STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA :
At HYDERABAD
FA 09 of 2014
AGAINST
CC No. 103 of 2013, DISTRICT FORUM, RANGA REDDY
Between :
- K. Krishna Reddy,
S/o late K. Satyanarayana Reddy
Aged about 38 years, Occ : Software Engineer.
- Smt. A. Nalini, W/o K. Krishna Reddy
Aged about 35 years, Occ : Household.
Both are R/o Flat No. G-1
H.No. 22-142/2 and 22-142/3,
Madhavi Weaker Section Coop. Housing Society,
Balanagar Mandal, Ranga Reddy District .. Appellants/complainants
And
M. Jaswanth Rao, S/o Late M. Narsing Rao,
Aged about 41 years, Occ : Managing Director of
M/s. SDS Constructions, R/o Plot No. 3,
H.No. 12-6-23/6/6, Siv Shakti Nagar,
Moosapet, Hyderabad – 500 018 .. Respondent/opp. party
Counsel for the Appellants : M/s. V. Gourisankara Rao
Counsel for the Respondent : Sri N. Rajasekharam
Coram :
Honble Sri Justice B. N. Rao Nalla … President
And
Sri Patil Vithal Rao … Member
Tuesday, the Twenty Fourth Day of April
Two Thousand Eighteen
Oral order : ( per Hon’ ble Sri Justice B.N.Rao Nalla, Hon’ble President )
***
1) This is an appeal filed under Section 15 of the Consumer Protection Act by the complainants praying this Commission to set aside the impugned order dated 29.11.2013 made in CC 103 of 2013 on the file of the DISTRICT FORUM, Ranga Reddy and allow the appeal.
2) For the sake of convenience, the parties are described as arrayed in the complaint before the District Forum.
3). The case of the complainants, in brief, is that the complainants purchased G-1 flat in S.D. S. Residency in Kukatpally village from the Opposite party for a total sale consideration of Rs.20,00,000/- in 2006, which, includes amenities along with car parking also and from then onwards they used to park the car in a vacant place below the flat to which no one objected. The opposite party sold the remaining 10 flats in the year 2011 and car parking slots were allotted on 18.11.2012 to all the flat owners except the complainants due to personal grudges. The car parking space where the complainants were parking their car for the last six years has been allotted to the owner of flat no. 401. After repeated requests, the opposite party instructed them to park their car on the water tank which was illegal and inconvenient. The legal notice sent to the opposite party returned as unclaimed. There is no response to the telephone calls from the opposite party. The acts of the opposite party amounts to deficiency in service. Hence the complaint to direct the opposite party to allot car parking to the complainants and to pay an amount of Rs.1,00,000/- towards compensation and costs.
4). The opposite party opposed the above complaint by way of written version contending that he sold the flat without car parking for Rs.23,00,000/- and not Rs.20,00,000/- and the complainants are yet due to pay Rs.3,00,000/- to the opposite party. The opposite party never allotted car parking to the complainants and it is sold separately subject to availability of space. The complainants are trying to encroach and occupy car parking space of 401 flat which was being resisted by its owner. There is no agreement and there is no space available for car parking. The complainant also filed OS 40 of 2013 before the Hon’ble Additional Junior Civil Judge at Miyapur for the same relief. There is no deficiency in service on their part. Hence prayed to dismiss the complaint.
5). During the course of enquiry before the District Forum, in order to prove their case, the complainants filed their evidence affidavit and got marked Ex.A1 to A7. The opposite party has filed his Evidence affidavit but no documents were marked. The complainants filed their written arguments.
6) The District Forum, after considering the material available on record, dismissed the complaint.
7) Aggrieved by the said order, the complainants preferred this appeal before this Commission.
8). Heard the counsel for the appellant. No representation for the respondent/ opposite party, though, appeared through their advocate. Ex.A8 is marked on behalf of the appellants/complainants at the appellate stage. Written arguments are also filed on behalf of the appellants/complainants.
9) The points that arise for consideration are,
(i) Whether the impugned order as passed by the District Forum suffers from any error or irregularity or whether it is liable to be set aside, modified or interfered with, in any manner?
(ii) To what relief ?
10). Point No. 1 :
There is no dispute that the appellants/complainants purchased a Flat in Ground floor. The main dispute is with regard to allotment of car parking slot to the appellants/complainants. The contention of the appellants/complainants is that they have purchased the Flat in the year 2006 and from then onwards they used to park the car in a vacant place below the flat to which no one objected. On the other hand, the respondent/complainant rebutted the same and argued that he never allotted car parking to the appellants/complainants and it is sold separately subject to availability of space and there is no such agreement in between them and hence the appellants are not entitled to any car parking.
11). The District Forum observed that Ex.A-1, Registered Sale Deed, does not mention that the sale consideration was paid for the car parking also and there is no promise to provide car parking to the Flat of the appellants/complainants and hence the respondent/opposite party is not liable to provide car parking place to them and further, admittedly, since the appellants have filed Civil Suit in OS No. 40 of 2013 before the Hon’ ble Additional Junior Civil Judge Court at Miyapur for the same relief and hence came to the conclusion that the complaint is not maintainable.
12). Counsel for the appellants/complainants relied on the Judgment of Hon’ble Supreme Court in Nahalchand Laluchand Pvt. Ltd Vs. Panchali Coop.,. Housing Society Ltd, reported in 2010 (9) SCC 536, wherein, it was held that “ no builder is entitled to collect any amount towards allotment of Car parking slot from the flat purchaser “ . Further, the District Forum failed to see that Pendency of OS No. 40 of 2013 was filed for Perpetual injunction restraining the dependant and their agents from interfering with the peaceful possession and enjoyment of the Car parking slot, whereas, this complaint was filed for allotment of car parking.
13). There is no rebuttal for the contention that the suit in OS No. 40 of 2013 was filed vide Ex.A8 for Perpetual Injunction orders, whereas, the complaint before the District Forum was filed to allot car parking area. In view of the fact, it cannot be deduced that both of them are filed for the same relief. The District Forum failed to consider this aspect in right perspective because Ex.A8 copy of the suit was not filed before the District Forum.
14). We have perused Ex.A1, Sale Deed, dated 23.06.2006, wherein, it shows that the appellants/complainants purchased semi-finished Flat No. G-1, ( in Ground Floor), with built up area of 1300 Sq.feet ( including common area), along with an undivided share of land admeasuring 36.00 sq. yards ( out of 5333.32 sq.yards in S.D.S. Residency situated at Madhavi Weaker Section Cooperative Housing Society, Kukatpally Village and Municipality, Balanagar Mandal, Ranga Reddy District. In the said sale deed, it is also mentioned as hereunder :
“ The Vendees shall not demolish at any time or cause to be demolished his flat or any part of the building including the common area such as, stair case and parking area, drainage, pipes, cables, water sources, gutters, wires and other conveniences necessary for property utility and service for all flat owners and or shall which is likely to cause any injury or damage in the structure of the building “.
From the above, it is to be inferred that the common area includes Parking area and appellants paid the total consideration of the flat includes the parking area. There is no mention in the said Ex.A1 sale deed that the appellants have to pay the cost of the parking area separately. The respondent did not place any material to show that the other flat owners paid the consideration separately for parking area. Further, when a consumer purchased a flat, it is the bounden duty of the vendor to provide parking slot to the concerned flat purchaser without any consideration for the same as specified by the Hon’ble Supreme Court in the above referred Judgment. It is not the case of the respondent that some of the flat owners were also not allotted parking slots in the same manner as that of the appellants/complainants. Without allotting parking place for the vehicle of the flat owners, how can they sustain for whole life in the same place. What is the use of the purchase of a flat for living a peaceful and happy life. When a flat was purchased by the vendee, the vendor has to allot parking in the common area, simultaneously along with the concerned flat in the order of purchase, denial of the same amounts to deficiency in service.
15). After considering the foregoing facts and circumstances and also having regard to the contentions raised on both sides, this Commission is of the view that the District Forum passed the impugned order without perusing the Ex.A1 sale deed meticulously and the respondent/opposite party is liable to allot Car parking to the appellants/complainants and they are also liable to pay compensation for Rs.10,000/- and costs of Rs.5.000/-.
16). Point No. 2 :
In the result, the appeal is allowed setting aside the impugned order dated 29.11.2013 made in CC 103 of 23013 on the file of the DISTRICT FORUM, Ranga Reddy and consequently the complaint is allowed in part directing the respondent/opposite party to allot Car parking to the appellants/complainants, to pay an amount of Rs.10,000/- towards compensation and costs of Rs.5.000/- to the appellants/complainants. Time for compliance four weeks.
PRESIDENT MEMBER Dated : 24.04.2018..
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APPENDIX OF EVIDENCE
For Appellants/complainants :
Ex. A8 : Copy of suit in OS. NO. 40/2013 on the file of the Addl. Junior Civil Judge Court at Miyapur.
PRESIDENT MEMBER Dated : 24.04.2018..
