Delhi District Court
Paras Polymers Pvt. Ltd vs Ardee Housing Pvt. Ltd on 7 March, 2017
IN THE COURT OF SH. SURINDER S. RATHI: LD. ADDITIONAL DISTRICT
JUDGE03:PATIALA HOUSE COURT:NEW DELHI DISTRICT
CS 56260/16
1.Paras Polymers Pvt. Ltd.
12th Floor, Vijaya Building, 17, Barakhamba Road, New Delhi.
Through Ashok Kumar Jain The Managing Director
2. Ashok Jain & Sons HUF 12th Floor, Vijaya Building, 17, Barakhamba Road, New Delhi.
Through Ashok Kumar Jain
3. Sree Synchem Pvt. Ltd.
12th Floor, Vijaya Building, 17, Barakhamba Road, New Delhi.
Through Ashok Kumar Jain .....Plaintiffs
VERSUS
1. Ardee Housing Pvt. Ltd
Through Managing Director
Dr. Gopal Das Bhagwan
28, Barakhamba Road,
New Delhi.
CS No. 56260/16 Page 1 of 25
2. Gujral Estates Pvt. Ltd.
Through Managing Director
Dr. Gopal Das Bhagwan
28, Barakhamba Road,
New Delhi. .....Defendants
Date of Institution : 25.08.2009
Date of Final Arguments : 07.03.2017
Date of Decision : 07.03.2017
JUDGMENT
1. This suit has been filed jointly by three plaintiffs through their common Director/ Karta for seeking decree of declaration apart from permanent and mandatory injunction against defendants directing them to remove unauthorised constructions from ground floor of property No.17, Barakhamba Road apart from other reliefs. Defendants have contested the suit on the ground that the relief sought is time barred and is devoid of cause of action and also there is no privity of contract between the parties.
Appearance
2. I have heard arguments of Ld. Counsel for plaintiffs Shri Rama Shankar and Ld. Counsel for defendants Shri B Shekhar and have perused the case file.
Plaintiffs' Case
3. The case of the plaintiff as per the plaint and the evidence led is that CS No. 56260/16 Page 2 of 25 plaintiffs no.1 and 3 are duly incorporated private limited companies while plaintiff no.2 is a HUF. Shri Ashok Kumar Jain is the MD and Director of plaintiff no.1 and 3 respectively and is also Karta of defendant no.2 HUF. Between 18.11.1987 and 29.06.1989 a Partnership Firms by the names M/s. Paras Dyes and Chemicals and M/s. Paras Products purchased six flats namely Flat Nos. 7, 7A, 12, 14, 53 and 54 on different floors in Vijaya Building, 17, Barakhamba Road by execution of individual Flat Buyers Agreements.
4. In the year 2004, these Partnership Firms decided to separate their assets and liabilities, as per mutual settlement deeds executed between them Ex.PW1/16 to 21 and Ex.PW1/26 and 27. Under the settlement a retirement deeds were executed on 01.04.2000 Ex.PW1/3 to 5 whereby Shri Ashok Kumar Jain and Shri Saurav Jain, son of Shri Ashok Kumar Jain retired from the partnership of above two firms. Under the settlement Flat Nos.7, 53 and 54 were transferred in the name of plaintiff no.1 company. Flat Nos. 12 and 14 were transferred in the name of plaintiff no.2 HUF while Flat No.7A was transferred in the name of plaintiff no.3 and as such they became the respective owners of the flats. Separate letters with regard to these transfers were written to defendant no.2 on 03.09.2007 and 06.09.2007 Ex.PW1/6 to 10. Accordingly, separate letters were written by defendant no.2 to NDMC for mutation vide Ex.PW1/11 to 15 intimating the change of ownership of the flats in question.
5. Subsequently, the three plaintiffs started paying the maintenance qua the six flats regularly. They were also using the parking space available in the main CS No. 56260/16 Page 3 of 25 parking area on the ground floor of the building since 1989 which is shown in red in site plan Ex.PW1/22.
6. However, vide their letter dated 16.03.2001 Ex.PW1/23, defendants demanded the monthly parking charge for each car @ Rs.3,000/ per month. This arbitrary and illegal decision was challenged in a suit titled M/s. Paras Dyes and Chemicals Vs. Ardee Housing Pvt. Ltd. before Hon'ble High Court in suit No.282/2002 with a plea that the Flat Owners have arrived to part their vehicles without payment of parking charges. Certified copy of the said plaint and written statement are Ex.PW1/24 and 25. In that suit defendants were restrained from interfering in the plaintiff's ingrance and egorance and parking of their cars vide order dated 06.02.2002 and 09.04.2002 Ex.PW1/26 and 27. Letter of defendant No.2 dated 04.08.2003 in this regard is Ex.PW1/28. That suit was subsequently transferred to District Courts on change of pecuniary jurisdiction. Same was disposed of on 27.07.2007 after a statement was given by the Ld. Counsel for defendant to the effect that they have no objection to the disposal of the suit as long as plaintiff continues to pay maintenance and lift charges. The suit was disposed of vide statement and order Ex.PW1/31 to 33.
7. Thereafter, plaintiffs starting using the parking area without any hindrance but in the month of June, 2009 they threatened to not to allow the plaintiffs to park their vehicles in the building compound. In this regard plaintiffs wrote a complaint to Police on 19.06.2009 Ex.PW1/34. Thereafter, on 19.08.2009 a similar threat was extended to the plaintiffs on behalf of the defendants. Plaintiff has submitted CS No. 56260/16 Page 4 of 25 that in so far as they have been parking their vehicle without any hindrance for the last 20 years they have an Easementry Right over the space for parking the vehicles. Moreso, when at the time of purchase of the flats, the flat owners were alloted parking space under the agreement. In this backdrop, the act of defendants in claiming parking charges is illegal.
8. It is further case of the plaintiffs that Clause 50 of Flat Buyer Agreement which provides that builder has an exclusive right to run a cycle stand and parking business in the common vacant area on the ground floor is in violation of Delhi Apartment Ownership Act, 1986 and Master Plan 2021. This Clause was never acted upon by the defendants in the last 20 years and as such it has become unenforceable. In view of this the suit has been filed with seeking following reliefs Prayers
(i) A decree of declaration may kindly be passed in favour of the plaintiffs and against the defendants, there by declaring that the parking area available in the building 17, Barakhamba Road, New Delhi, is common and integral part of the flat and the plaintiffs being given possession of super area of the flat after deducting the area for the maintenance and services purposes and asking for parking charges by the defendants is illegal and arbitrary.
(ii) A decree of permanent injunction may kindly be passed in favour of the plaintiffs and against the defendants thereby restraining the defendants, their agents, servants, officers, successors, assigns, associates etc. from interfering, creating hindrance, preventing and obstructing and creating nuisance in parking the vehicles of the plaintiffs and their officers in the main parking area in the building bearing No.17, Barakhamba Road, New Delhi as shown in red colour in the site plan attached.
CS No. 56260/16 Page 5 of 25(iiA) A decree of declaration may kindly be passed in favour of the plaintiffs and against the defendants thereby declaring the part of clause no.50 as nul void in violation of Delhi Apartment Ownership Act and Master Plan 2021 of Delhi.
(iiB) Decree of mandatory injunction may kindly be passed in favour of the plaintiffs and against the defendants thereby directing the defendant no.2 to remove unauthorrized and illegal construction on the ground floor of 17 Bara Khamba Road, New Delhi.
(iiC) A decree of permanent injunction may kindly be passed in faovur of the plaintiffs and against the defendants thereby restraining the defendants their agents, servants associates, assigns officers from using the open space/parking space at the ground floor of the building i.e. 17, Barakhama Road, New Delhi for their exclusive purpose for running parking business allowing the parking of commercial vehicles i.e. tourist buses, private taxis and cars or general public other then occupants/owners of flats.
(iii) That the cost of the suit may kindly also be awarded to the plaintiffs.
(iv) Any other relief which this Hon'ble Court deems fit and proper may kindly be passed in favour of the plaintiffs and against the defendants.
Defendant's Case
9. This suit has been contested by the defendants by filing separate written statement. Even though plaintiffs amended the plaint twice, no separate written statement was filed qua the subsequent two amended plaints. In its written statement defendant no.1has prayed for dismissal of the suit on the ground that there is no privity of contract between the plaintiffs and the defendant in so far as they are only maintenance agency. As per them it is defendant no.2 M/s. Gujral Estate Pvt. Ltd. are owners of the building and the relief sought are also qua them. It is said that no dispute is raised in this suit qua the maintenance services.
CS No. 56260/16 Page 6 of 25Defendant no.1 has expressed unawareness qua internal change of ownership of the flats in question between the two erstwhile partnership firms and the plaintiff qua file this suit. It is accepted by them the plaintiffs has been regularly paying the maintenance charges but qua the occasional delays. They have said that plaintiffs have no right, title or interest in the parking space of the building. It is also case of defendant no.1 that they have been wrongly pleaded in this suit and no cause of action arose in favour of the plaintiffs qua them.
10. In their separate written statement, defendant no.2 took a plea that the suit is time barred and is devoid of cause of action. It is further pleaded that suit is bad on account of res judicata. It is their case that no parking space in the building in question is available unless the same is allowed by the defendant no.2 company on payment of requisite car parking fee by the Flat Owners who have been alloted the space of ground floor as well as the basement. It is pleaded that the declaration sought against defendant no.2 is outset the scope of Flat Buyers Agreement and cannot be enforced through this suit in hand as the issue of car parking space is not covered under the agreement.
11. It is their case that they allow parking of cars to the flat owners only subject to payment of parking fees. It is out of this parking space that salary of security staff, watch and ward staff who are on duty 24 hours in the building and in the open areas, is paid. It is their case that the plaintiff's have no rights to insist with defendants to have a free parking on the ground floor of the building. It is their case that the ground floor spaces is only enough to park 22 cars and out of the CS No. 56260/16 Page 7 of 25 same 10 car parking spaces have already been allotted while rest are open for the visitors of the building.
12. Non joinder of other promoters of the building namely Ms.V.V.Gujral, Ms.Kushla Sehgal, Ms.Kirti Parashar, Ms.Eeda Gujral and Ms.Medha Gujral Jalota, to whom the 10 parking spaces have been alloted is also pleaded. It is said that the New Delhi Municipal Council also provides parking services outside the building complex.
13. On merits it is not denied that three plaintiff's own six flats in Vijya Building Barakhamba Road which were purchased during the period 1987 to 1989. Issuance of confirmation letter to the three plaintiff's is also not denied but it is maintained that the letter does not allow the three plaintiff's to use the said parking as a matter of right under the agreement. It is denied that the plaintiff has been using the parking space on the ground floor since 1989. It is accepted that there is no dispute between the parties qua maintenance charges. It is denied that they ever threatened the plaintiff's as alleged in June 2009 with not allowing them to park their vehicle in the compound. They have denied that the plaintiff's have claimed easmentry rights to park the vehicles. As regards the plaintiff's reference to Clause 50A of Flat Buyers Agreement it is denied by the defendants specifically that the plaintiff's have rights on the roof as well as open area of ground floor and they had not considered the same as common area because it is specifically mentioned in the Flat Buyers Agreement. They have further contended that as per approved plan there is 32% super area but the same is exclusive of open space CS No. 56260/16 Page 8 of 25 on the ground floor. They denied that the clause 50A of the Flat Buyers Agreement has become infructous on account of promulgation of Delhi Apartment Ownership's Act.
Replication by Plaintiff
14. Separate replication was filed by plaintiff wherein they reiterated the case and denied the contention of the defendants. According to them the ground floor can accommodate 60 cars instead of 22 as plead by the defendants.
15. Upon filing of the suit order 39 Rule 1 and 2 CPC application of the plaintiff's seeking to injuct the defendants from stopping the plaintiff's to park their car on the ground floor free of cost, was not allowed. Ld. Predecessor order that the plaintiff can park the car only upon payment of usual charges. Thereafter another application was moved on behalf of plaintiff's seeking modification of the order under a plea that since plaintiff's have never paid any parking charges, the same may be specified. This application was disposed of by my Predecessor vide order dated 10.01.2011 with a direction that whatever parking charges are levied by the defendants on the plaintiff's, plaintiff's in turn shall deposit the same in the court by way of FDRs by 10th of every month. The fate of this amount would be decided at the stage of final arguments.
16. However, post the disposal of this application defendants issued letter dated 01.11.2011 whereby ground floor monthly parking charges was set at Rs.8000/ while basement charges was set at Rs.6,000/. This decision of the defendant was challenged by the plaintiff's by way of Section 151 CPC application CS No. 56260/16 Page 9 of 25 but no relief was granted to them. However, it was challenged by the plaintiffs before Hon'ble High Court whereby vide order dated 23.12.2011 the only relief granted to the plaintiff's was deduction of monthly payment to Rs.4000/ for ground floor and Rs.3,000/ for basement. This order was not challenged by the plaintiff's and as such it became final and binding.
17. Meanwhile in November 2012 the flat owners of Vijya Building formed an Association of Apartment Owners in terms of Section 15 of Delhi Apartment Ownership's Act, 1986. This was followed by moving of an application under Section 151 CPC by the plaintiff's pleading therein that since an Association has been formed, all the rights which were claimed by the defendants qua the common areas now stand vested in the flat owner's association and as such issues no.1 to 6 and 7A as casted on 24.01.2012 and 29.02.2012 have been infructuous. However, this application was dismissed by Ld. Predecessor on the ground that the decision would come on merits.
18. Upon completion of pleadings following issues were identified on 14.03.2011 Issues
1. Whether the suit of the plaintiff is within limitation?
2. Whether the parking space on the ground floor is included in the common area of the building?
3. Whether the plaintiff is entitled to a designated free parking space with every flat?
CS No. 56260/16 Page 10 of 254. Whether the plaintiff is entitled to declaration of ownership of a parking space for each of his flats?
5. Whether the builder is entitled to any right in the common areas of the building?
6. Relief.
19. Issues were recasted on 24.01.2012 as under:
Recasted Issues
1. Whether the parking space is not a part of the common area paid for by the allotees of flats in the building? OPD.
2. Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as prayed for?
3. Whether the builder/defendant no.2 has retained any exclusive right, title and interest in the common area? OPD.
4. Whether the defendant no.2 has right to run parking business without licence and allow commercial vehicles, tourist buses, private taxies and cars of outsiders other than the flat owners on payment of parking charges? OPD.
5. Whether the defendant no.2 has raised unauthorised and illegal construction on the ground floor and made excess coverage in violation of building rules and Bylaws? OP Parties.CS No. 56260/16 Page 11 of 25
6. Whether the defendant no.2 builder is entitled to charge for parking vehicles from the flat owners i.e. plaintiffs? If so, at what rate? OPD.
7. Whether the defendant no.2 is liable for penalty for demanding/asking for parking charges for which they are not entitled for?
8. Relief.
20. An additional issue was casted on 29.02.2012 Additional Issue Whether the suit of the plaintiff is within limitation?
21. To prove their case plaintiff's examined PW1 Sh. AShok Kumar Jain, Managing Director of plaintiff no.1 and 3 and Karta of plaintiff no.2. In his affidavit Ex.PW1/B he deposed on the lines of plaint and has exhibited following documents S.No. No. of Exhibits Details of the documents 1 Ex.PW1/1 & 2 Extract of the minute book 2 Ex.PW1/3 & 4 Copy of the retirement deed 3 Ex.PW1/5 Copy of the retirement deed 4 Ex.PW1/6 Copy of the deed to settlement dated 14.07.2004 5 Ex.PW1/7 to 12 Titled documents of the property 6 Ex.PW1/13 to 18 Titled documents of the property 7 Ex.PW1/19 to 24 Titled documents of the property 8 Ex.PW1/25 to 30 Titled documents of the property CS No. 56260/16 Page 12 of 25 9 Ex.PW1/31 to 36 Titled documents of the property 10 Ex.PW1/37 to 42 Titled documents of the property 11 Ex.PW1/43 Copy of the site plan 12 Ex.PW1/44 Copy of the letter dated 16.03.2001 13 Ex.PW1/45 to 46 Certified copy of the plaint and the written statement 14 Ex.PW1/47 to 48 Certified copy of the order dated 09.04.2002 15 Ex.PW1/49 Copy of letter dated 04.08.2003 16 Ex.PW1/50 to 52 Certified copy of the statement and orders 17 Ex.PW1/53 Copy of the complaint Ex.PW1/54 to 60 Photographs showing the commercial vehicle in the 18 parking 19 Ex.PW1/61 Copy of the FIR 20 Ex.PW1/62 to 65 Copies of the receipts
22. In his crossexamination done on behalf of defendants he accepted that he does not have a registered sale deed in his favour and he is only holding a Flat Buyers Agreement. He denied the suggestion that only the carpeted area was purchased and not the covered area including super area. He accepted the suggestion that according to NDMC Rules basement cannot be used for any other purpose other than storage. He claimed that first basement given the name of lower ground floor has been diligently sold to third parties as offices and a criminal complaint has been filed by the builder against this regard. He denied the suggestion that courtyard of the building and roof top areas have been retained by the builder. He denied the suggestion that builder had not sold him any parking area and claimed that the right to parking areas come with the purchase of the CS No. 56260/16 Page 13 of 25 flat. However, no separate documents is executed in this regard. He expressed an awareness is that if other person are paying parking charges for using basement or the ground floor.
23. He accepted that after the passing of interim order in the suit in hand, he applied for allotment of two parking slots at the reduced rate of Rs.4,000/ per car per month as directed by Hon'ble High Court. He denied that the word common area refers to spaces within the building and not around the building.
24. Witness examined by plaintiff PW2 Shri Harish Sharma, ExEstate Manager of the building. Vide his affidavit he stated that he was working for defendant from 1985 to 2002 before he resigned. He supported the claim of the plaintiff that they have six flats in the building. He said that since the year 1989 the plaintiffs were allowed to park six cars on the ground floor without any charge, however, visitors were not allowed to park the car on the ground floor. On the instructions of the defendant parking charges were demanded vide letter dated 31.01.2001. In his crossexamination he denied that common areas include open portions within the building and not around the building.
25. On the other hand, defendants examined Shri Virender Singh, their Account Officer as DW1. Vide his affidavit Ex.DW1/1 he deposed on the lines of written statement and exhibited following documents
26. It is submitted on behalf of the plaintiff that several portions in this affidavit are beyond written statement. In his crossexamination he accepted that he is neither employee of defendant no.1 nor defendant no.2. He stated that he is not CS No. 56260/16 Page 14 of 25 aware if there was any separate agreement which could show that open areas belong to Shri Vijay Gujral. He accepted that defendants no.1 and 2 have not filed any documents to show that they are owners of the common areas. As per him the ground floor has parking space for only 20 cars and not for 60 cars. He accepted that the basement has only sanction for parking purposes but denied that this parking was available for only flat owners. He accepted that plaintiff purchased the flat in the year 1989 but denied that they were allowed to park car on the ground floor. He also accepted that plaintiff is not paying parking charges from 1989 to 2011 even though the demand for parking charges were made on 01.05.2009. He accepted that Clause 50 of the Flat Buyers Agreement qua the parking area on the ground floor has not been implemented between 1989 to 2009. He accepted that maintenance charges taken by them from the flat owners is used for paying salaries to the employees engaged for maintaining the building and no contribution in this regard is made by defendant no.2. He accepted that defendant do not have any licence for allowing him to park commercial vehicles. He accepted that the lower ground floor is the first basement of the building.
Now I shall dispose of individual issues identified in this suit. Issue No. 1 to 6 Whether the parking space is not a part of the common area paid for by the allotees of flats in the building? OPD.
Whether the plaintiffs are entitled for the relief of declaration and permanent injunction as prayed for?
Whether the builder/defendant no.2 has retained any exclusive right, CS No. 56260/16 Page 15 of 25 title and interest in the common area? OPD.
Whether the defendant no.2 has right to run parking business without licence and allow commercial vehicles, tourist buses, private taxies and cars of outsiders other than the flat owners on payment of parking charges? OPD.
Whether the defendant no.2 has raised unauthorised and illegal construction on the ground floor and made excess coverage in violation of building rules and Bylaws? OP Parties. Whether the defendant no.2 builder is entitled to charge for parking vehicles from the flat owners i.e. plaintiffs? If so, at what rate? OPD.
27. Before coming to the vires of the issues it is pertinent to mention here that in this dispute between a flat owner and builder of a multistoryed flat which was built in 198889 certain Flats Buyers Agreement were executed between the parties. These Flat Buyers Agreement were apparently unmindful of legal development and promulgation of Delhi Apartment Ownership Act, 1986 with effect from 23.12.1986 with an objective that it will provide ownership of an individual apartment in a multistoryed building and will take care of undivided interest in the common areas and facilities related to that apartment and other incidental issues.
28. Since the dispute in hand is only about the common areas and their usage as parking space, it would be handy to have a glance at the term common areas and facility as defined in the above Act at Section 3(j) of the Act. Section 3 (j) of Delhi Apartment Ownership Act, 1986
(j) "Common areas and facilities" , in relation to a multi storeyed building, means CS No. 56260/16 Page 16 of 25
(i) The land on which such building is located and all easements, rights and appurtenances belonging to the land and the building,
(ii) The foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, fire escapes and entrances and exits of the building,
(iii) The basements, cellars, yards, gardens, parking areas, shopping centres, schools and storage spaces.
(iv) The premises for the lodging of janitors or persons employed for the management of the property.
(v) Installations of central services, such as, power, light, gas, hot and cold water, heating, refrigeration, air conditioning, incinerating and sewerage,
(vi) The elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus an installations existing for common use,
(vii) Such other community and commercial facilities as may be prescribed, and
(viii) All other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use
29. Plain reading of the above definition shows that it is evident that gardens, parking area and storage spaces in and around the building and common areas and facilities which are covered under Section 3 (j). Unmindful of the statutory provision of Clause 50 in the Flat Buyer Agreement has been introduced so as to show that the builder reserves the right to run the business of cycle and scooter stand in the parking area. Clause 50 is reproduced hereunder Clause 50 of Flat Buyers Agreement The terrace of the building including the parapet walls (where not specifically sold) shall be the property of the Builders. Its nominee or assignee shall also be entitled to display advertisements or put CS No. 56260/16 Page 17 of 25 up hoardings in or over the walls of the terrace as well as on any portion of the said building including the compound thereof and shall be exclusively entitled to the income that may be derived by display of the said advertisement or hoardings at all times hereafter. The agreement with the flat buyers in the said building shall be subject to the aforesaid rights of the Builders of their nominee or assignee who shall be entitled to use the said terrace including the parapet walls and the walls of the terrace therein as well as portions of the said property including the compound thereof for any purpose including the display of advertisement and sign boards and hoardings and the flat buyer shall not be entitled to raise any objection or to any abatement in the price of the space agreed to be acquired by him or to any compensation or damages on the ground of inconvenience or any other ground whatsoever. It is hereby agreed that the Builders shall be entitled either to nominate any other person to obtain the benefits of the rights and interests conferred by this clause or to assign such benefits, rights and interests in favour of any other person or party. The right of running the business of cycle or scooter stand or any car parking facility shall vest solely with the Builders who alone will be entitled to any revenue therefrom.
30. In this regard attention of this court is drawn by ld. counsel for defnedant of Section 4 (3) of Delhi Apartment Ownership Act, 1986. Section 4 (3) of Delhi Apartment Ownership Act, 1986 (3) Every person who becomes entitled to the exclusive ownership and possession of any apartment under subsection (1) or sub section (2) shall be entitled to such percentage of undivided interest in the common areas and facilities as may be specified in the Deed of Apartment and such percentage shall be computed by taking, as a basis, the value of the apartment in relation to the value of the property.
CS No. 56260/16 Page 18 of 2531. In this regard, Ld. Counsel for the defendant has relied on Virmani Roy & Kutty Vs. Ansal Properties & Industries dated 01.10.2002 wherein Hon'ble Court has observed After considering the submissions made by learned counsel for the parties and examining the provisions of the Delhi ownership of Apartments Act, this Court is of the considered view that the Act certainly creates valuable rights in respect of the "common areas and facilities" in multistoreyed buildings in favour of the apartment owners so that they may enjoy their portions comfortably, but these rights are controlled by and are subject to the provisions of Section 4(3) of the Act which entitles the promoter/builder of a multistoreyed building to specify common areas which he wishes to transfer to the flat owners. It entitles him to earmark different common areas and facilities for different occupants in the building so that different groups of the flat owners in different parts of the building may enjoy separate "common areas and facilities" without interference from other occupants of the building. This can be done by the promoter/builder of the building by incorporating appropriate Clauses regarding common areas in the Deeds of Apartments executed in favour of the purchasers of the flats in terms of Section 4(3) of the Act. Had the Legislature intended not to permit, the promoter/builder of a building to earmark or apportion such area Section 4(3) of the Act would have simply stated that every person who becomes entitled to the exclusive ownership and possession of an apartment under Subsection (1) or Subsection (2) of Section 4 of the Act shall become entitled to undivided interest in all the common areas and facilities in the building and there was no need to use the words "as may be specified in the Deed of Apartment". A purchaser of the Apartment may opt out of the deal in case he finds that common areas and facilities required by him are not being provided to him by the promoter. Learned counsel for the defendants rightly contends that the roof in question still remains exclusively with defendant No.1 in as much as Clause 11 (a) of the Agreement CS No. 56260/16 Page 19 of 25 between the parties specifically provides that the promoters shall continue to have a right to make additions or put up additional structure etc. as may be permitted by the local authorities on the terrace of the complex and the terrace and parapet walls shall continue to be the property of the promoter who shall be entitled to use the same for any purpose whatsoever.
This judgement was also relied in Dhruba Dasgupta & Ors. Vs. Surjendu Shekhar Ghosh & Ors., FAO No. 456/2010 & CM No.22352/2010 dated 21.07.2011.
32. Plain reading of the above statutory provision in the light of judgment shows that usage of word "common areas and facilities as may be specified in the deed of Apartments", do empower the builders to make the areas specific which are available for common usage as a facility to the flat owners and identify the areas which shall remain with the builder. However, in the facts of the present case, the bone of contention between the parties is not a space used for any third party purpose or any construction activity like starting a shop, godown etc. but is for exploiting the common parking area for commercial reasons. Since Section iii
(j) specifically contains the terms parking areas as common areas and facilities mere inclusion of an intent of a builder when he has a right to commercially exploit the parking of the common area cannot be intent of the parliamentary as Section iii (j).
33. Ld. Counsel for the plaintiff in this regard has relied upon Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Cooperative Housing Society, AIR 2010 SC 3607 wherein Hon'ble Supreme Court while dealing with a case of CS No. 56260/16 Page 20 of 25 Maharasthra Ownership Flats Act, 1963 ruled that the promoters have no right to sell any portion of the building which is "not a flat" within the meaning assigned under the Act. Hon'ble Supreme Court has stressed that entire land of building of the Complex have to be conveyed to the Association. It was ruled that the only right which is given to the promoters is to sell his unsold flats. Hon'ble Supreme Court made it clear that the promoter has no right to sell "stilt parking spaces"
which were constructed in the building for a simple reason that these parking spaces cannot be covered under the term "flat".
34. As evident from the evidence available on the record, even though plaintiff was occupying the flat in question since 1989, it is accepted by the defendant in the pleading as well as in the crossexamination of DW1 they have not charged any parking charges from the plaintiffs from 19892011.
35. However, during the pendency of the suit, Vijaya Building Apartment Owner Association was registered as a Society in 2012 wherein the plaintiffs as well as one of the Directors of defendant no.2 became the Member of the Association as per plaintiff. In view of this development, plaintiff came up with an application in this Court duly supported with an affidavit of Shri Ashok Jain on 02.02.2015 wherein following submissions were made That the Association has taken over the building and its premises for the maintenance purposes on 10.11.2014 and notification in that regard has been sent to all the flat owners including the Builders. About 80% of the flat owners have become the Members of the Association covering total super area. Even one of the Directors of the defendant No.2 has become the Member of CS No. 56260/16 Page 21 of 25 the Association. The owners of the land have also become the Members as also of the Governing Council of the Association. The relevant documents are being filed for the perusal of the Hon'ble Court.
That in the circumstances mentioned above and in view of the subsequent development in the matter, the issues No.1 to 6 and 7A rendered infractuous.
That only the issue no.7 is to be decided by the Hon'ble Court as it has been proved on record that the defendant no.2 never got any exclusive right over the common area/open area in the building. The defendant no.2 is liable to refund the amount they have wrongly and illegally got from the plaintiff.
36. Even before making the above submissions in the Court, vide a separate application under Section 151 CPC moved on 28.09.2011, in para 8 plaintiff took a following stand "that it is also respectfully submitted that there is no issue on the point that the plaintiffs are entitled for parking or not but the issue is that whether the defendants are entitled for parking charges and the plaintiff has been ordered to deposit the said charges."
37. However, it is not clear from which period.
38. The plain reading of the above two factual stands taken by the plaintiff in this suit shows that he has surrendered his claim as contained in prayers qua all the reliefs prayed in this suit except for issue no.7.
39. As already mentioned supra, post the registration of Flat Buyers Association as a Society, the Association had preferred a separate suit against both the defendants herein seeking handing over the charge of maintenance and all common areas. That matter is subjudice with the Hon'ble High Court. In the CS No. 56260/16 Page 22 of 25 fitness of things post the constitution of Flat Buyers Association, he outght have moved an application under Order 1 Rule 10 CPC for impleading the Association as a codefendant. In the absence of impleadment of Flat Buyers Association the reliefs of declaration as sought by the plaintiff qua the common areas is rendered not maintainable. The Association is the "necessary authority" as by virtue of Delhi Apartment Onwership Act, 1986 all common areas shall come within the domain of Flat Buyers Association unless prove otherwise. As such, I am of the considered view that the plaintiff is not entitled to declaration as prayed in the suit.
40. Perusal of recasted issue nos.1, 3, 4, 5 and 6 shows that they have been so framed as if this is the suit filed by the defendant builders and promoters for seeking declaration. Even during the course of arguments Ld. Counsel for defendant has submitted that defendant raised these pleas only to defend his clients and no separate declaration so sought. In so far as these issues per se indirectly result in passing declaration qua the common areas in favour of the defendant not finding qua them too cannot be given in the absence of impleadment of Flat Buyers Association.
41. The text of the two applications moved by the plaintiff amounts to abandoned of the claim contained in this suit. The above issues are disposed of accordingly.
CS No. 56260/16 Page 23 of 25ISSUE NO.7Whether the defendant no.2 is liable for penalty for demanding/asking for parking charges for which they are not entitled for?
42. As detailed supra during the course of pendency of this suit, Ld. Predecessor passed an order whereby plaintiff has to deposit Rs.8,000/ per car per month for the ground floor and Rs.6,000/ per car per month for the first floor. This order was challenged before the Hon'ble High Court of Delhi whereby Rs.8,000/ was reduced to Rs.4,000/ and Rs.6,000/ was reduced to Rs.3,000/.
43. It is case of the plaintiff that he had deposited some amount with the Court and remaining with the defendant no.2 during the year 2014. Since the issue in hand is qua seeking penalty from defendant no.2 for seeking parking charges, in view of the abutment of the claim by the plaintiff no penalty can be sought can be imposed. Whatever parking charges were deposited by the plaintiff were so deposited under the orders of the Court which were modified by the Hon'ble High Court. At the most since the issues related to the right of the common area of the building is subjudice with the Hon'ble High Court Vs Flat Buyers Association on the one side and the builder promoter on the other side, whatever amount was deposited by the plaintiff in this suit in the name of the parking is ordered to be refunded back to them with a rider that in case there is a finding before the Honble High Court the plaintiffs or any other similar Flat owner was supposed to pay up the parking charges they would deposit the same back with the party entitled to receive the same. Moreover, it is accepted by plaintiff on record that since November, 2014 neither the defendants nor the Flat Buyers Association is asking CS No. 56260/16 Page 24 of 25 for parking charges from the plaintiffs. This issue is answered accordingly.
In view of the above issues, the suit of the plaintiff is dismissed. Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in an open Court On 07th day of March, 2017.
(Surinder S. Rathi) ADJ03/PHC/NEW DELHI 07.03.2017 CS No. 56260/16 Page 25 of 25