Vous êtes sur la page 1sur 25

BEFORE THE HONBLE IVTH CO-OPERATIVE COURT, MUMBAI

Case No. CC/IV/

1.

OF 2013.

Amit Pradhan
Residing at Flat No. 1103/ 1104,
B Wing, Sierra Tower CHS Ltd,
Lokhandwala, Kandivali East,
Mumbai 400 101

2.

Charu Pradhan
Residing at Flat No. 1103/ 1104,
B Wing, Sierra Tower CHS Ltd,
Lokhandwala, Kandivali East,
Mumbai 400 101

DISPUTANTS

Vs.
1.

Sierra Tower CHS Ltd.


Lokhandwala, Kandivali (E)
Mumbai 400 101.

2.

Vijay Vir Singh


Residing at Flat No. 1203,
B Wing, Sierra Tower CHS Ltd,
Lokhandwala, Kandivali East,
Mumbai 400 101
..........

OPPONENTS

Dispute under section 91 of th e Maharashtra Co-operative


Societies
Act, 1960

THE DISPUTANTS ABOVENAMED SUBMIT AS UNDER:-

1.

The Disputants are residing at Flat No. 1103/ 1104, B Wing at Sierra
Tower CHS Ltd, Lokhandwala, Kandivali East, Mumbai 400
101(hereinafter referred to as the the said Flats). Disputants
purchased the said Flats in December 2011 and they are the joint
owners of the said flats and bearing membership no. 178 and 179 in
the Seirra Tower CHS Ltd i.e the Opponent No. 1.

2.

Opponent No. 1 is a Co-operative Housing Society namely Sierra


Tower CHS Ltd, Lokhandwala Township, Akruli Road, Kandivali (E),
Mumbai-400101

having

its

registration

No.MUM/WR/HDG/TC/14348/2008-09/YEAR 08(hereinafter referred to


as the said Society) where the Disputants are members having
membership no. 178 and 179

and owners of Flat NO.1103/1104.

Opponent No. 2 is a member of the Society and owner of the flat


above the said Flats of Disputants.
3.

It is submitted that after the purchase of the said Flats, the


Disputants noticed dampness on the walls which occurred due to
water seepage from the flat exactly above said flat which became
worse day by day and has damaged the colour and plaster of roof of
balcony and living room wall of the said Flats. The said Flats were
painted in January 2012.

4.

It is submitted that Disputants discussed said problem with


Opponent No. 1 and requested it to arrange repair the said water

seepage. However, the said Opponent has failed and avoided such
repairs on one pretext or another.
5.

It is submitted that since the complaint of water seepage remained


unresolved, the Disputants requested the Office of the said Society
to look into the matter. Several complaints orally and written were
made in the office of the said Society. Since all the requests made to
office bearers of said Society fell on deaf ears, Disputants made a
written complaint dated July 25, 2012 to the said Society in context
of the seepage in the said Flats. Hereto annexed and marked as
Exhibit A is the copy of the written complaint dated July 25,
2012.

6.

It is submitted that the seepage has destroyed the colour and


plaster of the ceiling of the balcony of the said Flats and the damage
has spread over and as a result the colour of two of the walls in the
living room also got damaged. The Disputants are suffering, serious
hardships and nuisance due to said seepage.

7.

It is submitted that the said Society had permitted the Opponent No.
2 to carry out various works on certain terms and conditions vide
letter dated December 20, 2009. It is found by the said Society as
mentioned in a letter to the Opponent No. 2 dated December 4,
2012 that the Opponent No. 2 had altered the structure and made
alternations beyond the scope of the permission given by the said
Society. The said Society on inspection has found that Opponent No.
2 has completely altered the washroom and even taken out a water
connection to the balcony and the said Society is of the view that
the leakage is from the concealed pipes illegally extended by the
Opponent No.2. Hereto annexed and marked as Exhibit B is the
copy of the letter dated December 4, 2012.

8.

It is submitted that Opponent No. 2 did not permit representative of


the said Society enter the premises of his Flat to locate the cause of
leakage as reflected letter dated December 4, 2012. It is further
submitted that despite issue of the said letter by the Chairman of
the said Society to Opponent No. 2, the said Opponent No. 2 is
avoiding

necessary

repairs

on

one

pretext

or

another.

The

Disputants therefore requested the said Society to resolve the issue


vide another letter dated December 18, 2012. The said Society in
turn issued a letter dated 04/01/2013 to the Opponent No. 2 alleging
his non-cooperation. Hereto annexed and marked as Exhibit C is
the copy of the latter dated 04/01/2013.
9.

It is submitted that the said Society forwarded a letter of the


Opponent dated January 9, 2013 that the water supply valve to the
balcony of the Opponent No.2 flat is being closed temporary for a
period of 5 days to observe any change in the situation in the Flat
below, i.e. the said Flats. But this was of no avail. Hereto Annexed
and marked as Exhibit D is the copy of the letter dated January
9, 2013.

10.

Vide letters dated February 20, 2013 the Opponent No. 2 through
the said Society informed the Disputants that the Engineer called in
by the said Society has concluded that the seepage is not through
his Flat. Hereto annexed and marked as Exhibit E is the copy of
the letter dated February 20, 2013. However, vide letter dated April
23, 2013, the said Society has stated that the structural audit has
confirmed that there is a leakage from the Opponent No. 2s balcony.
Hereto annexed and marked as Exhibit F is the copy of the letter
dated April 23, 2013. The said Society further stated that the
Opponent No. 2 did not permit the mason sent by the said

Society/auditor to enter his Flat to carry out the necessary work. The
said Society therefore forewarned the Opponent No. 2 that these
Disputants may be compelled to legally proceed against the
Opponents and the Opponent No. 2 shall be responsible for the
same. In the meantime, the Disputants further informed the said
society that they may not be held responsible for the cost of repairs
and rather they are eligible for damages from Opponent No. 2. The
Disputants had also pointed out to the said Society that the said
Society shall also be responsible for the seepage from outside the
said Flats.
11.

In reply to the said letter of the said Society dated April 23, 2013,
Opponent No. 2 has stated that the engineer of Lokhandwala
Construction Company has concluded that the water seepage is not
through his Flat and therefore, has held that the matter is between
the said Society and the Disputants. Hereto annexed and marked as
Exhibit G is the copy of the letter dated April 26, 2013.

12.

Despite sincere efforts of the Disputants, the water leakage into the
said Flats has so far remained unrepaired. However, the Disputants
vide letter dated May 21, 2013 brought the following to the notice of
the said Society:
This refers to series of complaints made to society about
seepage problem from Flat No. 1203-04 of B wing of this
society. In this regard we further bring to your notice that
the seepage has spread over across the wall so much that
it has reached to Electricity point of AC of the living room. It
is possible that such seepage may cause severe electric
short circuit and because of which the entire building may
catch fire.

It may also cause bursting of AC unit or the electric wires


and which may cause personal injuries to the life of my
family as well life of other residents of the building.
So I am putting you on notice if any of above incident
happens the entire responsibility shall be of the society
office bearers and the owner of Flat -B-1203-04 individually,
and severally as well. Therefore please act immediately to
prevent any mishap to my life and property. I am also
enclosing a copy of this notice which you may consider
forwarding to the owners of Flat B/ 1203-04.
Hereto annexed and marked as Exhibit H is the copy of the
letter dated
May 21, 2013. The Disputants further submit that they gave
another notice to the said Society on May 31, 2013 stating that
they are left with no options except to approach a Court of law
and they have been forced to resort to legal remedy for which
the Opponents shall solely be responsible. Hereto annexed and
marked as Exhibit I is the copy of the letter dated May 30,
2013
13.

It is hereby submitted that the Opponent No. 1 or 2 has not so far


responded to the said letter(s) of the Disputants. The Disputants
hereby further submit that as per bye-law 160 (a) of the Bye-laws of
the said Society, the repairs and maintenance of the property of the
said Society shall be carried out by the said Society at its costs
including:
(xiv) All leakages of water including leakages due to rain
water, and leakages due to external common pipe line and
drainage line,

It is submitted that the said Society has failed to comply with


the said bye-law in the case of the Disputants
14.

In view of the failure on the part of the said Society to repair the
leakage, it is further submitted that that the said Society has failed
to comply with bye-laws 48 of the bye-laws of the said Society which
read as under;

Examination of flat and report about Repairs to Flats


(a) For facilitating discharge of functions mentioned under
the bye-law No. 156 by the Committee, every member shall
allow the Secretary of the Society, accompanied by any
other member of the Committee, to enter upon his flat with
prior intimation to the member, to examine its condition for
ascertaining the repairs, if any, necessary. The Secretary of
the society shall make a report to the Committee,
indicating therein the particulars of the repairs to be carried
out by the society at its cost and those by the members at
their cost.
On receipt of such report, the committee shall ascertain the
cost involved in the repairs, which are required to be
carried out by the society at its cost as provided under the
bye-law No. 160(a) and cause the notice to be served on
the member for such period as the Committee thinks
adequate, of its intention to carry out the repairs and thereupon the member concerned shall allow the workmen
engaged by the society directly or through its architect,

access to his flat for carrying out the repairs. If the member
concerned

fails

to

give

access

to

his

flat,

without

reasonable and convincing reasons, the Secretary of the


society shall have authority to enter upon the flat and carry
out the work under the Supervision of the member of the
Committee

duly authorised by it in that behalf or the

architect appointed by the society.


(b) In respect of the repairs to be carried out by the
member at his cost, the Committee shall cause the notice
to be served on the member, indicating therein, the
particulars of repairs necessary at his flat and calling upon
him to carry out the repairs to his flat to the satisfaction of
the architect approved by the society, if any, at his cost,
within such period as the Committee may allow. On his
failure to comply with the notice, the Secretary of the
Society or the architect appointed by the society shall have
authority to enter upon the flat and cause the repairs to be
carried out after giving due notice to the member
concerned. The amount spent by the Society on such
repairs shall be recoverable from the member concerned.
15.

The Disputants state that inspite of continuous efforts on

their part to pursue with the Opponents for carrying out repairs
to stop the leakage in the said Flats, the same is in vein though
it is the duty and responsibility of the Opponents to carryout
such repairs to stop the leakage. The Disputants are therefore
entitled to a Declaration from this Honble Court that the
Opponents are liable and duty bound to carry out the repairs to
stop the leakage at their cost in the said Flats of Disputants
and also entitled for Declaration that the Opponents have
failed, avoided and neglected to carryout the required repairs

to the leakage in the said Flats of Disputants thereby causing


prejudice, injury, damage and loss to the Disputants.
16.

The Disputants state that because of the failure on the

part of Opponents to carryout the repairs to stop the leakage in


the said Flats of the Disputants there is a damage and loss to
the Disputants to the extent of about Rs. 1,00,000/- (Rupees
One Lac only) and the Opponents are liable to pay the said
sum to the Disputants. The Disputants crave leave to refer to
and rely upon the details regarding the said damage and loss,
when produced. The Disputants are therefore entitled for the
compensation of the said amount payable by the Opponents to
make good the said loss and damage to the Disputants and
accordingly, entitled for a Declaration as well as Order and
direction to the said effect from this Honble Court.
17.

The Disputants state that the problem of leakage and

seepage still persist in their Flats and the same shall become
bad to worse in this rainy season. The Opponents are turning
totally a blind eye to the requests of the Disputants to carry
out the required repairs to stop the leakage in the said Flats of
the Disputants. In this situation, the Disputants cannot remain
as a silent spectator till final disposal of the present Dispute
Application. The Disputant are therefore seeking interim and
ad-interim relief against the Opponents regarding stopping the
leakage and seepage in their Flats. The Disputants have
established strong prima-facie case. It is justice, proper,
equitable and in the interest of Justice that pending the
hearing and final disposal of the present Dispute Application,
this Honble Court be pleased to Order and direct the
Opponents to carryout required necessary repairs to stop the

leakage and seepage in the said Flats of the Disputants at their


own cost subject to final outcome of the present Dispute
Application. No harm or injury will be caused to the Opponents
if such Order is passed. The balance of convenience and
consideration of irreparable loss demand such relief be granted
in favour of the Disputants.
18.

THE DISPUTANTS, THEREFORE, PRAY THATa) This Honble Court be pleased to entertain, try and decide
the present Dispute Application in terms of Section 91 to
96 of the M.C.S Act, 1960.
b) This Honble Court be pleased to declare that the
Opponents are liable and duty bound to carry out the
repairs to stop the leakage at their cost in the said Flats
of the Disputants.
c) This Honble Court be pleased to declare that the
Opponents have failed, voided and neglected to carryout
the required repairs to stop the leakage and seepage in
the

said

Flats

of

the

Disputants

thereby

causing

prejudice, injury, loss and damage to the Disputants.


d) This Honble Court be pleased to declare that the
Disputants are entitled for a compensation of Rs.
1,00,000/- (Rupees One Lac only) from the Opponents
towards making good the loss and damage caused to the
Disputants

owing

to

the

failure,

avoidance

and

negligence of the Opponents to carryout the required


repairs to stop the leakage and seepage in the said Flats
of the Disputants.

e) This Honble Court be pleased to Order and direct the


Opponents to pay a sum of Rs. 1,00,000/- (Rupees One
Lac only) to the Disputants as a compensation for making
good the loss and damage caused to the Disputants,
within a period of 30 days from the date of the Order or
within such period as may be deemed fit and proper by
this Honble Court.
f) Pending the hearing and final disposal of the present
Dispute Application, this Honble Court be pleased to
order and direct the Opponents to carryout required
necessary repairs to stop the leakage and seepage in the
said Flats of the Disputants at their own cost subject to
the final outcome of the present Dispute Application.
g) Ad-interim reliefs in terms of prayer clause (f) above be
kindly granted.
h) Cost of this Application be provided for.
i) Any other and further relief as this Honble Court may
deem fit and proper be kindly granted.
AND FOR THIS ACT OF KINDNESS, THE DISPUTANTS DUTIFULLY PRAY.
At Mumbai
This 21st day of June, 2013.
1.

2.
DISPUTANTS

Advocate for Disputants

VERIFICATION
We, (1) AMIT PRADHAN and (2)

CHARU PRADHAN the

Disputants do hereby verify and state that whatever stated


hereinabove is true and correct to the best of our knowledge and
belief and we believe the same to be true and correct.

Verified at Mumbai
This 21st day of June, 2013.

Disputant No. 1

Disputant No. 2

Advocate for Disputants.

BEFORE THE HONBLE IVTH CO-OPERATIVE COURT, MUMBAI


CASE NO. CC/IV/
Amit Pradhan and Anr.
DISPUTANTS

OF 2013

V/s.
Sierra Tower CHS Ltd and Anr.
OPPONENTS

INDEX
SR. NO.

PARTICULARS

1.

Dispute Application

2.

Vakalatnama

3.

Memo of Address

4.

List of Documents

5.

Interim Application

PAGE NO.

At Mumbai
This 21st of June, 2013.
Disputants

Advocate

for

BEFORE THE HONBLE IVTH CO-OPERATIVE COURT, MUMBAI


CASE NO. CC/IV/

OF 2013

Amit Pradhan and Anr.


DISPUTANTS

V/s.
Sierra Tower CHS Ltd and Anr.
OPPONENTS

VAKALATNAMA
We, (1) AMIT PRADHAN and (2) CHARU PRADHAN the
Disputants, do hereby appoint, nominate and authorize

Ms.

DEEPALI U. PEDNEKAR Advocate, High Court, Mumbai, to act,


appear and plead on our behalf in the above matter.
IN WITNESS WHEREOF, We have put our hands to this
writing

on

this

21st day of June, 2013.

1. AMIT PRADHAN

2. CHARU PRADHAN
DISPUTANTS
ACCEPTED:

(DEEPALI U. PEDNEKAR)
Advocate, High Court,
265, Coronation Bldg,
(Sant Niwas), Goa Street,
Opp- Sher-E-Punjab Hotel,
Shahid Bhagat Singh Road, Fort,
Mumbai 400 038

BEFORE THE HONBLE IVTH CO-OPERATIVE COURT, MUMBAI


CASE NO. CC/IV/

OF 2013

Amit Pradhan and Anr.


DISPUTANTS

V/s.
Sierra Tower CHS Ltd and Anr.
OPPONENTS

MEMO OF ADDRESS
1.

AMIT PRADHAN

2.

CHARU PRADHAN
Both Residing at Flat No. 1103/ 1104,
B Wing, Sierra Tower CHS Ltd,
Lokhandwala, Kandivali East,
Mumbai 400 101

At Mumbai
This 21st day of June, 2013.
Disputants

Advocate

for

BEFORE THE HONBLE IVTH CO-OPERATIVE COURT, MUMBAI


CASE NO. CC/IV/
OF 2013
Amit Pradhan and Anr.
DISPUTANTS

V/s.
Sierra Tower CHS Ltd and Anr.
OPPONENTS

LIST OF DOCUMENTS
SR. NO.

EXHIBITS

1.

PARTICULARS

A copy of the Written Complaint

dated July
25, 2012 by the Disputants to the
Society.
2.

A copy of the Letter dated

20/12/2009.
3.

A copy of the copy of the Letter

dated
04/01/2013.
4.

A copy of the Letter dated

January 9, 2013.
5.

A copy of the letter

dated February 20, 2013


by the Opponent through the
Society to the Disputants.

6.

A copy of the Letter dated

A copy of the Letter dated

A copy of the letter dated May

A copy of the letter dated May

April 23, 2013.


7.
April 26, 2013.
8.
21, 2013.
9.
30, 2013.

At Mumbai
This 21st day of June, 2013.
Disputants

Advocate

for

BEFORE THE HONBLE IVTH CO-OPERATIVE COURT, MUMBAI


CASE NO. CC/IV/

OF 2013

Amit Pradhan and Anr.


DISPUTANTS

V/s.
Sierra Tower CHS Ltd and Anr.
OPPONENTS

APPLICATION FOR INTERIM RELIEFS:


We, AMIT PRADHAN AND CHARU PRADHAN, the Disputants in
the above matter, do hereby state on solemn affirmation as under:
1. I say that, the Disputants have filed the present Dispute
Application seeking reliefs against the Opponents as more
specifically set-out in the Dispute Application. I repeat,
reiterate

and

reaffirm

whatever

stated

in

the

Dispute

Application as if the same is an integral part of this Application.


2. I say that the problem of leakage and seepage still persist in
our Flats and the same shall become bad to worse in this rainy
season. The Opponents are turning totally a blind eye to our
requests to carry out the required repairs to stop the leakage
in our Suit Flat. In this situation, we cannot remain as a silent
spectator till final disposal of the present Dispute Application.
Hence we are therefore seeking interim and ad-interim relief
against the Opponents regarding stopping the leakage and
seepage to our Flats. We have established strong prima-facie
case. It is justice, proper, equitable and in the interest of
Justice that pending the hearing and final disposal of the

present Dispute Application, this Honble Court be pleased to


Order and direct the Opponents to carryout required necessary
repairs to stop the leakage and seepage in our Suit Flats at
their own cost subject to final outcome of the present Dispute
Application. No harm or injury will be caused to the Opponents
if such Order is passed. The balance of convenience and
consideration of irreparable loss demand such relief be granted
in favour of us.
3)

THE DISPUTANTS, THEREFORE, PRAY THAT :


a) Pending the hearing and final disposal of the present
Dispute Application, this Honble Court be pleased to
order and direct the Opponents to carryout required
necessary repairs to stop the leakage and seepage in the
said Flats of the Disputants at their own cost subject to
the final outcome of the present Dispute Application.
b) Ad-interim reliefs in terms of prayer clause (a) above be
kindly granted.
c) Cost of this Application be provided for.
d) Any other and further relief as this Honble Court may
deem fit and proper be kindly granted.

AND FOR THIS ACT OF KINDNESS, THE DISPUTANTS DUTIFULLY PRAY.


At Mumbai
This 21st day of June, 2013.

Disputant No. 1

Disputant No. 2
Advocate for Disputants.

BEFORE THE HONBLE IVTH COOPERATIVE COURT, MUMBAI


CASE NO. CC/IV/
2013

OF

Amit Pradhan and Anr.


DISPUTANTS
V/s.
Sierra Tower CHS Ltd and Anr.

OPPONENTS

===================
==========

DISPUTE
APPLICATION
&

INTERIM
APPLICATION
===================
==========
This 21st day of June, 2013.

(DEEPALI U. PEDNEKAR)
Advocate for Disputants
265, Coronation Bldg,
(Sant Niwas), Goa Street,
Opp- Sher-E-Punjab Hotel,
Shahid Bhagat Singh Road, Fort,
Mumbai 400 038.