Date of Filing 06.01.2023

                                                                                                       Date of Disposal: 18.12.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                    …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                           ……MEMBER-I

               THIRU.P.MURUGAN, M.Com, (ICWA), BL.,                                                                ……MEMBER-II

CC.No.40/2023

THIS MONDAY, THE 18^th DAY OF DECEMBER 2023

Mr.T.Chezhian, S/o.Mr.Thirunavukkarasu,

Flat –A, 11-B, NIVEDHA CASTLE,

Perumal Nagar,

Mugappair East, Chennai 600 037.                                                       ......Complainant.

                                                                                      //Vs//

1.Mrs.R.Shanthi,

   W/o.Mr.D.Murugesan,

   No.12/557, Mugappair East,

   Chennai – 600 037.

2.Mr.K.Varadharajan,

   S/o.Mr.N.P.Krishnan,

   Door No.524, Block No.12,

   Mogappair East, Chennai -600 037.

3.Mr.D.Murugesan,

   Proprietor,

   M/s.NIVEDHA Constructions,

   No.12/557, Mogappair East,

   Chennai -600 037.

4.Mrs.Selva Sundari,

    W/o.Mr.Asaithambi,

    Flat –D, 11-B, NIVEDHA CASTLE,

    Perumal Nagar,

   Mogappair East, Chennai 600 037.

5.Mr.Rathnakumar,

    Flat –E, 11-B, NIVEDHA CASTLE,

    Perumal Nagar,

   Mogappair East, Chennai 600 037.

                                                                                                   Date of filing: 11.04.2023

                                                                                               Date of disposal: 18.12.2023

CC.No.58/2023

THIS MONDAY, THE 18^th DAY OF DECEMBER 2023

Mr.Karthikeyan Rajagopal,

S/o.Mr.S.Rajagopal,

Flat –B, 11-B, NIVEDHA CASTLE,

Perumal Nagar,

Mugappair East, Chennai 600 037.                                                       ......Complainant.

                                                                                      //Vs//

1.Mrs.R.Shanthi,

   W/o.Mr.D.Murugesan,

   No.12/557, Mugappair East,

   Chennai – 600 037.

2.Mr.K.Varadharajan,

   S/o.Mr.N.P.Krishnan,

   Door No.524, Block No.12,

   Mogappair East, Chennai -600 037.

3.Mr.D.Murugesan,

   Proprietor,

   M/s.NIVEDHA Constructions,

   No.12/557, Mogappair East,

   Chennai -600 037.

4.Mrs.Selva Sundari,

    W/o.Mr.Asaithambi,

    Flat –D, 11-B, NIVEDHA CASTLE,

    Perumal Nagar,

   Mogappair East, Chennai 600 037.

5.Mr.Rathnakumar,

    Flat –E, 11-B, NIVEDHA CASTLE,

    Perumal Nagar,

   Mogappair East, Chennai 600 037.

                                                                                                   Date of filing: 11.04.2023

                                                                                               Date of disposal: 18.12.2023

CC.No.62/2023

THIS MONDAY, THE 18^th DAY OF DECEMBER 2023

Mr.Vasu Duraisamy,

S/o.Mr.Duraisamy

Flat –C, 11-B, NIVEDHA CASTLE,

Perumal Nagar,

Mugappair East, Chennai 600 037.                                                       ......Complainant.

                                                                                      //Vs//

1.Mrs.R.Shanthi,

   W/o.Mr.D.Murugesan,

   No.12/557, Mugappair East,

   Chennai – 600 037.

2.Mr.K.Varadharajan,

   S/o.Mr.N.P.Krishnan,

   Door No.524, Block No.12,

   Mogappair East, Chennai -600 037.

3.Mr.D.Murugesan,

   Proprietor,

   M/s.NIVEDHA Constructions,

   No.12/557, Mogappair East,

   Chennai -600 037.

4.Mrs.Selva Sundari,

    W/o.Mr.Asaithambi,

    Flat –D, 11-B, NIVEDHA CASTLE,

    Perumal Nagar,

   Mogappair East, Chennai 600 037.

5.Mr.Rathnakumar,

    Flat –E, 11-B, NIVEDHA CASTLE,

    Perumal Nagar,

   Mogappair East, Chennai 600 037.

Counsel for the complainants                                :     M/s.M.Anbalagan, Advocate.

Counsel for the opposite parties 1 to 3               :     M/s.R.Sami, Advocate.

Counsel for the opposite parties 4 & 5                : Mr.S.Muthukumaravel, Advocate.

The complaints coming before us on various dates and finally on 08.12.2023 in the presence of  M/s.M.Anbalagan, counsel for the complainants and M/s.R.Sami, counsel for the opposite parties 1 to 3 and  Mr.S.Muthukumaravel, counsel for the opposite parties 4 & 5 and upon perusing the documents and evidences of produced by both sides in all the cases this Commission delivered the following:

COMMON ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. As the issue involved in all the 3 cases similar in nature relating to allotment of car parks and the parties are one and the same this Commission decided to hear all the complaints together and to issue a common Order.

2.  The complaints had been filed by the complainants u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service against the opposite parties with regard to allotment of Car Park area along with a prayer to direct the opposite parties to earmark specific car parks sold to the complainants, to pay a sum of Rs.2,00,000/-towards compensation for the mental agony caused to the complainants, to pay a sum of Rs.2,00,000/- towards compensation to the complainants due to the deficiency in service and unfair trade practice on the part of the opposite parties, to direct the opposite party 4 & 5 not to use the parking place sold to the complainants and to pay the cost of the complaint.

CC.No.40/2023

Summary of facts culminating into complaint:-

3. It was the case of the complainant that the 1^st and 2^nd opposite parties, both being the land owners, and 1^st opposite party being the Power of Attorney agent of 2^nd opposite party, jointly decided to promote flats and sell the same to various prospective purchasers. 3^rd  opposite party who was the husband of the 1^st opposite party, a builder by profession and Proprietor of NIVEDHA Constructions, have entered into an agreement that whenever the prospective buyer/purchasers purchase the undivided share of land from the total extent all the opposite parties enter into a tripartite agreement for sale and construction of flat. The 4^th and 5 opposite parties are the owners of flat D and flat E respectively and are illegally allowed to use the car parking originally sold to the complainant and other two flat owners of flat B and flat C. Complainant entered into an tripartite agreement dated 25.10.2007 with all the opposite parties for purchase of 963 square feet of undivided share of land and for construction of Flat –A, in the project titled as NIVEDHA CASTLE in the vacant land owned by the 1^st and 2^nd opposite parties.  Apart from the cost of the construction the 3^rd opposite party took an additional amount of Rs.2,00,000/- for providing a covered car park. The aspect of providing covered park to him is covered in clause 1 of the un-registered Sale Cum Construction Agreement for the first time and in payment schedule of the same agreement, which was signed by the 1^st opposite party, for herself and for the 2^nd opposite party as his power Agent, the 3^rd opposite party and the complainant. There was only 3 covered car parks as per the approved construction plan and all the three of them were sold by the opposite parties at a cost of Rs.2,00,000/- each to the owners of flat –A, Flat-B and Flat –C  i.e., 1) The Complainant, 2)Mr.Karthick and 3) Mr.Vasu Duraisamy, the complainant’s co-brother.  On the contrary all the opposite parties have colluded and connived and made deviations in the approved building plan and constructed 4 car parks and now the car parks which were sold at an additional cost to the complainant and 2 others have been allowed to use illegally by the other 2 purchasers namely (a)Mrs.Selvasundari, W/o.Mr.Asaithambi and (b) Mr.Rathnakumar, of  flats D and E and the easement rights of the complainant has been disturbed due to the illegal acts and deeds of all the opposite parties along with the flat D and E purchasers. Thus aggrieved by the act of the opposite parties the present complaint was filed for the relief as mentioned above.

The crux of the defence put forth by the opposite parties 1 to 3:-

4. The opposite parties 1 to 3 filed joint written version disputing the complaint allegation contending interalia that though the approval was obtained only for three car parts after entering into some agreements with the vendors of opposite parties 5 car parks allotted to all the 5 flat owners.  It is submitted that the space was convenient for parking 5 cars.  Further only after 3^rd opposite party explaining the necessity to the complainant and he also after having agreed Rs.2,00,000/- was obtained towards car park.  Even at the time of construction it was made in such a way for 5 car parks.  It was denied the allegation that the 3^rd opposite party had illegally allotted car parks to the opposite parties 4 and 5. It was clearly stated in the Sale cum Construction Agreement of the vendors of opposite parties 4 and 5 that there was space for car park and thereafter only Rs.2,00,000/- was obtained from them towards car parks.  Thus stating that there is no deficiency in service or unfair trade practice committed by them the opposite parties 1 to 3 sought for the dismissal of the complaint.

The crux of the defence put forth by the opposite parties 4& 5:-

5. Disputing the complaint allegation by 4^th & 5^th opposite parties it was contended that they have purchased the flats D & E.  It was specifically denied that this opposite parties have been illegally allowed to use the car parking which was sold to the complainant and was allotted to the complainant. This opposite parties vendors were also allotted by a letter dated 01.12.2008 by the builder. The allegation that this opposite parties had illegally occupied the car parking was denied.  It was submitted that the 1^st & 3^rd opposite parties with an intention to provide car parking to all 5 flats owners, with the consent of all the five flat owners made small changes by them that is 33X12 was changed into 35X12 in order to provide car parking to all the five flat owners.  More over the builder laid the foundation and pillar to accommodate two double car parking and one single car parking in the car parking area.  More over there is no separate bike or cycle parking area and all the five owners used the car parking area for both the two wheeler and four wheeler, this complainant had also consented for the same. From the date of sale deed to till this date for the past 15 years these opposite parties are using the car parking as allotted by the opposite parties 1 to 3 and in fact the complainant had never objected or never raised his voice, never made any protest.  For the past 15 years this opposite parties are in exclusive possession and enjoyment of the car parking. There was no cause of action for this complaint as against this opposite parties. The allegation that the opposite parties have used the car parking area only before the date of legal notice was false and specifically denied.  The complainant in order to overcome the issue of limitation had pleaded the same with ulterior motive.  The allegations in para 15 was also denied and the complainant has put to strict proof of the same.  The cause of action was specifically denied and the opposite parties were utilizing the car parking area from the date of their purchase which was on 07.05.2008 by document No.2018/2008.  More than 15 years have been lapsed and the complaint was barred by limitation. For the past 15 years with the fullest knowledge of complainant this opposite parties were using the allotted car parking and the complainant had waived his right. The complainant has no right to restrain these opposite parties from using the allotted car parking and moreover the relief was purely within the domain of civil court and the complainant has to approach only the civil court and not before this Hon’ble Commission.  The 5^th opposite party purchased the property only in the year 2019 but his vendor has purchased the property in the year of 2007. Thus they sought for the dismissal of the complaint.

CC.No.58/2023

Summary of facts culminating into complaint:-

6. It was the case of the complainant that the 1^st and 2^nd opposite parties, both being the land owners, and 1^st opposite party being the Power of Attorney agent of 2^nd opposite party, jointly decided to promote the flats and sell the same to various prospective purchasers. The 3^rd opposite party was the husband of the 1^st opposite party, a builder by profession and Proprietor of NIVEDHA Constructions. Whenever the prospective buyer/purchasers purchase the undivided share of land from the total extent all the opposite parties enter into a tripartite agreement for sale and construction of flat. The 4^th and 5 opposite parties are the owners of flat D and flat E respectively and are illegally allowed to use the car parking originally sold to the complainant and other two flat owners of flat A and flat C. Complainant entered into the tripartite agreement dated 01.10.2007 with all the opposite parties for purchase of 683 square feet of undivided share of land and for construction of Flat –B, in the project titled as NIVEDHA CASTLE in the vacant land owned by the 1^st and 2^nd opposite parties.  Apart from the cost of the construction the 3^rd opposite party took an additional amount of Rs.1,50,000/- for providing a covered car park. The aspect of providing covered park to him was covered in clause 1 of the un-registered Sale Cum Construction Agreement for the first time and in payment schedule of the same agreement, which was signed by the 1^st opposite party, for herself and for the 2^nd opposite party as his power Agent, the 3^rd opposite party and the complainant. There was only 3 covered car parks as per the approved construction plan and all the three of them were sold by the opposite parties each to the owners of flat –A, Flat-B and Flat –C  i.e., 1) The Complainant, 2) Mr.T.Cheshian and 3) Mr.Vasu Duraisamy respectively.  On the contrary all the opposite parties have colluded and connived and made deviations in the approved building plan and had constructed 4 car parks and now the car parks which were sold at an additional cost to the complainant and 2 others have been allowed to be used illegally by the other 2 purchasers namely (a) Mrs.Selvasundari, W/o.Mr.Asaithambi and (b) Mr.Rathnakumar, of  flats D and E and the easement rights of the complainant has been disturbed due to the illegal acts and deeds of all the opposite parties along with the flat D and E purchasers. Thus aggrieved by the act of the opposite parties the present complaint was filed for the relief as mentioned above.

The crux of the defence put forth by the opposite parties 1 to 3:-

7. The opposite parties 1 to 3 filed joint written version disputing the complaint allegation contending interalia that though the approval was obtained only for three car parks after entering into some agreements with the vendors of opposite parties had allotted 5 car parks to all the 5 flat owners.  It is submitted that the space was convenient for parking for 5 cars.  Further only after 3^rd opposite party explaining the necessity to the complainant and he also after having agreed Rs.2,00,000/- was obtained toward car park.  Even at the time of construction the same was made in such a way to park 5 cars.  The allegation that the 3^rd opposite party had illegally allotted car parks to the opposite parties 4 and 5 was denied. It was clearly stated in the Sale cum Construction Agreement that the vendors of opposite parties 4 and 5 that there was space for car park and thereafter only Rs.2,00,000/- was obtained from them towards car parks.  Thus stating that there was no deficiency in service or unfair trade practice committed by them the opposite parties 1 to 3 sought for the dismissal of the complaint.

The crux of the defence put forth by the opposite parties 4& 5:-

8. The 4^th & 5^th opposite parties have purchased the flats D & E and it was specifically denied that this opposite parties have illegally allowed to use the car parking which was sold to the complainant and was allotted to the complainant. This opposite parties vendors were also allotted by a letter dated 01.12.2008 by the builder. The allegation that this opposite parties had illegally occupied the car parking was denied.  It was submitted that the 1^st & 3^rd opposite parties with an intention to provide car parking to all 5 flats owners, with the consent of all the five flat owners had made small changes by them that is 33X12 was changed into 35X12 in order to provide car parking to all the five flat owners.  More over the builder laid the foundation and pillar to accommodate two double car parking and one single car parking in the above said car parking area.  More over there was no separate bike or cycle parking area and all the five owners used the car parking area for both the two wheeler and four wheeler. This complainant had also consented for the same. So from the date of sale deed to till this date for the past 15 years this opposite parties are using the car parking as allotted by the opposite parties 1 to 3 and in fact the complainant has never objected nor raised his voice and never made any protest and for the past 15 years this opposite parties were in exclusive possession and enjoyment of the car parking. There is no cause of action for this complaint as against this opposite parties. The allegation that the opposite parties were using the car parking area only before the date of legal notice was false and specifically denied. The complainant in order to overcome the issue of limitation had pleaded the same with ulterior motive.  The cause of action was specifically denied and the opposite parties are utilizing the car parking area from the date of their purchase which was on 07.05.2008 by document No.2018/2008. More than 15 years have been lapsed and the complaint was barred by limitation. For the past 15 years with the fullest knowledge of complainant this opposite parties were using the allotted car parking so the complaint is barred by limitation and the complainant had waived his right. The complainant has no right to restrain these opposite parties from using the allotted car parking and moreover the relief was purely within the domain of civil court and the complainant has to approach the civil court and not this Hon’ble Commission.  The 5^th opposite party purchased the property only in the year 2019 but his vendor had purchased the property in the year of 2007. Thus they sought for the dismissal of the complaint.

CC.No.62/2023

Summary of facts culminating into complaint:-

9. It was the case of the complainant that the 1^st and 2^nd opposite parties, both being the land owners, and 1^st opposite party being the Power of Attorney agent of 2^nd opposite party, jointly decided to promote flats and sell the same to various prospective purchasers. The 3^rd opposite party was the husband of the 1^st opposite party, a builder by profession and Proprietor of NIVEDHA Constructions. Whenever the prospective buyer/purchasers purchase the undivided share of land from the total extent all the opposite parties enter into a tripartite agreement for sale and construction of flat. The 4^th and 5 opposite parties are the owners of flat D and flat E respectively and are illegally allowed to use the car parking originally sold to the complainant and other two flat owners of flat A and flat B. Complainant entered into the tripartite agreement dated 30.10.2007 with all the opposite parties for purchase of 857 square feet of undivided share of land and for construction of Flat –C, in the project titled as NIVEDHA CASTLE in the vacant land owned by the 1^st and 2^nd opposite parties.  Apart from the cost of the construction the 3^rd opposite party took an additional amount of Rs.2,50,000/- for providing a covered car park. The aspect of providing covered park to him is covered in clause 1 of the un-registered Sale Cum Construction Agreement for the first time and in payment schedule of the same agreement, which was signed by the 1^st opposite party, for herself and for the 2^nd opposite party as his power Agent, the 3^rd opposite party and the complainant. There was only 3 covered car parks as per the approved construction plan and all the three of them were sold by the opposite parties at a cost of Rs.2,50,000/- each to the owners of flat –A, Flat-B and Flat –C  i.e., 1) The Complainant, 2)Mr.Karthickeyan and 3) Mr.Chezhian, the complainant’s co-brother.  On the contrary all the opposite parties have colluded and connived and made deviations in the approved building plan and constructed 4 car parks and now the car parks which were sold at an additional cost to the complainant and 2 others have been allowed to use illegally by the other 2 purchasers namely (a)Mrs.Selvasundari, W/o.Mr.Asaithambi and (b) Mr.Rathnakumar, of  flats D and E and the easement rights of the complainant has been disturbed due to the illegal acts and deeds of all the opposite parties along with the flat D and E purchasers. Thus aggrieved by the act of the opposite parties the present complaint was filed for the relief as mentioned above.

The crux of the defence put forth by the opposite parties 1 to 3:-

10. The opposite parties 1 to 3 filed joint written version disputing the complaint allegations contending inter alia that though the approval was obtained only for three car parts after entering into some agreements with the vendors of opposite parties had allotted 5 car parks to all the 5 flat owners.  It is submitted that the space was convenient for parking for 5 cars.  Further only after 3^rd opposite party explaining the necessity to the complainant and he also after having agreed Rs.2,00,000/- was obtained towards car park.  Even at the time of construction, the same was made in such a way to park 5 cars.  It was denied the allegation that the 3^rd opposite party had illegally allotted car parks to the opposite parties 4 and 5. It was clearly stated in the Sale cum Construction Agreement of the vendors of opposite parties 4 and 5 that there was space for car park and thereafter only Rs.2,00,000/- was obtained from them towards car parks.  Thus stating that there was no deficiency in service or unfair trade practice committed by them the opposite parties 1 to 3 sought for the dismissal of the complaint.

The crux of the defence put forth by the opposite parties 4& 5:-

11. The 4^th & 5^th opposite parties have purchased the flats D & E and it was specifically denied that this opposite parties were illegally allowed to use the car parks which was sold to the complainant and allotted to the complainant. This opposite parties vendors were also allotted car parks by a letter dated 01.12.2008 by the builder. The allegation that this opposite parties had illegally occupied the car parking was denied.  It was submitted that the 1^st & 3^rd opposite parties with an intention to provide car parking to all 5 flats owners, with the consent of all the five flat owners were made small changes by them that is 33X12 was changed into 35X12 in order to provide car parking to all the five flat owners.  More over the builder laid the foundation and pillar to accommodate two double car parking and one single car parking in the above said car parking area.  More over there was no separate bike or cycle parking area and all the five owners have used the car parking area for both the two wheeler and four wheeler, this complainant had also consented for the same. So from the date of sale deed to till this date for the past 15 years this opposite parties were using the car parking as allotted by the opposite parties 1 to 3 and in fact the complainant had never objected nor raised his voice, never made any protest and for the past 15 years this opposite parties are in exclusive possession and enjoyment of the car parking. There is no cause of action for this complaint as against this opposite parties. The allegation that the opposite parties have used the car parking area only before the date of legal notice was false and specifically denied. The complainant in order to overcome the issue of limitation had pleaded the same. The cause of action was specifically denied and the opposite parties are utilizing the car parking area from the date of their purchase which was on 07.05.2008 by document No.2018/2008. More than 15 years have been lapsed and the complaint was barred by limitation. For the past 15 years with the fullest knowledge of complainant this opposite parties were using the allotted car parking so the complaint is barred by limitation and the complainant waived his right. The complainant has no right to restrain these opposite parties from using the allotted car parking and moreover the relief was purely within the domain of civil court and the complainant has to approach the civil court not this Hon’ble Commission.  The 5^th opposite party purchased the property only in the year 2019 but his vendor has purchased the property in the year of 2007. Thus they sought for the dismissal of the complaint.

12. On the side of complainant in CC.No.40/2023 proof affidavit was filed and documents marked as Ex.A1 to Ex A7 were submitted. On the side of opposite parties 4 & 5 proof affidavit was filed and documents marked as Ex.B1 to Ex.B9 were submitted. On the side of opposite parties 1 to 3 proof affidavit was filed and no documents were submitted on their side.

13. On the side of complainant in CC.No.58/2023 proof affidavit was filed and documents marked as Ex.A1 to Ex A7 were submitted. On the side of opposite parties 4 & 5 proof affidavit was filed and documents marked as Ex.B1 to Ex.B9 were submitted. On the side of opposite parties 1 to 3 proof affidavit was filed and no documents were submitted on their side.

14. On the side of complainant in CC.No.62/2023 proof affidavit was filed and documents marked as Ex.A1 to Ex A7 were submitted. On the side of opposite parties 4 & 5 proof affidavit was filed and documents marked as Ex.B1 to Ex.B9 were submitted. On the side of opposite parties 1 to 3 proof affidavit was filed and no documents were submitted on their side.

Points for consideration:-

1. Whether the complaint was hit by limitation as the sale transaction of the flats related to the year 2007 and 2008?
2. Whether the complaint allegations made against the opposite parties 1 to 3 in selling illegally car parks to opposite parties 4 and 5 thereby committing deficiency in service and unfair trade practice has been successfully proved by the complainant by admissible evidence?
3. Whether the complaint allegations against the opposite parties 4 & 5 has been successfully proved by the complainant?
4. If so to what relief the complainant is entitled?

Point No.1:-

In CC.No.40/2023 the following documents were filed on the side of complainants in support of their contentions;

1. Sale cum Construction Agreement dated 10.10.2007 was marked as Ex.A1;
2. Copy of Sale deed dated 01.11.2007 was marked as Ex.A2;
3. Approved Building Plan with 3 car parting dated 21.08.2007 was marked as Ex.A3;
4. Legal notice issued by the complainant to the opposite parties 1 to 3 dated 26.08.2022 was marked as Ex.A4;
5. Acknowledgement card for proof of delivery was marked as Ex.A5;
6. Returned unserved postal covers was marked as Ex.A6;
7. Photograph of car park was marked as Ex.A7l

On the side of opposite parties 4 & 5 the following documents were filed in proof of their defence in CC.No.40/2023;

8. Sale Deed in the name of 4^th opposite party dated 07.05.2008 was marked as Ex.B1
9. Sale Deed in the name of 5^th opposite party dated 12.09.2019 was marked as Ex.B2;
10. Sale cum Construction Agreement relating to 4^th opposite party was marked as Ex.B3;
11. Sale cum Construction Agreement relating to 5^th opposite party was marked as Ex.B4
12. Allotment car parking letter dated 01.02.2008 to the 4^th opposite party was marked as Ex.B5;
13. Photo of the car parking was marked as Ex.b6;
14. RC Book in the name of 4^th opposite party’s husband was marked as Ex.B7;
15. RC Book of 5^th opposite party was marked as Ex.B8;
16. RC Book of Sivakumar was marked as Ex.B9;

In CC.No.58/2023 the following documents were filed on the side of complainants in support of their contentions;

1. Sale cum Construction Agreement dated 01.10.2007 was marked as Ex.A1;
2. Copy of Sale deed dated 11.12.2007 was marked as Ex.A2;
3. Approved Building Plan with 3 car parting dated 21.08.2007 was marked as Ex.A3;
4. Photograph of car was marked as Ex.A4;
5.  Legal notice issued by the complainant to the opposite parties 1 to 3 dated 30.09.2022 was marked as Ex.A5;
6. Acknowledgement card for proof of delivery was marked as Ex.A6;
7.  Returned unserved postal covers was marked as Ex.A7;

On the side of opposite parties 4 & 5 the following documents were filed in proof of their defence in CC.No.58/2023;

1. Sale Deed in the name of 4^th opposite party dated 07.05.2008 was marked as Ex.B1;
2. Sale Deed in the name of 5^th opposite party dated 12.09.2019 was marked as Ex.B2;
3. Sale cum Construction Agreement relating to 4^th opposite party was marked as Ex.B3;
4. Sale cum Construction Agreement relating to 5^th opposite party was marked as Ex.B4;
5. Allotment car parking letter dated 01.02.2008 to the 4^th opposite party was marked as Ex.B5;
6. Photo of the car parking was marked as Ex.B6;
7. RC Book in the name of 4^th opposite party’s husband was marked as Ex.B7;
8. RC Book of 5^th opposite party was marked as Ex.B8;
9. RC Book of Sivakumar was marked as Ex.B9;

In CC.No.62/2023 the following documents were filed on the side of complainants in support of their contentions;

1. Sale cum Construction Agreement dated 30.10.2007 was marked as Ex.A1;
2. Copy of Sale deed dated 06.11.2007 was marked as Ex.A2;
3. Approved Building Plan with 3 car parting dated 21.08.2007 was marked as Ex.A3;
4. Photos of the car parking was marked as Ex.A4;
5. Legal notice issued by the complainant to the opposite parties 1 to 3 dated 26.08.2022 was marked as Ex.A5;
6. Refused Postal cover was marked as Ex.A6;
7. Returned unserved postal covers was marked as Ex.A7;

On the side of opposite parties 4 & 5 the following documents were filed in proof of their defence;

8. Sale Deed in the name of 4^th opposite party dated 07.05.2008 was marked as Ex.B1;
9. Sale Deed in the name of 5^th opposite party dated 12.09.2019 was marked as Ex.B2;
10. Sale cum Construction Agreement relating to 4^th opposite party was marked as Ex.B3;
11. Sale cum Construction Agreement relating to 5^th opposite party was marked as Ex.B4;
12. Allotment car parking letter dated 01.02.2008 to the 4^th opposite party was marked as Ex.B5;
13. Photo of the car parking was marked as Ex.B6;
14. RC Book in the name of 4^th opposite party’s husband was marked as Ex.B7;
15. RC Book of 5^th opposite party was marked as Ex.B8;
16. RC Book of Sivakumar was marked as Ex.B9;

15. As a preliminary objection as to limitation was raised by the opposite parties 1 to 5, we decided to discuss the issue as to limitation as a preliminary issue before proceeding to decide the merits of the case.

16. Heard oral arguments of complainant and the opposite parties 4 & 5. Though written arguments was filed by the opposite parties 1 to 3, no oral arguments was made in spite of opportunities provided and hence oral argument stage of opposite parties 1 to 3 was closed and we considered the written arguments filed by them as oral arguments to decide the issues raised before this Commission.

17. It is seen that the complainants in CC.No.40/2023, CC.No.58/2023 & CC.No.62/2023 had entered into Sale cum construction agreements with the opposite parties on 10.10.2007, 01.10.2007 & 30.10.2007 respectively.  However the legal notices were issued in all the 3 cases only on 26.08.2022, 30.09.2022 & 26.08.2022 respectively by the complainants with regard to the dispute in allotting the car parking.  The Sale Deed for undivided share of land in CC.No.40/2023 was dated 01.11.2007, in CC.No.58/2023 was dated 11.12.2007 and in CC.No.62/2023 was dated 06.11.2007 which documents were filed as Ex.A2 in the all complaints.  In the said circumstance the issue as to limitation in filing complaint has to be decided.

18.  It is the case of the complainants that as per the approved plan only 3 flat owners were allotted car parks and has been enjoying, but only after using of car parks allotted to the complainants by the purchasers of 4^th opposite party and vendor of the 5^th opposite party the issue has arised.  The complainant had submitted a decision rendered by National Consumer Disptues Redressal Commission, New Delhi in Sri B.Venu madhav Vs Sri.Ch.Mohana Rao in Rec.No.478/2007 dated 14.10.2011 wherein the NCDRC held that when the car park earmarked was started to be illegally occupied by other flat owners the dispute arises and that amounts to continuous cause of action and not hit by limitation in its words as follows;

“Taking into consideration the facts and circumstances of the case, we are of the considered opinion that the complaint is not barred by limitation since there is continuous cause of action and direct the respondent/opposite party no.1 to prove  a car parking space to the appellant/complainant, who is the owner of the flat no.208.  It is also open to the appellant/complainant, to approach the Municipal Corporation for demolition of any illegal constructions made by the opposite party no.1 builder.  The appeal against respondent no.2 is dismissed.”

19.  It was also held in various other decisions by Apex Court that the date of knowledge of defective construction to be considered as the starting point of cause of action for filing a consumer complaint.  Our view is further strengthened by a recent decision passed by State Consumer Disputes Redressal Commission, Chennai in FA.No.523/2022 dated 19.12.2022 in B. Ramesh Kumar and Ors Vs V Kumar wherein it has been held that the cause of action arose only when the complainant encountered with the problems in its words as follows;

4. Firstly, from the factual sequence, one could easily discern that the cause of action for the alleged service deficiency has arisen in this instance only during January, 2019, when the complainants had to encounter the ordeal of blockage in the drainage system and thereupon gained knowledge that the Builder had failed to provide a separate Septic Tank for Block-II, despite such facility is said to have been shown and specified in the approved plan. Secondly, the demand for increased maintenance charges over the sharing of drainage facility by Block-II with Block-I was also said to have been made only in January, 2019.  Further, the complainants are said to have apprised the issue to the Builder, seeking prompt action from the part of the latter, by way of legal notice, dated 02.02.2019.  All these aspects would go to show that the originating point of gaining knowledge about the deficiency over the failure of the Builder in providing separate drainage facility to Block-II as per the approved plan was only during January, 2019, whereas, the District Commission, by merely looking at the dates of purchase of the flats during 2012 and 2018, erroneously proceeded to reject the complaint at the SR Stage on the ground of limitation, which reasoning clearly appears to be superfluous. Even otherwise, the District Commission could have directed its Registry to number the complaint subject to proper clarification on the point of limitation, but unfortunately, it did not do so. At any rate, since the limitation will start to run in consumer cases only from the date of knowledge about the negligence or service deficiency on the part of the service-provider, which in this case is said to have arisen only in January, 2019, the order passed by the District Commission in rejecting the complaint filed by the appellants herein at the SR stage on the ground of limitation in not sustainable, both in law and on facts. 

 Thus we have no hesitation to hold that the complaint as filed was not hit by limitation.

Point No.2 &3:-

20. Coming to the merits of the complaint, it is explicitly seen that construction agreements were entered by complainants in CC.No.40/2023, CC.No.58/2023 and CC.No.62/2023 before purchase of flats.  The complainants had entered into Sale cum Construction Agreements vide documents dated 10.10.2007, 01.10.2007 and 30.10.2007 respectively even before the Sale cum Construction Agreement was entered by the purchaser of 4^th  and vendor of the 5^th opposite party.

21. In the Sale cum Construction Agreement entered by the complainant in CC.No.40/2023, it has been clearly mentioned under clause 1 that Rs.58,53,900/- was fixed as total sale consideration for the purchase of schedule A property along with covered car park in accordance with the payment in schedule ‘C’ of the said agreement.

22. In the Sale cum Construction Agreement entered by the complainant in CC.No.58/2023, it has been clearly mentioned under clause 1 that Rs.41,57,400/- was fixed as total sale consideration for the purchase of schedule A property along with covered car park in accordance with the payment in schedule ‘C’ of the said agreement.

23. In the Sale cum Construction Agreement entered by the complainant in CC.No.62/2023, it has been clearly mentioned under clause 1 that Rs.58,20,250/- was fixed as total sale consideration for the purchase of schedule A property along with covered car park in accordance with the payment in schedule ‘C’ of the said agreement.

24. Under the payment schedule in CC.No.40/2023 it has been mentioned that along with construction cost of Rs.58,53,900/- an amount of Rs.60,000/- was collected toward EB and Metro Water and Rs.2,00,000/- towards car parking.

25.Under the payment schedule in CC.No.58/2023 it has been mentioned that  along with the construction cost of Rs.41,57,400/- an amount of Rs.60,000/- was collected toward EB and Metro Water and Rs.1,50,000/- towards car parking.

26. Under the payment schedule in CC.No.62/2023 it has been mentioned that  along with construction cost of Rs.55,10,250/- an amount of Rs.60,000/- was collected toward EB and Metro Water and Rs.2,50,000/- towards car parking.

27.  The approved plans as provided by the complainants vide Ex.A3 in all the cases clearly shows only that 3 car parks were approved.  In the said scenario we have to construe that the 3 flat purchasers who purchased the flats at the first instance were to be allotted the 3 approved car parks.  The subsequent purchasers i.e., opposite party 4 and the vender of the 5^th opposite party could not have been allotted any car park by the opposite party 3 who is the Promoter/Builder.  It is an established legal principle that the vendor cannot pass on a better title what he does not have.  Thus when all the approved 3 car parks got exhausted after allotting to the three complainants who are the first purchasers nothing is left to be allotted for the 4^th flat owner and to the vendor of the 5^th opposite party.  Here Section 48 of Transfer of Property Act becomes applicable.  As per ‘Doctrine of Priority of Rights’, the section lays down the general rule regarding priority of rights created by transfer by a person at different times in or over the same immovable property and provides that as between such rights each later created right is subject to the rights previously created. In such facts and circumstances the 3^rd opposite party along with opposite parties 1 and 2 selling car parks illegally which is not actually available to the 4^th opposite party and vendor of 5^th opposite party amounts to clear deficiency in service and unfair trade practice.

28. Though all the opposite parties raised a defence that at that particular period i.e., 2007 and 2008 an agreement was entered between the 3^rd opposite party and all the 3 complainants and accordingly the 3 car parking got divided into 5 car parks no material evidence in the form of document was produced by any of the opposite parties to establish the same.  Thus mere denial or mere submission will not disprove the allegations raised by the complainants in the absence of any acceptable evidence.

29. In support of our view we find a decision rendered by Karnataka High Court

“ A Single Judge Bench comprising of Vineet Kothari, J., decided a writ petition filed under Articles 226 and 227 of the Constitution, wherein the Court declined to issue a writ of mandamus directing the respondents to allot an alternative site to the petitioner, basing its decision on the maxim nemo dat quod non habet. The petitioner submitted that he was allotted a site by the respondent under a certain scheme, where under the petitioner also deposited a certain amount of money. However, later it was found that the concerned land belonged to some other person and therefore, could not have been allotted to the petitioner. Consequently, the petitioner filed representation before the respondent to allot an alternative site. The instant petition sought the issue of a writ of mandamus directing the respondents to consider petitioner’s representation. The High Court perused the record and was of a clear view that the said prayer could not be granted. The Court found that the land that was allotted to the petitioner was not available with the respondent in the very first place. As such, under no circumstances, the said allotment could have been made. The Court based its opinion on the maxim nemo dat quod non habet; meaning that nobody could pass a better title than he himself has. The fact that the land belonged to a third party did not entitle the present petitioner to seek an alternative site as a matter of right. The Court also held that the petitioner could sue the respondent for damages for the loss caused to her on account of cancellation of the said allotment, but the relief as prayed for by the petitioner could not be granted. Accordingly, the petition was dismissed. [N. Premakumari v. Commissioner, Chikballapur District, WP No. 47991 of 2017 (LB-RES), order dated  01.02.2018]...

 In the said situation we hold that the opposite parties 1 to 3 had committed clear deficiency in service and unfair trade practice.  We also held that as a result of the above findings opposite parties 4 and 5 are not entitled to have any car parks.  If at all they was aggrieved they can proceed against the opposite parties 1 to 3 separately.

30. It was alleged by the opposite parties that for deciding whether the Flat owners 4 & 5 has car parks, the complainant has to approach the Civil Court.  But this Commission is of the clear view that no civil dispute exists as it is clearly seen by the approved plan that only 3 Car parks were approved and available.  By no stretch of imagination it could be considered as a civil dispute that requires elaborate evidence and pleadings. Thus we answer the points accordingly holding that opposite parties 1 to 3 committed deficiency in service and unfair trade practice in allotting car parks to Flats D &E by receiving amount for the same.

Point No.4:-

31. As we have held above that the car parks sold to opposite parties 4 & 5 is illegal and not as per law, we direct the opposite parties 1 to 3 to earmark only three car parks in favour of the complainants in CC.No.40/2023, CC.No.58/2023 and CC.No.62/2023 respectively and also to pay a compensation of Rs.50,000/-to each of the complainants for the mental agony and hardship suffered by them.  We also award litigation cost of Rs.10,000/- to be paid separately to all the complainants.

In the result, the complaint is partly allowed against the opposite parties 1 to 3 directing them jointly and severally

a) To earmark only three car parks in favour of the complainants in CC.No.40/2023, CC.No.58/2023 & CC.No.62/2023 respectively within four weeks from the date of receipt of copy of this order;

c) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to each of the complainants;

 d) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to each of the complainants;

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 18^th day of December 2023.

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 MEMBER-II                                        MEMBER-I                                             PRESIDENT

List of document filed by the complainant in CC.No.40/2023:-

List of documents filed by the opposite parties 4& 5:-

List of document filed by the complainant in CC.No.58/2023:-

List of documents filed by the opposite parties 4& 5:-

List of document filed by the complainant in CC.No.62/2023:-

List of documents filed by the opposite parties 4& 5:-

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MEMBER-II                                         MEMBER-I                                           PRESIDENT