ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 35 of Consumer Protection Act 2019, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not allotting the car parking area in the stilt floor and for allotment of the same and for Rs.5,00,000/- as compensation/damages for causing hardship and mental agony and for other reliefs.

2.      The brief facts of the complaint are that;

The complainant purchased flat No.1-B in the ground floor measuring 900 sq. feet of super built up area in the apartment complex built by OP in the name of Karthik Residency by obtaining absolute sale deed dated 12.09.2011, wherein along with the flat one covered car park in the stilt floor was also sold.  As per the registered sale deed OPs, are bound to provide the said car parking place, whereas the same has not been done by the OP, which is causing hardship.

3.      Further half of the stilt area has been illegally given on lease to run a bar and wine shop under the name and style “Chandramohan Bar and Restaurant”.  The said space cannot be used for other purpose other than allotting for the car parking to the flat owners. The construction of the stilt area for bar is in violation of the town planning rules and regulations and terms and conditions of the BBMP.  The said car parking area is being used as bar which is a clear violation of the law.

4.      It is further contended that the people who come to the bar, park their vehicle in front of the exit gate of the apartment and thereby blocking the entry of the cars of the flat owners. Further persons who come to the bar, after the drink create nuisance and it has become extremely difficult for ladies and children to go out of the building at night fearing their safety.  Since some of the area of the stilt has been leased to the said “Chandramohan Bar and Restaurant” the flat owners have no space to park their vehicles.  Hence there is deficiency in service on the part of OP in not allotting the car parking area and hence prayed the commission to allow the complaint.

5.      Upon the service of notice, OP appeared before the forum and filed the version contending that the complaint is not maintainable either in law or on facts and same is liable to be dismissed.  It is filed on misconceived, groundless and unsustainable facts.  The Commission has no jurisdiction to entertain and adjudicate this dispute as it do not fall under the C.P. Act. The dispute raised by the complainant is out of the perview of the C.P.Act.  

6.      It is contended that as per the mention made in the complaint the cause of action arose on 07.12.2020 whereas in the complaint it is clear that the absolute sale deed entered between the parties was not on 07.12.2020.  Complainant want to suppress the facts and misleading the court. The complainant purchased the flat 10 years ago through the sale deed and all the contentions raised by the complainant relates back to the date of purchase of the flat. He ought to have filed this complaint within two years from the date of purchase and knowledge of not providing the car parking area. Sec 24A of the C.P. Act clearly bars the District Commission, the State Commission and the National Commission from entertaining the complaint on the ground of limitation.  The complainant is very well aware that the “Chandramohan Bar and Restaurant” was established in the year 2010 before the complainant purchased the property. Parking policy 2.0 of the government of Karnataka has come in the year 2020 much after ten years after the complainant purchasing the property.  It has contended that it has given the parking area to all the persons who have purchased the flat.  After the BBMP authorities inspecting the property and also regarding the parking place, have issued the khata.  Hence denying all the other allegations made in the complaint prayed the forum to dismiss the complaint.

7.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complaint filed is in time?

2) Whether the complainant has proved deficiency in service on the part of the Opposite Party?

3) Whether the complainant is entitled to the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT NO.1:            In the Negative

POINT NO.2 & 3:     Do not survive for

Consideration for the following.

REASONS

9.     POINT No.1, 2 AND 3:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties it is not in dispute that the complainant is the owner of the flat No.1B, and as per the sale deed the copy of which is produced also entitle for one covered parking area in the stilt.  The photographs produced shows that one portion of the parking area has been let out to “Chandramohan Bar and Restaurant” which is admitted by the OP.

10.   The important question arises in this complaint, is whether the complaint filed is within time prescribed under the C.P. Act.  Admittedly the complainant purchased the flat in the year 2011 and as contended by the OP he ought to have filed the complaint before 2013. In the year 2021 the complainant has come up with this complaint which is clearly barred by time. Further he has also made a complaint to the commissioner of Bangalore regarding utilization of the parking area to the commercial area by giving a representation.  On the other hand, OP has also produced the khata extract wherein the khata to the individual purchasers have been made. Even then, there is no mention of providing the car parking area to all the purchasers of the flat.   Inspite of it, in view of the delay in filing the complaint, complaint is not entitled for any of the reliefs.  It is made clear that this order will not handicap the complainant to proceed before the relevant forum regarding the removal of the bar from the said area by making necessary complaint/filing the case before the civil court and also before the BBMP officials. Hence we answer point No.l in the Negative and in the result, consideration of Point No. 2 and 3 do not arise at all for discussion and hence pass the following;

ORDER

1. Complaint is Dismissed.
2. No order as to cost.
3. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be weeded out/destroyed.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 28^TH DAY OF JUNE 2022)

MEMBER                 MEMER              PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Sale Deed

Ex P2: B Property register

Ex. P3: Approved plan

Ex P4: Photographs to show that the car parking and stilt has been leased to a bar

Ex P5: Copy of the acknowledgement for having lodged a complaint with Suddagunte Palya police

Es P6: Copy of the representation given to the Commissioner of BBMP and the endorsement issued by the BBMP

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.A.K.Murali Krishna

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Khata extract

Ex R2: Photographs showing the parking area

Ex R3: copy of the sale deed

MEMBER                 MEMBER                PRESIDENT