Bombay High Court Allows Flat Owner To Recover Over 46 Lakhs Terrace Repair Expenses From Housing Society

"Court is of the view, had the Society repaired and maintained overhead terrace on the 8th floor and Disputant (flat owner) would not have suffered over a period, since 1992 till date. Indisputably, acts and omissions of the Society call for interference in Disputant's rights to live peacefully and enjoy the flats", the court held.

Justice Sandeep K. Shinde was dealing with a society's writ petition challenging Maharashtra State Co-operative Appellate Tribunal's award to the flat owner for recovery of expense and damages.

The court also imposed cost of Rs. 2 lakhs on the society payable to the flat owner who suffered due to leakage from the overhead terrace despite multiple complaints to the society.

The disputant owns two flats in the building owned by the petitioner society since 1992. From the monsoon of 1992, there was leakage from the terrace. BMC and the court gave directions to the society to carry out the required repairs in the building several times but the society did not carry out any repairs. Finally, a court allowed her to carry out the repairs which were concluded in 2004.

In a dispute before the Co-operative Court, the flat owner claimed that she incurred an expense of Rs. 46,78,562 for the required repairs. She claimed this amount plus interest from the society. The Co-operative court dismissed her case. However, the Appellate Tribunal held that she was entitled to recover the expense and also damages of Rs. 40 lakhs.

The co-operative court had held that the society is not responsible because alterations such as merging of two flats into one carried out by the previous owner caused damaged to the structure. The appellate tribunal held the society caused the damage by it negligence.

At the outset, the court stated that it can interfere in findings of fact only when there has been a patent perversity in the lower court's order or when there is gross and manifest failure of justice, or if principles of natural justice have been flouted.

According to the structural audit report, the terrace slab was heavily deteriorated and needed to be recast. The society did not carry out the required repairs despite BMC and lower court orders.

Thus, evidence does not suggest that the damage to overhead terrace slab was due to the acts of the flat owner, the court said, adding, "on the contrary, evidence proves that the society neglected to carry out the repairs at every possible occasion". Not only that, but when the BMC and the court allowed the flat owner to carry out repairs, the society objected by filing suits and appeals, the court observed.

Therefore, the co-operative court's finding that the society was not negligent is not only erroneous but also perverse, the court held. The court upheld the appellate court's order which allowed the flat owner to recover Rs. 46,78,562 with 12% p.a. simple interest from the society.

The flat owner had claimed that her furniture, fixtures, fittings, and interiors were damaged due to heavy seepage from the terrace. As per the society's bye-laws, it has the obligation to maintain the terrace in good condition. Since it neglected this, the court said that the flat owner was entitled to claim damages, if any, caused to her property.

However, the person claiming damages has to show that she suffered loss, the court said. The court noted that the respondent did not plead material facts such as the kind of fittings, the particulars of furniture such as make, age, colour etc in the plaint. She also did not examine the previous owner from whom she purchased the furniture, or an interior decorator to prove that there was any damage.

The court held that that she failed to prove that she purchased the furniture and incurred the claimed damage and set aside the appellate court's award of Rs. 40 lakhs in damages.

Case no. – Writ Petition No. 6082 of 2006

Case Title – Bharatiya Bhavan Co-operative Housing Society Ltd. v. Krishna Harinarayan Bajaj,

Citation: 2022 LiveLaw (Bom) 501