Bangalore District Court (https://indiankanoon.

org/doc/147861827/)

Ms.Sneha Matam vs Balaji Paradise Apartments on 17 March, 2018

IN THE COURT OF THE XIX ADDL. CITY CIVIL &

SESSIONS JUDGE AT BANGALORE CITY : (CCH.18)

Dated this 17th day of March, 2018.

Present

SRI.RAJASHEKAR VENKANAGOUDA PATIL, B.A.LL.M.,

XIX ADDL. CITY CIVIL & SESSIONS JUDGE,

BANGALORE CITY.

O.S.NO.3834/2015

PLAINTIFF : Ms.Sneha Matam,

w/o Sunil S Kulkarni,

aged 29 years, No.92/4,

1st Cross, G-4 Balaji Paradise,

BSI III Stage, Katriguppe,

Bangalore-85,

Rep.by GPA Holder

Mr.M.Giriraj.

( Party in person)

-VS-

DEFENDANT : Balaji Paradise Apartments

Owners Welfare Association,

 No.92/4, 1st Cross,

Kathriguppe BSK III Stage,

Behind Big Bazar,

Bangalore-560 085

Rep.by its Secretary K.S.Ramesh.

(By Sri.NBK, Advocate)

Date of Institution of the suit : 25/4/2015

Nature of the Suit : Declaration & Injunction

Date of commencement of recording

of evidence : 13/4/2017

2 O.S.No.3834/2015

Date on which the Judgment was

pronounced : 17/3/2018

Year/s Month/s Day/s

Total Duration : 02 10 22
 JUDGMENT

The plaintiff has filed this suit against defendant for the relief of declaration to declare that the
notice dtd:4/4/2015 issued by the defendant association in respect of 'B' schedule property is null
and void and not binding to the plaintiff and the same is contrary to the provisions of Karnataka
Apartment Ownership Act, 1972 and also for permanent injunction against defendant not to
disconnect the water facility provided to 'B' schedule property and also to hold that the plaintiff is
entitled to be levied with the maintenance charges for the period from 17/3/2007 till date on the
line of the provision of Section 6 & 10 of the Karnataka Apartment Ownership Act, 1972 and
consequently, defendant association to restore the water facility to 'B' schedule property and for
court costs.

2. The case of plaintiff in nutshell is that the plaintiff is the absolute owner of Flat No.G 4 in 'Balaji
Paradise Apartments' constructed on the 'A' schedule property situated in 1st Cross, Katriguppe
Revenue Layout, BSK 3rd Stage, consisting of one kitchen, living area, dining hall and two bed rooms,
two toilet with bathrooms having a super built up area of 800 sq.ft with an undivided right, title and
interest in the land to an extent of 296 sq.ft. along with car parking at basement which is described
as 'B' schedule property and the same was purchased by plaintiff through registered sale deed
dtd:17/3/2007 and since then, she is in possession of the same.

2(a). It is further averred that defendant is a Regd.body of association of which plaintiff is one of the
members and defendant is registered under Karnataka Apartment Ownership Act, 1972 on
3/12/2013. After purchase of the 'B' schedule property under the registered sale deed, then plaintiff
filed all the declaration and other documents as required under Karnataka Apartment Ownership
Act, 1972 and as per the provisions of the said Act, plaintiff was liable to pay the maintenance
charges to be calculated and charged according to Section 6 & 10 of the said Act. After registration
of the defendant association, plaintiff continued to be member of the said association and in
General Body Meeting, defendant association fixed the maintenance charges for all the flats of Balaji
Paradise Apartment Building and Bye-laws and Rules were framed by defendant association without
being consistent with the provisions of Section 6 & 10 of Karnataka Apartment Ownership Act,1972.
Some group of persons in the society on 17/3/2007 fixed the maintenance charges on the basis of
number of flats occupied by then owners. In this regard, plaintiff initially raised objection with
regard to fixation of arbitral maintenance charges and again on 5/3/2013 meeting was conducted
and maintenance charges were fixed without proper Bye-law being framed.

2(b). It is further averred in the plaint that claim of the plaintiff is that totally 20 flats have been
constructed in the Balaji Paradise Apartments with various dimensions in built-up area and
maintenance charges were arbitrally fixed without considering the actual built up area of the flats
occupied by the owners of the flats. In this regard several discussions and correspondences were
made between plaintiff and defendant and group of residents and defendant indiscriminately fixed
the maintenance charges without considering the area or measurement of the flat occupied by
plaintiff. In this regard, defendant issued legal notice dtd:14/1/2015, 9/3/2015 and 4/4/2015
insisting the plaintiff to pay the maintenance charges which is contrary to provision of law.
Considering it to be illegal, plaintiff refused to pay the same and defendant immediately warned the
plaintiff that he will disconnect the water facility.
2(c). It is further averred in the plaint that as per Karnataka Apartment Ownership Act, 1972, S.10
demands that maintenance charges have to be imposed on the basis of the measurement of the flat
and not on other yardsticks. Inspite of this, defendant issued legal notice to plaintiff to pay the
maintenance charges fixed by the association and when the defendant threatened to disconnect the
water facility provided to 'B' schedule property/flat belonging to plaintiff in which she lives with her
aged parents, plaintiff was constrained to file the suit for declaration of notice dtd:4/4/2015 issued
by defendant is illegal and also for permanent injunction and also to hold that plaintiff is entitled to
be levied with the maintenance charges as per S.6 & S.10 of Karnataka Apartment Ownership
Act,1972 and also further seeking direction to defendant to restore water connection to the flat
which is termed as 'B' schedule property. Hence, prays to decree the suit as prayed for.

3. After institution of the suit summons, defendant association represented by its Secretary
appeared through its counsel and filed written statement admitting the fact relating to plaintiff
being in occupation of 'B' schedule property being a owner which is a flat situated in Balaji Paradise
Apartments and also being member of society and further contended that initially, plaintiff agreed
to pay the maintenance charges as fixed by the defendant association till July 2013. 3(a). It is
contended by the defendant that construction of 'Balaji Paradise Apartments' was completed in the
year 2006 consisting of 20 apartments with various measurements. Plaintiff being one of the
purchaser of the flat G-4 she in the occupation of the said flat from 17/3/2007. 3(b). As per
Clause.11 of the sale deed, in respect of payment of maintenance charges by purchaser like plaintiff
are bound to follow the covenant such as Clause 11(d) which provides purchaser being members of
the Association of Apartment Owners of schedule 'A' property i.e., entire Balaji Paradise Apartments
under the provisions of Karnataka Apartment Ownership Act,1972 should abide by the Bye-laws of
the Association and majority decisions of the flat owners and also execute a Deed of Declaration and
register the same along with owners of the remaining flats and bound to pay the maintenance
charges and other charges leviable in respect of 'B' schedule flat.

3(c). It is also contended by defendant that plaintiff is the member of Balaji Apartments Owners
Welfare Association. Defendant association which is registered under Karnataka Societies
Registration Act has framed Bye-laws for maintenance of the apartments. In the said Bye-laws,
Clause.13 of the Bye-laws deals with providing maintenance for common area and facilities. Clause
20 of the Bye-laws stipulates that all the decisions including the amendment shall be taken by the
majority of the members in the General Body Meeting. Admittedly, owners of the flats in the
building as well as plaintiff were paying the maintenance charges equally from 2006 to 2007. On
18/5/2008 meeting was held by the members of the owners' association and it was unanimously
resolved that maintenance charges shall be paid uniformly at the rate of Rs.1,000/- p.m. In this
regard plaintiff also signed the proceedings at Sl.No.6 of the proceedings and then, maintenance
charges were enhanced from time of time from Rs.12,000/- to Rs.1,400/-p.m. In August 2013
maintenance charges were enhanced to Rs.1,600/-. At that relevant point of time, plaintiff raised
objections that charging of maintenance charges is arbitrary and is not consistent with Section 10 of
Karnataka Apartment Ownership Act, 1972 and maintenance charges should be fixed on the basis of
the actual built-up area occupied by the flat owners and not in uniformity with other flat owners.
3(d). It is further contended that Section 3(n) of the Karnataka Apartment Ownership Act, 1972
defines that majority of the apartment owners means the apartment owners with 51% or more of
the vote in accordance with the percentages assigned in the declaration to the apartments for voting
purpose.

3(e). It is further contended that in view of the increase in the price of all the materials and standard
of living of every person and increase in water charges, electricity bills and watchman and labour
charges, the maintenance charges of the building was enhanced to Rs.1,800/- p.m. from February
2015 which was agreed by all the flat owners. However, plaintiff did not pay the enhanced
maintenance charges inspite of repeated requests being made by the defendant association.

3(f). In this regard, defendant was constrained to issue legal notice dtd:13/14.1/2015 to plaintiff
advising her to pay the arrears of maintenance charges from August 2015. On 19/1/2015 plaintiff
replied to the said notice by making allegations against the defendant association and never paid the
arrears and ultimately, defendant association was constrained to disconnect the water supply to
plaintiff's flat i.e., schedule 'B' flat. Again, plaintiff wrote letter to defendant association and made
some payment on the basis of sq.ft. area occupied by her by enclosing a cheque amounting to
Rs.16,672/- with a request to adjust the earlier maintenance charges and the cheque was received
by the defendant. 3(g). It is further contended that Sri.Giriraj is the flat owner of G-3 and he is the
father of plaintiff. He has rented out his flat to some other tenant and the maintenance charges
relating to his flat is being paid by said tenant. Plaintiff is accountable only to her flat and she does
not have any right to adjust in respect of maintenance charges due in respect of flat owned by her
father.

3(h). It is further contended that defendant Balaji Paradise Apartment which is a registered society is
providing facilities of common area to enable the flat owners to enjoy their flats such as electric
supply to common area passage, lift facility, BBMP water supply, storage of water in sump, pumping
of water from sump to overhead tank and dwelling of borewell, and also appointment of security
officials and all such incidental expenses to maintain the common area of 'A' schedule property
building which includes wages of day watchman and night watchman, maintenance of generators,
lift facilities, car parking facilities, temporary repair work arises for the apartment such as sanitary,
plumbing work, garden cleaning, cleaning of car parking area, water supply charges to BWSSB and
C.C. TV installed in the apartments. All these amenities' expenses are to be borne by the occupants
of the flats in schedule 'A' property.

3(i). It is further contended that the claim of the plaintiff that maintenance charges are to be
assessed and fixed by the defendant association on the basis of the actual built up area of the flats
occupied by the owners such as 2 bed rooms flat owners and 3 bed rooms flat owners differentiating
between them. But, the common areas are used by both large sq.ft built up area and small sq.ft
built-up area of the flats like 800, 1030, 1,260 and 1,370 sq.ft.

3(j). It is further contended that plaintiff has made false submission in the plaint that elections and
meeting were held by defendant association were not according to the Rules & Regulations and Bye-
laws and they were inconsistent with the provisions of Karnataka Apartment Ownership Act, 1972.
Appropriate Bye-laws have been framed like Clause 13 which provides to fix the maintenance
charges which cannot be read with isolation with Section.10 of Karnataka Apartment Ownership Act,
1972.
3(k). Plaintiff who was earlier paying the maintenance charges as and when fixed by the association
of the defendant, but somehow in 2013, raised this baseless objections who was residing with her
father in flat N. G 4. One Giriraj - father of plaintiff owns flat No. G 3 which was let out to tenant and
maintenance charges fixed by defendant association was paid by the said tenant.

3(l). It is specifically contended by defendant that plaintiff is in arrears of amount of payment of

maintenance charges from August 2013 to January 2015 at the rate of Rs.1,600/- p.m. amounting to
Rs.28,800/-; from February 2015 to May 2015 at the rate of Rs.1,800/- amounting to Rs.7,200/-,
totally amounting to Rs.36,000/-. He has only paid Rs.22,006/- and after deducting the same,
plaintiff is in due of Rs.13,994/- maintenance charges to be paid as arrears.

3(m). Plaintiff may be directed to clear the arrears of maintenance charges and further plaintiff
being one of the party to the resolution passed by the owner of the Balaji Apartments Owners
Welfare Association and being signatory to the same, having agreed for the system which is in
existence right from 2006, now plaintiff cannot say that the system of collecting maintenance
charges uniformly is contrary to law. Earlier she was paying maintenance charges for more than 8½
years till July 2013. Under the circumstances, suit filed by plaintiff is not maintainable and prayer
made by plaintiff cannot be granted as defendant association has not erred in fixing the
maintenance charges for common area with uniformity and equality. Hence, prays to dismiss the suit
with costs.

4. In the course of suit, plaint was amended and additional written statement was filed.

5. Within the premises of above pleadings of the plaint and written statement contentions, the
following issues were framed:-

ISSUES

1. Whether plaintiff proves that legal notice dated 04/04/2015 issued by defendant is null and void
and not binding on the plaintiff?

2. Whether defendant proves that plaintiff and all other flat owners are enjoying the services of
Defendant Association equally?

3. Whether plaintiff is entitled for the relief of declaration as prayed in the plaint?

4. Whether plaintiff is entitled for the relief of permanent injunction as prayed in the plaint?

5. Whether defendant is entitled for counter claim?

6. What order or decree?

ADDITIONAL ISSUES

1. Whether plaintiff proves that provisions of Karnataka Apartment Ownership Act,1972 are
applicable to the flat occupied by plaintiff?

2. Whether plaintiff proves that defendant is not entitled to claim maintenance charges prior to
04/12/2013?
3. Whether plaintiff further proves that payment of maintenance charges equally by all flat owners
was only a temporary arrangement and it was not an unanimous decision?

4. Whether plaintiff is entitled for declaration that maintenance charges to be levied from 17/3/2017
till date as per S.6 and 10 of the Karnataka Apartment Ownership Act,1972?

5. Whether plaintiff is entitled for consequential relief of restoration of water facility to suit "B" flat?

6. On behalf of plaintiff, father/power of attorney holder of plaintiff is examined as P.W.1 and got
marked the documents Ex.P.1 to Ex.P.9 and closed her side. On behalf of defendant association,
Former Secretary of the defendant association is examined as D.W.1 and present secretary of the
defendant association is examined as D.W.2 and got marked the documents Ex.D.1 to Ex.D.12.

7. Heard arguments of both sides and perused the written arguments filed by the defendant's
counsel.

8. Findings of this court on the above issues are :-

Issue No.1:- In Negative;

Issue No.2:- In Affirmative;

Issue No.3:- In Negative;

Issue No.4:- In Negative;

Issue No.5:- In Affirmative;

Addl.Issue No.1:- In Negative; Addl.Issue No.2:- In Negative; Addl.Issue No.3:- In Negative; Addl.Issue
No.4:- In Negative; Addl.Issue No.5:- In Negative;

Issue No.6:- As per the final order for the following:-

REASONS

9. These issues are taken up together as they require common discussion.

10. In order to substantiate the case of plaintiff, father/power of attorney holder of plaintiff is
examined as P.W.1 and got marked the documents Ex.P.1 to Ex.P.9 and closed her side. On behalf of
defendant association, former secretary of the defendant association is examined as D.W.1 and
present secretary of the defendant association is examined as D.W.2 and got marked the documents
Ex.D.1 to Ex.D.12.

11. Counsel for the plaintiff in the mid of the trial filed Memo of Retirement. Plaintiff by name
Smt.Sneha Matam w/o Sunil S.Kulkarni has executed GPA in favour of her father by name M.Giriraj
who continued to contest the suit personally i.e., examining the plaintiff's witness as well arguing
the matter.
12. In the course of arguments, M.Giriraj, power of attorney holder of plaintiff has argued that
determination of maintenance charges with regard to Balaji Paradise Apartments Owners Welfare
Association, was arbitrarily decided by members of the said association without any majority inspite
of opposition offered by plaintiff and fixation of maintenance charges by defendant association is in
violation of Section 10 of Karnataka Apartment Ownership Act,1972 which provides as under:-

"Section 10. Common profits and expenses: The common profits of the property shall be distributed
among and the common expenses shall be charged to the apartment owners according to the
percentage of the undivided interest in the common areas and facilities."

13. Per contra, counsel for the defendant argued that though the suit is filed by the plaintiff by name
Smt.Sneha Matam who is occupant of schedule property Flat No.G 4, but P.W.1, being father of
plaintiff is also owner of Flat No.G 3 in the said Balaji Paradise Apartment. He has let out the his said
Flat No.G 3 on lease to some other tenants and maintenance charges fixed by the defendant
association is being paid by some occupant/tenant of P.W.1 without any objection and further
argued that D.W.1 association after calling the General Body Meeting of the occupants of the flats of
Balaji Paradise Apartments Owners Welfare Association passed resolution with majority of 51% as
contemplated under Section 3(n) of Karnataka Apartment Ownership Act,1972 and Rules were
framed and now Rules framed and under Clause 11 of he association Rule, declaration was filed by
all these occupants a the time of securing sale deed from the builder.

14. Claim of the plaintiff now is that he is not liable to pay the maintenance charges as determined
by the defendant association, because, she is in occupation of the smaller area of the flat than the
other flats which are constructed with the larger built up area and maintenance charges should be
determined and fixed on the basis of the measurement of the flat and not otherwise, it is not
sustainable in law and that is not contemplated under Section 10 of Karnataka Apartment
Ownership Act,1972 and inspite of the court order being passed as interim order, this plaintiff has
not paid the maintenance charges even till today. The claim of yhe plaintiff is vexatious and prays to
dismiss the suit with costs and also direct him to pay the arrears of maintenance charges as claimed
in the written statement incurred towards the common area of the 'A' schedule property.

15. After considering the pleadings of both sides and assessment of evidence of P.W.1, D.W.1 & 2,
and exhibits marked by plaintiff at Ex.P.1 to Ex.P.9 & so also, Ex.D.1 to Ex.D.9 marked on behalf of
defendant, following facts have remained undisputed:-

a) That the plaintiff is legal occupant of schedule 'B' property/flat No.G 4 in schedule 'A' property
which is the entire building named as 'B' schedule property.

b) The fact that the plaintiff is the owner of the flat by virtue of Registered sale deed executed
between main builder-owner and plaintiff has also remained undisputed.

c) The fact that earlier, plaintiff was paying the maintenance charges as determined by defendant
association even before registration or after registration for some time i.e., till August 2013 has
remained undisputed.
d) The fact that present P.W.1 is father of plaintiff and contesting the suit on behalf of his daughter
being owner of another flat numbered as G-3 is also an undisputed fact and from his cross-
examination, it is made clear that he has let out his own flat to some other tenant and collecting the
rents and his tenant is regularly paying the maintenance charges fixed as on today by the defendant
association.

16. P.W.1 he has stated with regard to the fixation of maintenance charges for maintaining the
common area in 'A' schedule property relating to payment of electric bills, water charges, water
lifting pump, electric points at passage, lift, parking zone and terrace, lift maintenance and other
works is arbitral, because, it has been fixed and assessed uniformly and imposed on all occupants of
the flats irrespective of the measurement of the built up area of the flat and it is in contravention of
S.10 of Karnataka Apartment Ownership Act,1972 and according to him, maintenance charges shall
have to be fixed on each occupant of the flat in proportionate to the built up area purchased by him
meaning thereby, maintenance charge for the common area shall have to vary between the
occupants of the flats of 2 bed-rooms and kitchen and occupants of the flat of 3 bed rooms and
kitchen and maintenance charges are to be levied differently according to the measurement of the
built up area.

17. Much hue and cry has been raised by both sides by raising so many disputed questions with
regard to formation of association, framing of Bye-laws and on both sides, evidence is led in this
regard. With regard to formation of Bye-laws of the defendant association, D.W.1 & 2 have been
examined who have produced series of records like copy of the Rules & Regulations of the
Association, proceedings books, sale deed and registration certificate of Balaji Paradise Apartments
Owners Welfare Association accompanied with the Rules & Regulation of the association.

18. It is relevant to note that these Rules & Regulations appears to have been accepted by defendant
in 2012 or prior to that and continuous proceedings have been conducted with regard to considering
the changes in the water supply charges, sanitary charges, electric supply charges and increasing the
maintenance charges and also electing the Executive Members of the Association.

19. Plaintiff by name Smt.Sneha Matam and her father - P.W.1 being occupants of 2 flats with
different dimensions and built up area are raising objections in 2015 by filing this suit for fixation of
maintenance charges as arbitrary and discriminatory because, it is equally made applicable to all
such occupants of flats irrespective of the larger built up area flat owners and lesser built up area flat
owners.

20. Where the statute or law being in force in Karnataka does make any discrimination between
common area maintenance charges to be levied with variation to such occupants of flats with larger
built up area and lesser built up area is to be ascertained.

21. In this regard, counsel for the defendant has argued that though Section 10 of Karnataka
Apartment Ownership Act,1972 provides that the common profits of the property shall be
distributed among and the common expenses shall be charged to the apartment owners according
to the percentage of the undivided interest in the common areas and facilities.
22. With regard to this Section 10, counsel for the defendant has argued that if there is an
agreement between association and the occupant at the time of registering society stipulating
special cause, what should be the mode of charging of maintenance of common area that will prevail
over Section 10 of the Statute.

23. The Act provides in S.3(g) that common expenses means:-

1) All sums lawfully assessed against the apartment owners by the association of apartment owners.

2) Expenses of administration, maintenance, repair or replacement of the common area and

facilities.

3) Expenses agreed upon as common expenses by the bye-laws.

4) Expenses declared as common expenses by the provisions of this Act or by the Declaration or the
bye- laws.

24. It is seen from Clause 13 of the Bye-laws of the society formed by defendant association that
common area shall be maintained by all occupants of the flats by bearing the expenses incurred for
maintaining the common area.

25. So, it is evident from the cross-examination of P.W.1 and the admission so made by him that the
association is maintaining the 'A' schedule apartment building consisting of 4 floors, each floor
consisting of 5 flats with different dimensions and common area expenses are borne by society and
this maintenance charges is being decided in the General Body Meeting, all flats having occupied in
2007 and in 2008, it was agreed by the occupants of the flats that Rs.1,000/- shall be borne by each
occupant irrespective of the measurement.

26. P.W.1 voluntarily submits that they opposed the resolution on the ground that they had recently
occupied the flats and they are not liable to pay maintenance charges.

27. To the understanding of this court, resolution appears to have been with majority in the General
Body Meeting. P.W.1 has further admitted that from time to time, maintenance charges increased
and he was also present in some of the meetings held for fixation of maintenance charges. He
admits that common area maintenance charges for maintaining of corridors, electricity charges,
water charges, for lifting of water from sump to overhead tank from electric pump, appointment of
security officer, maintenance of generator, car parking provisions and fixation of CC cameras are
fixed, and further admits that all these facilities are commonly used and enjoyed by the occupants of
the flats irrespective of the built up area occupied by tenants.

28. He has further admitted that disputed property belongs to his daughter with built up area of
1030 sq.ft. and he also owns Flat No. G 3 and his tenant may be paying maintenance charges fixed by
the association. He further admits that defendant had issued notice as per Ex.P.6 informing about
disconnecting water supply and he paid Rs.16,672/- towards arrears out of total arrears of
Rs.34,200/-. He has further admitted that this court has rejected temporary injunction and he
preferred MFA.No.9656/2015 before Hon'ble High Court of Karnataka and Hon'ble High Court of
Karnataka ordered him to pay arrears of maintenance charges and to continue to pay as
maintenance charges paid by other occupants and admits that he has not paid the maintenance
charges of Rs.1,600/- p.m. from February 2016. He further admits that there is a Clause in the sale
deed as per Ex.D.1 entered into between seller and purchaser of the flat that majority decision of
the flat owners taken in association meeting shall be binding on all occupants of the flats.

29. After assessing all these admissions and facts available, it is made clear that except this plaintiff,
all are paying the maintenance charges fixed by defendant association.

30. Coming back to the position of Law with regard to fixation of maintenance charges to maintain
the common area, "Section 10. Common profits and expenses: The common profits of the property
shall be distributed among and the common expenses shall be charged to the apartment owners
according to the percentage of the undivided interest in the common areas and facilities."

31. The notion that is carried by P.W.1 that there shall have to be less fixation of maintenance
charges to be paid by such occupants of the flats who have occupied lesser built up area than larger
built up area flats.

32. It is a prudent thinking and also unbiased view to express that when a big apartment building is
constructed with smaller and bigger built up flats, but the occupants will use the common area
facilities like electric supply, corridor, maintenance of lift, parking, water supply to all flats,
maintenance of generator etc., all flats will be equally, meaning thereby the common area facilities
will be extended to all occupants of flat owners irrespective of larger built up area occupants of the
flats and lesser built up area occupants of the flats. It does not need a prudent explanation to be
expressed. It is unwise to think that occupation of the flats with lesser built up area will use common
area facilities lesser than the flats occupied by persons with larger built up area. For example, flat
built up area with 1200 sq.ft. (2 bed room flat) may be occupied by occupants of larger number 2 to
4 or 5, whereas the occupants of the larger built up area with 1400 sq.ft. (3 bed room flat) may be
occupied by only 2 old couples where their children are staying abroad. But, both these families are
enjoying the common area facilities like lift, electric supply, facilities of Health Club etc., all those
provided by the association commonly and equally. It is not the Number of the occupants of the flat
by persons or built-up area will decide to use the common area facility with precise utilization and it
is also unwise to think in that direction.

33. In this regard, counsel for the defendant has produced unreported authority 2003(8) LJSOFT 113
in the Bombay High Court passed in W.P.No.1948/1997 dtd:30/7/2002 in "Venus Co-operative
Housing Society and another v/s Dr.J.Y.Detwani and others" wherein it is held as under:-

(b) I agree with submissions of Shri Jahagirdar that it cannot be said that the big flat holders are
getting higher or more services to make them liable to pay more on the basis of the area of the flat.

34. Further in the body of the judgment, it is observed that aforesaid services are enjoyed by all the
members equally and therefore, there was no reason for the society to have made the large flat
holders to pay more on the basis of the area of the flat. There is absolutely no rational or any reason
to require the large flat owners to pay more for the aforesaid service charges on the basis of the size
of the flats.
35. In the case referred above of High Court of Bombay, Venus Co-operative Housing Society has
passed the resolution fixing the maintenance charges on higher rate to the flat owners of bigger size
and less maintenance charges fixed for lesser size. So, after assessing all the facts and circumstances
of the case, their Lordships in the said authority observed that there was no rational or any reason to
require the large flat owners to pay more for the aforesaid service charges on the basis of the size of
the flats and resolution passed in this regard is totally unreasonable and arbitrary and regulations of
the amenities and facilities availed by the members meaning thereby the flat owners in the building
either bigger or smaller size in occupation enjoy the basic facilities and amenities of common area by
the habitants of the flats equally by paying equal maintenance charges in one uniformity, security ,
facility and other amenities do not put for the habitants of larger size flat owners and habitants of
smaller size flat owners and habitants.

36. With this rational and applying the same, this court is inclined to hold that the claim of the
plaintiff that they are not required to pay the same maintenance charges fixed by the association
since they occupy the flat of lesser built up area as some of other flats built up with larger area
because common area and facilities are enjoyed generally by all the flat owners with equal right and
enjoyment.

37. Accordingly, this court is constrained to hold that claim of plaintiff that fixation of maintenance
charges by the defendant association with one uniformity is not improper and illegal and that
differences will not exempt or absolve the plaintiff from paying the maintenance charges to the
defendant association by passing adequate resolution with considered majority of 51/49 with 1%
higher majority in the total members of the society/association.

38. Further, the outcome of the fact discloses that plaintiff is not paying the maintenance charges
since August 2013 or so. In this regard court was pleased to reject the I.A. filed by plaintiff against
which MFA was preferred before Hon'ble High Court of Karnataka in MFA.9656/2015 which was
disposed on 12/1/2016 by the Hon'ble High Court of Karnataka with observation that respondent
society shall reconnect the water supply subject to payment of arrears of maintenance charges of
Rs.25,000/- further present plaintiff shall pay monthly maintenance charges as paid by other flat
owners of the respondent association. This shall be subject to result of present suit.

39. In view of these observations made by Hon'ble High Court of Karnataka, this court is constrained
to hold that plaintiff is liable to pay monthly maintenance charges from 23rd August 2013 with
maintenance charges fixed by defendant No.1 and valid from time to time till disposal of this case.

40. Further, defendant is entitled to claim arrears of Rs.13,994/- due as on May 2015 and further,
they are entitled to claim maintenance charges from plaintiff at the same rate i.e., fixed to other flat
owners . In case plaintiff remains defaulter, defendant association is at liberty to take action against
plaintiff as per the Bye-laws framed therein by defendant Balaji Paradise Apartments Owners
Welfare Association.

41. Accordingly, Issue No.1 & Addl. Issue No.1, 2, 3, 4 & 5 are answered in Negative and issue No.2 is
answered in affirmative.
42. Issue No.3 pertains to entitlement of plaintiff with regard to declaration of notice dtd:4/4/2015
in respect of "B" schedule flat is null and void and not binding on the plaintiff and the same is
contrary to the provisions of the Karnataka Apartment Ownership Act,1972 and issue No.4 pertains
to entitlement of plaintiff with regard to permanent injunction as prayed in the plaint.

[ [[

43. In this regard, plaintiff has not examined any one of the occupants of the flats of Balaji Paradise
Apartments or tenants and Bye-laws could have been challenged before the District Registrar as
association of defendant is registered under Karnataka Co-operative Societies Registration Act.

44. Since this court has elaborately discussed about the primary right of plaintiff while deciding other
issues i.e., issue No.1 & 2 and addl.issue No.1 to 5, plaintiff is not entitled for the relief of declaration
and permanent injunction as claimed by him. Accordingly, issue No.3 & 4 are answered in negative.

ISSUE No.5

45. Since this court has discussed elaborately that plaintiff is in arrears of maintenance charges to be
paid to defendant No.1 - association amounting to Rs.13,994/- due as on May 2015. This court has
observed while answering other issues that defendant No.1 - association is entitled to recover the
arrears of maintenance charges as and when they were revised and refixed by the 1st defendant. In
the result, issue No.5 is answered in affirmative.

ISSUE No.6

46. In view of findings on issue No.1 to 5 and additional issue No. 1 to 5, this court holds that plaintiff
is not entitled for the relief of declaration and for permanent injunction as prayed in the plaint. On
the other hand, defendant is entitled to recover the counter-claim amount from the plaintiff as
elaborately discussed in issue No.5. In the result, this court proceeds to pass the following:-

ORDER Suit of the plaintiff is dismissed with costs against defendant .

Defendant is entitled for counter claim amount from the plaintiff i.e., for arrears of amount towards
maintenance charges amounting to Rs.13,994/- as on May 2015 + arrears of maintenance charges
fixed by defendant from May 2015 till the date of disposal of the suit and shall continue to recover
the maintenance charges due and shall levy and collect the maintenance charges as fixed by the
defendant association and collected from all other members of the association revised or re-fixed
from time to time in between May 2015 till this day.

Plaintiff is hereby directed to pay the above said counter-claim amount to the defendant as stated
above within 3 months from the date of this judgment. If the plaintiff fails to pay the same,
defendant association is at liberty to initiate legal action against plaintiff as per Bye-laws of the
Association to recover the counter-claim amount as mentioned above from the plaintiff.

Draw decree accordingly.

(Dictated to the Judgment Writer, transcribed and computerized by her, corrected and then
pronounced by me in the open Court on this the 17th day of March, 2018).

(Rajashekar Vankanagouda Patil) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.

ANNEXURE I. List of witnesses examined on behalf of :

(a) Plaintiff's side :

P.W.1 - Giriraj

b) Defendant's side :

D.W.1 - Disle D.W.2 - K.R.Ramesh II. List of documents exhibited on behalf of :

(a) Plaintiff's side :

Ex.P.1 GPA

Ex.P.2 Notice dtd:14/1/2015

Ex.P.3 Reply notice dtd:19/1/2015

Ex.P.4 Notice dtd:9/3/2015 issued by

defendant

Ex.P.5 Reply notice of plaintiff

Ex.P.6 Letter dtd:16/3/2015

Ex.P.7 Notice issued by defendant

dtd:4/4/2015

Ex.P.8 Reply letter written by plaintiff

dtd:6/4/2015

Ex.P.9 Xerox copy of the cheque

dtd:6/4/2015

(b) Defendant's side : -

Ex.D.1 Certified copy of the sale deed

dtd:17/3/2007

Ex.D.2 Copy of the Resolution of the Meeting

held on 18/5/2008

Ex.D.3 Authorization Letter issue to Sri.Disle

 Ex.D.4 Original copy of the proceedings of

the meeting of defendant association

dtd:4/3/2012

Ex.D.5 Original copy of the proceedings of

the meeting of defendant association

dtd:22/10/2012

Ex.D.6 Original copy of the proceedings of

the meeting of defendant association

dtd:1/8/2013

Ex.D.7 Copy of the Registration Certificate of

the defendant association

Ex.D.8 Copy of the Bye-lws

Ex.D.9 Certified copy of the order passed in

MFA.No.9656/2015 dtd:12/1/2016

Ex.D.10 Calculation sheet regarding arrears of

maintenance charges

Ex.D.11 Book 1 containing the proceedings of

the meeting dtd:18/5/2008

Ex.D.12 Book 2 containing the proceedings of

the meeting dtd:27/10/2013,

13/4/2014, 11/1/2015, 18/4/2015 and

30/8/2015.

(Rajashekar Venkanagouda Patil)

XIX ADDL.CITY CIVIL & SESSIONS JUDGE,

BANGALORE CITY.

GVU/-
 Judgment pronounced in open court vide

separate detailed judgment with the

following operative portion:-

ORDER

Suit of the plaintiff is dismissed with costs against

defendant .

Defendant is entitled for counter claim amount from the plaintiff i.e., for arrears of amount towards
maintenance charges amounting to Rs.13,994/- as on May 2015 + arrears of maintenance charges
fixed by defendant from May 2015 till the date of disposal of the suit and shall continue to recover
the maintenance charges due and shall levy and collect the maintenance charges as fixed by the
defendant association and collected from all other members of the association revised or re-fixed
from time to time in between May 2015 till this day.

Plaintiff is hereby directed to pay the above said counter-claim amount to the defendant as stated
above within 3 months from the date of this judgment. If the plaintiff fails to pay the same,
defendant association is at liberty to initiate legal action against plaintiff as per Bye-laws of the
Association to recover the counter-claim amount as mentioned above from the plaintiff.

Draw decree accordingly.

(Rajashekar Venkanagouda Patil) XIX ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE CITY.