Tamil Nadu

South Chennai

CC/161/2012

N.Venkatasubramanian - Complainant(s)

Versus

Anmol Shrusi Constructions and Engineers - Opp.Party(s)

S.Thangavel

15 Jul 2019

ORDER

                                                                        Date of Filing  : 25.07.2012

                                                                          Date of Order : 15.07.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.161/2012

DATED THIS MONDAY THE 15^TH DAY OF JULY 2019

                                 

N. Venkatasubramanian,

S/o. Late K.S. Nagarajan,

No.1, 2A, Second Floor,

Anmol Palani,

4^th Cross Street, Hindu Colony,

Nanganallur,

Chennai – 600 061.                                                        .. Complainant.                                                        ..Versus..

 

M/s. Anmol Shrusti Constructions and Engineers,

Represented by its Managing Director

Mr. Sumeet Gulecha,

D. No.102, L.B. Road,

Adyar,

Chennai – 600 020.                                                    ..  Opposite party.

 

Counsel for the complainant     : M/s. S. Thangavel & another

Counsel for the opposite party : M/s. Karthik Mukundan & another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 prays to provide a proper car parking space to the complainant, to pay a sum of Rs.1,00,000/- towards compensation for deficiency in service, mental agony and hardship with cost of Rs.10,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that the opposite party entered into a Joint Venture Agreement with the owner namely; Mrs. P. Vatchala and Mrs. K. Valli and Mr. V. Kumravelan to promote a residential  apartment under the name and style of ‘ANMOL PALANI’. On 04.08.2010, the complainant entered into a Tri-partite Agreement for Sale cum Construction of apartment  bearing No.2A in the second floor having an undivided share of 640 sq. ft.   It was also agreed that a covered car park, designated as 2A, would be exclusively allotted to the complainant.  The complainant states that he has fulfilled his part of the terms and conditions of the agreement by paying the full consideration, including a sum of Rs.1,50,000/- towards exclusive car park.   The complainant submits that after completion of the construction, the opposite party was put the complainant in possession of the residential flat bearing No.2A only and has not allotted the car parking space bearing No.2A to the complainant as per the agreement.  The complainant submits that on 11.09.2011, the opposite party had a meeting with the purchasers of apartment and had a discussion regarding the allotment of car parking.  The complainant was informed that the car park will be allotted to him after discussion with the vendor of the property as the complainant was a nominee of the letter.  Even after repeated requests and demands, the opposite party has failed and neglected to provide proper car parking area.  Hence, the complainant issued legal notice dated:20.02.2012 for which, the opposite party sent a reply notice dated:04.04.2012 but not come forward to settle the demands of the complainant.   The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite party is as follows:

The opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The opposite party states that the Joint Venture Agreement entered into between the opposite party and the land owners P. Vatsala, K. Vaalli and P. Kumaravel is correct.  The complainant entered into a Tripartite Agreement dated:04.08.2010 with the land owners and this opposite party.  The opposite party states that as per the Construction Agreement, the apartment No.2A was constructed.  The said flat and the car park were allotted to the complainant as per the agreement dated:04.08.2010. At the time of entering into the Construction Agreement, the complainant has seen the construction plan and agreed to construct for himself apartment No.2A together with car park No.2A.  The negotiations for the purchase of land and for construction had taken place between the complainant and the land owners P. Vatsala, K. Vaalli and P. Kumaravel.   Therefore, this complaint suppressing the facts and without impleading the land owners; P. Vatsala, K. Vaalli and P. Kumaravel may not be preoper and has to be dismissed for non-joinder of necessary party to the complaint. 

3.     The opposite party states that the complainant knew well about the car park No.2A and taken possession of the same and came forward with an imaginary allegation that the car parking purchased by the complainant is small while the car park allotted to the other parties is big.   Because the car park allotted by the opposite party is “first come first go”.  The opposite party states that the complainant admitted the car parking area 2A of the complainant is 22 feet 9 inches in length and 8 feet 1 inch wide is more than sufficient to park an ordinary LMV vehicles.   The size of the car park area is not based upon the size of the flat and therefore the allegation in the complaint is not sustainable.   The allegation that the normal procedure for allotment of car parks is on first come first served basis, not on  the bases of the size of the flats and it is not necessary that they have to be of the same size.  The area earmarked on the southern side of the lift being used as a two wheeler parking cannot be compared of that area to the car park No.2A allotted to the complainant and is irrelevant.  Hence, the allegation of the complainant is irrelevant, baseless and unsustainable.  Therefore, there is no deficiency in service on the part of the opposite party and hence, the complaint is liable to be dismissed.

4.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A6 are marked.  Proof affidavit of the opposite party is filed and documents Ex.B1 & Ex.B2 are marked on the side of the opposite party.

5.      The points for consideration is:-

1. Whether the complainant is entitled to have a proper car parking space as prayed for?
2. Whether the complainant is entitled a sum of Rs.1,00,000/- towards compensation for deficiency in service, mental agony and hardship with cost of Rs.10,000/- as prayed for?

6.      On point:-

The opposite party alone filed his written arguments.  Heard both Counsels also.  Perused the records namely; the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended that the opposite party entered into a Joint Venture Agreement with the owner namely; Mrs. P. Vatchala and Mrs. K. Valli and Mr. V. Kumravelan to promote a residential  apartment under the name and style of ‘ANMOL PALANI’. On 04.08.2010, the complainant entered into a Tri-partite  Agreement for Sale cum Construction of apartment  bearing No.2A in the second floor having an undivided share of 640 sq. ft.  Accordingly, it was agreed that a covered car park designated as 2A was exclusively allotted to the complainant.  For which, a sum of Rs.1,50,000/- paid towards car park by the complainant.  But on a careful perusal of the Agreement and the Sale Deed, there is nothing specifically mentioned about the designated car park as 2A and the amount of Rs.1,50,000/- towards car park as per Ex.A1 & Ex.A2.  Further, the contention of the complainant is that on 11.09.2011, the opposite party had a meeting with the purchasers of apartment and had a discussion regarding the allotment of car parking.  The complainant was informed that the car park was allotted to him after discussion.  But on a careful perusal of records, the car park allotted to the complainant as 2A is very narrow while comparing with the car park related to flat No,1A, 1B, 1C etc.  On the other hand, the size of the flat are utmost similar to that of the complainant.  Even after repeated requests and demands, the opposite party has failed and neglected to provide proper car parking area.  Hence, the complainant was constrained to file this case for deficiency in service.  Further the contention of the complainant is that he filed a memo in detail regarding the size of the car parking and the sketch etc.  Accordingly, the car par No.2A measures 22 feet 9 inches in length and 8 feet in inch wide.  The width of the car park between pillars is also 8 feet and 1 inch as per Ex.A3.   Thereby, the big LMV cars like Toyota Innova, Crysta cannot be parked since, the size of the Toyota Innova is big.  On a careful perusal of the records, the complainant has not pleaded and proved that the entitlement of car parking area whether equally on par with all the flat purchases or the parking areas is sufficient to have park big vehicles etc.  In this case, there is nothing about the size of the car parking area neither in the agreement nor in the Sale Deed.  The entire sale consideration is paid for and inclusive of car parking area. 

7.     The learned Counsel for the opposite party would contend that the Joint Venture Agreement entered into between the opposite party and the land owners P. Vatsala, K. Vaalli and P. Kumaravel.  Admittedly, the complainant entered into a Tripartite Agreement dated:04.08.2010 with the land owners and this opposite party.  But deliberately omitted to add the land owners as a parties to the complainant.  Hence, this case is bad for non-joinder of necessary party.  Further, the contention of the opposite party is that as per the Construction Agreement, the apartment No.2A was constructed.  The said flat and the car park were allotted to the complainant as per the agreement dated:04.08.2010.  At the time of entering into the Construction Agreement, the complainant has seen the construction plan together with car park No.2A.  But the car parking No;2A is not specifically mentioned in the Construction Agreement.  On a careful perusal of the plan, the car park No.2A is mentioned.  Further the contention of the opposite party is that knowing fully well about the car park No.2A and taken possession of the same and coming forward with an imaginary allegation that the car parking purchased by the complainant is small while the car park allotted to the other parties are big; is not acceptable.   Because the car park allotted by the opposite party is “first come first servcie”. 

8.     Further the contention of the opposite party is that the complainant admitted the car parking area 2A of the complainant is 22 feet 9 inches in length and 8 feet 1 inch wide is more than sufficient to park an ordinary LMV vehicles. The allegation that Innova Christa and other cars cannot be parked in the said car parking area; cannot be accepted because there is no description of the size of car parking area in the agreement or in the Sale Deed.  It also clear from the records that car par area No.2A is located within the pillars and it cannot be enlarged.  It cannot be re-alloted to some other purchasers because while entering into the Sale cum Construction Agreement, the plan provided to the complainant which is enclosed to the memo car parking No.2A allotted to the complainant proves that there is not deficiency on the part of the opposite party.  Considering the facts and circumstances of the case, this Forum is of the considered view that there is no deficiency in service on the part of the opposite party and hence, the complaint has to be dismissed.  The memo filed by the opposite party is closed.

In the result, this complaint is dismissed.  No costs.  The memo filed by the opposite party is closed.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 15^th day of July 2019. 

 

MEMBER                                                                                PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	04.08.2010	Copy of Sale Agreement of land and construction
Ex.A2	18.10.2010	Copy of Sale Deed in favour of the complainant
Ex.A3	09.11.2011	Copy of Ground Floor Plan of the flat
Ex.A4	01.12.2011	Copy of the letter sent by the complainant to the opposite party
Ex.A5	20.02.2012	Copy of legal notice issued by the complainant to the opposite party
Ex.A6	04.04.2012	Copy of reply notice issued by the Counsel for the opposite party to the Counsel for the complainant

 

OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1		Copy of photographs of the car park No.2A
Ex.B2		Copy of car park drawing

 

 

                              

MEMBER                                                                                PRESIDENT