M/S. Ramajaneya Builders & Anr vs Kagana Gopala Rao

Dr. S. M. Kantikar, Presiding Member

Heard the learned counsel for both sides. Perused the material on record.

The dispute relates to allotment of car parking space as per the terms and conditions of sale.

The District Forum heard both sides, appraised the evidence and vide its Order dated 30.05.2016 partly allowed the complaint:

The complainant purchased flat no. 301 admeasuring 1320sqft including common areas i.e., car parking area also admeasuring 100sft in the stilt floor complex as per registered sale deed dated 18-10-2010 bearing No. 6229/10 from OPs 1 and 2 for valid consideration of Rs. 19,71,000/- and he has paid the entire sale consideration to the OP including car parking space. Thereafter, the complainant is also having Maruthi Swift Car bearing No. AP31BS 3155 and parking his vehicle in front of the lift space in the apartment which was allotted to him as per the agreement dated 18-10-2010. But, the OP has allotted car parking to the complainant outside the lift area which is in front of the generator room which is against to the terms and conditions of the sale deed and construction agreement dated 18-10-2010 . The layout plan clearly shows that the OPs have permitted the complainant to park his vehicle near the generator room which is open to the sky though the complainant has requested the OP to allot the car parking and also requested through notice dated 30-05-2015 filed a complaint dated 30-05-2015 against the OP in 4 P.S. with regarding to the car parking which was pending before the I Addl. Chief Metropolitan Magistrate, Visakhapatnam, the OP has not allotted the car parking space for his Flat No. 301. Because of the non providing of the car parking, the complainant has faced so much inconvenience and thereby he was forced to file the present complaint before this Forum.

Now with regarding to the issue of allotting car parking, perusing the Exhibit A3 construction agreement and observing the Clause No. 4, Clause no. 7, clause no. 21 Clause 27 of Exhibit A3 and Schedule B of Exhibit A3 along with Exhibit B12 and B13 written statement filed by the complainant is a defendant in O.S. 38/14 since the complainant is due for an amount of Rs. 70,000/- to the OP as per construction agreement i.e., Exhibit A3 admitted by him vide para 3, were are of the considered opinion that the only equitable remedy available to the complainant is allotment of car parking space in the common areas i.e., in stilt area as admitted in the Exhibit A3 document only after paying the amount of Rs. 70,000/- to the OPs no. 1 and 2 along with interest @ 12% pa .., from 13-06-2012 (i.e , the date of admitted by the OPs and the complainant in Exhibit B12 and B13) till realization which is very reasonable as there a lapse on the part of the complainant only. The reason for awarding 12% p.a ., interest on Rs. 70,000/- is as the complainant has suppressed the fact of the payment of Rs. 70,000/- to OP in the complaint.

The OPs are directed to provide car parking space admeasuring about 100 sft to the complainant being his flat no. 301 in stilt area after receiving Rs. 70,000/- from the complainant along with complainant @ 12 % p.a, from 13-05-2012 till realization.

After receiving the said amount, the OPs have to give an acknowledgement to the complainant and thereafter, the OPs have to provide car parking to the complainant by demarcation made by them and observing the entire contents of the both sides along with Exhibit A3 and B12 and Para 3 Exhibit B13 (written statement), we are of the conclusive opinion that the complainant is not entitled for any compensation from the OPs and also not entitled for costs. Since, he is a defaulter of paying Rs. 70,000/- to the OPs which has to be paid by him vide Exhibit B3 document. Accordingly, the point nos. 2 and 3 are answered.

In the result, the complaint is allowed in part, directing the complainant is directed to pay an amount of Rs. 70,000/- (Rupees seventy thousand only) @ 12% p.a., from 13-06-2012 till realization to the OPs towards balance consideration amount to the OPs. After receiving the said entire amount from the complainant, the OPs have to provide car parking to the extent of 100sft to the complainant in stilt area by demarking the car parking area. Both parties have to bear their own costs. Time for compliance, one month from the date of receipt of this order

(paras 3, 27, 28, 29 and 30 of the District Forum's Order)

In appeal, the State Commission heard both sides, appraised the evidence and through its Order dated 07.11.2017 dismissed the appeal:

We have gone through the entire record and we do not find any documentary evidence to prove that the respondent agreed/ accepted to take parking place allotted outside the stilt portion. As such in the absence of any such acceptance in writing we cannot accept that the respondent has agreed to take the parking area outside the stilt area as a temporary arrangement by the appellants. The appellants filed Ex. B6 to B11 photos to shows that they spent money to raise a shed for the purpose of parking to the respondent and to prove their bonafidies but they are not relevant since the appellants cannot make any claim contrary to the covenants in the agreement.

The next point we have to consider is whether there are acquiescence estoppels by conducting on the part of the respondent. The respondent placed reliance in Ex. A7 FIR which discloses that a case in Cr. No. 416/2013, dt. 2-12-2013 was registered under sections 420,448,506,341,323 r/w 34 IPC against the appellant and Ex. A6 document is the remand report which clearly discloses that the 2 nd appellant was remanded to Judicial

Custody by the Inspector of Police, 4 th Town Police Station, Visakhapatnam. Thus, we find that after temporary allocation of the said parking shown Ex. B6 t B11 photographs, the respondent did not keep quiet, he has taken every step and ventilated his grievance claiming his right. Therefore, we are unable to accept the arguments advanced by the learned counsel for the appellants Sri M. Hari Babu in this regard.

The learned counsel for the respondent has argued that parallel proceedings were filed by the appellants by filing a suit in O.S.No. 38/2013 on the file of II Additional Junior Civil Judge, Visakhapatnam to recover a sum of Rs. 70,000/- which is subject matter of this case and the appeal is pending. Therefore, the said fact may be taken into consideration by this commission and appropriate orders may be passed. We find that the suit in O.S No. 38/2013 was filed even prior to filing of this case and even after passing of orders by the District Consumer Forum, directed the respondents to pay Rs. 70,000/-, the respondents has not challenged the same by filing cross appeal. Therefore, we are unable to accept the contention of the counsel for the respondent and we have to confine our finding only to the pleadings and evidence placed before forum and this commission. It is brought to our notice that the respondent has deposited the amount as directed by the Form and perform his part of obligation and same is not denied by the appellants.

Before we conclude, we are of the view that the scope of this appeal is limited only to the right of the respondent to claim a parking place and this right is in accordance with the recitals of the agreement accepted by both parties. Therefore, the Forum has rightly upheld the right of the respondent and we do not find any error to interfere with the order of the Forum and appeal is liable to be dismissed. No costs.

(paras 10, 11, 12 and 13 of the State Commission's Order)

The instant revision petition has been filed under section 21 (b) of the Act 1986 against the said Order dated 07.11.2017 of the State Commission.

We find the Order of the State Commission to be well-appraised and well-reasoned. The State Commission concurred with the findings of the District Forum. Within the meaning and scope of section 21(b), we find no grave error in appreciating the evidence by the two fora below, as may cause to require re-appreciation of the evidence in revision. We note in particular the extracts of the respective appraisals / observations made by the two fora quoted, verbatim, in paras 3 and 4 above. We find the award made by the District Forum (quoted in para 3 above), and as affirmed by the State Commission, to be just and appropriate. And, on the face of it, we find no jurisdictional error, or a legal principle ignored, or miscarriage of justice.

The revision petition, being misconceived and devoid of merit, is dismissed.

Needless to add that the District Forum shall undertake execution as per the law.

A copy of this Order be sent to the District Forum by the Registry within ten days.