34-wp4169-2021-modified.doc AGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4169 OF 2021 Ramesh Nathuram Thale, through PoA Aparna Ramesh Thale … Petitioner V/s. New Sai Krupa Complex No.2 Cooperative Housing Society Ltd. … Respondent Mr. Bhavin Gada with Mr. Deepak Shukla i/by BNS Legal for the petitioner. Mr. Nitesh S. Nevshe with Ms. Shweta N. Nevshe for the respondent-society. CORAM : AMIT BORKAR, J. DATED : DECEMBER 4, 2025 P.C.: 1. Rule. Rule is made returnable forthwith. 2. The writ petition questions the legality of the action taken in a dispute raised by a member of a housing society. The member sought directions for repairs to his flat. He asserted that the flat sustained damage due to major repair work undertaken by the society. 3. During the pendency of the dispute, the Court issued notice to the respondent society. The bailiff recorded that the notice returned unclaimed. The roznama dated 6 August 2016 shows that the disputant's advocate was present. It also shows that the opponent society was present. The matter was then adjourned to 1 ATUL GANESH KULKARNI Digitally signed by ATUL GANESH KULKARNI Date: 2025.12.16 18:15:24 +0530 34-wp4169-2021-modified.doc 14 September 2016 at 2.45 p.m. On the adjourned date, the disputant filed a service affidavit. He stated that the bailiff endorsed the remark unclaimed. He asserted that service must be treated as complete on that address. 4. The Cooperative Court examined the case on merits. It passed an Award against the society. It held that two flats owned by the disputant suffered structural damage, scraps, leakages, and other loss. It directed the opponent society to carry out the repairs. It further held that the amount of Rs. 49,661 collected by the society for each flat of the disputant lacked authority of law and was illegal. 5. The society challenged the Judgment and Award before the Cooperative Appellate Court. It submitted that the notices were issued in the name of one Mr. Sachin Kadam, described as Secretary of the society. The society asserted that no such person exists. It contended that the society never received summons of the dispute. 6. The Appellate Court noted in paragraph 15 that the summons returned unclaimed. The Court thereafter directed the disputant to take further steps. The Trial Court relied on the service affidavit and proceeded ex parte against the society. The Appellate Court held that once the summons returned unclaimed and the matter proceeded ex parte, it cannot be presumed that no office bearer of the society appeared or filed a defence. The Appellate Court allowed the appeal. It set aside the Award and remanded the case to the Cooperative Court for fresh 2 34-wp4169-2021-modified.doc consideration. 7. On examining the record with the care it deserves, one fact stands out. The Appellate Court overlooked a material circumstance that goes to the root of the matter. The roznama dated 6 August 2016 records the presence of the opponent society. The case was then adjourned to 14 September 2016 at 2.45 p.m. When the record itself shows that the society appeared before the Court after the bailiff returned the summons unclaimed on 23 June 2016, the plea that the society had no knowledge of the proceedings cannot be accepted. Such presence cannot be treated as accidental. It carries a clear indication that some responsible person of the society was aware of the proceedings and had attended in response to the process issued by the Court. The acknowledgment placed on record strengthens this conclusion. It shows that service was effected on 23 June 2016 on a resident of Flat No. G-301, Third Floor. This is a circumstance of significance. The Appellate Court ought to have given due weight to these facts. Its failure to notice these relevant pieces of evidence has resulted in an incorrect conclusion regarding service. 8. The society took a stand before the Appellate Court that the notice was wrongly issued in the name of one Mr. Sachin Kadam, who was described as Secretary. The record of the dispute shows that the address mentioned for the society was correct and known. When a summons is issued to a cooperative society at its correct address, the requirement of service stands satisfied. The subsequent appearance of the society on 6 August 2016 confirms that the society had notice of the dispute but chose not to place its 3 34-wp4169-2021-modified.doc defence on record. The Appellate Court, in the face of such material, was not justified in setting aside the Judgment and Award of the Cooperative Court. The findings of the Appellate Court rest on an erroneous appreciation of the facts and cannot be sustained. 9. Hence, rule is made absolute in terms of prayer clause (a). No costs. (AMIT BORKAR, J.) Note: This order is modified as per order dated 16 December 2025. Corrections in paragraph 7 are shown in italicize. 4