LALIT KUMAR MALANI vs DEEPAK M.BULCHANDANI

IN these two complaints under Section 17 read with Section 12 of the Consumer Protection Act, 1986, the complainants-brother and sister, have sought compensation in a sum of Rs. 4,11,673/- and Rs. 4,11,949/- from the Opp. Party-the builder.

AS the facts and circumstances of the case in both the complaints were one and the same and the Opp. Party was one and the same, both the complaints were clubbed together with the consent of both the parties and enquired into. The complainant in Complaint No. 145/ 1991 is the son and the complainant in Complaint No. 146/1991 is the daughter of Mr. Bhagavan Mangharam Malani, C.W. 2. Both the complaints were prosecuted by their father C.W. 2 under the General Power of Attorney obtained by him from both the complainants.

It is the case of the complainant in Complaint No. 145/1991, the son of C.W.2 that he purchased undivided share in the immovable property under Ex. C.31 (a), an agreement to sell on 5.1.1989 and also entered into an agreement to build a flat as per Ex. C.32 on 5.1.1989, Apartment No. ''B'' in the first floor in the multistoried Complex known as ''Rose Queen''.

IT is the case of the complainant that he made payment of a sum of Rs. 5,81,390/- towards the cost of the land and construction of three bed room apartment with covered parking space. But the Opp. Party constructed and put in possession of the lesser area and thereby he did collect an excess amount of a sum of Rs. 2,51,289.60 Ps. from the complainant towards the land and construction cost. The complainant further averred that several amenities were missing in the flat constructed and so sought a sum of Rs. 20,850/- being the value for the missing amenities and also a sum of Rs. 1,39,533.60 Ps. towards interest. The complainant in all sought a sum of Rs. 4,11,673/-with interest thereon from the Opp. Party.

IN Complaint No. 146/1991 the complainant, daughter of C.W. 2, averred that she did purchase an undivided share in the immovable property under Ex. C. 33 and an agreement to sell and also entered into an agreement to build a flat. Apartment ''A'' in the first floor in the multistoried complex known as ''Rose Queen'', as per Ex. C.7. The complainant further averred that she made payment of a sum of Rs. 6,01,050/- towards the purchase of undivided share in the land and to build the said flat. The complainant delivered lesser area of the flat and collected a sum of Rs. 2,37,697/- in excess from the complainant. The complainant nextly averred that the Opp. Party collected the excess amount of a sum of Rs. 30,000/- being the value of the missing amenities. The complain- ant further sought a sum of Rs. 1,44,250/- towards interest. The complainant in all sought a sum of Rs. 4,11,949/- with interest thereon from the Opp. Party. The complainants in both the complaints averred that the Opp. Party did not put the complainant in possession of the covered car parking area though he had agreed to put the complainants a covered car parking area. The Opp. Party in both the complaints filed its version and averred that both the flats ''A & B'' were constructed as agreed upon between the parties and the area of both the flats was not lesser than the agreed area. The Opp. Party further averred that as per the agreement no car parking area was provided to be given to the complainants. The Opp. Party nextly averred that all the amenities as per the agreement were provided in the apartments and there was no question of any missing amenities in the flats.

THE Opp. Party further averred that ''the complainants have taken delivery of both the flats as per their letters dated 7.2.1991 Ex. C.9 equivalent to Ex. R.2 and Ex. R.1 which clearly disclosed that the flats were constructed and delivered as per the specifications provided and to the full satisfaction of the complainants.

THE Opp. Party on the basis of these averments sought the complaints to be dismissed. During enquiry the Power of Attorney Holder of the complainants i.e., the father of the complainants, examined as C.W. 2 and another witness as C.W. 1. The complainants got Exs. C.I to C.51 marked in evidence. The Opp. Party examined Mr. Deepak M. Bulchandani, the proprietor of Lokdeep Developers as R.W. 1 and also examined R.Ws. 2 and 3 and got Exs. R. 1 to R. 7 marked in evidence.

We heard the General Power of Attorney Holder of the complainants i.e., the father of the Complainants and the learned Counsel for the Opp. Party. We also perused the pleadings and the material on record.

IN Complaint No. 145/1991 Ex. C.31(a) is the agreement to sell an undivided share in the land and Ex. C. 32 is the agreement to build Apartment-B in the first floor in the Multi storied complex known as ''Rose Queen''. In agreement C. 32 the apartment proposed to be constructed has been described as under: "Schedule ''C'' hereinbefore referred to : Apartment No. B in first floor without parking space/lawn/terrace garden in the multistoried complex known as "ROSE QUEEN" proposed to be constructed at premises No. 2 (Old No. 6), Rose Lane Bangalore, having super-built up area of 1293 sq. ft. inclusive of proportionate share in common area such as passage/ lobbies, lift, stair case, and other areas of common use with concealed wiring and with the following specifications:"

EX. C.9 i.e., EX. R.2 is the letter dated 7.2.1991 given by the complainant to the Opp. Party while taking possession of the apartment. Paras 1 and 11. in the said letter read as under: "1. I have this day taken the possession of the above apartment in full satisfaction. xx xx xx 11. I am/We are fully satisfied with the construction of the apartments in strict terms and specification. I have no claim against the owners or the builders." The subject-matter in the said letter has been described as under: "Sub: Apartment ''B'' in Ist floor without car parking."

This would clearly go to show that Apartment ''B'' proposed to be built and delivered to the possession of the complainant was without car parking and the construction of the apartment was in full satisfaction and in strict terms and specifications of the agreement. Cw 2 in his evidence with regard to Ex. C. 9 has stated thus: "...Exs. C. 8 and C. 9 are the letters given by the having taken the delivery of possession of the flats. Both the letters are signed by me........... I will not sign any document without reading its contents. When I signed Exs. C.8 and C.9 I was aware of the contents of the said letters Exs. C.8 and C.9."

THE complainant has not placed any material on record to show that the area of the flat was in any way lesser than the area as specified in the agreement Ex. C.32.

EXS. C.32 and C.9 clearly show that the apartment proposed to be built and delivered to the complainant was without car parking space. Having regard to this material on record, it is very difficult to hold that the area in Apartment ''B'' constructed and delivered to the complainant was in any way lesser than the area proposed to be built under the agreement. It is also clear that no car parking space was provided to be given to the complainant under the agreement.

The complainant has not made any grievance while taking possession of the flat regarding delay in the construction of the flat. So the claim of the complainant in this regard is untenable. He is also not placed any material on record regarding any missing amenities in the flat.

HAVING regard to these facts and in the circumstances of the case, we do not find any deficiency in the service rendered by the Opp. Party. So, the claim of the complainant in Complaint No. 145 of 1991 has no substance. In Complaint No. 146/1991, Ext. C.33 is the agreement to sell an undivided share in the land and Ext. C.7 is the agreement to built Apartment ''A'' in the first floor in the multi storied complex known as ''Rose Queen''.

IN Ext. C.7 the apartment to be constructed has been described as under: "Schedule ''C'' hereinbefore referred to: Apartment No. A in First Floor with parking space/lawn/terrace garden in the multistoried complex known as "ROSE QUEEN"'' proposed to be constructed at premises No. 2 (Old No. 6), Rose Lane Bangalore, having super-built up area of 1335 sq. ft. inclusive of proportionate share in common area such as passage, lobbies, lift, stair-case, and other areas of common use with concealed wiring and with the following specifications:.."

This shows that the word "with" in the first line has been struck off and also out in the word "without" has been struck off. The word "without" has been made by striking of ''out'' as with, though the word ''with'' has been struck off in the first line. This document Ex. C.7 came to be produced by the complainant during enquiry. The Opp. Party has stated that he signed and gave the said document Ex. C.7 to C.W. 2. He has in this regard specifically stated thus: "...Ex. C.7 is the agreement in respect of flat for the daughter of Mr. Bhagawan. The recital at Ex. C.7a is false. When I signed and gave it to Mr. Bhagawan it was without parking space. When I gave this agreement Ex. C.7 at Ex. C.7a I had struck off ''with-or'' and had kept the word ''without'' intact but subsequently the complainant has struck off the word ''out'' from the word ''without''...."

As referred above, this document Ex. C.7 came to be produced by the complainant during enquiry. This document Ex. C.7 had remained after it was executed all along with the complainant. This circumstance would dearly go to show that a word ''out'' in Ex. C.7 has been struck off in the word ''without'' with a view to make it as an apartment with car parking space. But the letter Ex. C.8 i.e., Ex. R.1 clearly discloses that the apartment proposed to be built and delivered to the complainant was without car parking space.

EX. C.8 i.e., EX. R.1 is the letter dated 7.2.1991 given by the complainant to the Opp. Party while taking possession of the apartment.

THE subject-matter in the said letter reads as under: "Sub: Apartment ''A'' in Ist floor without car parking." This shows that Flat A to be built and provided by the Opp. Party was without car parking space.

Para 11 of the said letter reads as under: "I am/We are fully satisfied with the construction of the apartments in strict terms and specification. I have no claim against the owners or the builders."

THIS shows that the construction of the apartment i.e.. Apartment ''A'' was to the full satisfaction of the complainant and in strict compliance of the terms and specifications as provided in Ex.C. 7. These circumstances would clearly go to show that the complainant has made an untenable claim for car parking space. The complainant has failed to substantiate his claim for car parking space.

THE complainant has not placed any material on record to show that the area of the flat was in any way lesser than the area as specified in the agreement Ex. C.7. Having regard to these materials on record it is very difficult to hold that the area in Apartment ''A'' constructed and delivered to the complainant was in any way lesser than the area proposed to be built under the agreement. It is also clear that no car parking space was provided to be given to the complainant under the agreement. The complainant has not made any grievance while taking possession of the flat regarding the delay in the construction of the flat. So the claim of the complainant in this regard is untenable. He has also not placed any material on record regarding any missing amenities in the flat.

HAVING regard to these facts and in the circumstances of the case, we do not find any deficiency in service rendered by the Opp. Party. So the claim of the complainant in Complaint No. 146 of 1991 has no substance.

IN the result, therefore, both the complaints, Complaint Nos. 145 and 146 of 1991 fail and they are dismissed. Parties are directed to pay and bear their own costs. Complaints dismissed.