Deepak G. Tripathi and Another Vs. Haroon Ebrahim and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1148952
CourtGoa State Consumer Disputes Redressal Commission SCDRC Panaji
Decided OnJan-06-2014
Case NumberCC. No. 13 of 2013
JudgeN.A. BRITTO, PRESIDENT & THE HONOURABLE MR. JAGDISH PRABHUDESSAI, MEMBER
AppellantDeepak G. Tripathi and Another
RespondentHaroon Ebrahim and Another
Excerpt:
n.a. britto, president: 1. this consumer complaint filed on 23/08/13 is being disposed off by this order. 2. the admitted facts are as follows: "(a) the op no. 1 is a builder/developer who has constructed a project known as magnum sea view in plot no. 84 in survey no. 257/1 of village taleigao. the op no. 1/builder by agreement dated 13/3/06 agreed to construct and sell to arthur and maria viegas, under a registered agreement, a penthouse having an area of 220 sq.mtrs. situated on the 4th floor of the said building alongwith two parking slots. (b) the op no. 1 completed the construction of the said building on or about 6/3/06 and handed over the possession of the said penthouse alongwith the said two parking slots to the said arthur and maria viegas on or about 13/03/06. the said penthouse was registered in the village panchayat of taleigao under house no. 746/8. (c) the said arthur and maria viegas occupied the said penthouse and paid house tax, electricity charges, etc. regularly and according to op no. 1/builder, although he offered the execution of the sale deed in their favour the same was not executed. (d) subsequently on or about 20/09/10 the said arthur and maria viegas sold the said penthouse alongwith the said two parking slots in favour of the complainants. the sale deed was executed by op no. 1/builder alongwith his wife smt. rehana haroon as vendors, the complainants as purchasers, and the said arthur and maria viegas as confirming parties. (e) the said sale deed dated 20/09/10 provided that the complainants as purchasers would join the co-operative housing society or any other body or association of premises owners/holders on the said property and would abide by the rules and regulations that may be framed from time to time regarding maintenance and of other matters relating to the building/premises in the said property." 3. the case of the complainants is that after taking possession of the individual premises, the occupants of the building have formed what is known as magnum flat owners association i.e op no. 2 for maintenance of the said building and open spaces around the said building and their function is only to look after the maintenance of the building and op no. 2 does not have any right to interfere with the title of any of the co-owners either in relation to the individual flats or the allotted parking slots. the case of the complainants is also that the complainants were handed over symbolic/token possession of the penthouse upon execution of the sale deed dated 20/09/10 with the keys thereof but no such possession was given in respect of the parking slots. 3.1. it is not known whether the complainants have become members of op no. 2 association. 4. although the complainants purchased the said penthouse alongwith the said two parking slots by deed dated 20/09/10, they did not occupy the same, and it is their case, that when they visited the said penthouse in the first week of january 2013, they found that the said parking slots allotted to them, were occupied by someone else, as a result, the guests of the complainants occupying the said penthouse started suffering inconvenience for want of parking slots. according to the complainants, the names of the complainants were not displayed in the parking bay and office bearers of op no. 2 refused to recognize the rights of the complainants in respect of the said parking slots for want of confirmation in their favour by op no. 1/builder. the complainants state that complainant no. 1, shri. tripathi called upon the said arthur viegas and sought his clarification as regards the said parking slots and by letter dated 20/10/12 the said arthur viegas forwarded a copy of the stilt plan showing two parking slots allotted in his favour by the builder and the said arthur viegas also conveyed that the said stilt plan was part of the sale deed and thereafter complainant no. 1, shri. tripathi, also called upon op no. 1/builder and sought his clarification and by letter dated 10/01/13 op no. 1/builder confirmed the allotment of specific parking slots in favour of the complainants. 5. the case of the complainants is also that when the complainants insisted on using the said parking slots allotted in their favour, the other occupants including the office bearers of op no. 2 attempted to resist the same and they did not allow to park their vehicles in the slots referred to by the op no. 1/builder as well as the said arthur a. viegas and the chairman and secretary op no. 2 also did not allow the representative of the complainants to put up their sign boards on the specifically identified parking slots as a result of which the complainants sent a legal notice to op no. 1/builder as well as the chairman of op no. 2 calling upon them for specific performance of the contract including identification of the said two parking slots and handing over the possession thereof to the complainants and the notice sent to the chairman of op no. 2 was not accepted and another legal notice addressed to the chairman in individual name was returned unclaimed. 6. the case of the complainants is that the said parking slots meant for the complainants continued to be used by some other occupants or unidentified elements and op no. 1/builder has not come forward and identify and hand over the complainants the specifically parking slots and unless op no. 1/builder identifies the individual parking slots of the complainants at loco, the complainants cannot display their name plates thereon. according to the complainants, the failure on the part of the op (op no. 1?) in identification, allotment and handing over possession of the specifically allotted parking slots amounts to deficiency in service. according to the complainants, the cause of action arose in the first week of january 2013, when it was noted for the first time that the parking slots meant for the complainants were used by some third parties and the cause of action got repeated on 11/01/13 when the complainant no. 1 informed op no. 2 about his legal right for the parking slots and again was repeated on 6/6/13 when op no. 1 failed to respond to the legal notice issued to him and even otherwise the cause of action is continuous one till such time the complainants are given such possession of the specifically identified parking slots. 7. the complaint has been contested by op no. 1 by filing a written version. the complaint has proceeded exparte against op no. 2 by virtue of order dated 4/10/13. op no. 2 also did not respond to a private notice sent on behalf of the complainants. 8. shri. s. n. joshi, the lr. advocate of the complainants would contend that the complainants parking slots are being occupied by anybody. lr. advocate, pointing out to letter dated 20/10/12, submits that the said arthur viegas informed the complainants that the parking slots were conveyed to the complainants. lr. advocate submits that one notice to op no. 2 was returned unclaimed but another private notice was accepted but was not responded. lr. advocate submits that op no. 2 association is not the owners of land and they have been formed for the maintenance of the building and they cannot disturb the rights acquired by the complainants. lr. advocate submits that although the said parking slots are shown on the stilt plan (copy at page 52) they are required to be identified in loco and for that purpose the present complaint has been filed. 9. on the other hand, shri. timble, the lr. advocate of op no. 1 would submit that the complaint is barred by limitation, the same not having been filed within two years from the date of cause of action as stipulated under the c.p. act, 1986. lr. advocate would submit that the said arthur viegas was given possession of the penthouse alongwith the parking slots on 27/05/06 and the complaint which is filed more than two years therefrom is clearly time barred. adv. shri. timble would next submit that the complainants are not consumers qua op no. 1/builder, as they have received no consideration from the complainants and consideration, if any, was paid by the complainants to the said arthur and maria viegas for the purchase of the penthouse alongwith parking slots. lr. advocate submits that op no. 1/builder only consented for the execution of the sale deed. lr advocate shri. timble submits that it is not the case of the complainants that the parking slots are not available in loco and it is their case that somebody else is obstructing their vehicles being parked in the said parking slots, and if that be the case, the remedy of the complainants is to file a civil suit before the civil court and not before a consumer forum. referring to para 16 of the complaint, lr. advocate would submit that there is no deficiency of service on the part of op no. 1/builder. lr. advocate would also submit that the complainants cannot claim anything more from op no. 1/builder, more than what op no. 1/builder gave to the arthur and maria viegas. in reply, lr. adv. shri. joshi would submit that the cause of action is a continuous one and the same arose in the first week of january 2013. lr advocate would also submit that op no. 1, as vendor of the penthouse and the parking slots is liable to identify the said slots in loco and hand over the same to the complainants. 10. after having gone through the record and after hearing the lr. advocates of the complainants and op no. 1, we find that the complaint is misconceived. we proceed on the assumption that the cause of action arose in favour of the complainants in january 2013 and the complaint which is filed in august 2013 is not time barred. which agreement do the complainants wish to specifically enforce? if at all any agreement is to be specifically enforced it can be the agreement, if any, contained in the sale deed dated 20/09/10. the penthouse alongwith the parking slots were initially purchased or were constructed for the said arthur and maria viegas by op no. 1/builder for a sum of rs. 37,00,000/- under agreement dated 13/3/06. the said arthur and maria viegas in turn sold the same to the complainants by sale deed dated 20/09/10 for rs. 1,60,26,179/-. this sale deed was executed by op no. 1/builder alongwith his wife as vendors and the said arthur and his wife maria viegas being confirming parties of one hand, and the complainants as purchasers on other hand. op no. 1/builder conveyed title to the complainants of the said penthouse and parking slots in consideration of he (op no. 1) having received rs. 37 lacs from arthur and maria viegas and the latter having received rs. 1,60,26,179/-from the complainants and therefore op no. 1/builder would not be right in contending that the sale deed was executed for no consideration. complainants, therefore, would be consumers qua op no. 1/builder. 11. what was sold to the complainants, as can be seen from the said deed dated 20/09/10 is the œpenthouse including two parking slots and undivided proportionate share of the said plot together with all the rights, title, interest to the pathways, access and easement pertaining to the said plot and the said magnum sea view building alongwith the undivided right to all the common spaces and amenities and utilities provided in the said magnum sea view?. in other words, complainants became the owners of the said penthouse including the said two parking slots by virtue of the said sale deed, and, in view of this legal position, there was no question of the complainants being given separately the possession of the said parking slots and this position was rightly pointed out to the complainants by the said arthur viegas in his letter dated 20/10/12 wherein he informed the complainants that the parking slots were shown on the stilt plan dully signed by the builder and which formed part of the said sale deed dated 20/09/10 and it was further clarified by him that the said parking slots stood conveyed to him by the said sale deed. a copy of the plan was annexed to the said letter dated 20/10/12 wherein the said parking slots can be easily seen, and, if necessary, can be identified and marked at loco on the basis of the same. this position was further clarified by op no. 1/builder by his letter dated 10/01/13 wherein op no. 1/builder clearly conveyed to the complainants that they were allotted the parking stilt on the ground floor and it belongs to them and which was identified on the plan annexed to the sale deed dated 20/09/10. if that be the position, the complainants can have no grievance at all against op no. 1/builder by raising a specious plea that no possession of parking slots was given to the complainants. the complainants have become owners in possession of the said penthouse and the said parking slots by virtue of sale deed. they can be identified with the copy of the plan annexed to the sale deed. complainants are always free to place a signboard on what belongs to them. grant of relief in terms of prayer (a) was not at all contemplated under sale dated 20/09/10. prayer (a) of the complaint is therefore misconceived. there is no deficiency in service on part of op no. 1/builder who has sold the said penthouse with the said parking slots to the complainants and they are presumed to be in possession of the same. 12. the grievance of the complainants, in sum and substance, appears to be against the office bearers of op no. 2, the association formed by the occupants of the said magnum sea view and others who are not allowing the complainants to put their signboards. the grievance of the complainants is also against other occupants of the building and unidentified persons who use the said parking slots purchased by the complainants. op no. 2 is not a builder nor a service provider and no order as sought for in terms of prayer (b) can be passed against op no. 2. it may also be noted that the cause of action pleaded by the complainants is against third parties. the complainants have pleaded that in the first week of january 2013 the complainants noticed that the parking slots meant for the complainants were being used by third parties. in other words, the grievance of the complainants, in substance, is regarding the misuse of the parking slots by the other occupants of the building or unidentified elements or third parties or by office bearers of op no. 2, association. a forum established under the c.p. act can grant reliefs to a consumer only when (i) the complainant is a consumer as defined in clause (b) or a clause (d) of section 2 of the c.p. act and (ii) the op is a trader as defined in clause (q) or a provider of œservice? as defined in clause (o) of section 2 of the c.p. act and (iii) the œcomplaint? relates to any of the matters specified in clause (c) of section 2 (see u.t. chandigarh administration vs. amarjit singh and ors., (ii) 2009 cpj 1/2013(3)cpr 19). 13. in view of above discussion, we hold that there was no deficiency in service on the part of op no. 1/builder, under sale deed dated 20/09/10 and therefore the complainants are not entitled to relief in terms of prayer (a) of the complaint and no relief can be granted against op no. 2 or others for want of jurisdiction in terms of prayer (b). 14. before concluding, we may observe that nothing prevents the complainants to place a sign board as per the allotment of the parking slots in their favour as per deed dated 20/09/10 particularly the plan (copy at page 52) which was annexed to the said sale deed. 15. with the above observations we proceed to dismiss the complaint, leaving the parties to bear their own costs.
Judgment:

N.A. Britto, President:

1. This consumer complaint filed on 23/08/13 is being disposed off by this order.

2. The admitted facts are as follows:

"(a) The OP No. 1 is a builder/developer who has constructed a project known as Magnum Sea View in plot No. 84 in survey No. 257/1 of Village Taleigao. The OP No. 1/builder by agreement dated 13/3/06 agreed to construct and sell to Arthur and Maria Viegas, under a registered agreement, a Penthouse having an area of 220 sq.mtrs. situated on the 4th floor of the said building alongwith two parking slots.

(b) The OP No. 1 completed the construction of the said building on or about 6/3/06 and handed over the possession of the said Penthouse alongwith the said two parking slots to the said Arthur and Maria Viegas on or about 13/03/06. The said Penthouse was registered in the Village Panchayat of Taleigao under house No. 746/8.

(c) The said Arthur and Maria Viegas occupied the said Penthouse and paid house tax, electricity charges, etc. regularly and according to OP No. 1/builder, although he offered the execution of the sale deed in their favour the same was not executed.

(d) Subsequently on or about 20/09/10 the said Arthur and Maria Viegas sold the said Penthouse alongwith the said two parking slots in favour of the complainants. The sale deed was executed by OP No. 1/builder alongwith his wife Smt. Rehana Haroon as vendors, the complainants as purchasers, and the said Arthur and Maria Viegas as confirming parties.

(e) The said sale deed dated 20/09/10 provided that the complainants as purchasers would join the Co-operative Housing Society or any other body or Association of premises owners/holders on the said property and would abide by the rules and regulations that may be framed from time to time regarding maintenance and of other matters relating to the building/premises in the said property."

3. The case of the complainants is that after taking possession of the individual premises, the occupants of the building have formed what is known as Magnum Flat Owners Association i.e OP No. 2 for maintenance of the said building and open spaces around the said building and their function is only to look after the maintenance of the building and OP No. 2 does not have any right to interfere with the title of any of the co-owners either in relation to the individual flats or the allotted parking slots. The case of the complainants is also that the complainants were handed over symbolic/token possession of the Penthouse upon execution of the sale deed dated 20/09/10 with the keys thereof but no such possession was given in respect of the parking slots.

3.1. It is not known whether the complainants have become members of OP No. 2 Association.

4. Although the complainants purchased the said Penthouse alongwith the said two parking slots by deed dated 20/09/10, they did not occupy the same, and it is their case, that when they visited the said Penthouse in the first week of January 2013, they found that the said parking slots allotted to them, were occupied by someone else, as a result, the guests of the complainants occupying the said Penthouse started suffering inconvenience for want of parking slots. According to the complainants, the names of the complainants were not displayed in the parking bay and office bearers of OP No. 2 refused to recognize the rights of the complainants in respect of the said parking slots for want of confirmation in their favour by OP No. 1/builder. The complainants state that complainant No. 1, Shri. Tripathi called upon the said Arthur Viegas and sought his clarification as regards the said parking slots and by letter dated 20/10/12 the said Arthur Viegas forwarded a copy of the stilt Plan showing two parking slots allotted in his favour by the builder and the said Arthur Viegas also conveyed that the said stilt plan was part of the sale deed and thereafter complainant No. 1, Shri. Tripathi, also called upon OP No. 1/builder and sought his clarification and by letter dated 10/01/13 OP No. 1/builder confirmed the allotment of specific parking slots in favour of the complainants.

5. The case of the complainants is also that when the complainants insisted on using the said parking slots allotted in their favour, the other occupants including the office bearers of OP No. 2 attempted to resist the same and they did not allow to park their vehicles in the slots referred to by the OP No. 1/builder as well as the said Arthur A. Viegas and the Chairman and Secretary OP No. 2 also did not allow the representative of the complainants to put up their sign boards on the specifically identified parking slots as a result of which the complainants sent a legal notice to OP No. 1/builder as well as the Chairman of OP No. 2 calling upon them for specific performance of the contract including identification of the said two parking slots and handing over the possession thereof to the complainants and the notice sent to the Chairman of OP No. 2 was not accepted and another legal notice addressed to the Chairman in individual name was returned unclaimed.

6. The case of the complainants is that the said parking slots meant for the complainants continued to be used by some other occupants or unidentified elements and OP No. 1/builder has not come forward and identify and hand over the complainants the specifically parking slots and unless OP No. 1/builder identifies the individual parking slots of the complainants at loco, the complainants cannot display their name plates thereon. According to the complainants, the failure on the part of the OP (OP No. 1?) in identification, allotment and handing over possession of the specifically allotted parking slots amounts to deficiency in service. According to the complainants, the cause of action arose in the first week of January 2013, when it was noted for the first time that the parking slots meant for the complainants were used by some third parties and the cause of action got repeated on 11/01/13 when the complainant No. 1 informed OP No. 2 about his legal right for the parking slots and again was repeated on 6/6/13 when OP No. 1 failed to respond to the legal notice issued to him and even otherwise the cause of action is continuous one till such time the complainants are given such possession of the specifically identified parking slots.

7. The complaint has been contested by OP No. 1 by filing a written version. The complaint has proceeded exparte against OP No. 2 by virtue of order dated 4/10/13. OP No. 2 also did not respond to a private notice sent on behalf of the complainants.

8. Shri. S. N. Joshi, the Lr. advocate of the complainants would contend that the complainants parking slots are being occupied by anybody. Lr. advocate, pointing out to letter dated 20/10/12, submits that the said Arthur Viegas informed the complainants that the parking slots were conveyed to the complainants. Lr. advocate submits that one notice to OP No. 2 was returned unclaimed but another private notice was accepted but was not responded. Lr. advocate submits that OP No. 2 Association is not the owners of land and they have been formed for the maintenance of the building and they cannot disturb the rights acquired by the complainants. Lr. advocate submits that although the said parking slots are shown on the stilt plan (copy at page 52) they are required to be identified in loco and for that purpose the present complaint has been filed.

9. On the other hand, Shri. Timble, the lr. advocate of OP No. 1 would submit that the complaint is barred by limitation, the same not having been filed within two years from the date of cause of action as stipulated under the C.P. Act, 1986. Lr. advocate would submit that the said Arthur Viegas was given possession of the Penthouse alongwith the parking slots on 27/05/06 and the complaint which is filed more than two years therefrom is clearly time barred. Adv. Shri. Timble would next submit that the complainants are not consumers qua OP No. 1/builder, as they have received no consideration from the complainants and consideration, if any, was paid by the complainants to the said Arthur and Maria Viegas for the purchase of the Penthouse alongwith parking slots. Lr. advocate submits that OP No. 1/builder only consented for the execution of the sale deed. Lr advocate Shri. Timble submits that it is not the case of the complainants that the parking slots are not available in loco and it is their case that somebody else is obstructing their vehicles being parked in the said parking slots, and if that be the case, the remedy of the complainants is to file a civil suit before the Civil Court and not before a Consumer Forum. Referring to para 16 of the complaint, Lr. advocate would submit that there is no deficiency of service on the part of OP No. 1/builder. Lr. advocate would also submit that the complainants cannot claim anything more from OP No. 1/builder, more than what OP No. 1/builder gave to the Arthur and Maria Viegas. In reply, Lr. Adv. Shri. Joshi would submit that the cause of action is a continuous one and the same arose in the first week of January 2013. Lr advocate would also submit that OP No. 1, as vendor of the Penthouse and the parking slots is liable to identify the said slots in loco and hand over the same to the complainants.

10. After having gone through the record and after hearing the Lr. advocates of the complainants and OP No. 1, we find that the complaint is misconceived. We proceed on the assumption that the cause of action arose in favour of the complainants in January 2013 and the complaint which is filed in August 2013 is not time barred. Which agreement do the complainants wish to specifically enforce? If at all any agreement is to be specifically enforced it can be the agreement, if any, contained in the sale deed dated 20/09/10. The Penthouse alongwith the parking slots were initially purchased or were constructed for the said Arthur and Maria Viegas by OP No. 1/builder for a sum of Rs. 37,00,000/- under agreement dated 13/3/06. The said Arthur and Maria Viegas in turn sold the same to the complainants by sale deed dated 20/09/10 for Rs. 1,60,26,179/-. This sale deed was executed by OP No. 1/builder alongwith his wife as vendors and the said Arthur and his wife Maria Viegas being confirming parties of one hand, and the complainants as purchasers on other hand. OP No. 1/builder conveyed title to the complainants of the said penthouse and parking slots in consideration of he (OP No. 1) having received Rs. 37 lacs from Arthur and Maria Viegas and the latter having received Rs. 1,60,26,179/-from the complainants and therefore OP No. 1/builder would not be right in contending that the sale deed was executed for no consideration. Complainants, therefore, would be consumers qua OP No. 1/builder.

11. What was sold to the complainants, as can be seen from the said deed dated 20/09/10 is the œPenthouse including two parking slots and undivided proportionate share of the said plot together with all the rights, title, interest to the pathways, access and easement pertaining to the said plot and the said Magnum Sea View building alongwith the undivided right to all the common spaces and amenities and utilities provided in the said Magnum Sea View?. In other words, complainants became the owners of the said Penthouse including the said two parking slots by virtue of the said sale deed, and, in view of this legal position, there was no question of the complainants being given separately the possession of the said parking slots and this position was rightly pointed out to the complainants by the said Arthur Viegas in his letter dated 20/10/12 wherein he informed the complainants that the parking slots were shown on the stilt plan dully signed by the builder and which formed part of the said sale deed dated 20/09/10 and it was further clarified by him that the said parking slots stood conveyed to him by the said sale deed. A copy of the plan was annexed to the said letter dated 20/10/12 wherein the said parking slots can be easily seen, and, if necessary, can be identified and marked at loco on the basis of the same. This position was further clarified by OP No. 1/builder by his letter dated 10/01/13 wherein OP No. 1/builder clearly conveyed to the complainants that they were allotted the parking stilt on the ground floor and it belongs to them and which was identified on the plan annexed to the sale deed dated 20/09/10. If that be the position, the complainants can have no grievance at all against OP No. 1/builder by raising a specious plea that no possession of parking slots was given to the complainants. The complainants have become owners in possession of the said penthouse and the said parking slots by virtue of sale deed. They can be identified with the copy of the plan annexed to the sale deed. Complainants are always free to place a signboard on what belongs to them. Grant of relief in terms of prayer (a) was not at all contemplated under sale dated 20/09/10. Prayer (a) of the complaint is therefore misconceived. There is no deficiency in service on part of OP No. 1/builder who has sold the said Penthouse with the said parking slots to the complainants and they are presumed to be in possession of the same.

12. The grievance of the complainants, in sum and substance, appears to be against the office bearers of OP No. 2, the Association formed by the occupants of the said Magnum Sea View and others who are not allowing the complainants to put their signboards. The grievance of the complainants is also against other occupants of the building and unidentified persons who use the said parking slots purchased by the complainants. OP No. 2 is not a builder nor a service provider and no order as sought for in terms of prayer (b) can be passed against OP No. 2. It may also be noted that the cause of action pleaded by the complainants is against third parties. The complainants have pleaded that in the first week of January 2013 the complainants noticed that the parking slots meant for the complainants were being used by third parties. In other words, the grievance of the complainants, in substance, is regarding the misuse of the parking slots by the other occupants of the building or unidentified elements or third parties or by office bearers of OP No. 2, Association. A Forum established under the C.P. Act can grant reliefs to a consumer only when (i) the complainant is a consumer as defined in clause (b) or a clause (d) of Section 2 of the C.P. Act and (ii) the OP is a trader as defined in clause (q) or a provider of œservice? as defined in clause (o) of Section 2 of the C.P. Act and (iii) the œcomplaint? relates to any of the matters specified in clause (c) of Section 2 (see U.T. Chandigarh Administration vs. Amarjit Singh and ors., (II) 2009 CPJ 1/2013(3)CPR 19).

13. In view of above discussion, we hold that there was no deficiency in service on the part of OP No. 1/builder, under sale deed dated 20/09/10 and therefore the complainants are not entitled to relief in terms of prayer (a) of the complaint and no relief can be granted against OP No. 2 or others for want of jurisdiction in terms of prayer (b).

14. Before concluding, we may observe that nothing prevents the complainants to place a sign board as per the allotment of the parking slots in their favour as per deed dated 20/09/10 particularly the plan (copy at page 52) which was annexed to the said sale deed.

15. With the above observations we proceed to dismiss the complaint, leaving the parties to bear their own costs.