Judgement - Konark Apartment Residents Welfare Association, Regd. S-28569 - RWA

IN THE COURT OF MS. POOJA TALWAR: ASCJ-cum-JSCC-cum
GJ: SOUTH DISTRICT: SAKET COURTS: NEW DELHI


Suit No. 261/2011
CNR No. DLST03-000144-2011


In the matter of :-

Konark Apartment Residents
Welfare Association, Regd. S-28569
Through its President. .....Plaintiff

V E R S U S

1.A.B. Illango
S/o Sh. A.K.B.S. Maniyam
R/o Flat No. 80, Konark Appts.,
Kalkaji Extension, New Delhi.
2.V.K. Arora
S/o Sh. Pyare Lal Arora
R/o Flat No. 21, Konark Appts.,
Kalkaji Extension, New Delhi.
3.S.M. Samvedi
S/o Sh. S.K. Samvedi
R/o Flat No. 28, Konark Appts.,
Kalkaji Extension, New Delhi. .....Defendants
Date of institution : 10.08.2011
Reserved for Judgment: 09.07.2016
Date of decision: 18.07.2016
JUDGMENT
1. The present suit has been filed seeking recovery in the sum of Rs.42,270/- against three defendants.
2. Brief facts as stated by plaintiff in the plaint are that the plaintiff is a Resident Welfare Association registered with the Registrar of Societies, Delhi. Sh. Vipin Kumar Goel is the duly elected President. The suit has been filed through the said President. The defendants are resident members of Konark Apartment Residents Welfare Association (hereinafter referred to as KARWA). The KARWA is engaged in the welfare activities of residents as set out in the memorandum and rules and regulations approved by the Registrar of the Societies. KARWA maintains the common area, parks, providing internal water supply in the colony, sanitation, security service etc. KARWA is functioning through a duly elected Management Committee directly elected by the residents. The members of the society are required to share the maintenance charges as monthly subscriptions to provide these services to the residents as laid down in the rules and regulations of the society. The defendants have been enjoying the services of the society but have not been paying their share of maintenance charges for a long period. A legal notice dated 14.05.2011 was sent to the defendants calling upon them to pay the subscription. The rate of monthly maintenance is Rs. 250/- per month w.e.f April, 2010. Prior to this, the rate was Rs. 200/- per month. These charges have been approved by the general body. Each defendant is liable to pay Rs. 9,150/- alongwith interest. The residents of Konark Apartment become member of KARWA by virtue of occupying a flat in the complex as a owner, a lessee a tenant or transferee hence, a resident member is liable to pay the monthly subscription. Since the defendants have defaulted in making the payment of subscription and despite receipt of notice failed to make the payment. Hence, the present suit.
3. Defendant no. 2 and 3 entered contest by filing their respective written statements.
Defendant no. 1 was proceeded ex-parte.
The preliminary objections taken by the defendant no. 2 and 3 are that the suit has not been properly valued. No cause of action has arisen in favour of the plaintiff. Defendant no. 2 and 3 are shown as non-members in the directory of its members maintained by the plaintiff. No services as stated by the plaintiff have been availed by defendant no. 2. The suit of plaintiff is barred by limitation. Sh. Vipin Kumar Goel is denied to be a duly elected President. It is denied that the Management Committee through which the society is functioning is duly elected by the members in accordance with the rules and regulations of the society. The defendants are not liable to pay subscription as the association is not following the provisions of the Constitution. Many rules have been flouted hence, defendants have opted out of the association. Sh. Vipin Kumar Goel himself has not paid the monthly subscription for a period of two years over the period 1999-2001 hence, he was ineligible to stand for election. As per the rules and regulations, the Management Committee consists of 16 members and election should be held annually. The plaintiff has not filed any document to prove the subscription was at the rate of Rs. 250/- per month w.e.f. April, 2010 and Rs. 200/- per month prior to that.
4. Replication to the written statement of defendant no. 2 and 3 was filed by the plaintiff. The contentions of the defendants are categorically denied. As far as mentioning of non-member in the directory is concerned, it is stated that the non-member is mentioned against a person who is not paying maintenance charges and the writing in the telephone directory is for the purpose of security guard of KARWA. There are additional facilities such as collection and deposit of electricity, water and telephone bills provided to the resident member paying the expenses regularly. These facilities are not provided to non-member. Writing of non-member is for cross checking of eligible candidates for contesting the election by Returning Officer. All the other members shown as nonmembers in the directory have now started paying subscription except the defendants. The suit is well within the limitation and has been filed by a duly authorized person.

5. On the basis of pleadings, the following issues were framed:-
1.Whether the suit filed by the plaintiff is barred by limitation? OPD
2. Whether the suit has not been properly valued by the plaintiff, as alleged by the defendants? OPD
3. Whether the suit has not been instituted by a duly authorized person, as alleged by the defendants? OPD
4. Whether plaintiff is entitled to recover a sum of Rs.42,270/- from the defendants, as prayed for in the suit? OPP
5. Whether plaintiff is entitled for interest, if so, at what rate and for which period? OPP
6. Relief.

6. Plaintiff in order to prove its case examined Sh.Vipin Kumar Goel as PW1. He relied upon documents as Ex.PW1/1 to Ex.PW1/4. He reiterated the averments made in the plaint in his affidavit.
Defendant no. 2 Sh. V.K. Arora stepped into the witness box as DW1.
Defendant no. 3 Sh. M.K. Samvedi was examined as DW2. He relied upon documents I.e Ex.DW2/1.
Sh. V. Subramanian, Secretary of Konark Apartment Resident Welfare Association was examined as DW3. He produced documents I.e Ex.DW3/A to Ex.DW3/D.
Sh. S. Chhabra, Treasurer was examined as DW4. He produced documents ie. Ex.DW4/A to Ex.DW4/M.

7. Arguments advanced by counsels for both parties have been heard and records perused carefully.

8. My issues wise findings are as follows:-
Issue no. 1
Whether the suit filed by the plaintiff is barred by limitation? OPD
The onus to prove this issue was on the defendants. It was for defendants to prove that the suit is barred by limitation.
The defendants have not stated as to how the suit is barred by limitation. Whereas as per the plaintiff the recovery is sought of the amount for three years preceding to the date of filing of suit, accordingly, the suit is well within the limitation. This issue is decided against the defendants.
Issue no. 2
Whether the suit has not been properly valued by the plaintiff, as alleged by the defendants? OPD
The onus to prove this was on the defendants. It was for the defendants to prove that the suit has not been properly valued.
Defendants have simply stated that the suit has not been properly valued without giving the correct valuation. Whereas the plaintiff has valued the suit as per the recoverable amount and has paid the Court fee on Rs.42,270/-. Accordingly, the suit has been properly valued. This issue is decided against the defendants.
Issue no. 3
Whether the suit has not been instituted by a duly authorized person, as alleged by the defendants? OPD
The onus to prove this issue was on the defendants. It was for the defendants to prove that the suit has not been instituted by a duly authorized person.
The present suit has been filed by the plaintiff through its President. As per section 6 of the Society Registration Act, a suit can be sued in the name of President, Chairman, Principal Secretary or Treasurer. Plaintiff is admittedly a society registered under the Society Registration Act hence, Sh. Vipin Kumar Goel is a duly authorized person to file the present suit.
Even otherwise Sh. Vipin Kumar Goel has been authorized in the meeting of the Management Committee held on 19.01.2011. In election by virtue of which Sh. Vipin Kumar Goel was elected as President has not been declared null and void. This issue is accordingly decided against the defendants.
Issue no. 4
Issue no. 5
Whether plaintiff is entitled to recover a sum of Rs.42,270/- from the defendants, as prayed for in the suit? OPP
Whether plaintiff is entitled for interest, if so, at what rate and for which period? OPP
The onus to prove both these issues was on the plaintiff. It was for the plaintiff to prove that it is entitled to recover the amount of Rs. 42,270/- from the defendants.
It is the claim of plaintiff that the defendants have defaulted in payment of their subscription accordingly, they are liable to make the payment of the said amount.
Plaintiff has raised the claim on the premise that the defendants being the members of the Resident Welfare Association were liable to pay the subscription to the society for the services availed by them in the capacity of the being members.
It is the contention of defendants that they had opted out of the society for certain reasons stated in the paragraph no. 4 and 5 of respective written statements of defendant no. 2 and 3. In the cross examination, defendant no. 2 has stated that he has not paid subscription since 2007. Though the plaintiff has raised the claim in the sum of Rs.9,150/- alongwith interest from each defendant but has not given break up as to how the said amount has been calculated. In reply, it is stated by plaintiff that the subscription for the preceding three years has been claimed. Once it has been admitted by the defendants that no subscription has been paid since 2007, that means in view of Clause 5 of Rules and Regulations of KARWA would come into operation. As per the said rule, membership of a member shall be ceased in case a member hands over the possession of the flat or in the event when the member fails to pay monthly subscription successively for a period of three months his/her membership gets suspended. Meaning thereby the membership of the defendants was suspended w.e.f. 2007. In the paragraph no. 8, it is stated that a member whose membership is suspended would not have a voting right.
It is the defence of the defendants that the facilities as stated by the plaintiff in the plaint in paragraph no. 3 is provided to the members and per document Ex.DW1/1 that defendants have been shown as non- members in the directory for the year 2008-09. Once they have been shown as nonmembers, it means that they have not enjoyed the facilities available to the members of the society.
PW1 in his cross examination has stated that “I can
not say whether any facility is being provided by the so-called non-members for collection of electricity bills, water bills etc.” That means the plaintiff has not been able to prove the facilities enjoyed by the members for collection of electricity bill and water bill etc. were provided to the defendants from the date of non payment of subscription.

DW1 in his cross examination has categorically stated that he has not availed the services provided by RWA since 2007.
As per DW4, he does not know how many members in the society or that how many members have paid the membership fee. DW4 has stated that no register has been maintained manually.

Plaintiff has not been able to prove that the services for which the subscription has been demanded from the defendants were availed by them or not. Once the defendants were shown as non-members in the directory then whether the facilities were provided to them or not was to be proved by the plaintiff which it has failed to do. Besides this, it is categorically stated that facility of plumber, electrician employed by the Association will not be provided to the non-members. Having said so the plaintiff was required to prove that since the date of non payment of subscription the facilities as enjoyed by the members of the association have been availed by the defendants. Neither a document showing that the facilities were availed nor any witness has been able to depose to that effect. Only witness examined by the plaintiff is PW1. PW1 has stated that he is not aware whether the facilities were provided to the non-members or not. Moreover the defendants have been shown as non-members in the directory would further substantiate the claim of the defendants. The defence of defendant that being in the category of non-members, they have not enjoyed the facilities enjoyed by the members.
The suit has been filed in the year 2011 and the subscription for the last three preceding years have been demanded. Meaning thereby for the year 2008 onwards. The directory for the year 2008-09 shows the defendants as non member hence, the plaintiff was required to discharge the onus of proving that the defendants had enjoyed the facilities and were accordingly under obligation to pay the subscription.
It is also not the case of the plaintiff by virtue of being resident of the society, a person was required to pay subscription. Being a member of the Association was voluntary hence any person had a right to become a member or not. It is stated by defendant no. 2 in his cross examination that subscription has not been paid since 2007 and no facilities have been enjoyed by him since 2007. Hence, plaintiff has miserably failed to prove that it is entitled to claimed amount. These issues are decided against the plaintiff.
Relief
In view of foregoing observations on all the issues, the suit of the plaintiff deserves dismissal. Dismissed accordingly. Parties to bear their own costs. Decree sheet be drawn accordingly. File be consigned to Record Room.

(Pooja Talwar)
JSCC-cum-ASCJ-cum-GJ (South)
South District: Saket Courts: New Delhi
Announced in the open court
today i.e. 18th July, 2016


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