BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.449 of 2015

                                 Date of institution:          04.09.2015

                                                        Date of Decision:            03.12.2015

1.     Yashpal Singh son of Avtar Singh

2.     Manpreet Kaur wife of  Yashpal Singh

        residents of R-204, Gillco Heights, Gillco Valley, Sector 127, Tehsil Kharar, District SAS Nagar (Mohali) Punjab.

    ……..Complainants

                                        Versus

Gillco Developers & Builders Pvt. Ltd. Gillco Valley, Sector 127, Kharar, District SAS Nagar (Mohali) Punjab through its Managing Director.

………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Complainant No.1 in person for self and on behalf of complainant No.2

                Opposite Party exparte.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainants have filed the present complaint seeking following directions to the Opposite Party (for short ‘the OP’) to:

(a)    refund to the complainants Rs.50,000/-  paid by them towards car parking, alongwith interest @ 18% per annum from 21.05.2013 till realisation.

(b)    pay them Rs.50,000/- as compensation for mental harassment and agony.

                The case of the complainants is that they purchased flat No.R-703 Gillco Heights from the OP vide buyer agreement dated 16.06.2008 on sale consideration of Rs.23,16,530/- (excluding Power Back Up charges).  Subsequent to this again buyer agreement was executed on 16.01.2013 because of change in the building location and vide this agreement Flat No.204 in R Block was allotted to the complainants on the same consideration as was agreed in earlier agreement dated 16.06.2008.  In pursuance of the agreements, the OP vide letter dated 25.03.2013 demanded Rs.50,000/- from the complainants for car parking and other charges. Accordingly the complainants paid Rs.1,190,025/- to the OPs vide receipt dated 21.05.2013 i.e. Rs.55,000/- for power back up, Rs.50,000/- for car parking and Rs.14,025/- for service tax part payment.  The complainant also paid the full consideration of the flat and thereafter sale deed dated 17.05.2013 was executed in the office of Sub Registrar, Kharar.  The OP allotted parking No.109 on 23.10.2013 in open area whereas the open parking space is not sellable independently as a flat or alongwith a flat being a part of common area of building developed.  Thus, the OP has misappropriated Rs.50,000/-  for providing free open parking to the complainants.  The complainant No.1 raised the concern with the OP but it failed to respond and did not pay any heed.  The complainants requested the OP several times to refund the amount and also served a registered letter on 06.08.2015 but the OP failed to act and reply.   With these allegations the complainant has filed the present complaint.

2.             As per the India Post Tracking Report, the notice sent to the OP was delivered upon it on 23.09.2015.  Despite this none appeared for the OP and the complaint was proceeded against the OP vide order dated 30.10.2015.

3.             To succeed in the complaint, the complainant No.1 tendered in evidence affidavit Ex.CW-1/1 and copies of the documents Ex.C-1 to C-7.

4              We have heard complainant No.1 in person and have also gone through the pleadings and evidence on the file.

5.             After perusing the pleadings and evidence on record of the complainant, it has emerged that the complainants have purchased flat No.204 in R Block in Gillco Towers, Gillco Valley Sector 127, Mohali, a project of the OP vide buyers agreement dated 16.01.2013 Ex.C-1. As  per the buyers agreement Clause-4, the basic price of the flat Rs.23,30,500/- and further the purchasers i.e. the complainants were to make payment for car parking  Rs.50,000/-, club membership Rs.35,000/-, IFMS Rs.33,030/- and power back up Rs.55,000/-, the total cost being Rs.25,03,530/- excluding registration charges and service tax against the sale consideration of the said apartment/flat. As per the complainants they have paid all the amounts due to the OP and the sale deed in respect of the flat is executed by the OP in favour of the complainants vide sale deed Ex.C-4 dated 17.05.2013.  

6.             The perusal of sale deed Ex.C-4 clearly reveals that the complainants have paid Rs.23,30,500/- as agreed sale consideration against the flat in question to the OP and the said amount includes Rs.50,000/- as car parking amount. Further the recitals of the  sale deed clearly reveal that the complainants have fully agreed with the layout plan, plan of the flat, its location, park, electricity poles, transformers, electricity wires layout, roads, street lights, parking, underground water tank and tubewell etc. of the Gillco Heights i.e. the project of the OP. The complainants vide their registered letter dated 08.08.2013 Ex.C-5 asked the OP clarification for charging car parking charges against the allotment of open car parking to them at the time of possession of the flat. As per the complainants the said charging of Rs.50,000/- is against the National Building Code 2005 Part-3, Section 9.6.3.3 and as per this Code the builder is to provide one free car parking to the flat owner. The complainant further sent notice for seeking refund of Rs.50,000/- charged for open car parking space vide letter dated 08.06.2015 Ex.C-6.  The perusal of these two documents clearly show that though the complainants have raised issue of charging of Rs.50,000/- as car parking charges by the OP contrary to the National Building Code and sought refund of the same, however, there is nothing on record to show the delivery of these two documents to the OP. Further as per the complainants they have received a general notice issued by the OP to all the residents of N and R Blocks wherein it is categorically stated that the open parking has been allotted.  Thus it clearly proves that the complainants have been allotted open parking space by the OP.

7.             The grievance of the complainants is that the OP has evidently allotted open parking space against the charged amount of Rs.50,000/- for car parking and  the said charging as per the complainants is against the National Building Code as well as decision dated 06.09.2013 rendered by the Ld. District Consumer Disputes Redressal Forum, Parel Mumbai-12 in  Complaint Case No.CC/12/119 titled as Suresh M. Mehta Vs. Tata Housing Development Company Limited, wherein the Ld. Forum has allowed the refund of Rs.50,000/- charged by the builder for parking space but actually allotted the open car parking space to the complainant.  The said order has been passed by the ld. Forum by relying upon the judgment of the Hon’ble Supreme Court in Civil Appeal No. 2544 of 2010 titled as Nahalchand Laloochand Pvt. Ltd. Versus Panchali Cooperative Housing Society Limited decided on 31.08.2010 on the issue in hand.

8.             In order to appreciate the grievance of the complainant, we have gone through the buyers agreement duly signed by the parties Ex.C-1 showing terms and conditions of the agreement.  Clause-4 of the agreement shows that the flat price is Rs.23,30,500/-, car parking  Rs.50,000/-, club membership Rs.35,000/-, IFMS Rs.33,030/- and power back up Rs.55,000/- the total cost being Rs.25,03,530/-. Further the perusal of registered sale deed Ex.C-4 shows that the complainants have paid only the agreed basic sale price and got the possession of the flat which clearly indicate that in no manner the car parking space has been sold to the complainants by the OP and no title of the car parking space has been passed in favour of the complainants.

9.             As per the complainants, the OP has no right to sale the car parking as the car parking allotted to them is an open space of the common area of the complex as is evident from Ex.C-7. The OP has received the amount without any right or title in the car parking space and open car parking space allotted to them in the common area is only for the use of car parking and the OP has thus indulged into unfair trade practice by charging Rs.50,000/- from the complainants on account of car parking on which the OP has no right or title.  We have gone through the order of Ld. District Consumer Disputes Redressal Forum, Parel Mumbai-12 which has been passed by the ld. Forum while placing reliance of the judgment of Hon’ble Supreme Court in Nahalchand Laloochand Pvt. Ltd. Versus Panchali Cooperative Housing Society Limited (supra) wherein the Hon’ble Supreme Court has held “that open to the sky parking area or stilted portion usable as parking space is not garage and is a part of the common area and, therefore,  the promoter is under obligation to describe the common areas and facilities in the advertisement as well as the agreement with the flat purchaser and the promoter is also required to indicate the price of the flat including the proportionate price of the common area and facilities.”  In the complaint in hand the agreement is silent about the common areas and specifically provides for charging of car parking charges separately and not part of basic sale consideration.  Thus, the car parking allotted to the complainants as an open car parking in the common area is not saleable and charging of Rs.50,000/- by the OP on this account from the complainants is an act of unfair trade practice adopted by the OP. Therefore, the OP is bound to refund the said amount of Rs.50,000/- to the complainants.

10.           The complainants have raised this issue with the OP vide representations  dated 08.07.2013 and 0808.2013  Ex.C-5 & C-6 while relying upon the National Building Code on the issue and further made a request for refund of the amount. Though the complainants have not proved the delivery of these two documents but from perusal of Ex.C-7 it clearly shows that the OP has allotted them open area for car parking. Since the amount received by the OP on account of car parking charges of Rs.50,000/- has not been refunded, therefore, the complainants were required to file this complaint. The complainants have suffered mental agony. Therefore, the OP is liable to pay compensation to the complainants. 

11.           Thus on the basis of our above discussion, the facts of the complaint in hand being squarely covered as per the judgment of Hon’ble Supreme Court in  Nahalchand Laloochand Pvt. Ltd. Versus Panchali Cooperative Housing Society Limited (supra)  and the decision of Ld. District Consumer Disputes Redressal Forum, Parel Mumbai-12 in  Complaint Case No.CC/12/119 titled as Suresh M. Mehta Vs. Tata Housing Development Company Limited on the issue and having been proved by the complainants,  we are of the considered opinion that the complaint deserves to be allowed and the complainants deserve to be reasonably compensated. 

12.           Thus, the complaint is allowed with the following direction to the OP:

(a)    to refund to the complainants Rs.50,000/- (Rs. Fifty thousand only) with interest thereon @ 9% per annum w.e.f. 21.05.2013 till actual payment.

(b)    to pay to the complainants Rs.10,000/- (Rs. Ten thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

December 03, 2015.     

                                   (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                        Member