2.  Parvatham Sridevi,

     W/o P.V. Sarma,

     Flat No.4C,  Sarada Homes,

     Brodipet, Guntur.                                           …opposite parties

        This complaint coming up before us for hearing on 18-01-12 in the presence of Sri M. Sravan Kumar, advocate for complainant and of                        Sri K. Devarajan, advocate for 1^st opposite party and of Sri B. Krishna Kishore, advocate for 2^nd opposite party, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

PER SRI A. HAZARATH RAO :-      

        The complainant filed this complaint under section 12 of the Consumer Protection Act seeking direction to the opposite parties for earmarking car parking space; Rs.50,000/- towards mental agony and for costs.

2.   In brief the averments of the complaint are these:

        The complainant on 25-11-05 entered into an agreement of sale with the opposite party (GPA of Madabhushi Dhansyam, Kidambi Seshamma, Kidambi Krishna) and 2^nd opposite party (builder) for purchase of flat No.3A of Sri Ranga Sarada Sadan apartments with car parking in stilt floor.   The complainant also entered into additional work agreement for Rs.4,47,920/- with the opposite parties.                       On 26-11-05 the opposite parties executed a registered sale deed in the name of complainant.   The complainant subsequently paid balance amount under the work agreement and occupied the premises and is in possession and enjoyment. As the opposite parties have not provided car parking place the complainant is facing problems.   The opposite parties paid deaf ear to the request of the complainant for providing car parking.  The 1^st opposite party gave a reply that allocation of car parking is duty of builder.   The 2^nd opposite party though received notice kept quite.   The opposite parties are under an obligation to provide car parking to the complainant. Thus the opposite parties committed deficiency of service. The complaint therefore be allowed.  

3.     The contention of the 1^st opposite party in nutshell is thus:

        On the date of registration of sale deed of the flat itself                      the complainant took possession of car parking place in stilt area and is in continuous, uninterrupted peaceful possession and enjoyment of the amenity of car parking.    The complaint is barred by time as filed the complaint 5 years after obtaining delivery of possession of flat.   The 1^st opposite party has nothing to do with the alleged additional work agreement.   The 1^st opposite party is not a necessary and proper party to the proceedings.   The complaint therefore be dismissed.

4.   The contention of the 2^nd opposite party in nutshell is thus:

        The complainant was allotted car parking as per his wish and in the car parking slot the complainant’s apartment number was noted.   The complainant infact took possession of the same and has been enjoying it.   The 2^nd opposite party subsequently learnt that one Gana Syamacharyulu residing in the same flats have occupied the car parking allotted to the complainant by striking off the name of the complainant’s apartment number and by writing his apartment number.   The complainant obtained sale deed on 26-11-05 and the car parking was allotted in January, 2006.   The complainant kept quite till 24-11-09.  The complainant kept quite for a period of 4 ½ years and thus waived his right for car parking and was thus estopped by his conduct under section 115 of Evidence Act.   The complaint therefore be dismissed.

5.   Exs.A-1 to A-6; Ex.B-1 and Ex.B-2 on behalf of the complainant and opposite parties 1 and 2 were marked respectively.

6. Now the points that arose for consideration in this complaint are:

          1.  Whether the complaint is barred by time?

        2. Whether the opposite parties committed deficiency of service?

        3.  Whether the complainant is entitled to compensation?

        4.   To what relief?     

7.   Admitted facts in this case are these:

1. The complainant entered into an agreement of sale on              25-11-05 with the opposite parties 1 and 2 (Ex.A-1).
2. The complainant obtained sale deed on 26-11-05 from the opposite parties in respect of plot No.3A (semi finished newly constructed flat - Ex.A-3).
3. The complainant entered into additional works agreement on 25-11-05 with the opposite parties (Ex.A-2).
4. The complainant issued notice on 24-11-09 (Ex.A-4).
5. The 1^st opposite party gave reply to Ex.A-4 notice on                   25-01-10 (Ex.A-6).
6. The 2^nd opposite party received Ex.A-4 notice (Ex.A-5).
7. The complainant took possession of the property covered by Ex.A-3 on 26-11-05.

8.   POINT No.1:-  One day after Ex.A-1 sale agreement the complainant obtained original of Ex.A-3 from (1) Madabhushi Ghanashyamacharyulu  (2) Kidambi Seshamma and (3) Kidambi Krishna represented by GPA Kidambi Srinivasa Raghavan and Parvatham Sridevi (OP2 herein).   The schedule attached to                Ex.A-1 reads as follows:

        “All undivided and unspecified share measuring 31 sq. yards or 25.92 sq.mts, of site in total extent of above mentioned ‘A’ schedule site and along with one flat bearing No.3A located South-East corner of the second floor of ‘A’ schedule property “Sri Ranga Sarada Sadan” with plinth area of 800 sq. feet (without balconies and common areas) which has been constructed for the above in the proposed construction is being bounded by:

                  EAST               : Open to sky

                  SOUTH    : Open to Sky

                  WEST              : Common corridor

                  NORTH    : Common staircase and open to sky

        Within these boundaries one semi-finished flat bearing No.3A located in South-East corner of second floor of Sri Ranga Sarada Sadan and along with all common and joint rights, amenities including the rights of easements, appurtenances etc.”

9.     The delivery of car parking place was not specifically mentioned in Ex.A-3 sale deed. Ex.A-2 additional works agreement for Rs.4,47,920/- established that its executants agreed to provide car parking for Rs.45,000/-.  It is not the case of either of the opposite parties that the complainant did not part with the amount of Rs.45,000/- mentioned in Ex.A-2.  The 2^nd opposite party in his version and affidavit mentioned that parking was allotted in January, 2006.   The 1^st opposite party did not mention the date when car parking area was delivered to the complainant.  

10.   Sri M. Vijayanand, advocate was appointed as commissioner to look into the physical features of the disputed area.  The said advocate commissioner executed the warrant on 15-09-11 and filed his report and plan.   In his report the learned advocate commissioner observed “No car parking area was ear marked to the petitioner/complainant in the stilt floor of Sri Ranga Sarada Sadan apartment, 2/3 Brodipet, Guntur”.       

11.   The contention of the 2^nd opposite party is that one Ghana Syamacharyulu occupied the car parking allotted to the complainant.   The said Ghana Syamacharyulu is not a party to the case.     The complainant though took possession of semi finished flat on 26-11-05 kept quite till   15-02-10 except issuing Ex.A-4 notice dated 24-11-09.        

12.   Before filing this petition the complainant got issued Ex.A-4 notice on 24-11-09.   The relevant portion in Ex.A-4 notice is extracted below for better appreciation:

                “Subsequently on the next day both of you executed registered sale deed bearing No.15771/2005 in the name of our client.   Subsequently our client paid the balance amount under the work agreement and occupied the premises and is in possession and enjoyment of the same.   However as you have not allotted the car parking place for him he is facing problem.   The same was brought to your notice by our client several times.  Having received consideration fully it is your bound and duty of both of you to allot car parking place for our client otherwise it amounts to deficiency of service”.

13.   In his Ex.A-6 reply the 1^st opposite party mentioned that on the day of registration of the sale deed of the flat in favour of you client itself delivered possession of the said flat No.3A and car parking in stilt area and your client had taken possession of the same and has been in continuous, uninterrupted, peaceful possession and enjoyment of the amenity of car parking also and thereby our clients responsibility came to an end.   As already observed in Ex.A-3 the delivery of car parking place was not specifically mentioned. No time limit was mentioned in Ex.A-2 to provide the amenities mentioned therein to provide the additional amenities. The contention of the 1^st opposite party about delivering of the car parking space to the complainant on the date of Ex.A-3 itself cannot be believed in view of the proximity of                 Exs.A-2 and A-3.   

14.   The complaint as well as affidavit of the complainant was silent when he occupied flat No.3A and when the opposite parties completed the additional works as mentioned in Ex.A-2 except the car parking space.  The complainant obtained the original of Ex.A-3 on 26-11-05 i.e., a day after Ex.A-2.   The 2^nd opposite party in his version as well as affidavit mentioned that the complainant was allotted car parking place in January, 2006.   No prudent person will keep quite for a period of about four and half years if no car parking space was provided.   Absence of date in Ex.A-4 notice when the complainant occupied the premises and his silence for about four and half years in our considered opinion corroborated the contention of the 2^nd opposite party about one Gana Syamacharyulu residing in the same flats occupying the car parking allotted to the complainant is having considerable force.   

15.   The registry on 19-02-10 took an objection on the aspect of limitation.  The complainant for the said objection mentioned the following:

                “The problem has arisen when the parking area is not specifically mentioned. In the sale deed it is not mentioned specifically.   The builder and owner are promising the  matter.   As such notice given.   Hence the complaint is filed within two years from the date of notice.   As such the complaint is in time.   If necessary may be called on bench”. 

16.   By making such an endorsement the complainant took the calculated risk of limitation aspect.   When the opposite parties specifically raised the aspect of limitation it is the duty of the complainant to explain it properly which he failed to do so.   Mere exchange of notices will not save limitation if otherwise is not entitled.  

17. In order to bring the case within the ambit of limitation the complainant intentionally avoided mentioning the date of occupying his flat and when the opposite parties did additional works.   Under those circumstances we opine that the complaint is barred by time as rightly contended by the opposite parties.   In view of the specific contention of the 2^nd opposite party as narrated supra the remedy of the complainant is elsewhere.   In view of the afore mentioned discussions we answer this point in favour of the opposite parties.  

18.  POINTS 2&3:-   In view of the specific contention of the opposite parties as discussed above it cannot be said that they committed deficiency of service.   Therefore the complainant is not entitled to any compensation.   These points are therefore answered against the complainant.

19. POINT No.4:-   In view of above findings, in the result the complaint is dismissed without costs.  

        Typed to my dictation by the Junior Steno, corrected by me and pronounced in the open Forum, this the 24^th day of January 2012.     

MEMBER                                             MEMBER                                    PRESIDENT

APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant:         

For 1^st opposite party:

                                                                                                PRESIDENT