Ld Advocate for the complainant is present. Judgement is ready. It is pronounced in open Commission in 7 pages 4 separate sheet of papers.

BY -    SRI ASISH DEB, PRESIDENT

Brief facts of the complainant’s case are that the Complainant is a resident of this locality within this jurisdiction .The Opposite Party is situated and carrying on business within this jurisdiction.The Complainant entered into an Agreement for Sub-lease with Opposite Party on 25.05.2016 for sub-lease of Flat No- E-905 having super built up area 1006 sq. ft. on the 9^thfloor of Block - 2A of the multi storied building named ‘Classic Riverain’ at Dag No.- 340, 339, 338, 539 & 540 and marked as Plot No.- K, L, M, N, P & A of Mouza - Brajanathchak, J.L No-196 under P.S — Haldiain the Dist. - Purba Medinipur under Ward No.- 25 of Haldia Municipality. According to Article-V of that agreement it was settled that the Opposite Party will also hand over possession of ‘an open Car Parking Space’. The Opposite Party have not mentioned the number of the Car Parking Space in the ‘Second Schedule’ of that Agreement but told to the Complainant that the Car Parking Space will be allotted as per choice of  Complainant within the numbers available as per sanctioned building plan before the registration. The Opposite Party handed over copy of that building plan to the Complainant at the time of execution of such Agreement. As per clause no. 1.4 of Article-l of that Agreement “Car parking shall mean open Car Parking measuring 120 sq. ft. space lying at the ground floor of the Block '2A' of building at the said premises”. 120 sq. ft. space is suitable for a medium size car parking. Thus the Complainant is entitled to get an open Car Parking Space measuring 120 sq. ft. at the ground floor of Block -2A suitable for medium size car parking. The Opposite Party failed to give to the Complainant to exercise her choice before registration on 14.09.2018 and arbitrarily put the number ‘33’ for Car Parking Space and also annexed a hand sketch map to that effect. Upon objection of the Complainant the Opposite Party assured at that time that within a very short period he will cause exchange the same with another proper one. Thereafter the Complainant was pursuing the matter with the Opposite Party continuously. In spite of her tireless persuasion during this long period the Opposite Party have not complied with his assurance but was showing a negligent attitude towards the Complainant.The so called Car Parking Space No. "33" neither have 120 sq. ft. area nor it is as per building plan. It is marked upon common area approaching lift.  It is not suitable for parking of a medium size car. Through a Lawyer’s Notice dated 21.09.2019 the Complainant requested the Opposite Party to allot Complainant a 120 sq. ft. Car Parking Space suitable for medium size car parking at the ground floor of Block-2A and register the same in favour of the Complainant at the cost & expense of the Opposite Party within 15(fifteen) days from the receipt of that notice. It was warned through that notice that the Complainant will take necessary legal steps against the Opposite Party upon his failure to comply with the demand of that notice. The Notice has been sent through registered post and the same has been duly delivered to the Opposite Party on 23.09.2019. After elapseof long time, through a letter dated 06.11.2019 the Opposite Party denied the demand of the Complainant. The Cause of Action of this Case has finally arose on and from 09.10.2019 within the jurisdiction of the Ld. Commission and is continuing. The approximate value of the said car parking space shall be around Rs. 1, 20, 000/-. In the above context the Complainant prays that the Ld. Commission shall be graciously pleased to direct the Opposite Party,to allot a 120 sq. ft. Car Parking Space at the ground floor of Block-2 as per building plan suitable for medium size car parking and register the same in favour of the Complainant at the cost & expense of the Opposite Party, to pay mesne profit against the period 14.09.2018 to the date of allotment, to pay Rs. 20,000/- on account of harassment and mental agony suffered by the Complainant, to pay litigation cost of Rs. 10,000/- to the Complainant for conduct of this case.

The op being represented by its Managing Director Sri Manoj Kumar Bhowmik through the Ld. Advocate has resisted the claim of the complainant by filing written version thereto. The sum and summarization of written version can stated as follows: the Complaint is not maintainable in the eye of law as well as in the facts and in the circumstances of the case and the instant case is bad in law, misconceived, misleading, harassing as the said complaint has been made with an ulterior motive in order to make wrongful gain and thus liable to be dismissed in limine. Save and except what are matter of record and save and except what are specifically admitted by the opposite party, all the allegations, statements, averments and contentions of the complaint are denied and disputed in toto. The factual matrix which are just essential to adjudicate the matter in controversy are adumbrated as follows. Mrs. Bandana Sarkar wife of Mr. Dilip Kumar Sarkar, the complainant herein on 25.05.2016 entered into an agreement for Sub-Lease with the opposite Party herein, for the Sub-Lease of the Flat No. E-905, measuring 1006 sq. ft. super built up area (be the same a little more or less) on the 9^thFloor of Block- “2A” of the multi storied Building known as “CLASSIC RIVERAIN” to be constructed at the Dag Nos. 340, 339, 338, 539 and 540 and marked as Plot Nos. “K”, “L”, “M", “N”, “P” and “A” under J.L No. 196 in Mouza- Brajyanathchak under Ward No. 25 of Haldia Municipality, A.D.S.R.O. Sutahata, P.S. Haldia, Purba Medinipur, subject to observing and performing all the terms and conditions as mentioned in the said Agreement for sub-Lease dated 25.05.2016.The opposite Party immediately after construction of the said flat No. E-905 measuring 1006 sq.ft super built up area (be the same a little more or less) on the 9th Floor of Block“2A” of the multi storied Building known as “CLASSIC RIVERAIN” executed the registered deed of sub-lease alongwith one 120 sq. ft. open car parking right being no. 33 for a medium seize car (allotted by the Opposite Party in favour of the complainant herein) on dated 14.09.2018. The complainant accepted the aforesaid by putting her signature on the deed of sub-lease dated 14.09.2018 without raising any objection of whatsoever in nature. The Opposite Party crave leave to refer the said registered Deed of sub-lease dated 14.09.2018 at the time of hearing of this case. The opposite Party after registration of the said Deed of sub-lease dated 14.09.2018, with the Additional District Sub Registrar Sutahata, District Purba Medinipur which is recorded in Book No. 1, Volume No. 1106-2018, page from 118543 to 118587, being No. 110607415 for the year 2018, issued the possession letter on dated 27.09.2018, for handing over the possession of the said flat being no. E-905 measuring about 1006 super built up area (be the same a little more or less) on the 9 floor of Block“2A” of the multi storied Building known as “CLASSIC RIVERAIN” alongwith one 120 sq. ft. open car parking right being No. 33, for a medium size car on the ground floor in favour of the complainant herein and the possession of the aforesaid flat alongwith car parking right was accepted by the complainant herein without raising any objection of whatsoever in nature. The opposite party states that in view of the aforesaid facts and after the satisfactory delivery of the aforesaid flat as well as car parking right to the complainant herein for her entire satisfaction. There remains no dispute of any nature of whatsoever between the complainant and the opposite Party herein. Moreover the complainant has been using the said car parking right for parking of her car regularly at the aforesaid car parking space right being No. 33 allotted to her. The opposite party put the complainant for strict proof thereof and moreover the complainant has taken the possession of the said flat as well as the car parking right being No. 33 vide possession letter dated 27.09.2018 to her entire satisfaction without raising any objection of whatsoever in nature. With regard to paragraph No.6 of the complaint, the Complainant deny each and every allegation made therein and state that no such assurance was given to the complainant by the Opposite Party at any point of time for exchange of the car parking right as such the question of any compliance of any assurance by the Opposite Party as falsely alleged or at all does not and cannot arise at all. The Opposite Party puts the complainant for strict proof thereof.With regard to paragraph No.7 of the complaint petition, the Complainant deny each and every allegation made therein and state that the Opposite Party has not given any such assurance to the complainant with regard to the exchange of car parking space and as such the question of any compliance of their assurance as falsely alleged or at all does nor /can not arise at all. The opposite Party put the complainant for strict proof thereof. The Opposite Party further state that the car parking right being No. 33 is not in the common area and is perfectly suitable for parking of a medium size car. The Complaint has filed on the false ground by suppressing the material facts as such the complaint is liable to be dismiss with exemplary costs. The complaint is purely an abuse of the process of law. And is not entitled for grant any relief/reliefs as prayed for. It is therefore prayed that the Commission would be pleased to dismiss the complaint with exemplary costs; and to pass such order or orders or further orders as deems fit and proper.

Upon pleadings of both parties the following points are framed for determination.

Points for determination are:                                                 

1.Is the case maintainable in its present form and in law?

2. Is the Complainant entitled to the relief(s) as sought for?

Decision with reasons

Both the points, being inter related to each other, are taken up together for discussion  for sake of brevity and  convenience.

Having regards had to the bundle of facts wherein a consumer has alleged deficiency of service and unfair trade practice against the op builder we find that the case is maintainable in its present form and in law.

We have given thoughtful consideration to the evidence led by both parties and WNA filed by the complainant; it is to be mentioned that op opted not to file any evidence on oath on its behalf excepting questionnaire   against the examination in chiefs on affidavit of the complainant and to remain absent since the stage of argument.

On careful evaluation of the evidence on record, it appears that agreement for Sub-lease (document no. 2) dated 25.05.2016 between Complainant and Opposite Party shows agreement for sub-lease of Flat No. E-905 having super built-up area 1006 sq. ft. on the 9th floor of Block - 2A of the multi storied building named ‘Classic Riverain.’ As per Article-V of that agreement the Opposite Party would hand over possession of ‘an open Car Parking Space’. No number of the Car Parking Space has been mentioned in the ‘Second Schedule’ of that Agreement. The Opposite Party handed over copy of that building plan (document no. 3) to the Complainant. As per clause no. 1.4 of Article-| of that Agreement “Car parking shall mean open Car Parking measuring 120 sq. ft. space lying at the ground floor of the Block ‘2A’ of building at the said premises”. 120 sq. ft. Thus, the Complainant is entitled to get an open Car Parking Space measuring 120 sq. ft. at the ground floor of Block — 2A suitable for medium size car parking.Registration of Sub-lease Deed (document No. 4) held on 14.09.2018. Before that the Opposite Party did not give the Complainant opportunity to exercise her choice about Car Parking Space No. Unilaterally and arbitrarily the Opposite Party put the number ‘33’ for Car Parking Space and also annexed a hand sketch map to that effect. He also did not supply copy of Deed for perusal of the Complainant. He did not extend opportunity to peruse the Deed before registration. The Opposite Party failed to produce any scrap of paper to show that he has given opportunity to the Complainant to exercise her choice of Car Parking Space or copy of the deed was supplied to the Complainant for her perusal before registration. It is stated upon objection raised by Complainant, the Opposite Party assured the Complainant at that time that within a very short period he will cause exchange Car Parking Space with another proper one. After that the Complainant take part in registration process. The Opposite Party failed to produce any oral or documentary evidence to counter this proposition of the Complainant. Thereafter the Complainant was pursuing the matter with the Opposite Party continuously. But no results. Possession Letter (document-a) dated 27.09.2918 establish that although in the registered Deed of Sub-lease it is stated that the Opposite Party has already handed over Flat and Car Parking Space but actually, he has not done the same which is a clear violation of Statutory Provisions. He has twisted the rule and regulations in his own way. Through a Lawyer's Notice dated 21.09.2019(document no. 7, 8 & 9) the Complainant put forward her demand. In reply (document no. 10) dated 06.11.2019 the Opposite Party denied the demand of the Complainant. Car Parking Space No. “33” neither have 120 sq. ft. area nor it is as per building plan. It is marked upon common area of Car Parking Zone approaching the lift. It is not suitable for parking of a medium size car. TheOpposite Party has not produced sanctioned building plan to suppress that issue. Surveyor Map (document no. 6) prepared and submitted by registered Surveyor Animesh Santra shows that the breadth of the Car Parking Space No. 33 is 7 feet 1 inch. Whereas the breadth of the adjacent Car Parking Space is 10 feet. Car Parking Space depicted in Building Plan (document no. 3) shows the size 10 feet X 12 feet. 2 nos. photo (document no. 5) submitted by the Complainant showing the Car Parking Space No. 33 and adjacent one shows the breadth is different. No. of Tiles placed upon both Car Parking Space is different. Photo (document no. b) submitted by the Opposite Party also corroborate the same. The Complainant has not denied that now she is using that Car Parking Space for parking her small car. She alleges that due to short width of Car Parking Space No. 33, she has not yet purchased a medium size car. Interestingly, the Opposite Party also filed a Plan (document no. e) of the Car Parking Space No. 33. There also width is shown as 7 feet 1 inch which further support the case of the Complainant. Now as per Rule-65 of the West Bengal Municipal (Building) Rules’ 1996 the Garage shall have minimum width 8 feet 2 inch (2.5 meter). This statutory provision has been violated by the Opposite Party and attract Section 2(g) of Consumer Protection Act.

Now,the op has not been able to show that the car parking space which has been handed over to the complainant does conform to the open parking spaceas per agreement or it was done in accordance with the sanctioned plan. A failure to comply with the contractual obligation to provide the purchaser an open parking space within stipulated period amounts to deficiency. The Car Parking Space No. 33 is not at all an open car parking space as it is evident from materials on record. The developers intentionally remains silent about the allotment process of the car parking space/garage until the registration is done. Thereafter it take the plea that the purchaser took possession of the allotted car parking space without any objection despite the purchaser might have objected to. This is a very common instance of unfair trade practice by the developer; here in this case op had also adopted this kind of fraudulent tactics by not allotting an open car parking space according to sanctioned plan.Flat purchasers suffer agony and harassment as result of the default of the developer. Flat purchasers makes legitimate assessments in regards to the future course of their lives based on the flat which has been purchased being available for use and occupation. The legitimate expectations are belied when the developer as in the present case is guilty ofviolation of contractual obligation.

  In the light of above discussion,we hold that there was deficiency in service on the part of the op in respect of allotting car parking space not up to the mark or in accordance with contractual obligation.This Commission does not have the Jurisdictionto entertain to decide any civil dispute leading to interference with the validity of the execution of Deed or for declaration of any of its nature by usurpingthe Jurisdiction of a Civil Court except the Consumer rights. So, the reliefs sought for in para-11(i) of the complaint can not be considered by this Commission as the deed has already been registered;interference with the present status of the deed and direction for its modification ofwould amount to usurp the jurisdiction of a Civil Court. This commission also can not deal with status quo of right accrued and possession as per deed. However, this Commission can not keep its eye shut down totally. The scope of this complaint is rather limited to adjudicate whether op has committed any deficiency as alleged. Here , the complainant has been able to bring home the element of deficiency in service and unfair trade practice against the op. The loss incurred and suffered by the complainant for the said acts of commission  and omission by the op should be adequately compensated .The Op should pay compensation of Rs. 1,20,,000/- ( One Lakh twenty thousand only) and Rs. 10,000/-as towards litigation costs to the complainant.

Both the points are decided accordingly.

Thus, the complaint case succeeds in part.

Hence, it is

O R D E R E D

That CC/624 of 2019 be and the same is allowed in part on contest against the op.

The Op is hereby directed to pay compensation of Rs. 1,20,000/- (One Lakh Twenty thousand only) and Rs. 10,000/- as towards litigation costs to the complainant within 45 days from the date of this order .

In default , the op will pay simple interest @ 12% per annum over said amount of Rs. 1,20,000/- (One Lakh Twenty Thousand only) from the date after expiry of said 45 days  till the actual date of payment.

 The Complainant will be at liberty to put the order into execution as per law.

Let a copy of the judgment be supplied to the complainant and the op free of cost.