State Consumer Disputes Redressal Commission
M/S Zenith Realtors vs Sudha Kishor Prabhudessai on 10 May, 2016
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BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
FA No. 03/2016
1. M/s. Zenith Realtors
Represented by its partner,
Shri. Fernando Jose Lobo alias
Fernando Lobo and for self
R/o H. No. 43, Behind Damodar Temple,
Old Market, Margao, Salcete, Goa.
2. Mrs. Clara Arlinda de Piedade Rodrigues,
(since expired through her legal heirs)
A. Shri. Fernando Jose Lobo alias Fernando Lobo,
B. Shri. Cedric Fernando Lobo,
C. Shri. Clifford Fernando Lobo.
All R/o H. No. 43, Behind Damodar Temple,
Old Market, Margao-Goa. .....Appellants
v/s.
Smt. Sudha Kishor Prabhudessai,
Aged about 50 years,
Wife of Shri. Kishor Premnath Prabhudessai,
Service, residing at F-2, 1st Floor
Adolfo Mansion, Near Arcanj Menezes Hospital,
Old Market, Margao-Goa. .....Respondent
Shri. B. Fernandes, Lr. Counsel for the Appellants.
Shri. K. P. Prabhudessai, Lr. Counsel for the Respondent.
Coram: Shri. Justice U. V. Bakre, President
Smt. Vidhya R. Gurav, Member
Dated: 10/05/2016
ORDER
[Per Justice Shri. U. V. Bakre, President] 2 This appeal is directed against the Order dated 16/12/2015 passed by the Lr. Consumer Disputes Redressal Forum, South-Goa ("Forum", for short) in Complaint No. 24/2013. The Appellants were the Opposite Parties (OPs) whereas Respondent was the Complainant before the Forum. The parties shall hereinafter be referred to as per their status in the said Complaint.
2. Case of the Complainant, in short, is as follows:
The Complainant and the OPs entered into an agreement for sale dated 19/02/2008 in respect of flat No. F-2 with super built up area of 93.50 square metres in the building known as "ADOLFO MANSION" situated at Old Market, Margao-Goa. Clause No. 10 of the said agreement provided that the purchaser shall be entitled for a parking space for one car in the open space in the said building premises. The Complainant paid the consideration of Rs. 15,00,000/- as stipulated in the agreement to the OPs and the said agreement was registered with the Sub Registrar of Margao on 07/03/2008. By letter dated 25/07/2008, the OP No. 1 demanded payment of additional amount alleging that the rates of flats in the vicinity had increased and that the area of the flat has also been increased. The Complainant by letter dated 03/09/2008 replied to the OPs stating that the plan delineated was duly sanctioned and approved by the authorities but the construction of the Flat F-2 was not done by the OPs as per the said plan. The Complainant further informed the OPs that the bedroom toilet was shifted at the place where there had to be a window thereby making the bedroom completely dark without proper ventilation and light. It was further informed that the outer wall and the alignment of the flat towards the eastern side was changed thereby making both the bedrooms of uneven length and breadth. The parking space as identified in the plan has been the area towards the northern side and the same was approved by the Municipality. The OPs had promised to construct a gate on the main entrance towards the northern side of the open space of the 3 building from where at present there is the only entry to the free parking area of the building. However, inspite of promising as above, the OP No. 1 fixed rubble stones at the entrance of the said parking space and also constructed ridges of laterite stones and cement of a height of about 20 to 30 cms. in the said parking space thereby denying the Complainant her right to park her car in the said parking space of the said building complex and also prohibited the entry of the cars from the southern entrance of the complex. The OP No. 1 also constructed two iron gates on the second floor of the main staircase and locked the said gates permanently thereby restraining the Complainant from entering on the open terrace of the building as also depriving her from availing of access to the main water tank, connecting pipe line, opening valves and also to the main T.V. Antenna. When the complainant requested the OPs to remove the blockage to the parking space of the car, the OP No. 1 demanded an additional amount of Rs. 1,00,000/-. The request to execute the sale deed in respect of the flat was refused till the said excess amount of Rs. 1,00,000/-was paid to the OPs for free parking space. The Complainant, on account of coercion, thus, paid Rs. 1,00,000/-to the OP No. 1, which was paid by one cheque of Rs. 50,000/- and another cheque of Rs. 25,000/- which were encashed by the OP No. 2. Balance amount of Rs. 25,000/- was paid in cash. After receiving the said amount, the OP signed the Deeds of Sale one for the flat and other for the parking space. However, the Sub Registrar refused to register the Sale Deed for the sale of parking space saying that a Deed of Sale with respect to free parking space is illegal and cannot be registered as per the decision of the Supreme Court. The Complainant therefore requested the OPs to refund the said amount of Rs. 1,00,000/- but the OPs refused to do so. The OPs in violation of the building construction licence started illegal construction of cement blocks and zinc sheets roofing on the second floor of the building over the open terrace of an area of 50 square metres on the northern side on the second floor thereby blocking air 4 and light to the flat of the Complainant. A notice was addressed to the OPs for refund of Rs. 1,00,000/- together with interest of 18% from 18/05/2012 till the date of final payment; to open the two iron gates erected on the stair case leading to the open terrace on the second floor and to demolish the illegal construction made on the open terrace of the second floor of the building and to demolish and remove the ridges and other obstructions made in the free parking space of the ground floor of the building. Lastly, the Complainant instructed the OPs to fix a date and to attend the office of the Sub Registrar of Salcete for registration of the said Deed of Sale and to register the same in respect of the said flat. By reply dated 01/08/2012, the OPs denied the allegations made by the Complainant. A complaint was filed by the Complainant before the Margao Municipal Council but no action was taken. Since the requirements in the notice were not complied with, the Complaint was filed with the same prayers as demanded in the notice and further, in case the stamp duty paid by the Complainant becomes invalid, to direct the OPs to pay the cost of the new stamp duty to the Complainant.
3. By way of written version, the OPs stated as under:
By letter dated 25/07/2008, the Complainant was informed that escalation was justified due to sudden rise in the cost of construction material and the same was in terms of Clause No. 7 of the agreement. The Complainant was entitled to park one car in the open space but she is parking in the stilt parking space clandestinely from 01/05/2012. There is no free parking space available for the Complainant. The Complainant had requested for stilt parking space worth Rs. 1,50,000/- at the concessional rate of Rs. 1,00,000/-. The OPs will sign the Deed of Sale only after receiving the amount of Rs. 1,00,000/- towards the stilt parking space as agreed upon. The Complainant paid only Rs. 75,000/- and balance of Rs. 25,000/- has remained to be paid. The Sale Deed is not executed since the OPs 5 have not received the total amount of consideration. It is false that any illegal constructions have been done by the OPs.
4. The Complainant filed her own Affidavit-in-evidence and the Respondent No. 2(A) namely Fernando J. Lobo filed Affidavit-in- evidence on behalf of the OPs. The Complainant even filed written arguments. Thereafter, on 20/11/2014, the OPs filed a counter claim alleging that they were entitled to recover the sum of Rs. 2,60,000/- as the cost of the material had increased and also that they were entitled to receive a further sum of Rs. 25,000/- towards stilt parking and praying for the same. An application for cross-examination of the Complainant by way of questionnaire was filed by the OPs, which was allowed. Interrogatories were then filed by the OPs and replied to by the Complainant. Written arguments were then filed by the OPs. The Lr. Forum then heard oral arguments and passed the impugned Order.
5. The Lr. Forum, upon consideration of the material on record, held that the Consumer Protection Act, 1986 ("Act", for short) permits entertaining of matters relating to consumers only and that the OPs are not consumers. The Forum also held that the Act does not have any provision for counter claim. The Forum further found that the draft of the Deed of Sale signed by both the parties mentioned that the sum of Rs. 1,00,000/- was paid towards the stilt parking area. The Forum therefore held that the OPs have received the amount of Rs. 1,00,000/- towards stilt parking. With regard to the allegation of the Complainant about fixing of two iron gates on the stair case and illegal construction on the second floor, the Lr. Forum was of the view that the same are not issues arising out of the agreement and not coming within the purview of the Act and required thorough investigation for which full inquiry will have to be held and evidence will have to be lead which the Forum is unable to do. Relying upon judgment of the Hon'ble Supreme Court, the Forum held that the OPs could not sell the parking areas whether 6 they are in the open space or on stilts. The Forum also held that the OPs had signed the Sale Deeds and had agreed to get the same registered and therefore they are liable to pay to the Complainant the value of the stamp paper with interest at 9%. Ultimately, the OPs have been directed to refund the amount of Rs. 1,00,000/- along with interest of 9% per annum from 18/05/2012 till the date of final payment to the Complainant. The OPs have been directed to execute and register the Deed of Sale in favour of the Complainant within 60 days from the date of receipt of the order. The OPs have been directed to pay the stamp duty on the stamp papers amounting to Rs. 17,000/- paid by the Complainant along with interest at the rate of 9% from the date of filing of the Complaint till the date of actual payment. The OPs have been further directed to pay costs of Rs. 15,000/- within 30 days from the date of receipt of order failing which it will carry interest of 9% till the date of actual payment. The Complainant has not filed any appeal. The OPs are aggrieved by the above order and have filed the present appeal.
6. Records and proceedings of CC No. 24 of 2013 were called for. Heard Mr. B. Fernandes, Lr. Counsel for the OPs and Mr. K. P. Prabhudessai, Lr. Counsel for the Complainant. Both the parties have also filed written arguments.
7. Perused the records and proceedings. We have considered the arguments advanced by the Lr. Counsel for the parties. We have also read the judgment of the Hon'ble Supreme Court.
8. Admittedly, the OPs cannot be called as consumers. Therefore, question of OPs filing counter claim for recover of the sum of Rs. 2,60,000/- towards escalation charges and Rs. 25,000/- towards stilt parking does not arise. Even otherwise as has been rightly held by the Forum there is no provision in the Act for OPs to file any Counter Claim in a Complaint filed by a consumer. Therefore the 7 OPs are not entitled to any amount as prayed for in the Counter Claim, under the Act.
9. According to the OPs the Complainant had not paid total consideration of Rs. 1,00,000/- towards stilt parking and that only an amount of Rs. 75,000/- by two cheques was paid. In this regard the Complainant has alleged that the amount of Rs. 75,000/- was paid by two cheques and the balance amount of Rs. 25,000/- was paid in cash. It is pertinent to note that the Deed of Sale dated 18/05/2012 which is not registered but signed by both the parties in respect of the stilt parking area admeasuring 17.56 square metres duly mentions that the OPs have received the amount of Rs. 1,00,000/-. The OPs therefore cannot say that they have received only Rs. 75,000/-. In the reply dated 01/08/2012, the OPs have stated that the Complainant is free to take from the OPs the amount of Rs. 75,000/- at any time since the Complainant is not willing to purchase the stilt parking space. The amount to be refunded to the Complainant is proved to be Rs. 1,00,000/- and not Rs. 75,000/-.
10. In the case of "Nahalchand Laloochand Pvt. Ltd., vs. Panchali Co- operative Housing Society Ltd., (AIR 2010 SC 3607)", the Hon'ble Supreme Court has observed that open parking space does not tentamount to "Garage". It is further held that common areas and facilities include parking area open or stilt parking space and such areas are not flats and cannot be sold by promoter. It is held that parking space even if it is in the stilt area cannot be sold. It was argued by Mr. B. Fernandes, Lr. Counsel for the OPs that in terms of paragraph 39 of the Judgment of the Apex Court in the case of "Nahalchand Laloochand Pvt. Ltd" (supra), the OPs have right to charge the cost of the stilt parking space being part of common areas of the building in proportion to the carpet area of the flat from the flat owner and thus the Complainant is not entitled to refund of the said amount. In the present case, the OPs have taken the amount of Rs. 1,00,000/- from the Complainant not towards the carpet area but 8 specifically towards stilt parking space. Even otherwise as per the agreement for sale, the Complainant is entitled to parking space for one car in the open space of the building. As per the Judgment of the Hon'ble Supreme Court, common areas and facilities include parking area open or stilt parking space and such areas are not flats and cannot be sold by promoter. In such circumstances, the order of the Forum directing the OPs to refund the amount of Rs. 1,00,000/- received by the OPs towards stilt parking area cannot be called as erroneous. Since the OPs disputed the total amount and refused to refund Rs. 1,00,000/- to the Complainant, the interest at the rate of 9% per annum from 18/05/2012 till the date of final payment is also reasonable.
11. There is no dispute that the OPs have spent an amount of Rs. 17,000/- towards the stamp duty for the two Sale Deeds which were earlier been presented before the Sub-Registrar but not registered, since the Sub-Registrar refused to register the Sale Deed in respect of the stilt parking space. There is endorsement of presentation dated 20/02/2008 made by the Sub-Registrar on the stamps papers. The Complainant has lost the said stamp value, on account of the mistake of the OPs. The Complainant is therefore entitled to receive the said amount of Rs. 17,000/- with interest at the rate of 9% per annum from the date of filing of the Complaint. Such order of the Forum cannot also be termed as erroneous.
12. In view of the above, we are of the considered view that there is no merit in the present Appeal and the same deserves to be dismissed. Hence the Appeal is dismissed, however in the facts and circumstances of the case with no order as to costs.
[Smt. Vidhya R. Gurav] [Justice Shri. U. V. Bakre]
Member President
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