IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.01.2010 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE T.RAJA O.S.A.No.392 of 2009 and M.P.No.1 of 2009 Rayala Tower Owners' Association, (Tower II & III), a society registered under the Tami Nadu Societies Registration Act (Regn.No.106/2001) No.6, 3rd Street, Nandanam Extension, Nandanam, Chennai – 35. ..Appellant Vs. 1. Vira Properties (P) Ltd., a Company registered under the Companies Act and having its registered Office at 158, Anna Salai, Chennai – 2. 2. M.R.Pratap, S/o Rajagopal Naidu, residing at No.14, Ranjit Road, Kotturpuram, Chennai. .. Respondents The appeal filed under Order XXXVI Rule 1 of O.S. Rules read with Clause 15 of the Letters Patent against the order made in O.A.No.39 of 2004 in C.S.No.32 of 2004 dated 5.11.2009 passed by the learned single Judge of this Court. For Appellant : Mr.R.Krishnasami, Senior Counsel for Mr.Srinath Sridevan For Respondents : Mr.R.Parthasarathy https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T (Judgment of the Court was made by M.CHOCKALINGAM, J.) This intra-court appeal challenges the order of the learned single Judge of this Court made in O.A.No.39 of 2004 in C.S.No.32 of 2004. 2. The Court heard the learned senior counsel for the appellant and also for the respondents. 3. It was a suit filed by the appellant Association viz., Rayala Tower Owners' Association seeking the relief of declaration and consequential injunction. Pending the suit, an application was filed seeking injunction restraining the respondent in any manner interfering with the applicant/plaintiff's right to carry out the maintenance and up keeping of the property described in schedule B of the plaint and from levying and collecting any charges therefor, pending disposal of the suit. 4. The case of the plaintiff/applicant/appellant in short is thus: The Rayala Tower Nos. 2 and 3 have got various common areas and utilities; that the Association which came to be formed in the year 2000, got registered with the view to protect and promote the interest of the occupants in the respective apartments in Tower Nos.2 and 3 at Rayala Towers; that the Association came into existence on 11.7.2001, pursuant to which, all the members of the Association were communicated that the Association would be taking care of the maintenance of their apartments since the respondents were only interest in collecting the maintenance charges and not interested in doing their maintenance work; that from the year 2001, the plaintiff /appellant has been doing the same; that while the matter stood thus, on instigation of one of the members, a dispute arose with the respondents and consequently, a hostile attitude was taken by the respondents towards the applicant association; that in the year 2003, when the respondent began to dig up a portion in the common area near the Electricity Sub-station from where the electricity is supplied to various apartments in the towers, the same was questioned; that following the same, a suit came to be filed in C.S.No.497 of 2003 by the respondent and the same is also pending; that in the said suit, some interim orders were passed; that in the meantime, there was interference by the respondents in the applicant association carrying on the maintenance and up keeping of the property; that under such circumstances, there arose a necessity for filing a suit for the above relief of declaration and consequential injunction and the necessity arose for seeking interim order and the application was brought forth. https://hcservices.ecourts.gov.in/hcservices/ 5. The application was resisted by the first defendant/respondent on the grounds that the said Association was not actually registered which is compulsory as contemplated under Section 10 of the Tamil Nadu Apartment Ownership Act,1994. Thus, it has no locus standi to file a suit. Insofar as the property was concerned, there are three towers. One of the Towers was exclusively with the first defendant/respondent. So far as Tower Nos. 2 and 3 are concerned, there are ground and nine floors in each towers and the association was not the one constituted by all the apartment owners. Numbers of persons who are occupying the apartments have actually not joined the association. Out of them, seven occupants are directly with the first defendant and thus, the maintenance of those apartments and up- keeping are with the first defendant continuously. There are 1,60,000 sq.ft unused and unsold portions which were with the first defendant/respondent and there are common areas which is available for car parking. The compound wall is also a common one. There is a common electric transformer near Tower No.1 whereby the electric energy is supplied to all the apartments and common areas in all the three towers and the electricity consumption charges for the common areas are collected and paid by the first defendant continuously. It cannot be said to be that all the apartment owners are members of the Association. So long as it is not so, the association could not either maintain the suit or get any relief. It was also urged before the learned single Judge that so far as the first defendant was concerned, he has taken the entire three towers on lease for a period of 199 years and hence, for the maintenance and up keeping, he has got the proprietary right. Therefore, he can have the control over all the three towers and there is no question of the plaintiff/applicant association asking for the right of maintenance and up-keeping of the buildings. Hence, the relief asked for has to be denied. Subsequently, the application which was filed was dismissed for non-prosecution and the same was thereafter, restored. On enquiry, the learned single Judge took a view that it was not a fit case where the Court could exercise its discretion in favour of the plaintiff/appellant Association for grant of injunction. Accordingly, dismissed the said application. Hence, this appeal has arisen before the Court. 6. The Court heard the counsel appearing on either side. The learned counsel appearing on either side reiterated their respective contentions putforth before the trial Court. 7. It is not in controversy that there are three towers, out of which, Tower-I is exclusively with that of the first defendant/respondent. Insofar as Towers-II & III are concerned, they consist of ground and nine floors. It is an admitting position that the lease period of the first defendant is for a period of 199 years. According to the appellant, the Association came into existence in the year 2000 and the same came to be registered in the year 2001 and it was also communicated to all the members. From the https://hcservices.ecourts.gov.in/hcservices/ submissions made by the learned counsel for the appellant, it is seen that the association consists of 32 members, out of 39 total apartments. It is also further brought to the notice of the Court that the lease granted to these 32 members who are members of the Association was exactly coextensive to that of the first defendant. So far as the first contention that the Association was not properly formed like executing a Deed of Apartment and getting compulsorily registered as the one expected in law, as per the provision of the Tamil Nadu Apartment Owners Act, 1994, is concerned, this contention has got to be rejected in view of the fact that the Association was actually a registered Association registered as one envisaged under Section 12 of the said Act. 8. Insofar as the second contention that all the owners of the apartments have not joined together is concerned, the Court is of the considered opinion that the first tower is exclusively with the first defendant/respondent and out of 39 occupants in the second and third towers, 32 occupants are the members of the appellant association which constitutes majority. Therefore, the major part of the apartments are the constituents of the Association. 9. The learned counsel for the respondent pointing to Section 6 (3) of the Act would submit that 1,60,000 sq.ft. in the buildings remains unsold and unoccupied and there was also common areas for car parking and the buildings have got a common compound and a common gate for all the three towers, under such circumstances, if the appeal is allowed and the appellant association carries on the maintenance and up keeping the work in Tower Nos. 2 and 3, it would contravene the provision of the Act and it will have the effect of partition or division of the property. Hence, it should not be allowed. 10. This Court is unable to appreciate the above said contention put forth by the learned counsel respondent. It is apt and appropriate to reproduce Section 6(3) of the Tamil Nadu Apartment Owners Act which reads as follows: "The common area and facilities and the limited common area shall remain undivided and no apartment owner or any other person shall bring any action for partition or division of any part thereof and any covenant to the contrary shall be null and void." A reading of the provision would clearly indicate that there is no possibility of making any partition or division in the common area. In the instant case, the relief sought for by the plaintiff/appellant association in the interlocutory Application, pending the suit, is to carry on the maintenance and up keeping of the property. It is not in controversy that from the year 2001, when the association came into existence, the members of the Association were carrying on the up keeping and maintenance of their respective portion of the apartments in Tower Nos. 2 and 3 and even on this day, the https://hcservices.ecourts.gov.in/hcservices/ association has been carrying on the same. Under such circumstances, the Court is of the opinion that what is now being carrying on by the association should not be disturbed. Hence, the balance of convenience is in favour of the appellant. Apart from that, the suit is also pending and issues are to be framed and the matter has to be adjudicated upon by the parties. 11. Under such circumstances, it is fit and proper that the interim injunction asked for by the plaintiff/appellant has got to be ordered, accordingly, it is ordered. The order of the learned single Judge dated 5.11.2009 is set aside. The appeal is allowed. The learned single Judge shall dispose of the suit within a period of six months herefrom. No costs. Consequently, MP.No.1 of 2010 is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vsi To The Sub Assistant Registrar, Original Side, High Court, Madras. 2 ccs To M/s.Satish Parasaran, Advocate, SR.3368 1 cc To Mr.Srinath Sridevan, Advocate, SR.3324 O.S.A.No.392 of 2009 SSK(CO) sra 28.01.2010 https://hcservices.ecourts.gov.in/hcservices/