State Consumer Disputes Redressal Commission
M/S Gillco Developers And Builder Pvt. ... vs Yashpal Singh on 21 February, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, CHANDIGARH
First Appeal No. 96 of 2016
Date of institution: 01.02.2016
Date of order reserved: 09.02.2017
Date of Decision: 21.02.2017
Gillco Developers & Builders Private Limited, Gillco Valley, Sector-127,
District SAS Nagar (Mohali) (Punjab) through its Managing Director Sh.
Ranjit Singh Gill s/o Sh. Naib Singh.
Appellant/Op
Versus
1. Yashpal Singh s/o Avtar Singh
2. Manpreet Kaur wife of Yashpal Singh,
Both residents of House No. 204, Gillco Heights, Gillco Valley,
Sector-127, Tehsil Kharar, District SAS Nagar (Mohali), Punjab.
Respondents/Complainants
First Appeal against the order dated
03.12.2015 passed by the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Gurminder Singh, Senior Advocate with
Sh. Manpreet Singh, Advocate
For the respondents: Sh. Yashpal Singh, in person
First Appeal No. 96 of 2016 2
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/OP(hereinafter referred as OP) has filed the present appeal against the order dated 3.12.2015 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (hereinafter referred as the District Forum) in consumer complaint No. 449 dated 4.9.2015 vide which the complaint filed by complainant was allowed with a direction to OP to refund to the complainant Rs. 50,000/- alongwith interest @ 9% p.a. w.e.f. 21.5.2013 till date of payment and also to pay compensation and litigation cost to the tune of Rs. 10,000/- and it was ordered to comply with the order within a period of 30 days.
2. Complaint was filed by complainants under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') against OP on the averments that in the year 2008, the complainant had purchased the flat bearing No. R-703 in Gillco Heights Project developed by OP. On the basis of agreement dated 16.6.2008 for a total consideration of Rs. 23,16,530/-. Subsequently, buyers agreement dated 16.1.2013 was executed due to change of building location and then flat No. 204-R was allotted and transferred to the complainants. In the buyer's agreement, Ops had demanded Rs. 50,000/- for car parking alongwith other charges and said amount was paid by the complainants on 21.5.2013 vide receipt No. 162. After paying the full sale consideration, sale deed was executed in favour of the complainant in the office of Sub Registrar, Kharar vide document No. 1254 dated 17.5.2013. Ops had allotted parking No. 109 dated First Appeal No. 96 of 2016 3 23.10.2013 in open area. Complainant raised concern in this regard vide his letter dated 8.8.2013 before the Op but Op failed to respond it. Ultimately, they served a legal notice dated 8.6.2015 but Ops failed to reply it. In this way, the Ops have indulged in unfair trade practice and are deficient in service. Accordingly, complaint was filed before the District Forum for refund of Rs. 50,000/- paid on 21.5.2013 alongwith interest @ 18% and Rs. 50,000/- towards compensation on account of mental harassment and agony.
3. Notice was sent to Op. As per India Post Tracking report, the notice was delivered to Op on 23.9.2015 and 30 days already expired on 22.10.2015 and vide order dated 30.10.2015, Op was proceeded ex-parte.
4. In the ex-parte evidence, the complainants tendered affidavit Ex. CW-1/1, buyer's agreement Ex. C-1, demand letter Ex. C-2, receipt dated 21.5.2013 Ex. C-3, sale deed Ex. C-4, letters dated 8.8.2013 & 8.6.2013 Exs. C-5 & C-6, letter dated 23.10.2013 Ex. C-7 to support his averments in the complaint.
5. After going through the allegations in the complaint, written version filed by the OP, evidence and documents brought on the record, the complaint was allowed as referred above.
6. Aggrieved with the order passed by the learned District Forum, the appellant/OP has filed the present appeal.
7. We have heard the learned counsel for the appellant Sh. Gurminder Singh, Senior Advocate with Sh. Manpreet Singh, Advocate and respondent Sh. Yashpal Singh, in person. Misc. Application No. 243 of 2016 First Appeal No. 96 of 2016 4
8. Application under Order 41 Rule 27 CPC for permission to place on record copy of application form dated 3.6.2008 and copy of allotment letter dated 16.6.2008 as Annexures A-1 & A-2.
9. Reply to the application was filed by the respondent/complainant taking preliminary objection that OP was proceeded ex-parte before the District Forum and there is no written reply, therefore, now the OP cannot be allowed this evidence on the record.
10. We have considered the contentions as raised by the counsel for the Op and the complainant.
11. As is clear from above pleadings, the OP did not content the complaint before the District Forum. There is no written reply before the District Forum filed by Op and without any pleadings, no evidence can be allowed to come on the record. Moreover, buyer's agreement between the parties is already on the record and contract between the parties can be appreciated from the buyer's agreement, therefore, in view of these documents will not advance case of the OP in a better manner in view of the documents already on the record. Therefore, we do not see any merit in view of the application, the same is hereby dismissed.
Appeal On Merits
12. It has been argued by the counsel for the OP that vide letter 23.10.2013 Open Parking Area was allotted to the complainant and complainant was allowed parking No. 109 and all the residents of the complex were asked to park their car in the allotted place. As per agreement Ex. C-1, a sum of Rs. 50,000/- was taken as car parking First Appeal No. 96 of 2016 5 and it was duly paid by the complainant vide receipt Ex. C-3 dated 21.5.2013. Then sale deed was executed in favour of the complainants Ex. C-4 and in that sale deed, it was mentioned that the complainants will park their vehicle in an allotted space. The contention of the counsel for the OP is that complainant had challenged the allotment in an open area and in case the parking is allotted in an open area then OP is not to entitled to car parking charges and in this regard, the complainant as well as the District Forum has relied upon the judgment "Nahalchand Laloochand Pvt. Ltd. versus Panchali Co-operative Housing Society Ltd." delivered by the Hon'ble Supreme Court in Civil Appeal No. 2544 of 2010 decided on 31.8.2010. It was a judgment under MOFA i.e. Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Etc.) Rules, 1964 and while interpreting the definition of 'garage' under Section 2(a-1) of MOFA, it was observed that 'garage' means building or a portion thereof designed and used for the parking of vehicles and it was further observed that stilt car parking spaces are part of the common amenities as defined under common areas and facilities under the MOFA. However, the said judgment cannot squarely be applied to the Punjab Apartment and Property Regulation Act, 1995 (in short 'PAPRA') and the rules framed thereunder. The definition of common area and facilities under PAPRA have been provided under Section 2(j) as under:-
"common areas and facilities", in relation to a building, means all parts of the building or the land on which it is located and all easements, right and appurtenances belonging to the land or First Appeal No. 96 of 2016 6 the buildings, which are neither in the exclusive, possession of an apartment owner in terms of his conveyance deed or apartment, nor are handed over or intended to be handed over to the local authority or other public service agency and shall include the limited common areas and facilities;"
13. In case we interpret the abovesaid definition of common area and facilities then the space which is not in exclusive possession of an apartment owner will be considered as common area and facilities. It was contended by the counsel for the OP that parking site No. 109 was exclusively allotted to the complainants and as per the documents i.e. letter dated 23.10.2013 Ex. C-7 and as per the buyer's agreement (Ex. C-1), the apartment owner, who has been allotted the parking site will exclusively use this site. Therefore, it is not left as a common area and facilities as per the definition given in Section 2(j) referred above. Therefore, we are to interpret the common area and facilities as per the provisions made under PAPRA and not according to the MOFA as per the judgment in "Nahalchand Laloochand Pvt. Ltd. versus Panchali Co-operative Housing Society Ltd." (supra). He has further contended that this preposition has already been dealt by this State Commission in the judgment titled as "Estate Officer, Garden Heights versus Parveen Sharma", 2015(2) CPJ 127 wherein in para No. 9, it has been observed as under:-
"9. While recording findings in favour of the complainant that she is entitled to park her car in the stilt area, the District Forum placed heavy reliance on the judgment of the Hon'ble Supreme Court in Nahalchand First Appeal No. 96 of 2016 7 Laloochand Private Limited's case (supra). That was a case under MOFA, the provisions of which are different from the Act of 1995. On the basis of the provisions contained in MOFA, it was held by the Hon'ble Supreme Court that the promoter has no right to sell stilt parking space, as those are neither flats nor apartment nor attachment to a flat. It was made clear by the Hon'ble Supreme Court in DLF Limiteds case (supra) that the provisions of MOFA are not applicable to the apartments/flats constructed in those States, where the said Act is not applicable. Therefore, the District Forum could not have relied upon the above said judgment of the Hon'ble Supreme Court while recording a finding in favour of the complainant that the stilt parking spaces would not cease to be part of the "common areas and facilities"
merely because the promoter has not described the same as such in the advertisement and the agreement with the flat purchaser."
14. Nahalchand Laloochand's judgment was also referred in the judgment of the Hon'ble Supreme Court in "DLF Limited v. Manmohan Lowe" passed in Civil Appeal No. 10930 of 2013, decided on 10.12.2013 (2014(1) RCR (Civil) 387 wherein Hon'ble Supreme in the case of Haryana Apartment Ownership Act, 1986 observed that the provisions of MOFA will not apply to the Haryana Act. He has contended that the learned District Forum simply took the observations of the Hon'ble Supreme Court that an open area could First Appeal No. 96 of 2016 8 not be considered as a parking space and allowed the complaint without interpreting the PAPRA Rules by observing whether the parking site allotted to the complainants was in their exclusive possession or it was a common area and facilities. As a precaution, we had called for the layout plan from the counsel for the Op and in the layout plan approved by the Municipal Council, Kharar surface parking and its detail has been given. Therefore, open space meant for parking is duly approved by the MC, Kharar under the layout plan.
15. The complainant in person argued that MC, Kharar has not abided the National Building Code while approving the site plan and in the National Building Code, directions have been given that while framing the regulations, minimum provisions with regard to lighting, air conditioning, lifts, ventilation, water supply, drainage, parking etc. Must be complied with. Under 9.6.3.3, one car parking space for every two flats upto 90 meter floor area and one for every flat for 100 meter or more shall be provided. The area of the complainants is certainly more than 100 meters and one car parking has been provided and it has been provided by the OP. The dispute raised by the complainant is only with regard to the payment. In the National Building Code, it has nowhere mentioned that parking will be given as a free of cost. It is further argued by the complainant that environment clearance and consent from the Punjab Pollution Control Board was not taken by the Ops before approval of the layout plan but these prepositions were not raised by the complainants in his complaint. Moreover, it was open to MC, Kharar to check these requirements before passing the layout plan. Therefore, the First Appeal No. 96 of 2016 9 contentions as raised by the complainant are beyond the scope of this complaint. Accordingly, the order passed by the District Forum is liable to be set-aside.
16. Then as averred in the complaint, the amount for car parking was deposited vide receipt Ex. C-3 dated 21.5.2013 and then he had written a letter dated 8.8.2013. In case the complainant had come to know on 8.8.2013 then limitation of two years will start from the date of deposit or at the most from 8.8.2013 whereas the complaint was filed on 4.9.2015 beyond the period of two years provided under Section 24A of the Act and there is no application alongwith the complaint to condone the delay in filing the complaint. Therefore, the complaint filed by the complainant is also barred by limitation. Although no point was raised before the District Forum as OP was ex-parte but it was the duty of the District Forum to check this point whether the complaint filed by the complainant is within limitation. Any subsequent correspondence after the cause of action will not extend the period of limitation.
17. In view of the above discussion, we are of the opinion that the learned District Forum has not properly appreciated the PAPRA and the Rules framed there under and wrongly adopted the judgment in "Nahalchand Laloochand Pvt. Ltd. versus Panchali Co-operative Housing Society Ltd.'s case" (supra), which is distinguishable as MOFA is distinguishable from the PAPRA and that judgment cannot be squarely relied upon and this view has already been given by this Commission in the judgment "Estate Officer, Garden Heights versus Parveen Sharma" (supra) and "DLF Limited v. Manmohan Lowe's First Appeal No. 96 of 2016 10 case" (supra), therefore, the order passed by the District Forum is liable to be set-aside. The Ops were competent to charge Rs. 50,000/- as independent and exclusive parking space was allotted to the complainant.
18. Sequel to the above, we accept this appeal. Impugned order is set-aside. Consequently, the complaint filed by the complainant is hereby dismissed being not maintainable.
19. The appellant had deposited an amount of Rs. 25,000/- and Rs. 33,000/- with this Commission in the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the appellant No. 1 by way of a crossed cheque/demand draft after the expiry of 90 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
20. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
21. Order be communicated to the parties as per rules.
(Gurcharan Singh Saran)
Presiding Judicial Member
February 21, 2017. (Surinder Pal Kaur)
as Member