Tamil Nadu

South Chennai

CC/190/2022

N.M. Ashokan - Complainant(s)

Versus

Ramaniyam Real Estate and another - Opp.Party(s)

M/s. S. Hariprasad

12 Apr 2023

ORDER

  Date of Complaint Filed:10.12.2021

  Date of Reservation     :03.04.2023

  Date of Order              :12.04.2023

 

          DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                    THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

               

CONSUMER COMPLAINT No.190/2022

WEDNESDAY, THE 12^th DAY OF APRIL 2023

                                                          

N.M.Asokan,

S/o. N.M. Narayanan,

No.2C, Shreyas, 4^th Sea Ward Road,

Valmiki Nagar,

Thiruvanmiyur,

Chennai-600040.                                                            .. Complainant.                                               

-Vs-

1.Ramaniyam Real Estate Private Limited,

   Rep. by its Managing Director/ Director,

   No.17/35, 2^nd Main Road,

   Gandhi Nagar, Adayar,

   Chennai - 600020.

 

2.V.Jaggannathan,

   Director,

   Ramaniyam Real Estate Pvt., Ltd.,

   Office at No.17/35, 2^nd Main Road,

   Gandhi Nagar,

   Adayar, Chennai - 600020.                                      .. Opposite Parties.

 

* * * * *

 

Counsel for the Complainant         : M/s. S. Hariprasad

 

Counsel for the Opposite Parties    : M/s. S. Sundaresan, S. Francis Ashok,

                                                    Vaitheeswari,S. Varun Ganesh Samiappa

 

 

 

On perusal of records and upon hearing the oral arguments of the counsel for Complainant and the counsel for the Opposite Parties this Commission delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

(i) The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to vacte the occupier Mrs.A.V.Kannan @ Mrs.Gowri Kannan from the Complainant’s car parking slot and handover the vacant car parking slot to Complainant and to pay notional damages to a sum of Rs.1,00,000/- for the mental agony and physical harassment suffered by the Complainant along with cost.

I.  The averments of Complaint in brief are as follows:-

1.     The Complainant had purchased Flat No.2C on the Second Floor, in 1^st  Opposite Party construction project/ building titled 'Shreyas" at No.4, IV Seaward Road, Valmiki Nagar, Chennai, in the year 1990. Subsequently a construction agreement was entered into between 2^nd Opposite Party on behalf of 1^st Opposite Party and the Complainant on 13.07.1990. As per the Construction agreement along with the said Flat No.2C, one Car Parking Slot was also provided/ allotted in the Ground Floor of the same building to the Complainant. The Complainant after completion of the project was put in possession of the said flat. The Complainant submitted that he was working abroad at Sultanate of Oman and residing their along with his family. As his car parking slot was vacant for that time being, 2^nd Opposite Party through his letter dated 16.06.1994, stated that one Mr.A.V.Kannan, owner of Flat No.2B at the same apartment complex is using the car park allotted to the Complainant temporarily and further confirmed/accepted to clear the car parking slot occupied by Mr.A.V.Kannan and handover the same to the Complainant, whenever he comes back to India. The letter ought to have been issued for the purpose of taking permission from the Complainant rather being information. But the Complainant did not persuade to such an extent, as he was not in need of his car parking slot at that moment. In the year 2017 when the Complainant in order to settle in India, was slated to return to India, thus informed 2^nd Opposite Party by calling him through his mobile phone, and stated that he is returning to India and he needed the car parking slot and asked 2^nd  Opposite Party over   phone to vacate the car parking slot occupied by Mr.A.V.Kannan (occupier) and hand over the same to the Complainant (owner of car parking slot); in order to keep his car, which he is going to purchase when he lands in Chennai, India. When the facts stood thus, the Complainant reached Chennai, India, in the year 2017 and thereafter called 2^nd Opposite Party, the 2^nd Opposite Party informed that the said Mr.A.V.Kannan (permitted party) had passed away and his wife Mrs.A.V.Kannan @ Mrs.Gowri Kannan, has been occupying the car parking slot, thus 2^nd Opposite Party requested time to vacate the occupier. Subsequently the Complainant had called 2^nd Opposite Party many times through mobile phone and also sent various E-mails to 2^nd Opposite Party for vacating the above said Mrs.Gowri Kannan, but he had failed to vacate Mrs.Gowri Kannan who was occupying the Complainant's car parking slot. Thus the Complainant provided a letter dated 14.03.2017 to 2^nd Opposite Party in person at his office and his office official had received the same on his behalf and assured for vacating the occupier and handing over the car parking slot to the Complainant. But on one pretext or the other, till this day, the 2^nd Opposite Party have been deliberately delaying to vacate the above said Mrs. Gowri Kannan and has not handed over the said car parking slot to the Complainant. Neither the 2^nd Opposite Party vacated the said Mrs. Gowri Kannan from the Complainant's car parking slot nor paid any rent towards the usage of the Complainant's car parking slot which is gross violation of the undertaking through 2^nd Opposite Party letter dated 16.06.1994. It is further strongly believed by the Complainant that the 2^nd Opposite Party have been receiving monthly rental for the Complainant's car parking slot from Mrs.Gowri Kannan and thus he is not in the mood of vacating the car parking slot. Invariantly, the Complainant believing the same had not paid the maintenance charges calculated for his Flat 2C to 1^st  Opposite Party. Only upon vacating the car parking slot and handing over the vacant car parking slot to the Complainant, he would be paying the maintenance charges calculated for his Flat from that day onwards. He is going to purchase a Car for himself and his wife movement in city and the Complainant is in need of his car parking lot. With no other options left, the Complainant issued a legal notice through his counsel to the Opposite Parties on 14.09.2020 and on 24.07.2021. The legal notice was received by the Opposite Parties and no reply was provided to the same till date. Hence the present complaint.

 

 

II.  Written Version filed by the Opposite Parties in brief is as follows:

 

2.     The Complaint is not maintainable, since it is barred by limitation under Section 24 A of old Act and Section 69 of the New Act. The Complaint is not maintainable, in view of the fact that there is no deficiency in service of construction as alleged and he has taken possession of the property along with the car park allotted to him and there is no dispute in this regard. The Complaint preferred after 30 years of taking possession of the property and legal notice issued by them will not constitute a cause of action and the entire cause of action narrated in paragraph 10 of the Complaint will not constitute any deficiency in service and no cause of action arose within the limitation period. The Complainant has surreptitiously suppressed the fact of taking possession of the property in the year 1991 itself and a complaint after 31 years that the car park was misused by another owner is not a ground for filing this complaint. Even as per his own allegations, the complaint is barred by limitation. The Complainant has not raised any allegations of deficiency in service against the Opposite Parties and the dispute raised by them that after he has taken over the flats along with the car park was misused by another owner will not authorizing him to file a complaint for deficiency in service and consumer court is not a civil court to order recover of possession and the prayers cannot be granted. The prayer (a) does not fall within the jurisdiction of this Hon’ble Forum, since it is a recovery of possession of a car park handed over to the Complainant 31 years back. The second prayer cannot be granted, due to Complainant's inaction and slept over for 31 years, he is at fault and he cannot seeking compensation. It is very clear from his own averments, because of his absence, some other owner occupying the car park of Complainant, for which the Opposite Party is not responsible. The said letter dated 16.06.1994 is only an intimation to the Complainant that somebody is using his car park, since it is lying vacant, and it cannot be construed as a permission given by the Opposite Party to the said Kannan. The said Kannan also died and his wife alone is continuing to occupy the car park belonging to the Complainant and even on their own letter he returned back to India on 14.03.2017 and asking the Opposite Party to handover the car park is ridiculous, he has to take action against the person who is illegally occupying the car park. The Opposite Parties were not able to help him, since the said Gowri Kannan refused to vacate parking by claiming right. Instead of writing to 2^nd Opposite Party, the Complainant should take action against the said Mrs. Gowri Kannan in Civil Courts. The Opposite Parties in order to help them has negotiated with said Gowri Kannan in order to maintain good relationship with his customers. Hence, he has negotiated with all the parties concerned, but there is not solution that has been arrived. By the time, the Opposite Party came to know that the Complainant is due of maintenance charges for his flat in Shreyas apartment for more than 54 months, which amounts to Rs.1,52,480/- and the Opposite Party agreed to pay the said amount on behalf of the Complainant and paid the same. Suppressing the above fact, the Complainant rushed to this Hon’ble Commission and has filed this complaint for redressing his grievance, which is not available for him and the complaint is liable to dismissed with cost.

III.   The Complainant has filed his proof affidavit and Written argument  in support of his claim in the complaint and has filed documents which are marked as Ex.A1 to A11. The Opposite Parties had submitted his proof affidavit and Written arguments. On the side of Opposite Parties no document was marked.

IV. Points for Consideration:-

1.  Whether the Complaint is bad for non joinder of necessary parties?

2.  Whether the Complaint is barred by limitation ?

3. Whether there is any deficiency in service on the part of the Opposite Parties?

 

4. Whether the Complainant is entitled for the reliefs sought for?

 

5. To what other relief, the Complainant is entitled to?

 

POINT NO. 1 :-

3.     Upon perusal of Ex.A-1, it is evident that the Complainant had entered into a Construction Agreement with the Opposite Parties dated 13.07.1990 in respect of Construction Project tiled ‘Shreyas’, Flat No.2C, 2^nd Floor at No.4, IV Seaward Road, Valmiki Nagar, Chennai and thereafter a Sale Deed dated 30.10.1990, registered as Document No,3593/1990, in the Office of the District Registrar of Madras, South, Ex.A-2 was executed in favour of the Complainant thereby conveying Undivided share of the property contained therein. It is not in dispute that after purchase of the said Flat No.2C, the Complainant was in possession of the same and  in terms of the Construction Agreement, one car parking was also allotted to the Complainant by the Opposite Parties. The dispute arose on the usage of the car park by one Mr.A.V.Kannan, Owner of Flat No.2B and after his demise by his wife Mrs.Gowri Kannan which car park was allotted to the Complainant, without obtaining permission from the Complainant.

4.     The contention of the Complainant is that  he was working at Sultanante of Oman and was residing there along with his family. As per Ex.A-3, the letter issued by the 2^nd Opposite Party to the Complainant on 16.06.1994, stating that one Mr.Kannan, Owner of Flat 2B was using the car park allotted to the Complainant and that it would be handed over to the use of the Complainant when the Complainant came back to India. In the year 2017, when the Complainant returned India he had sought to return back the car park allotted to him and as the said Mr.A.V.Kannan passed away, to instruct Mrs.A.V.Kannan @ Mrs.Gowri Kannan to vacate the car park slot and hand over the same to him as per Ex.A-4, the letter dated 14.03.2017 issued by the Complainant to the 2^ndOpposite Party. The Complainant had also informed about the need of car parking through SMS, Ex.A-11 to the 2^nd Opposite Party but according to the Complainant the Opposite Parties failed to vacate the said Mrs. Gowri Kannan from the Complainant’s car parking slot nor paid any rent towards the usage of the Complainant’s car parking slot.

5.     The entire case of the Complainant is about the usage of car parking by the said Mr.A.V.Kannan, after his demise by his wife Mrs.Kannan which was allotted to the Complainant by the Opposite Parties. Mrs. Gowri Kannan  is a  proper party to the Complaint. However Mrs. Gowri Kannan, wife of late  Mr.A.V.Kannann is not made as a party to this Complaint. Hence the Complaint is bad for non joinder of necessary parties. Accordingly, Point No.1 is answered.

Point No.2:

6.     The Opposite Party contended that the Complainant had taken possession of the property in the year 1991 and that the complaint is filed after a period of 31 years  that his car park has been misused by Mr.Kannan and his wife Mrs.Gowri Kannan. A perusal of Ex.A-3, the letter dated 16.06.1994 would show that the owner of Flat No.2B, was using the car park allotted to the Complainant and that once the Complainant return to India the car park would be handed over to him. As per Ex.A-4, the letter dated 14.03.2017, the Complainant had informed the 2^nd Opposite Party of his return to India and to instruct Mrs.A.V.Kannan to vacate the car park slot and hand over the same to him. The Whatsapp conversation of the Complainant with the 2^nd Opposite Party marked as Ex.A-11 regarding the car park issue from 12.06.2018 to 23.12.2019 gives rise to a continuous cause of action and the complaint being filed on 10.12.2021 is well within the period of limitation. Hence the complaint is not barred by limitation. Accordingly, Point No.2 is answered.

Point No.3:

7.     As regards the contention of the Complainant that even after informing of his arrival to India the Opposite Parties failed to vacate the occupier Mrs.Gowri Kannan, Wife of Mr.A.V.Kannan as the said Mr.A.V.Kannan had passed away and his wife is occupying the car par slot, it is not the case of the Complainant that the Opposite Parties had failed to act as per the Agreement entered between the Complainant and the Opposite Parties, as admittedly the Opposite Parties had constructed and handed over the Flat in the year 1990 to the Complainant along with car park slot and the letter dated 16.06.1994, by the 2^nd Opposite Party informing the Complainant about the usage of the car park slot by Mr.A.V.Kannan and subsequent communications of handing over the car park slot to the Complainant are only mere arrangement between the parties and exchange of information which will not amount to deficiency in service on the part of the Opposite Parties and moreover the said Mrs.Gowri Kannan, who was occupying the car park slot was not made as a party to the complaint who is a necessary party to the Complaint as the entire allegations is on the occupation of the car park slot by Mr.A.V.Kannan and after his demise By Mrs.Gowri Kannan. According Point No.3 is answered.

Point Nos.4 and 5:

8.     As discussed and decided above that the Opposite Parties have not committed deficiency in service, and the relief sought for to vacate and handover the car park slot to the Complainant does not fall under the purview of the Consumer Protection Act, as admittedly the car park slot was allotted and handed over to the Complainant by the Opposite Party at the time of taking possession of the flat in the year 1991 itself and hence the Complainant is not entitled for the reliefs claimed or for any other relief(s). Accordingly Point Nos. 4 and 5 are answered.  

In the result, the complaint is dismissed. No costs.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 12^th of  April 2023.

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                          MEMBER I                            PRESIDENT

000List of documents filed on the side of the Complainant:-

 

Ex.A1	13.07.1990	Construction Agreement executed between the Complainant and the 2nd Opposite Party on behalf of 1st Opposite Party
Ex.A2	30.10.1990	Sale Deed vide Doc No.3593/1990 executed in favour of the Complainant
Ex.A3	16.06.1994	Letter issued to the Complainant by 2nd Opposite Party informing Mr.A.V.Kannan temporarily occupied the car parking slot provided to the Complainant
Ex.A4	14.03.2017	Letter issued by the Complainant to 2nd Opposite Party demanding the car pakring slot
Ex.A5	14.09.2020	Legal notice issued by the Complainant counsel to the 1st & 2nd Opposite Parties
Ex.A6	15.09.2020	Acknowledgement card of 2nd Opposite Party
Ex.A7	24.07.2021	Legal Notice issued by the Complainant counsel to the Opposite Parties
Ex.A8	24.07.2021	Legal Notice issued by the Complainant counsel to the Mrs.Gowri Kannan (Occupier)
Ex.A9	27.07.2021	Acknowledgement card of 1st and 2nd Opposite Parties
Ex.A10	31.07.2021	Return cover of Mrs.Gowri Kannan
Ex.A11		Copy of whatsapp communication

 

List of documents filed on the side of the Opposite Parties:-

 

9008.  

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                          MEMBER I                            PRESIDENT