Chandigarh

DF-I

CC/346/2023

SANDIP KUMAR JHAMB - Complainant(s)

Versus

M/S AN BUILDERS - Opp.Party(s)

NITIN GUPTA

01 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

[1]

Consumer Complaint No.	:	CC/346/2023
Date of Institution	:	14/07/2023
Date of Decision	:	01/07/2024

1. Sandip Kumar Jhamb S/o Raj Kumar Jhamb Aged 63 years
2. Mr. Abhinandan S/o Sh Sandip Kumar Jhamb Aged 31 years

     Both the complainants are resident of Floor No.B-39/1, 1^st Floor, SIVANTA GREENS, Wave Estate, Block-B, Sector-85, Mohali.

… Complainants

V E R S U S

1. M/s AN Builders, Corporate/Registered Office at SCO No.31, 1^st Floor, Dakshin Marg, Sector-20-D, Chandigarh-160020, through its Authorized Partner Mr. Nitin Malik.
2. Sh. Nitin Malik, Partner, M/S AN Builders, R/o H.No.1141, Sector-8-C, Chandigarh.
3. Sh. Mannat Satija, Partner, M/s AN Builders, R/o H.No.2055, Sector-20-D, Chandigarh.
4. Sh. Ashish Satija, Partner, M/s AN Builders, R/o H.No.2055, Sector-20-D, Chandigarh.
5. Smt. Shashi Malik, Partner, M/S AN Builders, R/o H.No.1141, Sector-8-C, Chandigarh.
6. Smt. Anjali Malik, Partner, M/S AN Builders, R/o H.No.1141, Sector-B-C, Chandigarh.

… Opposite Parties

[2]

Consumer Complaint No.	:	CC/345/2023
Date of Institution	:	14/07/2023
Date of Decision	:	01/07/2024

 

Mrs. Mohinder Kaur w/o Sh. Balwant Singh, aged 69 years, resident of Floor No.B-37/1, 1^st Floor, SIVANTA GREENS, Wave Estate, Block-B, Sector-85, Mohali.

… Complainant

V E R S U S

1. M/s AN Builders, Corporate/Registered Office at SCO No.31, 1^st Floor, Dakshin Marg, Sector-20-D, Chandigarh-160020, through its Authorized Partner Mr. Nitin Malik.
2. Sh. Nitin Malik, Partner, M/S AN Builders, R/o H.No.1141, Sector-8-C, Chandigarh.
3. Sh. Mannat Satija, Partner, M/s AN Builders, R/o H.No.2055, Sector-20-D, Chandigarh.
4. Sh. Ashish Satija, Partner, M/s AN Builders, R/o H.No.2055, Sector-20-D, Chandigarh.
5. Smt. Shashi Malik, Partner, M/S AN Builders, R/o H.No.1141, Sector-8-C, Chandigarh.
6. Smt. Anjali Malik, Partner, M/S AN Builders, R/o H.No.1141, Sector-B-C, Chandigarh.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

                                               

ARGUED BY	:	Sh. Nitin Gupta, Advocate for complainants
	:	Sh. Rakesh Bajaj, Advocate for OPs

 

Per Pawanjit Singh, President

1. By this order, we propose to dispose of the captioned consumer complaints, filed by the respective complainants, in which common questions of law and facts are involved. The facts, apart from minor variation here and there, are also almost analogous. The complainants in the above complaints have sought the relief of second covered car parking alongwith compensation etc. As such, during arguments, it was agreed upon by the parties that captioned consumer complaints can be disposed of by passing a consolidated order.
2. To dictate the order, facts are being taken from Consumer Complaint No.346 of 2023-Sandip Kumar Jhamb & Anr. Vs. M/s AN Builders & Ors.
3. It transpires from the allegations, as projected in the consumer complaint, that OP-1 is a builder/promoter of residential housing project namely “Sivanta Greens” at Wave Estate, Block B, Sector 85, Mohali (hereinafter referred to as “subject project”) whereas OPs 2 to 6 are partners in the partnership firm namely M/s AN Builders/OP-1.  OPs widely advertised their subject project consisting of stilt + 4 independent storied floors in print and electronic media.  On being attracted by the advertisement, complainants visited the office of the OPs and they were briefed about the various features and facilities to be provided in the subject project and it was assured that two covered car parking spaces at designated places, as per the brochure (Annexure C-1) and parking lay out plan/map (Annexure C-2), would be provided to the complainants.  On the assurances made by the OPs, on 2.3.2020 complainants booked the first floor apartment in the subject project for total sale consideration of ₹39,38,188/- and vide allotment letter dated 28.5.2020 (Annexure C-3) OPs allotted unit No.B-39/1 (hereinafter referred to as “subject unit”) alongwith two covered parking space.  On 28.5.2020, OPs entered into sale agreement (Annexure C-4) with the complainants through which the subject unit was allotted to the complainants alongwith two covered car parking space.  Physical possession of the subject unit was delivered to the complainants on 18.12.2020 without car parking and it was assured by the OPs that the same would be delivered on the completion of the entire project. The complainants kept waiting for the said completion of the project, which was completed in all respects in the month of January 2023 and thereafter they requested the OPs to provide two covered car parking space, as mentioned in the parking lay out/map.  After repeated requests by the complainants, OPs only provided one car parking space and the second parking space is not covered parking as no canopy was built in order to make it as covered.  The complainants repeatedly requested the OPs to provide the car parking for second car at designated place in the parking layout/ map by constructing a canopy, but, with no result. In this manner, the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
4. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action and concealment of facts.  However, it is admitted that the subject unit was allotted to the complainants who had already taken possession of the same from the OPs.  It is further alleged that even as per the possession letter, complainants have undertaken that they are fully satisfied with the project and by filing the present consumer complaint, complainants are seeking third car parking in the open space and want the same to be covered with a canopy, especially when the OPs have already provided two covered car parking space to the complainants at the time of handing over possession of the subject unit to them.  It is further alleged that as the complainants themselves have admitted in the consumer complaint that they are parking their second car in the stilt parking, there is no question of providing third parking space to them in the open area.  It is alleged that as per layout plan/map (Annexure C-1 and C-2), answering OPs have already provided two car parking space to the satisfaction of the complainants and the complainants have already acknowledged the same while receiving the possession of the subject unit from the OPs on 4.11.2020.  It is further alleged that the complainants have made illegal demand of third covered car parking by filing the present consumer complaint after three years.  It is further alleged that even as per the builder’s buyer agreement (Ex.R-1), answering OPs have already allotted two covered car parking spaces to the complainants with the satisfaction of the work of the answering OPs vide possession letter (Ex.R-2).  On merits, the facts as stated in the preliminary objections have been reiterated.  The cause of action set up by the complainants is denied.  The consumer complaint is sought to be contested.
5. In rejoinder, complainants re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.
6. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
7. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the OPs have allotted the subject unit to the complainants in the subject project, as is also evident from the copy of allotment letter (Annexure C-3) and sale agreement (Annexure C-4) through which two covered parking space were also agreed to be provided to the complainants and the possession of the subject unit was handed over by the OPs to the complainants on 4.11.2020, as is also evident from possession letter (Ex.R-2), the case is reduced to a narrow compass, as it is to be determined if the OPs have provided only one covered car parking space to the complainants and have not delivered possession  of the second car parking, as per the layout plan/map of the subject project, and the complainants are entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainants, or if the OPs have already provided two covered car parking space to the complainants and by filing the present consumer complaint, complainants have been seeking a third car parking space, covered with canopy, in the open space and the consumer complaint of the complainants, being false and frivolous, is liable to be dismissed, as is the defence of the OPs.
   2. Perusal of brochure (Annexure C-1) and parking lay out plan/map (Annexure C-2) clearly indicates that the OPs, through advertisement, had agreed to provide covered parking for two cars. Copy of allotment letter (Annexure C-3) further indicates that the OPs had allotted the subject unit alongwith two car parking space to the complainants.  Copy of agreement for sale (Annexure C-4) further indicates that under the heading “terms” clause 1(iv), it refers the total price of the apartment included pro rata share in the common areas and 2 No. of covered parking(s) as provided in the agreement. Relevant portion of the aforesaid clause 1(iv) is reproduced below for ready reference :-

        “1.   TERMS.-

xxx                           xxx                           xxx

(iv)   The Total Price of Apartment includes : (1) pro rata share in the Common Areas; and 2 No. of covered parking(s) as provided in the Agreement.”

 

Thus, one thing is clear that the complainants had paid the price even for the two car parking spaces to the OPs.

3. Learned counsel for the complainants contended with vehemence that out of the two covered car parking(s) in the stilt area, OPs have only provided one covered car parking whereas the second parking space has not been provided by the OPs, till date, despite of repeated requests by the complainants and the OPs be directed to deliver/hand over the possession of the second covered car parking space. 
4. On the other hand, learned counsel for the OPs contended with vehemence that the OPs have already provided two covered parking(s) to the complainants and now, by filing the present consumer complaint, complainants have been seeking a third car parking space in the open area, covered with canopy, which cannot be provided to them as complainants have made an illegal demand. 
5. There is no force in the contention of learned counsel for the OPs as copy of brochure (Annexure C-1), layout plan/map (Annexure C-2) and the agreement for sale (Annexure C-4) clearly indicates that the OPs have agreed to provide two number of covered car parking(s) space, regarding which reference has also been made in the allotment letter (Annexure C-3). 
6. Though the OPs have come with the defence that two covered parking(s) have already been provided to the complainants in the stilt area, but, the same stands falsified from the layout plan/map as even in the map for the first floor resident, one parking space is given in the open area ‘F1’ and another is in the stilt area whereas to other floor owners i.e. Floors 2 to 4, covered parking for two vehicles have been provided in the stilt area. 
7. As it stands proved on record that the OPs had undertaken to provide two covered parking (s) to the first floor owner and it is an admitted case of the parties that the complainants are first floor owners/allottees and one covered parking space is available in the stilt area for the first floor allottee and another is in the open area, which is clear from layout plan/map (Annexure C-2), OPs are bound to provide the second covered parking as per the allotment letter as well as agreement and other documents, as discussed above, executed between the parties and the act of the OPs in not providing the second covered parking to the complainants, certainly amounts to deficiency in service and unfair trade practice.

 

8. In view of the aforesaid discussion, it is safe to hold that the complainants have successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed. 

8. In the light of the aforesaid discussion, both the consumer complaints succeed, the same are hereby partly allowed and the OPs are directed as under :-

CC/346/2023

1. to provide the second covered car parking to the complainants, at the designated open place as per the agreement, with canopy.
2. to pay ₹15,000/-, in lump sum, to the complainants as compensation for causing mental agony and harassment and litigation expenses.

9. This order be complied with by the OPs, jointly and severally, within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount mentioned at Sr.No.(ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days.

CC/345/2023

1. to provide the second covered car parking to the complainant, at the designated open place as per the agreement, with canopy.
2. to pay ₹15,000/-, in lump sum, to the complainant as compensation for causing mental agony and harassment and litigation expenses.

10. This order be complied with by the OPs, jointly and severally, within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount mentioned at Sr.No.(ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days.
11. Pending other miscellaneous application(s), if any, also stands disposed of accordingly.
12.   Certified copies of this order be sent to the parties free of charge. The file be consigned.

01/07/2024 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member