Piya Sen & Ors vs Saranjit Singh

Shampa Sarkar, J

The petitioners are aggrieved by an order dated December 20, 2019 passed by the Learned District Judge at Alipore in Misc. Appeal 354 of 2019 by which the application for stay of operation of the order dated December 4, 2019 passed by the learned Trial Judge, was fixed for hearing on January 15, 2020 and written objection was directed to be filed. The petitioners are the committee members of Ballygung Park Towers Residents Committee. The Indian Church Trustees are the owners of the said building. The plaintiff/opposite party is a lessee just like the petitioners in respect of a flat in the said building.

The opposite party fled a suit being Title Suit No.1799 of 2019 before the learned Civil Judge (Junior Division) at Alipore for the following reliefs:

"a) a decree for declaration to the effect that the plaintiff has every right to get accounts of the expenditure from the common maintenance fund of the building from the defendants.

b) a decree for mandatory injunction directing the defendants to call for a general body meeting to form an Association of flat owners by way of election by the flat occupiers of the building complex described in the Schedule below;

c) a decree for permanent injunction restraining the defendants from withdrawing money lying in the bank account of the flat owners of the building complex;

d) a decree for mandatory injunction directing the defendants to furnish audited accounts of the expenditures made by them;

e) a leave may be granted to the plaintiff under Order 1 Rule 8 of C.P.Code;

f) Costs;

g) Such other relief or reliefs as may be found, the plaintiff is entitled to in law and in equity."

It is the contention of the petitioners in the said suit that the lease agreement by virtue of which the plaintiff and the other lessees came into possession of the demised premises, provided that an association of flat owners would be formed for framing rules and regulations for use and enjoyment of the common paths, essential services and amenities in the building and also for carrying out common maintenance work of the building. It is the case of the plaintiff that without forming such an association and without framing rules and regulations the existing committee had illegally formed an association and were arbitrarily running a committee as also doing the maintenance work of the building from the common fund without furnishing accounts. That the committee had encashed a fixed deposit of Rs.6 lakh standing in the name of the committee and entrusted painting work to Berger Paints. The cause of action as pleaded in the said plaint arose on October 29, 2019 when the petitioners tore the letter of the plaintiff requesting formation of an association and refused to constitute a proper representative association of the flat owners and also refused to produce the accounts of expenses from the common fund. The opposite party filed an application under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure and the learned Trial Judge by order dated December 4, 2019, directed that the plaintiff had a prima facie case to go to trial and restrained the defendants from making any unauthorised operation of common fund of the suit property. Aggrieved, the Misc. Appeal No.354 of 2019 was filed.

It is submitted on behalf of the petitioners, that a blanket order of injunction restraining the committee from operating the common fund has caused severe hardship in view of the fact that the monthly common expenses of the said building complex could not be paid for the month of December, 2019, like the sweeper charges, security guard/caretaker charges and other allied charges including the charges for painting. Aggrieved Misc. Appeal No.354 of 2019 was filed before the learned District Judge at Alipore.

On the basis of such urgency an application for stay of operation of the order dated December 4, 2019 was filed before the lower appellate court but the lower appellate court without considering the urgency, fixed the matter on January 15, 2020 for hearing of the application for stay and directed written objections to be filed in the meantime.

I have considered the plaint case from which it prima facie appears that the suit is for declaration that the plaintiff had every right to receive the accounts of the common fund and that an order of mandatory injunction should be issued for formation of the association of flat owners. The prayer for injunction appears to be an order restraining the defendants from withdrawing the money lying in the fund of the flat owners of the building complex. Leave was prayed to move the application in representative capacity under Order I Rule 8 of the Code of Civil Procedure. While deciding the question of prima facie case, the learned Trial Judge restrained the defendants from operating the common fund of the committee on the finding that the plaintiff had a triable case. However, prima facie case cannot be the only parameter to be looked into but the balance of convenience and inconvenience and irreparable loss and injury should also be taken into account. When the suit itself, prima facie, in my view, was for declaration that the plaintiff was entitled to the accounts and for a decree directing the defendants to form an association, a blanket injunction at this stage should not have been granted restraining the defendants from operating the building common funds without considering the balance of convenience and irreparable loss and injury that such an order may cause. The learned appellate court below ought to have taken into consideration such a situation instead of fixing the matter for hearing on January 15, 2020. If the payment s to the security guards, electricity department etc. are not made then the other lessees will suffer irreparable loss and injury, inasmuch as, there will be a risk of disconnection of electricity is the common areas and also security guards and cleanness may create disturbance and the building complex will not be properly looked after.

Under such circumstances, this Court permits the committee to pay the fixed costs, as indicated in paragraph 7 of the revisional application, for the month of December, 2019 only. Actual receipts showing payment/disbursement of the said amounts under different heads and accounts thereof should be maintained and produced before this Court on the next date. Apart from the said expenses, no other disbursement will be made from the common fund.

List this matter in the Daily Supplementary Cause List on January 13, 2020.

The learned Advocate‐on‐record for the petitioners is directed to serve a copy of the revisional application upon the opposite party by tomorrow and file affidavit‐of‐service on the next date of hearing. Parties are to act on the basis of a communication of the learned Advocate.

Photostat plain copy of this order duly countersigned by the Assistant Registrar (Court)/Deputy Registrar (Court) be given to the parties on usual undertakings.