BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 11^TH DAY OF OCTOBER 2022

             ORDER

SRI.K.S.BILAGI, PRESIDENT

1.         This complaint has filed by the complainant under section 35 of C.P.Act 2019 (herein after referred as “Act”) against the OPs for the following reliefs.

1.  The OPs 1 and 2 to rectify all problems raised during DLP period
2. Cancel the car parking allotment made before 21 October 2021 and to initiate fresh allotments based on the notification issued on 21 October 2021
3. Pay compensation the sum of INR.1,00,000 for temporary repair works carried by complainant for the flat 607 B1.(terrace crack filling, 2 time painting due to seepage and terrace leakage and wall cracks and plumbing works)
4.  Pay compensation for causing mental harassment and agony to the complainant the sum of INR. 1,00,000.
5. Pay cost of litigation to the sum of INR.10,000.

2. The case of the complaint in brief is as follows:

The complainant has purchased a flat No.B1607 from the 1^st owner along with his wife for consideration amount of Rs.31,25,000/- towards flat value and Rs.2,08,340/- towards registration charges.  The complainant and his wife took loan of Rs.27,98,000/-.  OP1 is the seller, OP2 is the service provider.

3. It is further case of the complainant that after occupying the above flat he noticed defect in the flat which were brought to the notice of OP1 and 2. Even though there was a DLP between OP1 and 2 from 1^st November 2014 to 31^st October 2017, OP1 through OP2 failed to maintain the building properly and also failed to resolve the problems pointed out by the complainant.
4. It is further case of the complainant that the complainant did not get proper service during DLP period and OP1 had sent a letter dated 21^st October 2021 to the owners association with regard to the allotment of car parking area.  The car parking area allotment letter dated 21^st October 2021 is illegal.  The act of the OPs amounts to deficiency in service.  Hence this complaint.
5. In response to the notice, OPs appeared and filed separate version.  OP1 admits DLP period and sale of the flat to the complainant.  The complainant has never approached the OP1 to get the defect rectified.  OP1 is not aware of the communication of the complainant.  OP1 in consultation with OP2 has made an efforts to rectify the problems and same have been resolved.  The car parking slot will be allotted to the person who pay separately.  The OP1 admits notice dated 21.10.2021.  The complainant wants to use car parking area without making payment.  In fact 25 flat owners having approached OP1 and 23 flat owners have already paid the amount prescribed for car parking who got registered car parking slot in their respective names.  There are other flat owners who do not have any problem, but complainant is creating the problems as OP1 starting demanding the charges for car parking.  There is no deficiency of service. Hence OP1 requests to dismiss the complaint.
6. OP2 admits DLP period and ownership of the complainant over the flat.  The DLP period is already completed.  There is no deficiency of service.  The OP2 has no knowledge of communications alleged by the complainant.  Even after expiry of DLP period OP2 on good faith and humanity grounds rectified the complaints raised by the association.  OP2 is not responsible for allotment of car parking.  The complainant has made baseless allegations and there is no deficiency of service.  OP2 requests to dismiss the complaint.
7. The complainant has filed affidavit evidence and relies on 9 documents(out of which 4 documents of OP1 have been marked as Ex.P1 to P4).  OP1 filed affidavit evidence of its Assistant Executive Engineer and relied on 4 documents(similar documents are also marked as Ex.P1 to P4).  The Affidavit evidence of authorized person of OP2 has been filed and 2 documents are marked.  Heard the arguments of the complainant and perused the written argument of OP1 and 2.
8. The points that would arise for our consideration are as under:-

1. Whether the complainant proves deficiency of service on the part of the OPs?
2. Whether the complainant is entitled to reliefs mentioned in the complaint?
3. What  order?

9. Our answer to the above points are as under:

       Point No.1 :- Negative

      Point No.2 :- Negative

       Point No.3:- As per the final order.            

                                REASONS

10. Point No.1 and 2:    It is admitted fact that the complainant has purchased flat No.B1 607, from the OP on 8^th June 2016 for consideration.  The grievance of the complainant that the OPs failed to rectify the problems raised during DLP period and he asked for cancellation of car parking allotment made on 31^st October 2021 and seeks for fresh allotment based on notification dated 21^st October 2021.
11. The four documents of the OP1 have been marked as Ex.P1 to P4 in advertently and 4 documents of OP1 are marked as Ex.R1 to R4.  Ex.P1 to P4 and Ex.R1 to R4 are the same documents.  At the first instance we would like to refer documentary evidence produced by both the parties.
12. It is admitted and proved from Ex.P1/P2 that OP1 issued a notice for allotment of car parking on 21.10.2021 area marking the car parking space under Ex.P2.  Ex.P3 indicates that block No.B1 has 32 car parking slots out of which 16 car parkings have been allotted.  In block No.B2 out of 32 car parking 9 parkings have been allotted.  Out of 64 car parking slots in B1 and B2 blocks only 25 car parking slots have been allotted.  Ex.P3 list further indicates that among 25 allottees 23 allottees have paid amount.  It is the specific case of the OP1 that the sale deeds have been executed in favour of the persons to whom parking slots have been allotted.  The complainant seeks cancellation of notice dated 21.10.2021 and reallotment of the parking lots.  If such a case as accepted 25 allottees would put to loss who are not party to this case.  The complainant has not made 25 allottees as OPs in this case.  In the absence of 25 allottees as party to the proceedings, the complainant is not entitle to the cancellation of notice dated 21.10.2021 with regard to the car parking allotment notice or reallotment of car parking. 
13. Complainant placing relies on the decision of the Hon’ble Supreme Court of India in Civil Appeal No.2544/2010 in the matter between Nahalchand Looluchand Pvt. Ltd., -vs- Panchali Co-operative Housing Society Ltd., argues that the complainant need not pay any extra amount for parking slot.  We carefully perused the facts and ratio involved in this decision but the complainant once an order for cancellation of notice dated 21.10.2021 and reallotment.  As already pointed out 25 parking slots have been allotted to 25 allottees, if notice dated 21.10.2021 is cancelled a requested by the complainant it would cause pressurize to 25 allottees.  In the abence of 25 allottees made as paties in this proceeding, the notice dated 21.10.2021 cannot be cancelled.  Therefore the ratio infact involved in the above decision are not applicable to the present case on hand.
14. Ex.P4/R4 clearly indicates that what are as the works carried out by the OPs in the area.  The complainant relies on Ex.P5 to P9.  Ex.P5 is the acknowledgement issued by the OP1 to Saraswathi Apartment Owners Association who made a complaint as per Ex.P6 on 25.06.2019.  As admitted by the complainant the DLP period between OP1 and OP2 was the period from 1^st November 2014 to 31^st October 2017.  This complaint came to be filed on 27.12.2021 after four years from the date of expiry of DLP period.  Under such circumstances, the complainant is not right in saying deficiency of service and non carrying the required maintenance by OP2.  There is no DLP agreement subsequent to 31^st October 2017 to fix the responsibility on OP2.
15. Ex.P7 is the copy of the representation submitted by Saraswathi Apartment owners association to the OP1 about certain problems in block No.1 and 2.  Even Ex.P8, P9, P10 and P11 are taken into consideration, the complainant never made any complaint with OP1 and 2 for alleged deficiency of service and not carrying necessary repairs.
16. It is the specific case of the OP2 that DLP period is already been expired and OP2 is not responsible.  Ex.R5 is the copy of the authorization issue by OP2 to RW1 Mr.Vijay.  Ex.R6 is the contract certificate indicates that the measurement was taken on 05.04.2017. The complainant has not produced any documents to show that there is a DLP agreement between OP1 and 2 subsequent to 2017.  Moreover, the complainant has not made any representation with OP1 pointing out the problem and to resolve the problems.  The complainant has approached this commission without any foundation.  The complainant has utterly failed to prove the deficiency of service on the part of OPs and complainant is not entitled for any of the service. Accordingly we answer point NO.1 and 2.
17. POINT NO.3: In view of the discussion referred above, complaint requires to be dismissed. We proceed to pass the following;

O R D E R

1. Complaint is dismissed against both the OPs directing the parties to bear their own cost.
2. Furnish the copy of this order to both the parties and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 11^th day of OCTOBER, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party NO.1 :  

Documents produced by the representative of opposite party NO.2 :