Delhi District Court
Smt. Shobha Bansal vs M/S Times Buildcon Limited on 2 January, 2016
IN THE COURT OF Ms TANVI KHURANA, CIVIL JUDGE1 (South)
SAKET COURTS NEW DELHI
In the Matter of:
Civil Suit No.221/13
Case ID No.:02406C0270212013
Smt. Shobha Bansal
W/o Sh. Vinod Kumar Bansal
R/o 825, First Floor, Arjun Nagar,
Kotla Mubarakpur, New Delhi110003. ...............Plaintiff
Versus
1. M/s Times Buildcon Limited,
136, Humayun Pur, Opposite B6/107,
Safdarjung Enclave, New Delhi.
(Through its Director Sh. Ashok Kumar)
2. Sh. Ajay Pal
Director of M/s Times Buildcon Limited,
136, Humayun Pur, Opposite B6/107,
Safdarjung Enclave, New Delhi.
3. Sh. Yogesh
Director of M/s Times Buildcon Limited,
136, Humayun Pur, Opposite B6/107,
Safdarjung Enclave, New Delhi. .............Defendants
DATE OF INSTITUTION :01.06.2012/24.08.2013.
DATE OF RESERVING THE ORDER :Nil.
DATE OF DECISION :02.01.2016.
DECISION :Decreed with costs.
SUIT FOR PERMANENT INJUNCTION
Present: None.
Suit No.221/13
Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 1 of 19
JUDGMENT:
The present suit has been filed by the plaintiff seeking relief of permanent injunction restraining defendants, their agents, assignees etc. from selling, transferring and creating any third party interest in the common portion/ parking space on the ground floor of the property bearing no.825, Arjun Nagar, Kotla Mubarakpur, New Delhi110003 more specifically delineated in red colour in the site plan. It is also prayed that relief of permanent injunction restraining the defendants from taking forcible possession of the common parking space be granted with costs of the suit to the plaintiff.
Plaintiff's version as per plaint:
2. Succinctly, it has been averred that plaintiff had purchased one flat on the first floor (rear portion measuring 100 Sq. Yards) of the property no.
825, Arjun Nagar, Kotla Mubarakpur, New Delhi110003 with proportionate indivisible, undivided rights in total land underneath the same vide registered General Power of Attorney, Agreement to Sell and Purchase, Special Power of Attorney, Affidavit, Possession Letter and Receipt all dated 18.06.2004 after paying the payment of Rs.6,50,000/ to the defendants. It is mentioned that plaintiff was told that common area on the ground floor is meant for parking of the vehicles by all the flat owners in the said property no.825, Arjun Nagar, Kotla Mubarakpur, New Delhi110003 more specifically delineated in red colour in the site plan Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 2 of 19 (hereinafter referred as "suit property"). It is averred that since the date of purchase, plaintiff has been using common area for parking her car and her two wheeler scooter like the other flat owners of the property. It is the grievance of the plaintiff that defendants had called the husband of the plaintiff at their office and demanded Rs.5,00,000/ for the parking space and on objection by the husband of the plaintiff, he was threatened that third party interest shall be created by defendants and further Rs. 5,00,000/ was demanded by the evening on 04.05.2012 in lieu of right of using the parking. It is averred that plaintiff issue legal notice dated 05.02.2012 to the defendants which was also replied by defendants vide their reply dated 11.05.2012. Criminal complaint was also lodged on 05.05.2012 however, aggrieved from the conduct of the defendants, plaintiff filed present suit restraining them from selling, transferring, creating third party interest in parking space and restraining the defendants from forcibly dispossessing the plaintiff from the parking space at ground floor which plaintiff asserts to be common.
Defendant's version as per written statement:
3. On notice, defendants filed joint written statement raising objections that suit was filed without cause of action, suit was gross misuse of process of law, suit is not maintainable in its present form, suit has not been valued properly for the purpose of court fees and jurisdiction and suit is bad for nonjoinder and misjoinder of the parties. It was contended that the land Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 3 of 19 was purchased by defendant no.1 vide registered sale deed dated 03.09.2003 and various flats were constructed on 100 Sq. Yards of the land and flats were sold to various purchasers. It was mentioned that half portion of the land was left by defendant as paid parking for various flat owners and the back portion of the ground floor had one independent flat. It was contended that except for the plaintiff, her husband and another flat owner at the ground floor, rest of the owners in the building have paid separate independent charges to the defendants to acquire right to park one vehicle in the said parking. It was admitted that plaintiff had purchased one flat at front portion of the first floor but it was contended that parking space was not purchased and therefore, plaintiff does not have any cause of action to file the present suit.
4. On merits, it was contended that there is no area for common parking in the premises rather parking space is though common but is available only on payment basis. It was further mentioned that other flat owners except plaintiff have respective rights to use the common parking. It was therefore prayed that there is no cause of action to file the present suit and hence, suit be dismissed.
Replication:
5. Plaintiff had filed replication denying the contents of the written statement. It was denied that parking was on payment basis. It was further mentioned that plaintiff has been using parking space since the date of Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 4 of 19 purchase. The contents of the written statement were denied. Claim sought was reaffirmed and maintained.
Identification of issues:
6. Admission/ denial of documents was conducted. The parties did not opt for any means provided under Section 89 of the Code of Civil Procedure, 1908 for alternate dispute resolution. From the pleading of the parties, following issues were framed:
Issue no. 1 Whether plaintiff is entitled to a decree of permanent injunction against defendants or their agents to restrain them from selling, transferring or creating third party interest in the suit property i.e. common portion/ parking space on the ground floor of property no. 825, Arjun Nagar, Kotla Mubarakpur, New Delhi?OPP Issue no. 2 Whether plaintiff is entitled to a decree of permanent injunction against defendants or their agents to restrain them from forcibly taking possession of the suit property i.e. common portion/ parking space on the ground floor of property no. 825, Arjun Nagar, Kotla Mubarakpur, New Delhi?OPP Issue no. 3 Relief.
Evidence:
7. In order to prove her case, plaintiff examined PW1 Mr. Vinod Kumar (her husband and attorney holder). He deposed vide his affidavit Ex.
PW1/A and reiterated the contents of the plaintiff. He relied upon the following documents:
S. No. Exhibit / Mark Nature of Document
1 Ex. PW1/1 Site plan
Suit No.221/13
Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 5 of 19
2 Ex. PW1/2 (OSR) Copy of General Power of Attorney
3 Ex. PW1/3 (OSR) Agreement to Sell and purchase
4 Ex. PW1/4 (OSR) Special Power of Attorney
5 Ex. PW1/5 (OSR) Affidavit
6 Ex. PW1/6 (OSR) Possession letter
7 Ex. PW1/7 (OSR) Receipt
8 Ex. PW1/8 Legal notice dated 05.05.2012
9 Ex. PW1/9 Reply to the notice
10 Ex. PW1/10 Copy of complaint dated 05.05.2012
8. The witness was cross examined at length by Ld. Counsel for defendants. Thereafter evidence was closed by Power of Attorney holder on behalf of plaintiff on 24.08.2013.
9. Thereafter, Authorized Representative for defendants, Sh. Ashok Kumar stepped into the witness box as DW1 and deposed vide his affidavit Ex. DW1/A. He relied upon following documents:
S. No. Exhibit / Mark Nature of Document
1 Ex. DW1/1 Memorandum and articles of
association
2 Ex. DW1/2 Copy of board resolution
3 Ex. DW1/3 (OSR) Registered sale deed dated 03.09.2003
(containing 09 pages)
4 Mark A Copy of sale deed dated 30.06.2004
5 Mark B1 and Mark B2 (Marked as Photographs
Ex. DW1/4(colly) in the affidavit)
6 Ex PW1/3 (already exhibited by the Agreement to sell and purchase
plaintiff)
Suit No.221/13
Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 6 of 19
7 Ex PW1/2 (already exhibited by the General Power of Attorney
plaintiff)
8 Ex PW1/4 (already exhibited by the Special Power of Attorney
plaintiff)
9 Ex PW1/8 (already exhibited by the Legal Notice
plaintiff)
10 Ex PW1/9 (already exhibited by the Reply
plaintiff)
10. The witness was cross examined at length by Ld. Counsel for plaintiff. Thereafter DW2 Sh. Bharat Bhanu Srivastava was called as a summoned witness. The witness was cross examined at length by Ld. Counsel for plaintiff and thereafter vide a separate statement Ld. Counsel for defendants closed their evidence on behalf of defendants.
11. This is the entire evidence adduced in the present matter on behalf of both the parties.
Arguments:
12. Ld. Counsel for plaintiff argued that the present suit has been filed for common parking area which can not be transferred or sold to any third party. It was further argued that deposition and pleading filed by Authorized Representative of defendants can not be read in the present matter as minutes of meeting and the board resolution appointing the Authorized Representative has not been produced on record. It was further argued that in the cross examination, DW1 has himself agreed that there was no Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 7 of 19 agreement for charges of parking. It was also pointed from cross examination of DW1 that defendants have not issued any receipt for the parking charges and there was no marked parking for purchasers. It was also argued that site plan was not filed to show that there was any special marked right of parking rather defendants have also admitted that the car parking was for flat owners. It was further argued that defendants do not have any right or interest left in property as they have already sold all flats and therefore there is no residue of rights in favour of defendants for selling or transferring the parking rights to any third party. It was further argued that defendants have never issued any notice for selling of parking rights. Photographs have not been proved and therefore defendants have no right and title in the property. It was also argued that even if parking rights have not mentioned in the document reflecting sale in favour of the plaintiff however, there is no exclusion of parking right as per recital of documents. Ld. Counsel for plaintiff has heavily relied upon the judgment of Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Cooperative Housing Society Ltd., VI (2010) SLT 333. Hence, it was prayed that suit be decreed.
13. Per contra, Ld. Counsel for defendants refuted the claim of the plaintiff and argued that plaintiff has not impleaded the other owners of the premises therefore suit is not maintainable. It was further argued that documents reflecting sale do not mention parking rights. It was argued that defendants have already mentioned in the written statement that parking Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 8 of 19 was sold and witness was also summoned to prove that parking was sold hence, onus was upon the plaintiff to show that they had right to use the parking. It was further argued that in judgment of Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Cooperative Housing Society Ltd., VI (2010) SLT
333. The Apartments Act was applicable however, in this matter defendant is owner as well as builder and hence, the Apartments Act is not applicable and the judgment is not applicable to the present facts of the case. It was further argued that plaintiff has not given details of scooter, cars etc. which have been parked by plaintiff as has been alleged. It was rather argued that there is a registered sale deed in favour of defendant no. 1 from which defendant no.1 asserts its right over the land. He also argued that none of the document of the plaintiff reflect that the right to park vehicles were also given to the plaintiff. Rather it was argued that even if plaintiff has a right on the land underneath it shall only be applicable if building is demolished and not otherwise. It was further contended that suit for declaration should have been filed for first declaring the transaction of the sale of the parking rights and hence, present suit is not maintainable. It was further contended that apprehension of selling expressed in plaint is baseless and hearsay and therefore there is no cause of action to file the present suit. Power of Attorney filed by husband of the plaintiff was also questioned and his deposition was challenged. It was further mentioned that valuation of the Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 9 of 19 suit is not correct as parking rights have been valued at Rs. 5,00,000/, and the suit should have been accordingly valued. He also argued that Mr. Omi has not been joined therefore there is nonjoinder of the parties. It was prayed that suit be dismissed.
14. I have heard the arguments advanced by both the counsel at length. I have also perused the case record inclusive of pleadings filed, testimonies of the witnesses and documentary evidence produced on record with the kind assistance of Sh. R. K. Modi, Ld. Counsel for plaintiff and Sh. R. D. Sharma, Ld. Counsel for defendant. After weighing rival contentions and appreciating the evidence my issue wise findings are as below:
Issue no. 1:
Whether plaintiff is entitled to a decree of permanent injunction against defendants or their agents to restrain them from selling, transferring or creating third party interest in the suit property i.e. common portion/ parking space on the ground floor of property no. 825, Arjun Nagar, Kotla Mubarakpur, New Delhi?
15. The onus to prove this issue was upon the plaintiff. Plaintiff claims portion/ parking space delineated in red colour in the site plan Ex. PW1/A to be common parking attached with the of the flat for which the consideration was already paid. It is the case of the plaintiff that flat was purchased by plaintiff on 18.06.2004 through registered General Power of Attorney, unregistered Agreement to Sell, unregistered Special Power of Attorney, Affidavit, Possession Letter and Receipt. As far as Agreement to Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 10 of 19 Sell, Ex. PW1/3 and Special Power of Attorney, Ex. PW1/4, the documents can not be read in the evidence as documents have not been registered. However, General Power of Attorney has been registered which is Ex. PW1/2(OSR) wherein defendant no.1 had executed Power of Attorney in favour of the plaintiff for having physical possession of the portion, representing before the various authorities, seeking connections for basic amenities, making construction, assessing for various taxes, letting out the premises or enter into any agreement of sale and other such deeds in respect of the rear portion of the first floor admeasuring 100 Sq. Yards of the property bearing MCD No. 825 of Plot no. 120 admeasuring 200 Sq. Yards, Kharsa no. 317/1 min, Khewat no.118, Khatoni no. 307 in revenue estate of Village Kotla Mubarakpur situated in colony known as Arjun Nagar, New Delhi with the proportionate, indivisible, undivided and impartial rights in total land underneath.
16. It can be observed that there is no recital about the use of parking space or about any common parking in premises in General Power of Attorney. It is the case put forth by plaintiff that parking rights were common and have been used by plaintiff since purchase of the property. Plaintiff did not examine any of the witnesses residents from the building to show that they have been in possession over the parking space and have been parking their vehicles in the common parking as has been averred in Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 11 of 19 the plaint. Further, the title document, Ex. PW1/2 (OSR) also does not point out to any reference of parking rights.
17. Plaintiff heavily relied upon the judgment of Nahalchand Laloochand Pvt. Ltd. (Supra) wherein Hon'ble Apex Court has dealt with the similar issue that whether stilt parking space/ open parking space in such buildings is the part of the common areas and facilities and what are rights of the promoters visavis society (or flat promoter) in respect of open parking space/s/stilt parking space/s. The judgment has been pronounced majorly dealing with the Maharashtra Ownership Flat (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963, Maharashtra Ownership Flats (Regulations Promotions of Construction etc.) Rules, 1964, Development Work Control Regulations for Greater Bombay, 1991, (Maharashtra Apartments Ownership Act, 1970 and Maharashtra Regional Township Act, 1966. However, it is worth observing that all the above mentioned legislations have been discussed to come to the conclusion whether open parking space can be considered to be a flat or not. In this particular precedent, it was held that stilt parking/ open parking space can not be considered to be a garage or a flat in light of the interpretation of the statutes. However, for our discussion, it is important and pertinent that Hon'ble Apex Court also gone further to see whether open/ stilt parking space are separate or common areas and facility and further have also discussed the rights of the promoter as well as flat Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 12 of 19 purchaser visavis the parking areas. It is not out of place to mention that this precedent is in light of statutes above mentioned but at the same time, guidance can be sought from this precedent to see whether parking areas either open to Sky or stilted portion come within the purview of common areas and facilities. Hon'ble Apex Court has held as follows:
"It is not necessary that all flat purchasers must actually use 'common areas and facilities' in its entirely. The relevant test is whether such part of the building is normally in common use. Then it was submitted that if a parking space is sold to a flat purchaser, it is to the exclusion of other flat purchasers and, therefore, logically also it cannot be part of 'common areas'. This submissions is founded or the assumption that parking space (open/ covered) is a 'garage' and sellable alongwith the flat. We have, however, held in our discussion above that open to the sky parking area or stilted portion useable as parking space is not 'garage' within the meaning of Section 2 (a1) and, therefore, not sellable independently as a flat or alongwith 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 a 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 area 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'. If Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 13 of 19 a promoter does not fully disclose the common areas and facilities he does so at his own peril. Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser. Although there is some merit in the contention of the appellant that High Court erred in placing reliance on the two aspects namely that the area of stilt parking space is not included in the FSI and such area is not assessable to the corporation taxes in reaching the conclusion that stilt parking space is part of 'common areas' but in our view even if these two aspects are excluded, in what we have discussed above stilt parking space/open parking space of a building regulated by MOFA is nothing but a part of 'common areas' and, accordingly,we answer question no.(iii) in the affirmative''.
18. From the above it can be safely concluded that it is not necessary for all flat purchaser to use the common area and facilities but it is to be seen whether that part of the building is normally used commonly. In dispute at hand, defendants has admitted area to be common parking as has been recited in sale deed relied upon by the defendants executed by defendant no. 1 in favour of the Mr. Bharat Bhanu Srivastava and Mr. Ravindra Bhanu Srivastava. Further it was though open for the defendant no. 1 at the time of selling to put a price for the common parking area but as it was not clearly disclosed and there is no evidence to show that it was disclosed, it was done at the peril of the defendant.
19. The testimony of DW2 also does not come rescue of the defendant Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 14 of 19 as DW2 did not mention any where that he had purchased the parking separately rather he stressed that he paid the consideration for his flat, parking rights and terrace. No question was put to him in examination in chief about any separate agreement for the parking. There was no hint of any enquiry from the witness by defendant about purchasing the parking. The defendants were not able to show through any independent witness that the right to use the parking in the building in question was preconditional on payment/ purchase of parking right. It is admitted by DW1 that no separate agreement was reduced in writing for parking/ right to use parking, no receipt for charges for parking etc. was issued and further there was no documentary evidence except sale deed executed with flat owners. Sale deed Mark A has not been formally proved as original was never brought to the court. It can be noticed that document is registered and efforts could have been made to summon the record from the Office of the Sub Registrar as well but no steps were taken by defendants to prove the document. Though, defendant had called the executant but executant also could not produce the original of Mark A. Further even if for sake of arguments the recital of Mark A is considered, it does not mention parking rights separately on additional payment. Nonetheless, there is no recital at all for parking rights being purchased by flat purchasers separately or that separate charges have been taken from flat purchaser for the parking. Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 15 of 19
20. Moreover, by using the phrase "common parking at ground floor" the defendants have themselves limited rights of the users and hence, it is not saleable independently. Moreover, it has already come on record that the parking was for the 'flat owners' the defendants clearly are not 'flat owners' hence, they can not sell the parking space for the 'flat owners' to any third party.
21. Hence, the plaintiff has shown that the parking has been used as common parking or common area used for parking and is not saleable by the defendants. Hence, defendants do not have any right to sell, transfer or create third party interest in common parking/ parking space. This issue is therefore decided in favour of the plaintiff.
Issue no. 2:
Whether plaintiff is entitled to a decree of permanent injunction against defendants or their agents to restrain them from forcibly taking possession of the suit property i.e. common portion/ parking space on the ground floor of property no. 825, Arjun Nagar, Kotla Mubarakpur, New Delhi?
22. The onus to prove this issue was again upon the plaintiff. To discharge the onus, primarily the plaintiff had to show that whether they have possession over the common parking to claim relief against defendants restraining them from forcibly taking possession of the suit property. Plaintiff has not examined any independent witnesses of the building to show that they have been parking their vehicle in the common parking. Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 16 of 19
23. It can be observed in the written statement, defendants had denied that the plaintiff has been using parking space but no question was asked in the cross examination from PW1 about the parking of the vehicle. Suggestions were put that plaintiff does not have any right to use the parking. Questions were asked about the payment of the parking charges but there is no question was asked about the fact that space where the plaintiff was parking her vehicle prior to the dispute. It is settled law that if no questions or suggestion are put to the witness when he is in witness box for a particular fact, the fact is considered to be admitted. It can be observed that the defendants questioned the witness about the attorney filed, execution of the documents, payment of money for the parking, particulars of Mr. Omi, legal notice and other such material questions but it was not asked that whether the plaintiffs were parking their vehicle in the same parking space or not and no question was further put during the cross examination to enquire the period from which the vehicles were parked in that parking space as has been deposed in the affidavit Ex. PW1/A by PW1 in paragraph no.3. Hence, defendants have admitted that plaintiff has been using parking space as no suggestion or question was put to the witness during the cross examination pertaining to this fact. Once, the usage of parking facility is admitted, defendants do not have right to forcibly take possession without taking recourse to due procedure established by law. In light of the above discussion, this issue is also decided in favour of the Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 17 of 19 plaintiff.
24. Defendants further contended that suit is bad for nonjoinder of Mr. Omi and other flat purchaser. It is pertinent to mention here that present suit is a suit for injunction simplicitor and therefore court does not deem Mr. Omi and other flat purchasers to be necessary party whose nonjoinder would prove to be fatal to the suit of the plaintiff. Question as to the suit valuation was also raised as an important objection wherein it was contended that price of parking facility is Rs.5,00,000/ and therefore suit should have been valued at Rs.5,00,000/ and the court fees should have been paid accordingly. Contention does not inspire the confidence of this court as suit is filed for the relief of permanent injunction simplicitor and therefore there does not arise any requirement for valuing the suit at ad valorem or at Rs. 5,00,000/ as has been contended by defendants. Objection raised does not hold any merit.
Relief:
25. In light of the above discussion, suit of the plaintiff has some merit and hence, is decreed in favour of the plaintiff with costs. Defendants are hereby restrained from creating third party interest in common parking/ parking space on the ground floor of property bearing no. 825, Arjun Nagar, Kotla Mubarakpur, New Delhi110003 and forcibly, unauthorizedly or illegally taking possession of the same without recourse of procedure Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 18 of 19 established by law.
26. Decree sheet be drawn accordingly. File be consigned to record room after due indexing, paging and completion.
Announced in the open court on 02ndJanuary, 2016. (TANVI KHURANA) The judgment contains 19 pages, Civil Judge01 (South) all checked and signed by me. Saket Courts/New Delhi 02.01.2016 Suit No.221/13 Smt. Shobha Bansal Vs. M/s Times Buildcon Ltd. & Ors. Page 19 of 19