Judgment Dt.03.05.2016
This is a complaint made by one Sri Gautam Kr. Sarkar, son of Late Dhirendra Nath Sarkar and Mrs. Piyali Sarkar wife of Sri Gautam Kr. Sarkar, against Merlin Projects Ltd., a company incorporated under the Companies Act, 1956, having its registered office at 79, Sambhu Nath Pandit Street, Kolkata – 700 020 and Mr. Sushil Mohta, Director and also Mrs. Karabi Ghosh, wife of Late Abhijit Ghosh, residing at 147, Upendra Nath Banerjee Road, Kolkata – 700 060. Proforma OP, praying for paying a sum of Rs.5,00,000/- as compensation due to loss of reputation and deficiency in service and direction upon the OPs for allotting the car parking bearing No.B-5 in Block 2B of Merlin Sapphire building a premises No.147, Upendra Nath Banerjee Road, Kolkata – 700 060.
Facts in brief are that Complainant through Proforma OP No.3 came in contact with OP No.1 & 2 for residential flats being Flat No.2B in Block No.2(B) along with a covered car parking No.B-5 in Block 2(B) at premises, 147, Upendra Nath Banerjee Road, Kolkata – 700 060 known as Merlin Sapphire. Car parking space was attached to Flat No.2A in the same Block 2(B) which was also owned by Proforma OP.
For the above purpose an agreement was executed followed by a deed of conveyance for sale dt.6.8.2013 in favour of the Complainant wherein Proforma OP was a confirming party. In terms of Deed of Conveyance Complainant made full payment and took physical possession of the flat. In the Sale Deed it is mentioned that Complainant purchased the flat with covered car parking.
In the Deed of Conveyance car parking number was not mentioned and so a letter dt.22.07.2010 with a layout plan was issued in favour of the Proforma OP by the OP No.1 stating that car parking No.B-5 was allotted in favour of OP No.3. Said OP No.3 by a letter dt.7.8.2013 stated that in terms of Deed of Conveyance for Sale dt.6.8.2013, but said car parking No.B-5 is being given to Complainants and no objection has been raised by OP No.1 & 2.
Complainant further states that when they went to park their car, they found another person occupying the said car parking and Complainant could know that OP No.1 & 2 allotted that car parking to that person. On this Complainant approached OP No.1 & 2 who assured that the said car parking would be allotted to Complainants but of no use.
So, Complainant approached Consumer Affair Department where several meetings took place and in those meetings the dispute could not be resolved and hence the Complainant filed this complaint.
OP No.1 & 2 filed written version and denied the allegations made in the Complaint. Further, the contention of OP No.1 & 2 is that the complaint is not maintainable and it is bad for non-joinder and mis-joinder of necessary parties. Further, they have alleged that there is no Consumer relationship between parties and so, the Forum does not have jurisdiction. They have also alleged that the dispute is of civil nature and in the Conveyance Deed they have not mentioned the car parking number.
On the basis of above facts, the following points for determination are framed :-
- Whether this complaint is maintainable and this Forum has jurisdiction to adjudicate the dispute;
- Whether Complainant could prove that there was a contractual relation between them and OP No.1 & 2 and they are consumers for OP No.1 & 2.
- Whether Complainants are entitled to reliefs as prayed for.
Decisions with reasons
Complainants have filed affidavit-in-chief and have replied the questionnaire put by the OP No.1 & 2.
All the above points are taken up together with brevity and convenience.
At the out-set it appears that this is a complaint filed for a dispute relating to the possession of car parking. Complainants have specifically mentioned that this Forum make a direction for allotment of car parking No.B-5 in Block 2B of Merlin Sapphire building.
On perusal of the Xerox copy of the Deed which has been filed by the Complainants it appears that vendor is Merlin Projects Ltd. and purchasers are Complainants and conforming party is Mrs.Karabi Ghosh a Proforma OP No.3.
Further, it appears that property mentioned in Schedule C has been sold. On perusal of Schedule C it appears that Flat No.2B in the Block 2B on the 2nd floor in premises No.147, Upendra Nath Banerjee Road, Kolkata – 700 060, having a total covered area of 1028 sq.ft. with right to park medium size passenger vehicle in the allotted covered car parking space together with the proportionate share common parks and facilities including roof-open terrace and un-divided proportionate share of the land was sold.
There is no mention in Schedule C that car parking No.B-5 as mentioned in prayer No. B of the complaint was sold. It is further un-disputed that right to covered car parking was sold and that was to be decided by the vendor Merlin Projects Ltd.
Complainants referred to a letter written to Mrs. Kaberi Ghosh the erstwhile allottee dt. 22nd July, 2010 wherein OP No.1 & 2 allotted a covered car parking being No.B-5 to her. So, this letter is of three years before the Complainants came into picture and they approached OP No.1 & 2 through OP No.3. As such, Complainants cannot take advantage of this letter in their favour as because there is no privity of contact between Complainants and OP No.1 & 2. So far as allotment of car parking No.B-5 is concerned to the Complainants and its registration ; has to be decided between Complainants and OP No.1 & 2.
No doubt Mrs. Karabi Ghosh gave a possession letter sometime in 2013 (Xerox copy which has been filed and the date is illegible) to Goutam Sarkar and Piyali Sarkar which reveals that she handover possession of car parking No.B-5 to the Complainants.
If that be so, it can be presumed that for two years Complainant possessed that car parking but surprisingly Complainants knocked the door of this Forum for the resolution of the dispute after two years, the nature of which is known only to the Complainants.
Presumably when Complainants received possession in 2013, they enjoyed it for two years and after this period Complainants claim that they are consumers of OP No.1 & 2. Complainants received the possession of B-5 car parking from OP No.3 and any grievance if they have, that would be against OP No.3. But, surprisingly no relief has been sought against OP No.3.
OP No.1 & 2 are liable to the fact that Complainants have right of covered parking of their vehicle but no right of specific car parking as mentioned in deed belong to the Complainants and liability of the OP No.1 & 2 is towards a covered car parking.
During arguments Ld. Advocates for both the sides submitted that dispute relates to car parking. Ld. Advocate for Complainants was specific for car parking No.B-5 which does not appear to be in accordance with the provisions and the conveyance deed filed before this Forum. On the contrary, Ld. Advocate for both OP No.1 & 2 submitted that one covered car parking they are ready and willing to handover to Complainants in the same building.
As such, the dispute appears to be nonest when it is viewed in the back-ground of the prayers of the Complainants for a specific car parking No.B5 which they are not entitled and they have not prayed for any other covered car parking. So, this Forum is not in a position to pass order for handing over any other covered car parking to which OP No.1 & 2 agreed.
Since the main prayer appears to be nonest the question of granting other prayers i.e. compensation to the tune of Rs.5,00,000/- and litigation cost do not arise.
However, OP No.1 & 2 are directed to resolve the dispute handover covered car parking to the Complainants as per Deed of conveyance.
Hence,
O R D E R ED
CC/35/2015 is dismissed on contest.
