BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.1073/2009 against C.C.No.139/09, DISTRICT FORUM-III, HYDERABAD.
Between
Smt. Vanguri Venkata Lakshmi Prasanna,
W/o.Sri Bala Krishna Rao,
Aged about 64 years,
Occ: House wife,
R/o.B-15, 3-14-19,
Old Pattabhipuram,
Guntur. …Appellant/
Complainant
And
1.M/s. Bhavanam Estates Pvt. Ltd.,
Rep. by its Managing Director,
Sri Bhavanam Govinda Reddy,
Plot No.134, 6-3-347/9,
Dwarakapuri Colony, Panjagutta,
Hyderabad.
2. P.A.V.Udaya Bhaskar,
Chief Conservator of Forest,
Visakhapatnam Circle,
1-Vikas Forest Complex,
R.K.Beach Road,
Visakhapatnam-533 003.
3. Riviera Apartment Owners’ Welfare
Association, (REGD.NO.9832/2000) ,
Rep. by its Secretary, Mr.J.Chandy,
6-3-347/9, Dwarakapuri Colony,
Punjagutta,
Hyderabad-500 082. …Respondents/
Opp.parties
Counsel for the Appellant : M/s. Gopi Rajesh Associates
Counsel for the Respondents : M/s.G.Rama Sarma –R1
M/s. P.Veerraju –R2
QUORUM: THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT
SMT.M.SHREESHA, HON’BLE MEMBER
AND
SRI R.LAKSHMI NARASIMHA RAO, HON’BLE MEMBER
WEDNESDAY, THE THIRD DAY OF AUGUST,
TWO THOUSAND ELEVEN.
(Typed to dictation of Smt.M.Shreesha, Hon’ble Member)
****
Aggrieved by the order C.C.No.139/09 on the file of Dist.Forum-III, Hyderabad, the complainant preferred this appeal.
The brief facts as set out in the case are that one K.Venkata Subbaraya Sarma purchased flat no.206 in Riviera Apartments by way of registered Sale Deed from opposite party no.1 on 7.9.1992 for a sale consideration of Rs.6,80,000/- and thereafter the said K.Venkata Subbaraya Sarma executed a Gift Deed in respect of flat no.206 admeasuring 1820 sq.ft. including common area and Car Parking together with undivided share of 50 sq.yards. in favour of the complainant by means of gift settlement deed on 19.9.2007. It is the complainant’s case that Car Parking P-16 was earmarked by opposite party no.1 on 11.11.03. Thereafter opposite party no.2 occupied the said car parking slot and the complainant sent a letter to opposite party no.3 on 14.1.08 and requested them to go through the documents earmarking P-16 as car parking to her. Opposite party no.2 replied that he is the owner of flat 306 and that car parking was delivered by opposite party no.1 to him on 23.6.01. Hence the complaint seeking direction to opposite parties for possession of car parking P-16 for the flat bearing no.206, Riviera Partments, Punjagutta, Hyderabad.
Opposite party no.1 remained exparte . Opposite party no.3 filed documents available with the Association in respect of this case.
Opposite party no.2 filed written version stating that he received the complainant’s notice dt.8.4.08 and sent a reply on 30.4.08 . He submits that he purchased flat no.306 in Riviera Apartments with 1/40th undivided share in 2000 sq.yards vide registered Sale Deed dt.4.6.98 and he was given possession of flat 306 on 23.6.2001 along with the car parking slot. The complainant has come up with false allegations and there is no privitiy of contract between opposite party no.2 and complainant.
The District Forum based on the evidence adduced i.e. Exs.A1 to A14 and B1 to B5 dismissed the complaint.
Both sides filed written arugments.
Aggrieved by the said order, the complainant preferred this appeal.
The facts not in dispute are that the complainant vide Ex.A8 Gift Settlement Deed dt.19.9.2007 became the owner of the flat no.206 in Riviera apartments. Ex.A1 is the copy of the Agreement of Construction in between opposite party no.1 and Sri K.Venkatasubbaraya Sarma. and Ex.A2 is the Agreement of Sale between the same parties dt.7.9.92. Ex.A6 dt.11.11.2003 is the Delivery of Possession letter of flat no.206 to the allottee i.e. the complainant herein. This letter also states that the complainant has usage of the car parking area. Ex.A10 is the letter addressed by the Riviera Apartment Owners’ Welfare Association to opposite party no.2 referring to the complainant’s letter that parking no.P-16 is allotted to her. The learned counsel for the appellant/complainant submitted that she addressed a letter dt.22.2.08 to opposite party no.3 that she leased out apartment no.206 to M/s.Career Bridge Group from 1.2.2008 and that they would be paying the maintenance charges and that P-16 is allotted to her.
Opposite party no.2 in his written arguments contended that he purchased flat no.306 vide registered Sale Deed on 4.6.1998 from opposite party no.1 in pursuance of the Agreement of Sale dt.24.6.1992. A Construction Agreement was also executed between them on the same date. As per this Agreement, possession of flat no.306 along with car parking was allotted to him. The learned counsel for opposite party no.2 filed delivery of possession letter Ex.B2 dt.23.6.2001 which confirms the delivery of possession of flat no.306 and the plan annexed to this possession letter earmarked the same car parking area which has been earmarked to the plan annexed to the delivery of possession letter dt.11.11.2003, Ex.B5 of flat no.206, the allottee being the complainant’s brother Dr.KVS.Sharma. It is not in dispute that this flat no.206 was gifted again vide Ex.A8 dt.19.9.2007 to the complainant herein. Therefore it is apparent that opposite party no.2 had taken possession of flat no.306 on 23.6.2001 with the earmarked car parking area as shown in the plan (Ex.B2) whereas the complainant’s brother had taken possession of flat no.206 on 11.11.2003 (Ex.B5/A6). These documents evidence that the possession was given first to opposite party no.2 i.e. in the year 2001 itself along with the said disputed car parking area and subsequently to the complainant herein in the year 2003. It is the complainant’s case that she has been out of country till 2007 and her tenant had informed her that opposite party no.2 was using the car parking area allotted to them. The complainant failed to file affidavit by way of evidence of the tenant as to what happened to the car parking area which was originally entrusted to them. It is not known as to whose possession the car parking area was in between the years 2003 to 2007 as the delivery of possession letter Ex.A6 is dt.11.11.2003 and the complainant submits that she was out of country till 2007. So an affidavit of the tenant with respect to enjoyment of car parking area ought to have been filed. Even otherwise it is the builder who has to explain to whom he has allotted P-16. Though the car parking area number “P-16” is not reflected in the sale deeds, both the sale deeds of the complainant herein and the opposite party no.2 together with delivery of possession letters show the same area earmarked towards the car parking. Opposite party no.1 builder was set exparte before the District Forum and also did not appear before this Commission. Keeping the facts and circumstances of the case and the aforementioned documents in view, it is for the builder/opposite party no.1 to explain as to whom he has allotted P-16.
The documentary evidence filed before this Commission evidences that the said car parking area was given delivery in the year 2001 itself to opposite party no.2. Since the Sale Deed and Delivery of Possession letter of the complainant also is with the same car parking for flat no.206, we are of the considered view that opposite party no.1 builder should allot and earmark suitable car parking area for flat no.206 within 4 weeks from the date of receipt of this order and also pay compensation of Rs.10,000/- and costs of Rs.5000/-. This compensation is being awarded since opposite party no.1 has earmarked the same car parking portion for flat no.206 which was earlier already allotted in 2001 to opposite party no.2 thereby causing inconvenience and mental agony to the complainant herein.
In the result this appeal is allowed and the order of the District Forum is set aside and consequently the complaint is allowed in part directing opposite party no.1 builder to allot and earmark sufficient car parking area to the complainant herein within 4 weeks from the date of receipt of the order and also pay compensation of Rs.10,000/- together with costs of Rs.5000/-
PRESIDENT
MEMBER
MEMBER
Pm* Dt. 3.8.2011
