Per Mr.B.S.Wasekar, Hon’ble President
1) The present complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986. According to the complainant vide agreement dated 30th June, 2010, the complainant purchased a flat and car parking space in the building by name “New Haven” in villege Betegaon, Taluka Palghar, District Thane for consideration of `17,44,100/-. The amount was paid by the complainant to the opponent. This amount includes a sum of `50,000/- towards parking charges and `50,000/- as club house development charges. Thereafter, the complainant came to know about the judgment of Hon’ble Supreme Court dated 31st August, 2010 in case of Nahalchand Laloochand Pvt.Ltd. –Versus- Panchali Co-operative Housing Society Limited. As per this judgment, Builder/Developer can not sell stilt or open parking area as the said space is common area of the society. As per this judgment, the Builder/Developer ceases to have any title on the open space as soon as Occupation Certificate is issued by the Corporation and the Society is formed. Therefore, the complainant issued letter dated 23rd December, 2010 to the Opponent and demanded refund of `50,000/- with interest at the rate of 18% per annum. The complainant received a letter dated 31st May, 2011 from the Opponent informing that car parking is not sold but only right to use car park is granted. He has also informed that on formation of society arrangement will be ratified by the Society. The complainant issued several letters but the opponent failed to refund the amount.
2) The complainant also paid amount of `50,000/- for club house development charges. Payment of such charges does not confer any right in the property in favour of the complainant. Thus, no ownership is passed in favour of the complainant in respect of car parking space and club house. Therefore, the opponent is liable to refund the amount `50,000/- paid for car parking and `50,000/- paid for club house development charges. The complainant was also required to pay registration charges and stamp duty on the above said amount. The complainant is entitled to recover it from the opponent. As the opponent failed to refund the amount inspite of notices, the complainant has filed this complaint for refund of car parking charges, club house development charges, excess registration fee and amount of stamp duty, and compensation for mental agony total amounting to `2,33,277/- with interest at the rate of 18% per annum.
3) The opponent appeared and filed written statement. It is submitted that this Forum has no jurisdiction as the parties have agreed to refer the dispute to Arbitration. The complainant had purchased the flat for investment purpose. Therefore, the complainant is not consumer under the Consumer Protection Act, 1986. This opponent has not sold car parking space. Only right to use the car parking was granted to the complainant. The agreement clearly shows that the complainant purchased only a flat bearing Flat No.003 on ground floor. The amount of `17,44,100/- was consideration for the flat and not for any other purpose. Car parking space will be allotted by the Society to the members. The complainant has made illegal demand. Therefore, the complaint is liable to be dismissed with cost.
4) On hearing both the parties and going through the record, following points arise for our consideration :
POINTS
Sr. No. | Points | Findings |
1) | Whether this Forum has jurisdiction to entertain this Complaint ? | Yes |
2) | Whether the amount of `50,000/- was paid for car parking space and `50,000/- towards club house development charges ? | Yes |
3) | Whether the complainant is entitled to recover the amount of `2,33,277/- with interest as prayed ? | `60,000/- only |
4) | What Order ? | As per final order |
REASONS
5) As to Point No.1:- The complainant has produced copy of agreement for sale dated 30th June, 2010 on record. Both the parties are placing reliance on this copy of the agreement for sale. According to the opponent, as per the agreement, the parties have agreed to refer any dispute to Arbitration. As there is arbitration clause in the agreement, this Forum has no jurisdiction to entertain this complaint. On the other hand, it is submitted by the learned advocate for the complainant that even though there is arbitration clause in the agreement, still the remedy under the Consumer Protection Act is in addition to other remedy, therefore this Forum can entertain this complaint. For this purpose, the learned advocate for the complainant has placed reliance on the judgment of Hon’ble Supreme Court in case of M/s. Fair Air Engineers Private Limited –Versus- N.K.Modi reported in AIR 1997 SC 533. In para 15 of the judgment, the Hon’ble Supreme Court has laid down that
It would, therefore, be clear that the Legislature intended to provide a remedy in addition to the consentient arbitration which could be enforced under the Arbitration Act or the civil action in a suit under the provisions of the CPC. Thereby, as seen, Section 34 of the Act does not confer and automatic right nor create an automatic embargo on the exercise of the power by the judicial authority under the Act. It is a matter of discretion. Considered from this perspective, we hold that though the District Forum, State Commission and National Commission are judicial authorities, for the purpose of Section 34 of the Arbitration Act, in view of the object of the Act and by operation of Section 3 thereof, we are of the considered view that it would be appropriate that these Forums created under the Act are at liberty to proceed with the matters in accordance with the provisions of the Act rather than relegating the parties to an arbitration proceedings pursuant to a contract entered into between the parties.
In view of the above said law laid down by the Hon’ble Supreme Court, the complainant has additional remedy with this Forum. Therefore, this Forum can entertain the present complaint. The opponent has also taken objection about the jurisdiction of this Forum on the ground that the complainant has purchased this flat for investment purpose. Therefore, the complainant is not the ‘Consumer’ under the Consumer Protection Act. This fact is denied by the complainant. There is nothing on record to show that the complainant has purchased this flat for investment purpose or for commercial purpose. Therefore, the contention of the opponent can not be accepted.
Thus, in view of the law laid down by the Hon’ble Supreme Court in the above cited judgment, this Forum has jurisdiction to entertain this complaint.
6) As to point No.2 & 3 :- According to the complainant he had purchased one flat and car parking space for the consideration of `17,44,100/-. He has produced copy of agreement for sale. According to the complainant, the amount of `17,44,100/- is inclusive of car parking charges `50,000/- and club development charges `50,000/-. To support his contention, the complainant has produced printed application form supplied by the opponent at the time of booking. The same is not denied by the opponent. On perusal of it, it is clear that it is printed application form supplied by the opponent showing terms and conditions of the agreement. It shows that flat price is `16,44,100/-, parking charges are `50,000/- and club house development charges are `50,000/-. General terms and conditions are there in this printed form. Condition No.8 is for parking space. It is as under :
8. Parking Spaces
(a) Car parking and two wheeler parking facility will be provided in the complex at the ground floor level. Parking spaces will be allotted as per the scheme of Tata Housing.
(b) The applicable charge for parking facility is as mentioned in the Price and Payment Schedule annexed as Annexure ‘A’
Annexure ‘A’ is there in the printed form. As per annexure ‘A’ parking charges are `50,000/- and club house development charges are `50,000/-. After going through the printed form supplied by the opponent, it is clear that the opponent has charged `50,000/- towards car parking space and `50,000/- for club house development. It also discloses that flat price is only `16,44,100/-.
7) In the written statement, the opponent has stated that car parking space was not sold. The consideration amount was only for one flat. In the affidavit of evidence para 8, the opponent has stated that parking space was not sold to the complainant but only right to use the same was given to the complainant. This contention is contrary to the prescribed application form supplied by the opponent to the complainant giving details of payment. The opponent has not produced any evidence before this Forum to show that amount of `17,44,100/- was only for flat. The learned advocate for the opponent has drawn our attention to the clause (O) and 2(a) of the agreement for sale. As per clause (O), flat No.003 on ground floor and right to use open car parking space No.294 was allotted to the complainant. As per clause 2(a), flat No.003 on ground floor was sold for `17,44,100/-. In this clause itself, it is written that the amount `17,44,100/- is inclusive of the right to use one open car parking space bearing No.294. From the reading of clause 2(a), it is clear that price amount of `17,44,100/- is for flat as well as car parking space. Therefore, the submission of learned advocate for the opponent that consideration amount `17,44,100/- was only for flat can not be accepted. Contents of printed form on record supplied by the opponent and the agreement for sale on record clearly shows that the complainant paid `17,44,100/- for flat as well as car parking space. It also shows that complainant paid `50,000/- for car parking space and `50,000/- for club house development. The documents on record corroborates the contention of the complainant that flat price was only `16,44,100/- and he was required to pay amount of `50,000/- for car parking space even though no title was passed in his favour. This amounts to unfair trade practice.
8) According to the complainant, the opponent has no right to sale the car parking space as it is the common area of the society. It is submitted by the learned advocate for the complainant that the developer ceases to have any title on car parking space and common area of amenities, as soon as the Occupation Certificate is issued by the Corporation and it becomes the property of the Society on its registration. For this purpose, he has placed reliance on the judgment of Hon’ble Supreme Court in the case of Nahalchand Laloochand Pvt.Ltd. –Versus- Panchali Co-operative Housing Society Limited dated 31st August, 2010 in Civil Appeal No.2544 of 2010. In para 38 of the judgment, the Hon’ble Supreme Court has held that
We have, however, held in our discussion above that open to the sky parking area or stilted portion usable as parking space is not ‘garage’ within the meaning of Section 2(a-1) and , therefore, not sellable independently as a flat or along with a flat. As a matter of fact, insofar as the promoter is concerned, he is not put to any prejudice financially by treating open parking space/stilt parking space as part of ‘common areas’ since he is entitled to charge price for the common areas and facilities from each flat purchaser in proportion to the carpet are of the flat. MOFA mandates the promoter to describe ‘common areas’ and facilities in the advertisement as well as the ‘agreement with the flat purchaser and the promoter is also required to indicate the price of the flat including the proportionate price of the ‘common areas and facilities’.
In para 39 the Hon’ble Supreme Court has laid down that
As a necessary corollary to the answers given by us to question nos.(i) to (iii), it must be held that stilt parking space/s being part of ‘common areas’ of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither ‘flat’ under section 2(a-1) nor ‘garage’ within the meaning of that provision is not sellable at all.
In para 40 of the judgment, the Hon’ble Supreme Court has discussed the provisions of Maharashtra Ownership Flat Act and held that
In our opinion, MOFA does restrict the rights of the promoter in the block or building constructed for flat or to be constructed for flats to which that Act applies. The promoter has no right to sell any portion of such building which is not ‘flat’ within the meaning of Section2(a-1) and the entire land and building has to be conveyed to the organization; the only right remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell ‘stilt parking spaces’ as these are neither ‘flat’ nor appurtenant or attachment to a ‘flat’ –
In view of this law laid down by the Hon’ble Supreme Court, the developer can sell flat only. He has no right to sale parking space. The opponent has not disputed that car parking space is a common area and allotment of it is with the society after its registration. According to the opponent, car parking space was not sold but the complainant had given only right to use it. As per the law laid down by the Hon’ble Supreme Court, the developer has no right in the common area. If he has no right in the common area including the parking space then the question arise how he can give right to the complainant to use the car parking space. As discussed above, he has charged `50,000/- for car parking space. Car parking space is the common area of the society therefore the opponent had not right to charge any amount for the sale or use of the car parking space. The opponent had received the amount of `50,000/- from the complainant without any right or title in the car parking space and permitted the use of car parking space No.294 to the complainant. This is unfair trade practice adopted by the opponent. Therefore, he is bound to refund the said amount `50,000/- to the complainant.
9) According to the complainant, the opponent received amount of `50,000/- from him for club house development charges but he has not transferred any right in favour of the complainant. On perusal of agreement for sale, the opponent had no where given any right to the complainant in the club house. In the agreement itself, the opponent had clarified that club house will be the property of the society after its registration. Therefore, it can not be accepted that opponent had accepted amount individually from the complainant. In the above cited judgment of Nahalchand, the Hon’ble Supreme Court in para 38 of the judgment has specifically laid down that the developer is entitled to charge the price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat. In view of this law laid down by the Hon’ble Supreme Court, the opponent is entitled to charge for common facilities. Accordingly, he has received amount from the complainant towards development charges. Therefore, the complainant is not entitled to recover this development charges from the opponent.
10) The complainant has also prayed for refund of stamp duty and registration charges. According to him, he was required to pay stamp duty and registration charges on the amount of `17,44,100/-. According to him these charges should have been on the amount `16,44,100/- only. The registration charges and stamp duty was paid to the government and not to the opponent. Therefore, we do not think it proper to direct the opponent to pay these charges to the complainant. Besides this, the complainant has claimed compensation towards mental agony. The complainant had issued notice to the opponent. Inspite of several requests, the opponent has not refunded the amount of car parking space. Therefore, the complainant was required to file this complaint. The complainant has suffered mental agony. Therefore, the opponent is liable to pay compensation to the complainant. We think compensation of `10,000/- will be the reasonable compensation for mental agony. Besides this, the complainant is entitled to recover cost of this proceeding. We think cost of proceeding `5,000/- will be the reasonable cost.
11) Thus, the complainant is entitled to recover the amount of `50,000/- paid by him for car parking space, Compensation of `10,000/- for mental agony and cost of this proceeding `5,000/-. Hence, we proceed to pass the following order.
O R D E R
1) Complaint is partly allowed.
2) The opponent shall pay `60,000/- (Rs.Sixty Thousand Only) with interest at the rate of 9% per annum from date of filing of this complaint i.e. 26th April. 2012 till its actual realization to the complainant within a period of one month.
3) The opponent shall pay cost of `5,000/- (Rs.Five Thousand Only) to the complainant within a period of one month.
4) Copies of this order be sent to the parties free of cost.
Pronounced
Dated 6th September, 2013
