COMPLAINT FILED: 25.07.2009<br /> DISPOSED ON: 22.01.2010 <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 22nd JANUARY 2010<br /> <br /> <br /> PRESENT :- SRI. B.S. REDDY PRESIDENT<br /> <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> COMPLAINT NO.1742/2009<br /> <br /> <br /> COMPLAINANTS 1. Sri. S.S. Chakravarthy,<br /> Aged about 55 years,<br /> S/o Late D.S.S. Iyengar,<br /> <br /> 2. Smt. Bhargavi.C.,<br /> Aged about 52 years,<br /> W/o Sri. S.S. Chakravarthy.<br /> <br /> Both are residing at <br /> R/at No.21, 3rd Main, 1st Cross,<br /> Anjaneya Nagar, BSK 3rd Stage,<br /> Bangalore – 560 085.<br /> <br /> Advocate: Sri. N.R. Nagaraj<br /> <br /> V/s.<br /> <br /> OPPOSITE PARTIES 1. Sri Vijayanath B.Ragte,<br /> Aged about 32 years,<br /> S/o Sri. Basavannappa Ragte,<br /> R/at BDA MIG Flat <br /> No.115/20, ‘E’ Block, Domlur,<br /> Bangalore – 560 071.<br /> <br /> Advocate: Sri. B.M. Shyam <br /> Prasad<br /> 2. Smt. R.G. Lakshmivara,<br /> W/o Sri. K.T. Ranganathachar Sampath,<br /> Major,<br /> No.319, 1st Main, <br /> Cambridge Layout,<br /> Bangalore – 560 008.<br /> <br /> Advocate: Sri. K.N. Somaiah<br /> <br /> <br /> O R D E R<br /> <br /> SRI. B.S. REDDY, PRESIDENT<br /> <br /> The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against Opposite Parties (herein after called as O.Ps.) to assign the parking bay No.1 in the basement area situated very adjacent to the ramp exclusively to the complainant and to execute and furnish a copy of deed of declaration in accordance with law and also comply with mandatory requirements as per the provisions of KMC Act in getting the khatha bifurcated and registered in the name of the complainant in apartment No.101 in the 1st floor of the Sai Siddi Enclave on the allegations of deficiency in service on the part of the OPs. <br /> <br /> 2. The case of the complainants is that they being the husband and wife entered into an agreement to purchase the apartment bearing No.101 with OP-1, being a developer and managing partner of M/s Sai Developers and Engineers. The complainants selected car parking bay No.1 in the basement area situated very adjacent to the ramp measuring 9.3’ X 14’. OP-2 as a land lady and OP-1 as a developer jointly executed the deed of conveyance dated 29.01.2007 in respect of apartment bearing No.101 and corresponding undivided share in the land to the extent of 360.51 sq feet. The car parking in the basement has been conveyed but specific bay number and measurement remain absent. The complainants occupied the apartment during the month of June and July 2007; as the work had not been completed by the OP-1. OP-1 had sold other apartment fallen to his share as per the joint development agreement. OP-2 retained 6 apartment units as her share with car parking bays in the basement. By the time complainant occupied the apartment; OP-2 had also occupied and started using car parking bay No.1 which had already been assigned to complainant. On being objected to by the complainant OP-2 agreed to reserve the bay No.1 to the complainant and she would mark the assigned numbers on the respective bays and certainly reserve the bay No.1 situated very adjacent to the ramp to the complainants. The complainants waited for more than 18 months; as they were residing in different house they had let out the apartment to a tenant. OP-1 and 2 did not allow the occupier of the apartment of the complainants to use the parking bay No.1. On the contrary the tenant has been asked to use parking bay No.3 which hardly measures 6.9’ in width. The bay No.3 is the narrowest bay, the complainant cannot use the same. Hence OP-1 failed in his obligation in providing car parking space in the basement as per deed of conveyance. The complainants approached BMP to pay the tax on the property of apartment bearing No.101; the BMP has issued an endorsement that khatha has been not registered in respect of apartment No.101; SAS could not be accepted. The khatha cannot be registered in the absence of occupancy certificate issued by the competent authority, till the building was brought within the parameters of the plan sanctioned by the authorities and also in the absence of duly executed deed of declaration specifying among other things specific car parking area for each of the apartment units. After receipt of the endorsement the complainants approached the OP-1 requesting to earmark and assign bay No.1 in the basement car parking area adjacent to the ramp measuring 9.3’ X 14’ to the complainants and also to comply with the mandatory requirements as per endorsement of BMP so that they would be registered had bonafide khathadar of the apartment. The complainants got issued notice dated 15.06.2009; OPs have not complied with the demands. Hence the complainants seeking necessary reliefs as sated above. <br /> <br /> 3. On appearance, OP-1 filed version stating that specific car parking space has been allotted to the complainants as well as to other apartment owners the complainants have been enjoying the flat bearing No.101 in the first floor along with car park bearing No.101 measuring North to South 19.6’ and East to West 8.9’. Even this sharing of car parking slot has been registered under the rectification deed dated 14.07.2008, the same is well within the knowledge of complainants. The complainants are due sum of Rs.1,15,000/- towards balance sale consideration, registration expenses, change of khatha, they have failed to said amount. OP-1 demanded payment of the said amount during 1st week of the June – 2009 and to evade the payment the complainants have initiated this proceedings by making false allegations. OP-1 has obtained bifurcation of individual khathas for entire residential block including flat No.101. There is no deficiency in service on the part of the OP-1; hence it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> 4. On appearance, OP-2 filed version denying that OP agreed to provide car parking bay No.1 in the basement area situated every adjacent to the ramp. OP-2 never entered with any agreement to the complainants. OP-2 is the absolute owner of all that piece and parcel of the residential site bearing BMP No.23 (Old No.23 & 24) for the development of said property. OP-2 entered into joint development agreement with OP-1 to develop the said property by constructing multi-storied residential apartment. After completion of the construction both OP-1 and 2 entered into deed of rectification to share flats along with car parking on 14.07.2008. As per the said rectification deed OP-1 and 2 have taken respective flats to their share with car parking area in the basement. As per the same flat No.101 car parking area specifically mentioned that North to South 19.6’, East to West 8.9’ which is share of the first OP along with other car parking areas. The complainant cannot claim alternative car parking area of larger extent. Any dispute regarding the car parking area between complainant and OP-1 is not concern to OP-2 in the sale deed and agreement deed in favour of the complainants, the specific car parking number and measurement are not mentioned. The complainants have to file a Civil Suit, this Forum has no jurisdiction to deal with the matter, hence it is prayed to dismiss the complaint with costs. <br /> <br /> 5. The complainant No.1 and OPs-1 and 2 filed affidavits by way of evidence. The complainant and OP-2 filed written arguments. <br /> <br /> 6. On 10.12.2009 OP-1 filed memo with photos to show that the complainants are making use of car parking area shown as No.101. The other photos reveals that the car parking slats in the basement area is assigned with numbers of the flats in occupation of the respective owners. <br /> <br /> 7. On 22.10.2009 OP-1 had filed memo with individual khatha bifurcation order copy and Xerox copy of the tax paid receipt. <br /> <br /> 8. The learned counsel for the complainants submitted as per the photos produced by OP-1. The complainants are to be allotted car parking area in the basement numbered as 101. In the defence version OPs have contended the complainants are making use of car parking area in the basement numbered as 101 measuring 19.6 inches North to South and 8.9 inches East to West as per the rectification deed copy of which has been produced between OPs-1 and 2 car parking area as marked as 101 is shown allotted to share on OP-1. The complainants have purchased the flat No.101 under the registered sale deed executed by OPs-1 and 2 on 29.01.2007. In the sale deed and also in the agreement deed no specific number regarding the parking area allotted to the complainants is mentioned. Khatha bifurcation as already been got done by OP-1. It is submitted by the complainants advocate that the complainants are ready to accept the parking area in the basement numbered as No.101. In the complaint the complainants claimed the parking bay 01 adjacent to the ramp in the basement but as per the rectification deed that part parking area has been allotted to the share of OP-2. OP-1 has not produced any material to show that the complainants are due in a sum of Rs.1,15,000/- as contended in the version. In the registered sale deed executed in respect of apartment No.101 it is stated that entire consideration has been received. In view of the sale we are enable to accept the complainants are due any amount much less the amount of Rs.1,15,000/- as claimed by OP-1. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint allowed in part. It is confirmed that the complainants are using car parking bearing No.101 measuring North to South 19.6 feet and East to West 8.9 feet as owners of apartment No.101 in the first floor of the Sai Siddhi Enclave. OP-1 is directed to execute a deed of declaration having allotted car park bearing No.101 exclusively to the complainants. This order is to be complied with 4 weeks from the date of communication of the order.<br /> <br /> In view of nature of dispute no order as to costs. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 19th day of January 2010) <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> s.n.m. <br />