Date of filing: 20.07.2018

Judgment date: 30.11.2022

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by the complainant namely Sri Djoppa Yogender Sreenu and Mrs. Doppa  Madhura being represented by their Attorney namely Jyoti Prashad Das U/s. 12 of the Consumer Protection Act, 1986 against the opposite parties (referred as O.P.s hereinafter) namely (1) M/s. Sagar Construction represented its by partner (2) Shri Parthe Sarathi Sengupta (3) Suman Chatterjee and (4) Shri Somenath Sengupta alleging deficiency in rendering service on the part of the opposite parties.

The case of the complainants in short is that opposite parties are the developer. Complainant being the owners in respect of the land measuring more or less 3 Cotthas 6 Chatak and 48 sq. ft. situated at Mouza Kalikapur, J.L. No. 20, R.S. No. 2 within KMC Ward No. 109, entered into development agreement with the opposite parties on 03/10/2011 to construct a multi storied building as per the sanctioned building plan. After the development work complainant got one flat at entire 2^nd Floor of the newly constructed building and one car parking at the ground floor. As per the sanctioned plan 3 sanctioned garage spaces were there out of which (1) 33% of the car parking space was delivered to the complainant as per the possession letter dated 01/06/2017 without demarcating. Complainant resides at U.S.A. and taking advantage of the absence of the complainants, opposite parties willfully misrepresented the representative of the complainant at the time of delivery of possession letter on 01/06/2017. The opposite parties have illegally transferred more than 3 car parking space at the ground floor to different purchaser violating the sanctioned building plan and for the said reason complainants are now unable to use their allocated car parking space. Since as per the sanctioned plan there were only 3 car parking spaces out of which one was for the complainant i.e. 33% of the car parking space but the opposite parties transferred 5 car parking spaces by virtue of different deed to the different purchasers which is absolutely illegal. Complainant several time requested the opposite parties to arrange for an inspection through the engineer to ascertain the car parking space but the opposite parties refused to do so. So the present complaint has been filed praying for directing the opposite parties to demarcate the car parking space as per the KMC sanctioned plan, to hand over the building completion certificate, to conduct inspection or survey the actual measurement of car parking space of the complainants through an engineer commissioner, to direct the O.P.s to pay Rs. 8,90,000/- as value of car parking illegally sold and compensation and to pay litigation cost of Rs. 50,000/-.

  Opposite party no. 4 being one of the partners of the O.P. firm has contested the case by filing the written version contending inter-alia that after the completion of the building, possession of the flat no. F-2 on the 2^nd Floor with one car parking space in the ground floor has already been handed over to the authorized agent of the complainant by issuing possession letter dated 01/06/2017. The letter of possession dated 01/06/2017 is self-explanatory and it clearly states that the complainant received the possession of the demarcated car parking space with full satisfaction through their authorized agent. The complainant or their authorized agent never approached to the developer for any clarification within the six months of receiving the possession. The car parking space whatsoever is transferred and sold to the other purchasers have been done with the full knowledge and the consent of the owners. They were well aware of all the transfers and never raised any objection.  The present case is filed only to squeeze the money. So the opposite parties have prayed for dismissal of the case.

During the course of the trial parties filed their respective examination in chief followed by filing of questionnaire and reply thereto and ultimately arguments has been advanced. Both the parties have also filed the written notes of the arguments.

Following points require determination:-

1. Whether there has been any deficiency in service or unfair trade practice on the part of the opposite parties.
2. Whether the complainants are entitled to the relief as prayed for?   

DECISION WITH REASON

Both the points are taken up for a comprehensive discussion in order to avoid repetition. Admittedly a development agreement was entered into between the parties on 03/10/2011 and after construction of the building as per the sanctioned plan the owners allocation i.e. a flat in the entire 2^nd Floor of the newly constructed building and one car parking space at the ground floor has already been handed over to the complainant through their authorized agent. It is also an admitted fact that the possession was delivered and a possession letter was also issued on 01/06/2017. The disputes in this case is that even though as per sanctioned plan, there were only 3 sanctioned car parking spaces, but the opposite parties have transferred five car parking spaces to the other purchasers by deed of conveyance. On perusal of the development agreement entered into between the parties it appears that the owners allocation has been described in the following manner “the owner shall be entitled to the entire 2^nd floor of the flat along with one car parking space in the ground floor of proposed 3 storied building to be completed in all respect together with proportionate right in all common parts areas facilities, utilities and benefits at the said building which is to be used in the common by and between all the co-owner, flat owners of the building”.

On careful scrutiny of the said development agreement dated 03/10/2011 it appears that it is nowhere specified as to the area of the car parking space in the owners’ allocation. So the case of the complainant that they were entitled to 33% of the car parking space find no reflection in the said agreement entered into between the parties. Possession letter dated 01/06/2017 is very categorical about handing over of the possession of the flat F-2 of the 2^nd Floor measuring more or less 1678 sq. ft. along with one car parking space duly marked on the ground floor. So on the date of handing over of the possession it is apparent that not only the possession of flat was handed over as per agreement but duly marked car parking space was also handed over to the complainant or their representative. If according to the complainant the said car parking space handed over to them was not demarcated than they ought to have raised objection immediately after the delivery of the possession which they did not do and remained silent for six months. So if development agreement does not specify the area of the car parking space to be allotted in the owners’ allocation followed by the possession letter that duly marked car parking space was handed over to the complainant then the claim of the complainant that they are entitled to 33 % of the car parking space has no substance. It is settled law that a court or the parties to an agreement cannot go beyond the agreement. Complainant claim in this case about allocation of 33% of car parking space is based on assumptions which cannot be accepted.  It has been specifically contended by the opposite parties in the questionnaire filed by them that they have already handed over sanctioned plan as well as completion certificate to the complainant before handing over of the possession to the complainants. So it is evident that completion certificate has already been obtained by the opposite parties. If that be so than in case of violation, completion certificate would not have been issued by the Municipal Corporation. No documents have been filed by the complainants that they raised any objection or have made any complain before Municipal Corporation agitating about the alleged illegal construction of the car parking space by the opposite parties in violation of the sanctioned plan.  

So in view of the discussions as highlighted above, complainants are not entitled to any relief as prayed for and thus present complaint is liable to be dismissed.

Hence

             ORDERED

CC/442/2018 is dismissed on contest.