BEFORE THE HON’BLE IVTH CO-OPERATIVE COURT, MUMBAI

Case No. CC/IV/ OF 2013.

1. 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 the 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. 2’s 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 there-upon 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 Hon’ble 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 Hon’ble 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 Hon’ble 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 THAT-

a) This Hon’ble 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 Hon’ble 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 Hon’ble 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 Hon’ble 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 Hon’ble 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
Hon’ble Court.

f) Pending the hearing and final disposal of the present Dispute

Application, this Hon’ble 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 Hon’ble 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 HON’BLE 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

INDEX

SR. NO. PARTICULARS PAGE NO.

1. Dispute Application

2. Vakalatnama

3. Memo of Address

4. List of Documents

5. Interim Application

At Mumbai
This 21st of June, 2013. Advocate for Disputants
 BEFORE THE HON’BLE 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 HON’BLE 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. Advocate for
Disputants
 BEFORE THE HON’BLE 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 PARTICULARS

1. “A” A copy of the Written Complaint dated

July
25, 2012 by the Disputants to the Society.

2. “B” A copy of the Letter dated 20/12/2009.

3. “C” A copy of the copy of the Letter dated

04/01/2013.

4. “D” A copy of the Letter dated January 9,

2013.

5. “E” A copy of the letter dated February 20,

2013
by the Opponent through the Society to
the Disputants.

6. “F” A copy of the Letter dated April 23, 2013.

7. “G” A copy of the Letter dated April 26, 2013.

 8. “H” A copy of the letter dated May 21, 2013.
9. “I” A copy of the letter dated May 30, 2013.

At Mumbai
This 21st day of June, 2013. Advocate for
Disputants
 BEFORE THE HON’BLE 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 Hon’ble 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 Hon’ble 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 Hon’ble 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 HON’BLE 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

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

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.