flats with
different plinth area. The main contention of the Appellant was that since
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S.A. No.381 of 2017, dt.09.02.2021
there are different flats with varied plinth areas available, the respondent
ought to have charged maintenance from each flat owner, on the basis of
the plinth area or atleast based on the undivided share of land in the
common area as specified under Section 19(1) of the Tamil Nadu
Appartments Ownership Act, 1994. In the present case, the said provision
was not complied with. But, without complying with the said provision, the
respondent has passed the resolution to charge Flate rate.
9.However, on perusal of the provisions, it appears that the
maintenance shall be charged on the basis of undivided percentage of the
ownership of the common area specified on the deed of Apartments and
there was nothing mentioned in the deed about the common areas. The
decision taken by the respondent to charge Flat rate was also agreed and
paid the maintenance charges at flat rate by the Appellant for more than 3
years. While so, it is not proper for the appellant to file the suit after 3
years and dispute the manner in which maintenance amount is charged.
Further, the respondent passed the resolution for the convenience of its
members, to meet out the expenses in the absence of any specific mention
about the undivided common area in the Sale deed which may be due to the
reason that all the flat owners are going to enjoy equally in the common
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S.A. No.381 of 2017, dt.09.02.2021
area including the electricity, water and other amenities.
10.Taking into consideration that there was no restriction to use
the common area by the Appellant or anybody else the resolution would
have been passed. The said resolution was not challenged by the appellant.
As long as the appellant has not made any challenge to the resolution, the
present suit is not maintainable.
11.All these aspects have been well-considered by the First
Appellate Court including the fact with regard to the failure of the
Appellant to challenge the resolution passed in the extraordinary General
Body meeting of the Association. It would be appropriate to extract the
relevant portion of paragraph no.12 &13 in the judgment of the First
Appellate Court hereunder:-
“12.While so on careful consideration of the appeal
ground and lower court records it has been founds that to
substantiate the plaintiffs claim plaintiff himself examined as
PW1 in the lower court and Ex.A1 to Ex.A6 are marked
through him and one R.Sundaram examined as PW.1 in this
casse and Ex.B1 to Ex.B6 are marked through him. While
gone through the judgement delivered by the lower court the
learned judge decreed the suit in a conclusion in page No.9 by
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S.A. No.381 of 2017, dt.09.02.2021
in one line “ and flat rate fixing of maintenance and other
charges is abritary and violatin to the act and hence the
plaintiff is entited for the relief prayed for with costs” No
separate answer was given to each and every issues.
13.In this connection on careful consideration of the
section 7 of the Tamil Nadu Apartments Ownership Act, 1994
it clearly reveals every apartments Ownership is requires to
apply strictly with the byelaws and with administrative rules
and regulations contained in the bye laws. And further as per
section 23 of the same act also speaks about all the flat
owners are binding upon the bye laws govern by the
association. Now in this case there is a bye law for the
plaintiffs association and it has been marked as Ex.A1. On
keen perusal of the Ex.A1 e.e Victroria Gardens Flat Owners
Association in Section 9 B reveals that monthly maintenance
charges to be paid by the every flat owners on or before 10 th
day of every month in advance as per the resolution passed in
the General Body Meeting. Hence, this is point out by the
plaintiff to pay the monthly maintenance charges fixed by the
defendant association as per 9 B of the bye-laws and sec. 7
and 20 of the Tamil Nadu Apartments Ownership Act, 1994.
Even assuming that the plaintiff aggrieved by the charges
fixed by the resolution opposition in the General Body
Meeting. He has agitate the same before this Court by way of
declaring the petition made by association in the General
Body Meeting as null and void. Without challenging the
resolution of the general Body Meeting the plaintiff cannot
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S.A. No.381 of 2017, dt.09.02.2021
sought for permanent injunction and other reliefs means. In
my opinion the lower court failed to discuss any one of the
point in the judgment and blindly decree the suit by way of
one line is arbitrary against rule of law and without
answering each and every issues the lower court without
applying his mine decree the suit. Hence, it is just and
necessary to interfere the judgment and decree of the lower
court and the point for consideration is decided infavour of
the appellant/ defendant.”
12.On perusal of the above said Judgment, it is evident that the
First Appellate Court clearly dealt with all these aspects including both
oral and documentary evidences, but the same was not considered by the
Trial Court. Therefore, the First Appellate Court has rightly reversed the
Judgment of the Trial Court. Thus, this Court does not find any infirmity on
the Judgment passed by the First Appellate Court below. This Court is not
inclined to interfere with the well-considered of the Judgment of the First
Appellate Court.
13.In view of the above, this Court does not find any substantial
questions of law that arise for consideration in the present Second Appeal
and it deserves for dismissal.
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S.A. No.381 of 2017, dt.09.02.2021
14.Accordingly, the Second Appeal is dismissed by confirming the
Judgment and Decree dated 30th November 2016 passed in A.S.No.63 of
2016, on the file of the XVIII -Additional City Civil Court, Chennai
reversing the Judgment and Decree, dated 30.04.2015 passed in
O.S.No.609 of 2014 on the file of XI-Assistant City Civil Court, Chennai.
No costs. Consequently, the connected miscellaneous petition is closed.
09.02.2021
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
klt
To
1. The XVIII -Additional City Civil Court, Chennai.
2. The XI-Assistant City Civil Court, Chennai.
3. The Section Officer, VR Section, High Court, Madras.
https://www.mhc.tn.gov.in/judis/
S.A. No.381 of 2017, dt.09.02.2021
KRISHNAN RAMASAMY.J.,
klt
S.A.No.381 of 2017
and
CMP.No.8907 of 2017
09.02.2021
https://www.mhc.tn.gov.in/judis/
