Full Judgment
Justice (Retd.) Surjit Singh, President (Oral)
1. By this common order, we proceed to dispose of three appeals, particulars whereof are given in the title hereof.
2. Facts relevant for disposal of the appeals may be noticed. Respondent-Rakesh Verma, is engaged in business of construction of flats and their sale. In the year 2006, he constructed a three-storeyed structure with basement meant for parking. In the three storeys, there were flats. Appellants, in all the three appeals, purchased one flat each 1 Whether reporters of the local papers may be allowed to see the order? for different considerations, amounts varying from Rs. 7.00 lacs to Rs. 11.00 lacs. Separate sale deeds were executed, in which very categorically recited that the purchaser, viz. the appellants, shall have the right to park one car each, in the common parking.
3. Completion certificate in respect of the building was issued by the Municipal Corporation in December, 2007 and thereafter the appellants were put in possession. Though the possession of the flats was given to the appellants, yet the facility of car parking in the common parking space was not provided, inasmuch as though the basement with provision for car parking was constructed, approach to the basement was not available because at a certain point, due to construction of a retaining wall by a neighbour of the respondent, cars could not be driven upto the basement.
4. The aforesaid facts are not in dispute. Appellants approached the respondent to arrange for car parking facility, as stipulated in the sale deeds, but the respondent did not make any substantial efforts to remove the grievance of the appellants. They, therefore, filed complaint(s) before the leaned District Forum, seeking a direction to the respondent, either to provide car parking facility, as agreed, or refund a sum of Rs. 2.00 lacs, out of the sale consideration, because of his failure to make available such facility.
5. Respondent in his reply pleaded that though the sale deeds did recite that the appellants were to be provided with parking facility, for one car each in the common parking area, yet due to the construction of a retaining wall by a neighbour, approach to the basement, where space for car parking had been provided, could not be developed. Learned District Forum has dismissed the complaint(s) with the observation that the following questions of facts requiring oral evidence and full-fledged trial, arise and the Forum is not equipped to deal with such questions:-
œ(i) whether the complaint has paid Rs. 2,00,000/- as price of the parking floor;
(ii) whether adjoining land owner has encroached the passage leading to the parking floor;
(iii) if the car parking floor is not sold, then whether the complainant has the licence, as defined under section 52 of the Indian Easements Act, 1882, only to use one parking space in the said floor;?
6. We have heard learned counsel for the parties and gone through the record.
7. View taken by the learned District Forum that complicated questions of facts, as spelt out in the order, are involved, is not correct. The only dispute between the parties is as to what relief, if any, the appellants are entitled on account of respondents failure to make available approach for the basement, where car parking space is provided.
8. It is not in dispute that in all the sale deeds executed in favour of the appellants, there is a categorical recital in the form of Covenant-14 that the appellants shall have the right to use one car parking space in the common car parking floor. Admittedly, car parking floor, i.e. the basement, has been constructed and developed. However, approach to that floor has not been provided and perhaps now, due to erection of a retaining wall, by a neighbour of the respondent, an approach, wide enough, to drive cars to the basement is not possible.
9. Learned counsel representing the respondent submits that what was sold to the appellants were only the flats and not the car parking space. Submission has been noticed only to be rejected. Though in the initial portion of the sale deeds, it is stated that what is agreed to be sold is a flat, in the covenants made by the seller (respondent) with purchaser, there is reference to the right of the purchaser to use car parking facility in the common parking area. Since this right finds mention in the covenants, which the seller made with the purchaser, it can legitimately be presumed that the money, which respondent received from the appellants, by way of consideration, included not only the price of the flats, but also the right to use car parking in the common car parking area.
10. No doubt, from the sale deeds, it cannot be spelt out as to what was the consideration for the right of one car parking, sold to each of the appellants, but by taking into consideration the amount of money, which one was supposed to pay for parking a car at anothers place, the value of the right of car parking sold by the respondent to the appellants can be worked out.
11. Learned counsel representing the appellants submits that in the year 2007, when the possession of the flats was delivered to the appellants, owners of car parking were allowing use of parking lots at the rate of Rs. 600/- per month per car to others and that at present the rate is about Rs. 1,000/- per month. We assume the parking rate in the year 2007 to be Rs. 500/- a month and taking into account the present day rate of interest, which the banks normally pay on fixed deposit capital value of the right of car parking can he worked out. Adoption of multiplier of 12 years purchase would give the capital value of right of car parking, because, as noticed above the rate of interest is 9%. The value thus comes to Rs. 500 x 12 x 12 = Rs. 72,000/-.
12. As a result of the above stated position, we accept the appeals filed by the appellants and set aside the impugned orders passed by the learned District Forum. Consequently, we allow the complaints and direct the respondent to refund part of the sale consideration to the extent of Rs. 72,000/- to each of the appellants, on account of breach of covenant to provide car parking facility, with interest at the rate of 9% per annum, from the dates of filing of the complaints to the date of payment of aforesaid amount of money. We also direct the respondent to pay Rs. 5,000/-, to each of the appellants, by way of cost of litigation.
13. This order be placed on the record of F.A. No. 349/2013 and its authenticated copy on the record of F.A. No.350/2013 and F.A. No.351/2013.
14. One copy of this order be sent to each of the parties, free of cost, as per Rules.