1. The short dispute in this Appeal arises out of the allotment of an additional parking space which dispute was entertained and disposed of on 09.08.2023 by the impugned order of SCDRC, Karnataka. The order narrates the facts of the case and then notices the amendment carried out by the Complainant in respect of an additional car parking space. The Commission proceeded to hear the matter only on the pleadings of the Complainant, as the Respondent builder/developer failed to file its written version. However, paragraph 6,7&8 of the impugned order needs reproduction to understand the controversy which is extracted hereinunder:

“06.   During the course of arguments counsel for complainant addressed that, in-spite of making payment of full consideration to the opposite party there was an inordinate delay of 10 months in registering the flat in favour of complainant and most of the works were incomplete.  Initially opposite party had offered two car parking slots later allotted only one car parking area.  Though opposite party received a sum of Rs.17,700/- from complainant for transfer of Khatha the same was not been done.  There is no clarity that which car parking area was allotted to the complainant from the opposite party.  Per contra, counsel for opposite party addressed that, at ink page-18 in the Agreement of Sale at schedule C it is clearly mentioned that, A Three Bedroom apartment will come one covered car parking space.  At ink Page-31 at Para No.4 the complainant had undertaken that, he examined/inspected and fully satisfied with the construction of the schedule-C flat etc.,.  The complainant has not paid the fee pertaining to Khatha transfer.

 07.   Perused the complaint, affidavit evidences submitted by both the parties along with documents and written arguments.  It is admitted fact that, as per the Agreement of Sale dated: 19.10.2017 the complainant with his family members had purchased flat No. SH-106 from the opposite party by making payment of total sale consideration of Rs.1,50,46,556/-.  Now the main allegation of the complainant is that, in-spite of making payment of full consideration to the opposite party there was an inordinate delay of 10 months in registering the flat in favour of complainant by the opposite party and most of the works were incomplete.  The further allegation made by the complainant is that, in-spite of receiving Rs.17,700/- from the complainant towards transfer of Khatha, the opposite party had failed to transfer the same in favour of the complainant and due to which BESCOM meter cannot be transferred in favour of complainant which resulted to non issuance of formal letter of allotment for the car parking space from the opposite party.  Further complainant urged that, in-spite of making several email correspondences and oral requests/submissions made by the complainant there is no clarity that, which car parking slot/area was allotted to the complainant from the opposite party’s side.  On perusing the documents and the email correspondences placed before us, no doubt it corroborates the allegations made by the complainant.  It is very pertinent to note that, due to the failure on the part of the opposite party in respect of transfer of Khatha in favour of complainant though it had received Rs.17,700/- from the complainant’s side at the time of booking itself it had failed to do its obligations which resulted to non-transfer of BESCOM meter and non issuance of formal letter for allotment of parking space.  Due to the said act of the opposite party the complainant had suffered lot of inconvenience and mental agony and made him to purchase additional car parking space from the land owner of the apartment building by making payment of Rs.4,50,000/-. 

 08.   In view of the above discussions, we are of the considered view that, the complainant has proved deficiency in service on the part of the opposite party and we feel it is just and proper to direct the opposite party to clarify the car parking space of the complainant, whether it had allotted B-552 or B-621 to the complainant within three months from the date of the order, failing which the opposite party shall pay a sum of Rs.5,00,000/- to the complainant.  Accordingly we proceed to allow the complaint in part.”

2. The contention of the Appellant is that on account of certain deficiencies on the part of the Respondent builder, there was an understanding of an additional car parking space and for that the Complainant had sent a mail on 16.09.2013 which is extracted hereinunder:

“Dear all,

Please note till date the works as committed is not completed. And more over we have not registered our flat though there was an assurance from your side to register it by June 2018.

Also we require one more car parking space and request you to allot the same during the other allotment.

Also required you to offset the price of the car parking space on account of the series of bad experience we had with Puravankara right from the beginning.

Thanks and regards,

Rajiyja"

3. However, the sale deed of the premises was executed on 29.11.2018, copy whereof had been filed as Annexure C-6 to the complaint before the State Commission. The sale deed categorically recites the transfer of 1 car parking facility only. Thus, the sale deed nowhere envisages any transfer of an additional car parking space as was claimed by the Complainant that is said to have been intimated through the mail extracted hereinabove. The fact that the complainant was entitled for one car park is therefore not disputed. But the claim of additional car park is seriously denied and contested.
4. The complaint is about the additional car parking slot no. B651. It is this dispute which was raised before the State Commission contending that a mail was received on 12.12.2018 from the Respondent allotting two covered car parks no.651 and 621 in the basement. The said mail is extracted hereinunder:-

“Dear Mrs. Rajitha T O

Greetings from Puravankara.

 Pura Seasons-Apt No.SH-106

Ref. your purchase of the subject apartment along with a Two Covered car park. We are happy to inform you that Two Covered car park 651 & 621 slot no in Basement has been earmarked towards your apartment.

The formal communication on allotment of this slot will be sent to you on completing the process of transfer of electricity meter of the apartment in your name and furnishing us the details of the same. Quite a few customers have already completed the transfer of electricity meter in their name and shared the necessary receipt/bill with us, for them the car park letter would be sent via post shortly once the address is confirmed.

Customers who are yet to initiate the transfer may follow the below process:

• Visit the jurisdictional BESCOM office with copy of the Sale Deed, NOC in original (issued by Puravankara) and latest electricity bill & receipt documents.

• BESCOM will issue the Indemnity Bond (Transfer Bond), & application form which should be filled, signed and given back to them along with the requisite fee.

 • BESCOM will verify the meter at the site and clear the transfer. The next bill will be in the owner's name.

Please feel free to revert for any further assistance.

Regards,

Sumathy C. | Deputy Manager- CSD Puravankara Limited

(formerly Puravankara Projects Limited)

130/1, Ulsoor Road, Bangalore - 560 042

Tel: 91-80-67724001/1 860 208 0000

Website: www.puravankara.com\”

5. Learned Counsel for the Complainant submits that this was in recognition of the offer prior to the registration of the sale deed and accordingly the Complainant sent a mail on 12.12.2018 itself requesting for rectification of the sale deed for including the additional car parking. The said mail is extracted hereinunder:-

“Dear Sumathy,

Please revert on this today as discussed and kindly arrange for the rectification on the sale deed so that we can include two car parking in that.”

6. Learned Counsel submits that this mail of offer of two car parks was repeated but in fact the additional car park slot was not actually handed over and the Complainant had to face a lot of problems including making payments to the owners for an additional car park G213 in the ground floor. This additional burden on the Complainant was on account of the Opposite Party having failed to remove the deficiencies as promised in respect of the additional car park as demonstrated above.
7. Learned Counsel for the Appellant has urged that the State Commission in spite of appreciating the aforesaid evidence has instead issued a direction to the Opposite Party for clarifying the status of the allotment of the car park which otherwise on the basis of evidence is established that the Opposite Parties had already offered the additional car park as claimed by the Complainant. The State Commission records that the email correspondence “no doubt corroborates the allegations of the Complainant”.  
8. It is urged that the Respondents turned turtle and sent a communication on 04.10.2019 stating that the car parking was only B621 and has been allotted as per the sale deed. The communication dated 04.10.2019 is extracted hereinunder:

“Dear Sir/Madam,

Greetings from Puravankara.

Further to your discussion with Mr. Bharath at site yesterday we confirm that car park slot for your flat is B-621 (only) and same is allotted as per the registered sale deed which is one covered car parking.

In case you are looking for an addition car parking space at the project it would be at additional cost.

(Image) SH-106-Sale Deed. Pdf 910 K”

9. The impugned order of the State Commission was sought to be complied with by the Opposite Party by dispatching a communication dated 28.10.2023 about which there is no evidence of it being served on the Appellants. The said communication is extracted hereinunder, that has been filed as document ‘E’ along with the written submissions of the Respondents:-

“To,                                                                           Date:28.10.2023

Mr. Satheesan Uthan

Apartment No. SH-106,

Purva Seasons

Nagavarapalya,

CV Raman Nagar,

Bengaluru, Karnataka - 560093,

Sub: Compliance of the Order dated 09.08.2023 in Complaint No. 519/2019 - Mr. Satheesan Uthan vs M/s Puravankara Ltd.

Dear Sir,

We refer to the order dated 09.08.2023 passed by the Karnataka State Consumer Dispute Redressal Commission, Bengaluru, vide which we, M/s Puravankara Limited (Opposite Party) has been directed to:

a. Clarify on the parking slot

b. Pay Rs. 10,000/- towards litigation expenses

In view of the above, kindly take note that as per your Agreement, you are entitled to only one car park and the slot allotted to you is B-621 for your use.

Also please find enclosed herewith a cheque bearing no.506324, dated 27.10.2023, drawn on ICICI Bank, MG Road Branch, in favor of Mr. Satheesan Uthan, amounting to Rs. 10,000/- in compliance with the court order dated 09.08.2023 in Complaint No. 519/2019. In consonance with the compliance, we further state that this amount is towards "Full and Final Settlement" of all accounts pertaining to your booking of apartment bearing no. SH-106 in Purva Seasons.

We further confirm that you will not be entitled for any further claims as against Puravankara Limited, as the case may be as regards the aforesaid Apartment.

Thanking you

Sd/-

Authorised Representative”

10. It is urged that this communication has seen the light of the day for the first time through the written submissions and had not been served on the Complainant at all.
11. Even otherwise the said letter and its contents have been disputed and it is urged by the learned Counsel for the Appellant that this letter is contrary to the promise already made as reflected hereinabove and the Opposite Parties cannot be permitted to resile back from the said promise which amounts to a gross deficiency and unfair trade practice on their part.
12. Learned Counsel submits that the claim of the Complainant had not been contested by filing any written version and therefore the State Commission ought to have allowed the complaint in its entirety instead of issuing the direction for clarifying the status of the parking area.
13. Learned Counsel for the Respondent invited the attention of the Bench to the sale deed that nowhere records the offer of acceptance of any additional parking space nor did the original booking contemplate the same. The Appellant is raising a dispute on the basis of e-mails indicated above, which the learned Counsel contends is not in tune with the agreement, and has further submitted that the mail dated 12.12.2018 seems to have been inadvertently issued and is an error. He has then invited the attention of the Bench to the reply submitted before the State Commission particularly paragraph 15 to 20 thereof which is extracted hereinunder:

“15. The Complainant is under a misconception that the Opposite Party allotted him with an additional car parking space. The Opposite party submits that there are is no provision for providing additional car parking without prior payment for the same. It is further submitted the Complainant has interfered with the car parking space of an another innocent allottee by the name of Ms. Usha S. who has paid consideration for the same.

16. The Complainant wrongly and falsely contends that he has paid a sum of Rs. 17,700/ - (Rupees Seventeen Thousand, Seven Hundred only) to transfer khata of the car parking slot no. B-552 in his name for which the Complainant has failed to produce any supporting documents. In fact, it is abundantly clear that as per the Sale Deed only one car parking space is allotted to the Complainant.

17. It is submitted that the Complainant has suppressed the fact that he has been parking his car in parking slot no. B-552 which has been allotted to another allottee by the name of Ms. Usha S, before this Hon'ble Court. It is further submitted that the email dated November 5th, 2019 was merely an offer and not an allotment in favour of the Complainant, thus the Complainant has no right to the parking space no. B-552. On November 30, 2020 a legal notice was issued to the Complainant for harassing the Opposite Party and for the illegal encroachment of the parking space bearing no. B-552

18. The illegal encroachment by the Complainant has caused injury and severe emotional distress to Ms. Usha who is now seeking cancellation of allotment and consequential refund of the amount paid in lieu of the said allotment. It is submitted that Ms. Usha has also made a specific request that the refund of the allotment amount be made along with GST remitted by her which is unwarranted cost to the Opposite Party

19. The Opposite Party in response to the continuous harassment and mischief of the Complainant was compelled to invoke clause 6(B)(x) of the sale and Clause 8 of the Declaration thus warning the Complainant vide email dated October 30, 2020 that a penalty of Rs.1000 per day would be levied if he continued to illegally park his car in B-552. It is submitted that the Complainant failed to act upon the Legal Notice issued and continues to illegally park in B-552 which was not allotted to him.

20. It is submitted that looked at any angle, the reliefs sought by the Complainant would not come under the purview of the Consumer Protection Act, 2019 as the ingredients to meet the essentials of deficiency to approach this Hon'ble Commission has not been fulfilled by the Complainant. Furthermore, the prayer sought by the Complainant seeking transfer of Khata of the Carparking in his favour would firstly fall outside the jurisdiction this Hon'ble Commission as the Complainant at the first instance is not the owner of the said car parking, secondly, Khata in relation to the any property would not come under the purview of the Consumer Protection Act, 2019 and it is the Revenue Courts which would have the exclusive jurisdiction to try on the said issues, hence, the prayers sought by the Complainant need not be granted by this Hon'ble Court and the same is liable to be rejected.

Hence, it is most humbly prayed that the Complaint may be dismissed with exemplary costs, in the interest of justice and equity.”

14. He further submits that this is a clear case of an overreach by the Complainant Appellant who is trying to take an indefensible position without their being any supporting valid document authorizing the claim of additional parking space.
15. We have considered the rival submissions made and it appears that the order of the State Commission was partly complied with by tendering a sum of Rs.10,000/- along with the letter dated 28.10.2023 but the same does not seem to have been actually served on the Appellant. Nonetheless, a copy of the same has been filed clearly stating about parking slot no. B621 having been allotted to the Complainant as the Complainant was entitled to only one car park as per the agreement.
16. The State Commission did refer to the contested position of the allegations made by the Appellant through the mails referred to hereinabove but referred the issue for clarification to the Opposite Party.
17. However, the fact remains that the mail dated 16.09.2018 extracted hereinabove records a request from the Appellant that they require one more car parking space and therefore they requested the Opposite Party to allot the same during the final allotment. A further request was made to offset the price of the parking space on account of some adverse experiences that the Complainant/Appellant had with the builders. This mail therefore establishes that the Complainant had required an additional car parking space which was not part of the agreement. However, the condition imposed was to offset the price of that car parking. The Complainant/Appellant alleges that this was in the background of the understanding after the talks that the additional car parking space would be provided free of charges.
18. The sale deed was executed thereafter as noted above and conspicuously there is no mention of any additional car parking space being allotted to the Complainant or any consideration paid in that regard or the price being waived by the builder. The sale deed therefore was executed without any reference to the additional car parking space. The said mail dated 16.09.2018 therefore was not acted upon by any acceptance by the Opposite Party through the sale deed.
19. The Appellant has urged that this negotiation had been reached and it is in continuance thereof that the subsequent mail dated 12.12.2018 was consciously sent by the Opposite Party earmarking two car parking spaces without asking for or demanding any consideration.
20. This is sought to be explained by the Respondents as an error. In our opinion, the said mail is not an error but is a conscious communication of earmarking two covered car parks 651 and 621 but with a rider that the formal communication for allotment of the slot shall be sent to the Complainant after completing the process of the transfer of the electricity meter of the apartment and other details being furnished in that regard. It is not understood as to what was the connection between the installation of an electricity meter with regard to the process of transferring the earmarked car parks which in the instant case was stated to be car park slot nos. 651 and 621. Nonetheless, earmarking means keeping it separate, or reserved or set on one side for distinctive recognition or placing it selectively in an attentive position, which in turn indicates that the Opposite Parties had intended to offer two covered car parking spaces after the execution of the sale deed subject to the formal communication of allotment that had not been issued and to the contrary, the Respondents have clearly declined to allot an additional car park to the Complainant on the ground that the agreement was only for one car parking. Even though the mail dated 12.12.2018 cannot be stated to be an error but at the same time, the said offer cannot be construed as a concluded contract for an additional car park, that too without consideration. It is silent on consideration as it does not raise any demand. There is a distinction in the steps towards a final conveyance under a contract. Earmarking is to be followed by an allotment but the final alienation upon consideration can ultimately convey the property. The step of earmarking was in the shape of an additional promise of a future allotment but as noted above, there was no waiver of consideration nor does it finally parcel out an additional car parking without a price. Had it been finalised without intending a payment, there was no reason to withhold final allotment.
21.  It is admitted that no consideration money had been offered by the Complainant for an additional car park, and to the contrary, a request had been made to offset the price as against the adverse experiences of the Complainant. The Opposite Parties Respondents had nowhere indicated that the second car park would be without consideration, nor is there any such document that they had agreed to offset the price of an additional car parking.
22. On the other hand later on vide letter dated 04.10.2019, they have clarified that if the Complainant desired an additional car park, then she will have to pay an additional cost.
23. The allegations and counter allegations therefore remain as allegations without proof regarding the consideration being realized or being waived by the Opposite Party. Thus, even assuming that the Respondents had made an offer for additional car park to the Complainant/Appellant the same does not seem to have been made free of cost. No doubt the negotiations between the parties appear to have been communicated but does not seem to have been finally accepted or crystallised.
24. The State Commission itself had doubted the clarity on the allotment and had observed that the offer for an additional car park had been made that stood corroborated by the e-mail dated 12.12.2018. The earmarking was mentioned in the said communication which was only to indicate that an additional car slot would be available to the Complainant but the same does not convey that it was to be without consideration. The said communication is absolutely silent on payment which is not an open acceptance by the Opposite Party for waiving of or setting off the price of an additional car park.  The fact that there was some understanding about setting off the price as claimed by the Complainant is not substantiated by any proof and the communication of the Complainant requesting for an additional car park free of cost was a unilateral communication that has not been expressly or impliedly accepted anywhere by the Opposite Party. The document dated 04.10.2019 which is the mail sent by the Opposite Party reflects this categorically that an additional car park can be made available provided the Complainant pays for it.
25. Thus, from the documents on record, the intention to provide an additional car park free of cost by the Opposite Party is not established and it is this doubt that may have led the State Commission to issue a direction to the Opposite Party for providing clarity whereas the State Commission ought to have addressed this issue finally itself. Nonetheless, we have gone through the pleadings as discussed hereinabove and the inference that can be safely drawn is that there is no acceptance of the offer made by the Complainant asking for an additional car parking slot without any consideration.
26. In the event the Complainant chooses to further take on this issue, the same is a highly disputed question of fact for which evidence might be required to be led and assessed before a competent Court and consequently, the Consumer Fora would not be able to pronounce on it with clarity or with definiteness. Consequently, on the basis of the material as narrated above we find it difficult to construe any deficiency or unfair trade practice in the light of the discussions made above to be available as against the Opposite Party for entirely allowing the Compliant. It is therefore open to the Complainant to seek an appropriate remedy in this regard as well as the correctness or otherwise of the communication dated 28.10.2023 that may be subject to any such challenge which the Complainant might choose to make in future. 
27. Since we have examined the records and pleadings ourselves we do not find it necessary to remand the matter to the State Commission for decision afresh as prayed for by the learned Counsel for the Appellant.
28. In the background above, where the real intention of the promise is being contested on disputed questions of facts, the same cannot be gone into by the Consumer Fora and may require leading of evidence and adjudication before a Court of competent jurisdiction.
29. The appeal is therefore dismissed with liberty to the Appellant to approach the appropriate Civil Court for Redressal of his grievances. Appeal stands consigned to records accordingly.