Dt. of filing – 04/06/2015
Dt. of Judgement – 12/03/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Smt. Maya Halder under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Mr. Ashis Kumar Chatterjee 2) Smt. Chandrani Sen 3) Smt. Mitali Roy Chowdhury 4) Mrs. Debaroti Roy Choudhury and 5) Mr. Nihar Roy Choudhury alleging deficiency in service.
Case of the Complainant in brief is that she being the owner of the property being premises no.1362, Survey Park entered into a development agreement with the Opposite Party No.1 to raise a four storied building as per the development agreement dated 14/3/2012. Complainant was entitled to entire first floor and 50% of demarcated third floor together with 50% of garage/covered car parking space on the ground floor of the proposed four storied (G+3) building as owner’s allocation. It was agreed that the Opposite Party No.1 shall deliver possession of owner’s allocation within 18 months from the date of sanction of the building plan failing which the Opposite Party No.1 would pay a sum of Rs.15,000/- per month. Complainant executed registered Power of Attorney and Opposite Party No.1 started construction and alleged to have completed the construction of the Ground plus three storied building. Complainant was suffering from some physical ailments during the construction of the said building. So even though she kept contact with Opposite Party No.1 over telephone but could not go to the site of construction. Inspite of asking Opposite Party No.1 never gave copy of the sanctioned plan of the building. On 8/9/2014 Opposite Party No.1 handed over one possession letter to the Complainant claiming to have delivered three numbers of car parking space to the Complainant as 50% of covered car parking space in addition to the flats as owner’s allocation. But on going to the newly constructed building, she found that there existed only four numbers of garage/covered car parking space on the ground floor of the premises and Opposite Party No.1 already sold three car parking space out of four to Opposite Party Nos.2, 3 & 4 in this case. Only one car parking space was unsold. So Complainant immediately enquired and received the copy of the sanctioned building plan wherefrom it became clear that there exists space only for four number of cars. Opposite Party No.1 in violation of the terms of development agreement neither delivered the 50% of total covered car parking space nor paid the compensation money @ Rs.15,000/- per month as agreed. On search it was found that already three numbers of car parking space have been sold and Deed of Conveyance have already been executed in favour of Opposite Party Nos. 2, 3 & 4. So the Complainant sent notice through her Ld. Advocate asking the Opposite Party No.1 to comply the contractual obligation but in reply he refused to deliver 50% of demarcated car parking space. So this case has been filed by the Complainant praying for directing the Opposite Party No.1 to deliver the Complainant her 50% of constructed covered car parking space on the ground floor of the building, to measure the actual area of the covered car parking space through a Commissioner, to pay compensation of Rs.1,20,000/- along with interest @ 12% p.a and to pay compensation of Rs.1,00,000/- and also cost of the proceeding.
Complainant has annexed with the complaint petition, copy of development agreement dated 14/3/2012, possession letter dated 8/9/2014, copy of the ground floor plan, copy of the Deed of Conveyance executed in favour of the Opposite Party Nos.2, 3 & 4 and also copy of the notice sent by the Complainant dated 19/1/2015 to the Opposite Party No.1 through her Ld. Advocate.
Opposite Party No.1 has contested the case by filing written version denying the allegation made against him in the petition of complaint contending inter alia that in terms of the development agreement he has already handed over car parking space measuring about 375 Sq ft to the Complainant out of the total car parking space area measuring about 807.3 Sq ft as per sanctioned building plan. It is further contended that the remaining total car parking space measuring about 375 Sq ft have been sold to the Opposite Party Nos.2, 3 & 4 respectively from the developer’s allocation by way of three separate Deed of Conveyance. So only six number of car parking spaces have been available on the ground floor out of which three car parking space being 50% already delivered to the Complainant. Thus the Opposite Party No.1 has prayed for dismissal of the complaint petition.
Opposite Party No.3 has also filed the written version stating inter alia that the dispute is between the Complainant and the Opposite Party No.1. No relief has been sought for against Opposite Party No.3. She has purchased one car parking space from the Opposite Party No.1 on payment of full consideration money and has been enjoying the same after mutating her name in the Kolkata Municipal Corporation. It is also contended by her that the dispute in this case is civil in nature and it is only Civil Court which has appropriate jurisdiction to decide. Thus Opposite Party No.3 has prayed for dismissal of the case.
Opposite Party No.2 & 4 have not taken any step inspite of service of notice and so the case proceeded ex-parte against them.
During the course of the evidence Complainant and Opposite Party No.1 have filed their respective evidence by way of filing affidavit-in-chief followed by questionnaire and reply thereto. Complainant as well as Opposite Party No.1 beside filing their respective affidavit-in-chief have also filed the evidence of Engineer Commissioner and architect respectively.
Ultimately the argument has been advanced by both the parties and written notes of argument has also been filed by Opposite Party No.1 and the Complainant.
So the following points require determination:
- Whether there has been any deficiency in providing service on the part of the Opposite Party No.1?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No. 1 & 2
Both these points are taken-up together for a comprehensive discussion.
In this case there is no dispute that a development agreement was executed between the Complainant and Opposite Party No.1 on 14/3/2012 to construct a four storied building (G+3). It is also not a disputed fact that it was agreed that 50% of residential area i.e. the entire first floor and 50% of demarcated third floor was agreed to be handed over to the Complainant along with 50% of garage/covered car parking space on the ground floor. According to Opposite Party there are six number of car parking spaces available in the ground floor and out of which he has already delivered possession of three car parking spaces to the Complainant. It is the admitted case of the Complainant that so far as the entire first floor and the 50% of third floor has already been handed over to her. However, according to her even though in the possession letter it is stated that three car parking spaces have been delivered to her but in fact it is not done. There are only four car parking space as per the building sanction plan out of which three have been sold to Opposite Party Nos.2, 3 & 4 by Opposite Party No.1.
The possession letter dated 8/9/2014 reveals that by same document possession of the flat in the first floor and in the third floor towards 50% allocation of the Complainant was done. In the same letter possession of three car parking spaces and the completion certificate has also been stated to have delivered to the Complainant. This possession letter has been relied upon by the Complainant herself. If there is no dispute regarding the handing over of the possession of the residential flat in the first floor and 50% in the third floor then it is somehow strange that in the same building the Complainant is denying about delivery of possession of three car parking spaces as stated in the said possession letter. It is a fact that the Complainant would verify at the same time whether the exact portion towards residential area and car parking space as stated in the possession letter is actually delivered to her. Car parking space is in the same building. If she has accepted the residential area and there is no dispute that the 50% allocation as agreed has been handed over to her then her contention that three garage or car parking space as stated in the possession letter was actually not delivered becomes doubtful because she has to go to the building to take the possession of residential area and so it is but natural that she would also verify the car parking space at the same time.
Complainant has stated that sanctioned building plan was not handed over to her but on an enquiry she received a copy of sanctioned building plan but she has not specified when and from whom she received the said sanctioned building plan which according to her consist of only four number of car parking spaces. The date of getting the copy of sanctioned building plan and from whom she got is necessary, in order to ascertain whether her claim is an afterthought. The copy of the sanctioned building plan has not been filed by either of the parties. It is only a Xerox copy of alleged ground floor building plan has been filed. But as the Complainant’s main claim is that there are only four car parking spaces then it was the duty of the Complainant to file the entire building plan. But for the reason best known to her the same is not filed. Both parties have examined an Architect and a Civil Engineer. Complainant has filed affidavit-in-chief of Civil Engineer and the Opposite Party No.1 has filed the evidence of Architect who stated that he found Opposite Party No.1 has an area of 375 Sq ft and rest of the area i.e. 432 Sq ft is allocated and handed over to the landlord. The total car parking area is 807 Sq ft. whereas the Civil Engineer examined by the Complainant has supported the claim of the Complainant. As already highlighted above that the best evidence in this case would have been the original building plan but the same has not been filed by any of the party.
Moreover, I have already highlighted that the possession letter is very clear about handing over of three car parking spaces on the same date when the residential area was also handed over to the Complainant about which there is no dispute.
It may also be pointed out that admittedly the three car parking spaces have already been sold to Opposite Party Nos.2, 3 & 4 and admittedly separate Deeds of Conveyance have already been executed in their favour. They are also recorded in their names in the Kolkata Municipal Corporation. If that be so then in effect the Complainant is seeking recovery of possession in respect of the said three car parking spaces but the same is totally a subject matter to be adjudicated by appropriate Civil Court.
Thus in view of discussions as highlighted above we find that the Complainant has not been able to establish her case and as such it is liable to be dismissed.
These points are answered accordingly.
Hence,
ORDERED
RBT/CC/119/2016 is dismissed on contest against Opposite Party No.1 and 3 and ex-parte against Opposite Party No.2 and 4.
