Sri Partha Kumar Basu, Hon’ble Member :
The case has been running ex-parte against the sole OP as per order no 4 dated 17.07.023 of this district commission.
The complaint case is filed under section 35 of the C.P. Act, 2019 in a matter of dispute in the housing sector by the complainant against the O.P. developer company with a prayer for a direction on the O.P. to hand over the possession of the covered garage along with replenishment of loss of rent @Rs.3,500/- per month, refund of maintenance amount, compensation for mental agony for Rs. 25,000/- and a litigation cost of Rs. 20,000/-.
The case of the complainant in brief is that the complainant booked a flat at the suit property with the O.P. company who are in the business of construction of residential buildings as developer. The complainant booked a flat along with a covered garage in the building complex by executing an agreement for sale on 29.04.2016 which was to be completed by 30.03.2022. Though the O.P. handed over possession of the flat in June, 2022 but the possession of the covered garage was not handed over. The complainant requested the O.P to hand over the possession of the said covered garage but the O.P. neglected to comply every time. Meanwhile, the complainant kept on paying maintenance charges from July, 2022 till that date. The complainant also discovered that the said garage as being used as godown for storage of raw materials for construction for which an email reminder dated 25.03.2023 was sent to the O.P. The complainant also approached C.A & F.B.P department on 30.03.2023 but the effort of mediation failed.
Hence the case.
In support of the complaint, the complainant exhibits the following documents as per running page no. (7) to (11):-
1) Allotment advice for covered car parking as per email dated 23.03.2022
2) Possession letter of the flat dated 01.06.2022
3) Maintenance charges receipt dated 01-08-2022 for July, 2022 to August, 2022 dated 01.08.2022
4) Reminder email dated 30.11.2022, 17.03.2023 and 25.03.2023 for giving possession
5) Copy of photograph of the garage space
6) Bank’s letter dated 05.08.2023 as per Annexure - A.
The case has been running ex-parte against the O.P company as per order no 4 dated 17.07.2023 since W/V was not filed by OP within statutory period as per Consumer Protection Act 2019. An application dated 20.07.2023 was filed by OP challenging the said ex-parte order dated 17.07.2023 which was heard and considered but rejected vide order no 7 dated 25.08.2023 for the reasons as stated therein.
The arguments as advanced by the Ld. Advocate for the complainant were heard in full on 12.03.2024. BNA was filed by the complainant. Records and documents were perused.
During adjudication process of this complaint case on ex-parte basis, the complainant adduced evidence on affidavit exhibiting further documents. A copy of registered sale agreement dated 14.03.2022 for sale of a flat along with a covered car parking space was filed on 08.06.2023 wherein it is mentioned in the second schedule in page No. (11) as quoted below :-
“With right to park 01 motor car in the covered space in the ground floor of the building, location whereof has been shown to the allottee physically.”
Hence the complainant is a Consumer under the scopes and meaning of The Consumer Protection Act 2019 in terms of the Sale Agreement and memo of consideration (page 10).
The memo of consideration has been accepted by the O.P. developer for the flat and covered car parking space from the complainant but the handover of possession of the covered car parking space is not complied within the stipulated period as per the registered sale agreement. From the scheduled date of handover as per Sale Agreement read with date of possession letter, it is quite evident that though possession was given for the flat but the possession of the garage remained incomplete, inspite of several reminder emails on various dates to the OP. Copy of photographs also goes to lend support to this allegation and the evidence adduced by the complainant has to be accepted with it’s full evidentiary value since went unopposed.
As such, the deficiency in service by the O.P. developer towards the complainant is established.
However, no document in support of incurring monthly maintenance expenses on account of the car parking space in specific is exhibited. No cogent proof is filed by the complainant supporting that whether any loss occurred on account of rent incurred to make alternate arrangement and goes unsubstantiated. Hence these part of the allegations are not proved.
Therefore the complaint case succeeds in part, which is decided in favour of the complainant with cost.
Hence, it is,
ORDERED
That the instant complaint case is hereby allowed ex-parte with cost against the O.P. in part with the following directions :-
- The OP company represented by it’s Directors / Owners/ Partners, jointly and/or severally, are liable and directed to hand over the physical possession of the covered car parking space in vacant condition, earmarked by due numbering for proper identification, duly razed and rebuilt to the complainant.
- The OP company represented by it’s Directors / Owners/ Partners, jointly and/or severally, are liable and directed to issue possession letter for the covered car parking space to the complainant simultaneously.
- The OP company represented by it’s Directors / Owners/ Partners, jointly and/or severally, are liable and directed to pay a compensation of Rs 25,000/- (Rs. Twenty Five Thousand) only in lumpsum to the complainant for causing mental agony for the delayed handover of the covered car parking space.
- The OP company represented by it’s Directors / Owners/ Partners, jointly and/or severally, are liable and directed to pay a litigation cost of Rs. 20,000/- (Rs. Twenty Thousand) only to the complainant.
All the above directions are to be complied within 60 days from the date of this order, I/D the compensation amount will get accrued in the form of Simple Interest on the entire decreetal amount @ 12% per annum from the date of filing this complaint case on 16.05.2023 till the actual date of payment.
In case of default by the OP to comply any of the directions as stated in serial (a) to (d) above within the stipulated period, the petitioner is at liberty to put the entire order into execution as per law.
Copy of this order will be available in the public domain of www.confonet.nic.in.
Free copy may be given to the parties as per CPR 2005 whenever approached.
Dictated and corrected by me.
Member
