Paras Singhal
I got your email address from your website and wanted your opinion on a matter related to my flat in Airoli, Navi Mumbai (Maharasthra)
There are two Cases that I want to discuss:
CASE 1:
I bought a flat in Airoli (Navi Mumbai) around November 2010. The flat was on top floor and terrace on the top of the flat suffered from massive leakages, which we were aware of while buying the flat. But, we were also aware that as per the Bye Laws of cooperative Housing Society, the costs of the repairs were to be borne by the society.
Before and after we had purchased the flat, the emails were sent to society asking them about when would they be able to get the water proofing done of that flat, but they never replied. We were also not planning to move into that flat immediately, so we also waited.
During next year monsoon, we could see that massive leakage ourselves. The seller had got the flat newly painted before selling it to us, and all of it got spoiled. We urgently asked the society to act into the matter, however there was no reply. They said that the matter would be taken into the next AGM, which was in July 2011.
In the AGM, everybody opposed that society should pay for the waterproofing arguing that it’s only us who would benefit from the expense and the society would not. We showed them the bye laws and also a copy of a recent high court order (which had specifically asked the society to pay for the repairs on terrace leakage), but none of them listened. The society bearers suggested that since the leak was so massive and since the leakage would ultimately impact the entire structure of the building, instead of waterproofing, a shed should be build over the terrace so that terrace is not exposed to rain water at all.
The cost of building the shed was approximately Rs 2 Lacs and society said that they can at best pay 40% of the cost. The rest 60% of it would have to be borne by us, since we were facing the problem and we would benefit the most by the construction of the shed.
We knew that as per law, the society was wrong. But we also wanted to move into the house and we could not do so till the shed was built. We also had to get the entire house repainted again because it was badly damaged in rain. Our total expense was Rs 1.2 Lacs (60% of the Rs 2 Lacs cost of shed) + Rs 65,000 for painting.
CASE 2:
In the year 2014, there was a crack on a pipe on our kitchen and because of which the flat below us suffered leakage from its roof. That guy complained to the society and argued that we should get the pipe repaired. He was right, but we argued that when we faced a problem, the society did not help us, so now why should we help if somebody else is suffering. We also told about Rs 1.2 Lacs that we had spent to get the shed build on the top of the terrace.
In a meeting between the society office bearers and us, it was decided that society shall pay for the repairs (till limit of Rs 30,000). This was being done because of the injustice done to us earlier. This was documented and signed. After that we gave access to our flat to get the broken pipe repaired. The society gave the work order for the repair and also paid for it as agreed.
Very cunningly, the society office bearers raised this issue in the AGM and in the AGM everybody said that this is a wrong practice and stuck this decision down. We were away during the AGM and could not attend. The society has then added the costs of repair in our maintenance bill and is asking us to pay the cost of repairs.
My queries are as follows:
In Case 1 above, who was right and who was wrong? Just because we were aware that there was a terrace leakage problem in the flat when we bought the house, are we liable to get it repaired?
In Case 1 above, do I still have an option of asking back my Rs 1.2 Lacs that I had spent on the shed? Can I take up this matter legally after 3 years?
In Case 2 above, is it right for the society to change its stand after the repair had been done and the payment made?
In case 2 above, is there no importance / value of the written agreement that society committee members had entered with me, where they agreed that they would be paying for the repairs?
I C Naik
This is a good query from an informed member.
OUR RESPONSE
The Society/Office bearers can be sued for two things:
1.The deficiency in service to member
2.Negligence of office bearers in attending to society’s responsibility of providing service
You can get full money back plus compensation for harassment
This is a fit case for taking the matter up in the Consumer Court for both the cases.
1.Your knowledge in case of both is far superior to average member of your society including the office bearers. It is unfortunate that the office bearers are unable to understand such simple language used in the Bye-Laws.
2.The Society will be ordered to bear repair costs of both the cases.
3.The Court will order the Society to pay you compensation for harassment which can be easily around 50K (You should claim 100K).
4.The amount spent by you will be ordered to be paid to you by the Society with interest of say 8%.
5.The Municipality will order scraping of the Shed and will impose Penalty on the Society.
6.The Society will be asked to carry out repairs of both at its costs.
7.After that you have to send a Notice to Office bearers to compensate the Society for the loss caused to the Society on account of the Committees wrong decisions which made them liable to make the los good as provided under Section 73(1AB). Losses could be under following heads:
i.Compensation as per 3 above
ii.Interest as per 4 above
iii.Cost of shed which will be scrapped by Municipality
iv.Fine by the Municipality
8.Also send a copy of the Notice (as per (6) under a separate complaint to the Registrar to inquire in to your claim and issue directions to the Committee as provided in that section.
9.Time barring does not arise because you are not filing a case for recovery of an “acknowledged debt” First the Court has to examine and hold that ` 1.2 lacs is a Society’s debt to you and three years starts from that date.
10.The bye laws are themselves agreements between members and no separate agreement has place. So disregard the agreement totally in your processes before the court.
This is 100% sure case for an order of Consumer Court and may be about a year should be a fair estimate to get the order. Consumer court proceedings are not expensive. Time permitting you can yourself stand in the Court. Do not need a legal knowledge, as what you are aware about is enough which the office bearers miserably failed to appreciate.