BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
F.A.No.496/2013 against C.C.No.1183/2010 District Forum-II, Hyderabad.
Between
S.Chennaiah
S/o.late Yellaiah
Aged about 63 years,
Prof:Retired Govt.Employee,
H.No.Fl.No.C1-F 1/A,
Krupa Apartment, West Maredpally,
Secunderabad-500 026. Appellant/
Complainant
And
Sri C.A.Ved Prakash
S/o.C.J.Amarnath Rao,
Aged about 45 years,
M/s Krupa Anand construction Company
Officer at 31/B, East Marredpally,
Secunderabad-500 027. Respondent/
Opp.party.
For the Appellant : Mr.S.Chennaiah, Party in person
Counsel for the Respondent: M/s.T.Sreenivasa Reddy
QUORUM: SRI R.LAKSHMI NARASIMHA RAO, HON’BLE I/c. President
AND
SRI S.BHUJANGA RAO, HON’BLE MEMBER.
MONDAY, THE TWENTY FIFTH DAY OF NOVEMBER,
TWO THOUSAND THIRTEEN
Oral Order (Per Sri R.Lakshmi Narasimha Rao, Hon’ble Incharge President)
***
The complainant is the appellant.
The complainant filed the complaint seeking for direction to the respondent to allot car parking or refund the amount collected towards car parking of Rs.75,000/- which is included in the original amount paid in the flat consideration together with compensation of Rs.75,000/- and costs of Rs.5,000/-.
The case of the appellant is that he purchased a flat located at Plot No.B1,B3 and A12 in Sy.No.501, 502 and 503 admeasuring 941 sq. yds. at Kapra built by the respondent for a consideration of Rs.6,21,900/-. In terms of payment scheme, a sum of Rs.1,08,000/- has to be paid towards initial payment, Rs.2,00,000/- towards 2nd instalment within 30 days and the balance sum of Rs.3,00,000/- has to be paid in 50 EMI’s. The appellant submitted that he paid the 1st instalment of Rs.1,08,000/- and a sum of Rs.4,85,000/- towards 2nd instalment and thus paid the sale consideration before the fixed tenure leaving a balance sum of Rs.28,900/- to be paid at the time of registration and allotment of car parking. The appellant has submitted that the respondent failed to allot and demarcate car parking slot inspite of several requests and he demanded a further sum of R.1,00,000/- towards car parking charges.
The respondent filed counter resisting the complaint and contended that the agreement of sale dated 27-11-2006 does not include purchase of car parking slot and the total sale consideration fixed at Rs.6,21,900/- was only for the apartment bearing No.GF1 payable as per the terms agreed between them. The respondent submitted that there are only 8 parking slots available in the complex as against 18 flats and therefore the existing parking slots were allotted to those purchasers who have paid for it. The respondent denied that he demanded a further sum of Rs.1,00,000/- towards car parking charges as the same is not possible as there is no car parking place available for sale and submitted that there is no deficiency in service and prayed for dismissal of the complaint.
The appellant filed his affidavit and relied on documents i.e. Exs.A1 and A2 in support of his case and the respondent filed affidavit his chief affidavit and relied on Exs.B1 and B2 in support of his case.
The District Forum dismissed the complaint holding that agreement of sale entered into by the appellant and respondent does not reveal any mention of car parking slot that is allotted to the appellant and payment of sale consideration of Rs.6,21,900/- is towards purchase of GF1.
Aggrieved by the order of the District Forum, the appellant has filed the appeal contending that the District Forum failed to consider the sale agreement, sale deed and failed to examine the flat owners to whom car parking was allotted by the respondent.
The learned counsel for the respondent has filed written arguments
The point for consideration is whether the respondent is liable to allot car parking space to the appellant?
The appellant entered into agreement of sale with the respondent on 27.11.2006 for purchase of Flat No.GF-1 in the ground floor admeasuring 691 situate at Plot No.B1 ad B3 of Plot No.A12 in Survey Nos.501 and 502 and 503 of 941 sq. yds. at Ayodhya Housing colony, Keesara mandal Ranga Reddy District for consideration of Rs.6,21,900/- and the appellant paid initial amount of Rs.1,08,000/- to the respondent and agreed to pay balance initial amount of Rs.2,13,900/- within one month there from as also the appellant agreed to pay the installment amount of Rs.3,00,000/- in 50 equal installments @ Rs.6,000/- per month. The respondent contends that there is no recital in the agreement of sale for him to provide car parking space to the appellant nor the appellant paid extra amount for car parking space. The description of the property is made in the agreement of sale as follows:
“All that part and parcel of a fully finished flat Unit bearing No.GF-1 in Ground floor, admeasuring 691 sq.ft. of super built up area of the residential apartment complex named ‘KRUPA-RAMA APARTMENTS” in Plot No.B-1 and B-3 of Plot No.A-12 in Survey Nos. 501, 502 and 503 on a land area of 941 sq. yds. or 786.67 sq. Mtrs. Situated at ayodhya housing colony, under Kapra municipality and keesara mandal Ranga reddy district i.e. the Schedule ‘A’ property; which forms part of the share allotted to the CONSENTING PARTY as per the Development Agreement dt.26-8-2003 along with undivided share of land of an extent of 35.28 sq. yds. out of total land area of 941 sq. yds. as delineated in the plan annexed hereto and marked in RED colour”.
The learned counsel for the respondent has contended that the appellant has filed the complaint without any legal basis and such complaints have to be dismissed by imposing exemplary costs. He has relied on the decision of the Hon’ble National Commission in “Mahindra Life space Developers Ltd vs. Sunil Jasuja and others” II (2013) CPJ 545 wherein the National Commission held :
“The only purpose of petitioner in filing applications for deletion of its name is to delay the proceedings. Petitioner to a certain extent has succeeded in its design as complaints were filed as earlier in the year 2007 and even after six years, the pleadings have yet not been completed. Therefore, these petitions being without any legal basis and having no merit have been filed, just to harass the complainants. As such, these petitions are liable to be dismissed with punitive cost”.
The decision has no application to the facts of the case as it cannot be said that the appellant’s complaint is not made on any legal basis. As seen from the recitals of the agreement of sale, no car parking slot is agreed to be sold by the respondent. However, it does not mean that the respondent has no obligation to provide car parking slot to the appellant. Section 3 of A.P. Apartments (Promotion of Construction & Ownership) Act provides for commons area which includes car parking slot. Section 3 of the A.P. Apartments (Promotion of Construction & Ownership) Act reads as under:
(d) “Common areas and facilities” unless otherwise provided in the declaration means:
i) the land on which the building is located
ii) foundation, columns, girders, beams supporters, main walls roofs including terrace, halls, corridors, stairs, stairways, fire escapes and entrances and exits of the building;
iii) Basements, cellars, yards, gardens, parking areas, children’s playground and storage spaces;
iv) the premises for the lodging of janitors or caretakers or persons employed for the management of the property
v) installations o general services, such as power, light, gas hot and cold water, heating, refrigeration, air-conditions and incinerating;
vi) elevators, tanks, wells and bore wells, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use;
vii) such other community and commercial facilities as may be provided for in the building pln and declaration;
viii) all other parts of the property necessary or convenient to its existence, maintenance and safety or normally in common use”.
Section 24 of the A.P. Apartments & Buildings Act reads as under:
’24 Prohibition of selling, leasing and misuse of common areas and facilities:- The promoters or the owners of apartments shall not sell or lease out or misuse any common areas and facilities”.
Thus, the respondent cannot contend that car parking slot in absence of any agreement thereof cannot be sought for by the appellant as a matter of right. The respondent has submitted that there are car parking slots available in the residential complex as against 18 Flats and those who purchased the Flats had approached the respondent to purchase the Flat along with parking slot and entered into agreement with the respondent as also the respondent executed sale deed in favour of those purchasers and as such after four years of purchase of the Flat, the appellant cannot seek for car parking slot.
The appellant, as rightly contended by the respondent cannot seek for non-existing car parking slot. The appellant submitted that he claimed for Rs.75,000/- towards car parking charges which is included in the sale consideration of the Flat and collected by the respondent and therefore the respondent is held liable to refund Rs.75,000/- collected towards car parking charges.
In the result, the appeal is allowed setting aside the order of the District Forum. The respondent/opposite party is directed to pay an amount of Rs.75,000/- to the appellant/complainant together with costs of Rs.3,000/-. Time for compliance four weeks.
INCHARGE PRESIDENT.
MEMBER.
JM Dt.25-11-2013.
