By Sri. MOHANDASAN.K, PRESIDENT

Complaint in short is as follows:-

1.         The complainant is one of the flat owner in the flat complex XMARK FORTUNE owned by M/s XMARK BUILDERS AND DEVELOPERS PRIVATE LIMITED, which has got an extent of 968.7 square feet and the complainant has got two car parking area facility demarcated as B3 and B3A, as part of the flat. The complainant has got right over 1.46 % of the flat complex and right to use common amenities of the flat.  The complainant has got right over the said property through document No.2459/2014, SRO, Kottakkal.

2.         The complainant alleges the opposite party allowed single vehicle parking area instaead of 2 vehicle area. The opposite party so far not handed over the parking area marked as B3A to the complainant, which amounts violation of the agreement and unfair trade practice. 

3.         The first opposite party has collected an amount of Rs. 20,000/- (Rupees twenty thousand only) on 25/03/2014, stating that for the welfare of the residents of the flat owners there will be an association called XMARK FORTUNE RESIDENT ASSOCIATION and which will be  formed  under the initiative of the opposite party. The opposite party had agreed that the amount of Rs.20,000/- will be handed over to the residents’ association when it comes to existence.  Thereafter the opposite party collected an amount of Rs. 40,000/- (Rupees Forty thousand only) on 02/06/2020 towards KSEB charges and maintenance charge. The opposite party issued receipt for the same.   But the opposite party did not initiate any steps to form residence association and not transferred the amount collected from complainants.  The flat owners Suo moto formed a resident association.

4.         The complainant thereafter decided to dispose the flat to third party and accordingly the purchaser demanded no due certificate from the complainant. The complainant  thereafter  approached  second opposite party  for the  no due certificate  and then it was told  to the complainant that the first opposite party  has not  transferred Rs.20,000/- (Rupees twenty thousand only)to the second opposite party and only on receipt of the said amount the second opposite party is prepared to  issue no due certificate. The complainant alleges the act of first opposite party receiving Rs.20,000/- from the complainant is an unfair trade practice and violation of right of complainant as a consumer. The complainant told to the second opposite party that the amount has been given to the first opposite party and then the second opposite party assured that they will issue the certificate on production of no due certificate from the first opposite party.  Then under the assurance of the same the complainant remitted an additional amount of Rs.20,000/- on 30/10/2019 to the second opposite party and the second opposite party issued receipt for the same to the complainant. Thereafter the complainant approached first opposite party for the document to register the property in favor of  the purchaser. But the first opposite party demanded an amount of Rs.40,000/- towards KSEB charges and maintenance charge and without no other way the complainant paid Rs.40,000/- on 02/06/2020 to the first opposite party and the opposite party issued receipt for the same.  Subsequently the complainant obtained no objection certificate from the first opposite party and the same was issued to the second opposite party and the complainant demanded 20,000/- from the second opposite party which he had paid on 30/10/2019. At that time the second opposite party insisted the complainant to get an intimation from the first opposite party to the second opposite party. But the first opposite party did not intimate the fact to the second opposite party which amounts deficiency in service. Thereafter the complainant issued layer notice demanding refund of the amount received from the complainant as second time and also allotting parking area demarked as B3A and in case the opposite party fails to do so direct to pay compensation of RS.1.50,000/ (Rupees one lakh fifty thousand only ) to the complainant.  But despite of receipt of notice the opposite parties did not issue reply to the complainant. Hence the prayer of the complainant is to direct the opposite party to refund  Rs.20,000/- with interest at the rate o 12% per annum from the date of receipt of the amount  and also allot the parking area B3 A to the complainant or to the person  to whom the complainant transferred the apartment and in case the opposite party fails to do so direct  the opposite party to pay compensation  of Rs.1,50,000/- along with an amount of Rs.2,00,000/-as compensation towards the  inconvenience and hardship suffered by the complainant due to the unfair trade practice from the side of opposite parties  along with  cost of the proceedings.

5.         On admission of the complaint notice was issued to the opposite parties and on receipt of notice, the opposite parties   entered appearance and filed version. 

6.         The first opposite party filed version denying the averments and allegations in the complaint. The first opposite party admitted that the complainant is the owner of B3 flat, XMARK FORTUNE, the flat complex owned by the opposite party.  But denied the allegation that the parking area B3A was not allotted to the complainant as per the agreement.  The opposite party submitted that B3, B3A parking area was allotted to the complainant and his wife since they are being doctors. The allegations in the complaint are only meant to file this complaint.  There is no lapse from the side of opposite party in allotting parking area to the complainant.

7.         The allegation that the first opposite party received 20,000/- on 25/03/2014 towards the X MARK FORTUNE RESIDENT ASSOCIAOTN welfare activities and the formation of association will be done under the initiative of the opposite party is not correct.  The complainant and his wife are not permanent residents of the flat.  So it will be inconvenience to collect the fund from the complainant towards the activities of the residents association and that reason the amount was collected from the complainant.  The said amount was for sole purpose of the activities of the residents association. The opposite party admitted that on 02/06/2020, 40,000/- rupees were received from the complainant towards KSEB charge and maintenance charge and the same was utilized for the said purpose.   The first opposite party has not initiated for the formation of residence association is not correct and denied by the opposite party. 

8.         The allegation that no due certificate was not issued   to the complainant and the first opposite party has not issued Rs.20,000/- to the second opposite party, stated that only on payment of the said amount no due certificate will be issued  etc. are in correct . The opposite party submitted that the first opposite party issued no due certificate on 30/10/2019 itself when the complainant requested for the same and the complainant disposed the apartment   with the certificate.   The averment in the complaint that the complainant was insisted for payment of Rs 20000/-to issue no objection certificate is baseless and without any document. The opposite party further denied the allegation that the first opposite party did not issue document and not issued proper reply and it was  a willful act from the opposite party to cause inconvenience  and hardship to the complainant are false and with  ulterior motive.  

9.         The opposite party submitted that the complaint is filed without any document but with the ill motive of harassing the opposite party   both mentally and financially. Hence complaint is to be dismissed with cost of the opposite party.

10.       The second opposite party  filed version  denying the  allegation of the  complaint  and  stated  true facts according to  them  as follows :

11.       The second opposite party also admitted ownership of the flat of the complainant. But the allegation regarding the car parking is not known to the second opposite party which is not within the purview of the second opposite party. All the transaction is between complainant and first opposite party in accordance with the terms and agreement.  It is admitted that the complainant approached the second opposite party for no due certificate to transfer the apartment to a third party is correct.  But it is not correct the opposite party demanded Rs.20,000/- towards security deposit. The complainant was a member of the association and he knows the condition of the association.  It is learned that the complainant had not issued security deposit to the  first opposite party  and  realizing the fact the complainant     remitted Rs.20,000/-  to the second opposite party  and the complainant had agreed to collect  Rs.20,000/- from the first opposite party itself  and accordingly  as per norms no due certificate was issued to the complainant .  The second opposite party had not issued any assurance to the complainant as stated in the complaint.  More over complainant so far not produced no due certificate for security deposit from the first opposite party till date of filing the version of second opposite party.

12.       The second opposite party has not done any violation of terms and conditions of the document. The opposite party issued no due certificate to the complainant duly i.e when the complainant requested no due certificate.  It is further submitted that the   first opposite party did not issue security deposit to the second opposite party.  There is a complainant 158/2021 before the commission for the same purpose.  Hence the submission is that there is no deficiency in service or unfair trade practice form the side of second opposite party.

13.       The complainant and second opposite party filed affidavit and documents.  The first opposite party did not file affidavit and so set exparte.    The documents on the side of complainant marked as Ext. A1 to A7. Ext. A1 is copy of document No.2459/14 SRO, Kottakal. Ext. A2 is copy of no due certificate dated 02/06/2020.  Ext. A3 is copy of cash receipt for payment of Rs. 20,000/-dated 30/10/2019.  Ext. A4 is copy of receipt dated 02/06/2020.  Ext. A5 is copy of no objection certificate dated 02/06/2020.  Ext. A6 is copy of information for registration dated 25/03/2014.  Ext. A7 is copy of lawyer notice dated 20/10/2020. Opposite party did not file documents

14.       Heard complainant and opposite parties, perused affidavit and documents. The following   points arise for consideration.

1. Whether there is defective service or unfair trade practice from the part of  the opposite parties?  
2. Relief and cost?

15.       Pont No.1 and 2

The grievance of the complainant is that though the opposite party allotted car parking area B3 and B3 A, in effect B3 A parking area was not set apart to the complainant.  In addition to that the opposite parties collected an amount of Rs.20,000/- towards the XMARK FORTUNE RESIDENT ASSOCIATION expenses towards maintaining the common amenities.  The submission of the complainant is that he remitted Rs.20,000/- to the first opposite party on 25/03/2014 and thereafter to obtaining no objection certificate the second opposite party also received an amount of Rs.20,000/- for the same purpose on 30/10/2019.  Hence the prayer of the complainant is to refund the excess amount of Rs.20,000/- collected from the complainant and set apart the car parking area B3 A towards the complainant. 

16.       The opposite parties contended that the parking area as stated in the complaint was allotted to the complainant and the allegation is baseless.  The complainant   has not taken steps to prove the actual condition of the allegation in the complaint and on the other hand both the opposite parties submitted that the parking area B3 A is set apart in favor of complainant. 

17.       The second opposite party admitted that the complainant remitted Rs.20,000/- at the time of issuing no objection certificate to the complainant. It is further submitted that the first opposite party has not handed over Rs.20,000/- to the second opposite party . More over the second opposite party submitted that the complainant had stated that he will collect the amount of Rs.20,000/- from the first opposite party to whom the complainant remitted Rs.20,000/- on 25/03/2014.

18.       The complainant produced Ext. A1 to A7 to establish the case of the complainant. Ext. A3 dated 30/10/2019 issued by X MARK FORTUNE RESIDENTS ASSOCIATION shows that the opposite party received Rs.20,000/- from the complainant.  Ext. A6 is copy of information for registration issued on 25/03/2014 by X MARK BUILDERS PRIVATE LIMITED. Ext. A6 reveals that there was a deposit of 20,000/- towards association deposit.  So it is definite that the opposite parties collected 40,000/-rupees through two occasions towards association deposit amount. Hence the case of the complainant regarding the excess collection of Rs.20,000/- stands proved through the Ext. A 3 and A6.  The complainant is entitled the refund of 20,000/- from the opposite parties. In this complaint though the first opposite party filed version no affidavit is seen filed. Hence first opposite party was set exparte . So, it can be seen that the first opposite party is liable to refund the deposit amount of Rs.20,000/- to the complainant and also liable to ensure the parking areas set apart to the complainant, which is really stands in the name of complainant. 

19.       The complainant issued legal notice to the opposite party to refund the excess amount collected and raising the issue of parking area. But, despite  receipt of notice no reply has been given to the complainant. Due to the irresponsible and defective service from the part of the first opposite party constrained the complainant to approach this Commission for the redressal of grievance.  So the commission finds that the complainant is entitled a reasonable amount as compensation on account of inconvenience and hardship sustained by the complainant due to the unfair trade practice committed by the first opposite party. The commission allows Rs.50,000/-as compensation on that account.  The complainant is also entitled cost of Rs.10000/-.

20.       In the light of above facts and circumstances we allow this complaint in the following manner:-

1. The first opposite party is directed to pay Rs.20,000/- (Rupees Twenty thousand only) to the complainant with interest at the rate of 12% per annum from the date of filing this complaint till date of payment.
2. The first opposite part is directed to ensure the parking area B3 A has been given possession to the complainant or the person to whom the complainant transferred the flat and if the first opposite party fails to do so he is liable to pay an amount of Rs.50,000/- (Rupees fifty thousand only) to the complainant on that account.
3. The first opposite party is directed to pay cost of Rs.10,000/- (Rupees ten thousand only) to the complainant.

The first opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the first opposite party is liable to pay interest @rate of 12% per annum from the date of this order to till date of payment.

Dated this 29^th  day of  May, 2023.

Mohandasan . K, President

     Preethi Sivaraman.C, Member

     Mohamed Ismayil.C.V, Member

APPENDIX

Witness examined on the side of the complainant: Nil

Documents marked on the side of the complainant: Ext.A1 to A7

Ext.A1: Copy of document No.2459/14 SRO, Kottakkal

Ext.A2: Copy of no due certificate dated 02/06/2020. 

Ext A3: Copy of cash receipt for his 20,000/-dated 30/10/2019.

Ext A4: Copy of receipt dated 02/06/2020. 

Ext A5: Copy of no objection certificate dated 02/06/2020. 

Ext.A6: Copy of information for registration dated 25/03/2014.

Ext.A7: Copy of lawyer notice dated 20/10/2020.

Witness examined on the side of the opposite party: Nil

Documents marked on the side of the opposite party:  Nil

Mohandasan . K, President

     Preethi Sivaraman.C, Member

     Mohamed Ismayil.C.V, Member

VPH