DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  5^th  day of   May,  2022

Present        :   Sri.Vinay Menon V.,  President

                    :   Smt.Vidya A., Member                                                     

                    :  Sri.Krishnankutty N.K., Member                             Date of Filing : 08/11/2016 

      CC No.175/2016

Sreelatha,

W/o.Vinod,

S3, Fort Chariot, Vrindavan Street,

Robinson Road, Palakkad                                                        -                        Complainant

(By Adv.K.Dhananjayan)

Vs

1.Authorised Signatory / Managing Director,

   M/s.Chathamkulam Project & Developers P.Ltd.,

   Chandranagar, Palakkad – 678 007

2.Sumesh Babu,

   S/o.Bhavadas,         

   Managing Director,

   M/s.Chathamkulam Project & Developers P.Ltd.,

   Chandranagar, Palakkad – 678 007

3.Soudamini,

   W/o.Bhavadas,

   Authorised Signatory,

   M/s.Chathamkulam Project & Developers P.Ltd.,

   Chandranagar, Palakkad – 678 007                                                -           Opposite parties

  (By Adv.T.U.Shaik  Abdulla)

O R D E R 

By Sri. Vinay Menon V.,  President

1. The complainant purchased a flat bearing No.S3 in the apartment complex constructed by the first opposite party,  of which the second and third opposite parties are the Managing Director and Authorised Representative respectively.  Alongwith the Flat the complainant also availed a car parking lot numbered as CP8 in the sale  deed.  Providing car parking lot CP8 was in violation of the agreement to sell the property as the said agreement contained car parking lot CP6 as the one allotted to the complainant.   Allotment of CP8 which is very narrow and insufficient           area-wise  preventing of parking of even a small car is a deficiency in service. Even though the complainant sought for an exchange of car parking lot, the opposite party failed to accede to the demands made by the complainant and hence the complaint.

The complainant sought for availing for the following reliefs.

1. “Admit the complaint on file and issue notice to all the opposite parties in this case and try this case.
2. To direct and order the opposite parties

1. To get 1 lakh rupees separately as the same consideration for allotting CP6 as car parking area for which they have collected separate consideration from the complainant which is in the illegal possession of OPs. This reliefs is sought in addition to relief sought as No.3 and her right in No.3 is not abandoned.

2. She is also legally entitled for Rs.5 lakhs rupees as compensation for the mental agony and unfair trade practice committed by them and also entitled to cost and expenses of the litigation and

3. Also to get car parking area allotted to the complainant i.e. CP6 seperately for the purpose and use of the complainant exclusively.

                   c. Directing the opposite parties to pay the cost of the proceedings;  and

                  d. Any other interim reliefs sought by the complainant and deem fit to grant

                        during the pendency of the complaint in the interest of justice”.

2. The opposite party filed version contesting the complaint allegations. They pleaded that the total consideration shown is grossly reduced for the purpose of  defrauding stamp duty and registration fee.  The seller has every right to change the building plan and construction as is clearly stated in the agreement also. The complainant had read over the documents and the documents were prepared after the complainant had read it over. Possession was taken over by the complainant after having satisfied of the condition of the property. 
   The complaint is grossly barred by limitation as the sale  deed was registered on 23/4/2011 and the flat was occupied on the same date. There is no continuing cause of action.  The complainant had instigated one Mr.Mohankumar to file a false complaint before the CJM Palakkad which was on verification referred to as a Civil Case.   Grievance of the complainant was already settled between the power attorney holder of the complainant namely,  the aforesaid Mr.Mohankumar, and the opposite party by way of executing an agreement and the OP paying an amount of Rs.1 lakh as compensation.
3. From a reading of the pleadings and counter pleadings the following issues arise for consideration

1. Whether the complaint is barred  by limitation ?
2. Whether this Commission has locus standi to provide the reliefs sought for?
3. Whether  there is deficiency in service on the part of the opposite parties in not providing car parking lot bearing No.CP6 ?
4. Whether the complainant is entitled to any of the reliefs sought for ?
5. Reliefs and Costs if any ?

4. Evidence of the complainant comprised of deposition and testimony of complainant and  Exts.A1 to A3. Ext.A2 was marked with objection. Opposite parties did not adduce evidence even though they were granted time since 5/4/2017.  Evidence was closed on 3/12/2021. Even though the opposite party filed a belated application as IA 109/22 for reopening the evidence, the same was dismissed 24/3/2022.

Issue No.1

5. The complaint was filed on 8/11/2016. Ext.A2 is a sale deed bearing No.3358/2011 dated 23/04/2011 executed by the third opposite party in favour of the complainant.   In page 6 of the said sale deed,   the car parking area is shown as CP No.8 in line No.5.  It is true that Ext.A1 flat agreement refers to car parking area CP6  which the opposite parties had agreed to handover to the complainant.  
6. Complainant was examined as PW1. Testimony of the complainant that she would park the car “here and there” and hence was not aware of the change in car parking lot is not a good, cogent and believable  ground for condoning the delay.
7. The cause of action if any, would start from 23/4/2011. Any person of bare minimum prudence would go through the documents, especially a sale deed for which huge consideration is being paid.  It is also unbelievable that the complainant came to notice she was  provided with a  different car parking area only after four years from the date of purchase.
8. The only logical conclusion that can be assimilated is that the complainant had concurred to availing the car parking area CP8. What transpired between 23/4/2011 till 8/11/2016 is not clear.  The only thing  that can be sure about is that the complaint was filed after the period of limitation. No explanation nor an application for condonation of delay as contemplated under Section 24(a) of the Consumer Protection Act 1986 was forthcoming.  The contention that there is continuing cause of action also will not  hold water. The argument of the complainant that there is continuing cause of action, if let to survive with the given facts and circumstances,  would render the tenets of limitation absurd and redundant.   
9. Hence, we find that the complaint is barred by limitation.
10. In view of the finding in issue No.1, a discussion of other issues is merely a pedantic exercise. But we resort to discuss the said issue so as to have a pan view of the issues involved in the lis.

Issue No.2

11. Gist of the reliefs (1) & (2) sought for is seeking for allotment of car parking  bearing No.CP.6 to the complainant and  for return of the sale  consideration.  The complainant has also sought for compensation and incidental reliefs.
12. It is true that once we arrive at a finding that there is deficiency in service on the part of the opposite parties in allotment of the car parking area, this Commission can grant compensation alone. This Commission is not bestowed with the authority to set aside a sale deed and to grant the sale consideration paid, which is the realm of a Civil Court of competent jurisdiction. 
13. Hence, we find  our hands tied when it comes to grant of the preliminary reliefs sought for. Therefore,  we hold that this Commission has no locus standi to grant reliefs (1) & (3) sought for by the complainant.

Issue No.3

14.       As already stated supra,  crux of the dispute revolves around the transfer of car parking lot  numbered CP.8  instead of CP.6.  Further,  the complainant had  ample opportunity to go through and  rectify  the sale deed namely Ext.A2.  We are unable to  believe the story put forward by the complainant that she failed to find that she was allotted CP8 instead of CP6.

15.       The complainant has failed to adduce any evidence to prove that there was deficiency on the part of opposite party. The change / mistake can  very well be a clerical error, which both the parties failed to take into account.

Even admitting for academic sake that there was deficiency in service on the part of opposite parties,  the reliefs cannot  be granted at this juncture in view of the bar of limitation.

            Issues 4 & 5

16.       Banking on findings in Issue Nos.1 to 3 we find that the complainant is not entitled to the reliefs sought for in this complaint or any other reliefs.

            The complaint is therefore dismissed.

                Pronounced in the open court on this the  5^th day of  May, 2022.

                                                                                              Sd/-

                                                                                       Vinay Menon V.

                                                         President

             Sd-

        Vidya A.

                           Member     

                                  Sd/-

                       Krishnankutty N.K.

                              Member  

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 – Original of flat sale agreement dated 15/12/2010

Ext.A2 – Photostat copy of sale deed bearing No.3358/2011 dated 23/4/2011

Ext.A3 – Letter of revocation of power of attorney dated 21/5/2016.

Exhibits marked on the side of the opposite parties

NIL  

Witness examined on the side of the complainant

PW1 – Sreelatha

Witness examined on the side of the opposite parties

NIL

Cost :  No cost  allowed

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.