Date of filing : 4.5.2018

Judgment : Dt.5.11.2018

Mrs. Sashi Kala Basu, President

            This is a complaint filed by the Complainant namely Smt. Mridula Basu under Section 12 of the Consumer Protection Act against opposite parties namely (1) M/s B.M.M. Constructions, (2) Smt. Madhu Todi, (3) Manish Todi, (4) Smt. Usha Todi, (5) Smt. Suman Todi and (6) Sri Bimal Todi alleging deficiency in services on their part.

            Complainant’s case in short is that she purchased a flat measuring an area of 812 sq.ft. alongwith a car parking space measuring an area of 120 sq.ft. at a valuable consideration of Rs.1,91,000/-. The said total consideration amount has been paid by the Complainant on different dates. The transaction was based on good faith. Opposite parties issued possession letter in respect of car parking space on receipt of part consideration but the opposite parties while executing the deed of conveyance failed to include the car parking space in the deed. Matter was brought to the notice of OPs but in spite of admitting the mistake, they did not execute and register the car parking space. Ultimately a notice was sent by the Complainant through her Ld. Advocate on 3.4.2018 but same was returned unclaimed. Thus this complaint case is filed for directing opposite parties to execute and register the car parking space in the name of the Complainant by a deed of conveyance, to pay compensation of Rs.50,000/- and litigation cost of Rs.10,000/-.

            It appears from the record that the notices were sent to opposite parties and it was also served by way of paper publication but the opposite parties did not take any step. Thus, the case came up for ex-parte hearing.

            Along with the complaint, Complainant has annexed the copy of deed of conveyance and the copy of possession letter.

            During evidence, Complainant filed a petition for treating the petition of complaint as affidavit-in-chief. Thereafter, argument was heard by the Ld. Advocate on behalf of the Complainant.

            Thus, the point requires determination is : Whether the Complainant is entitled to the relief as prayed?

            Decision with reason

            It is the admitted case of the Complainant that he has been handed over the possession of the flat and accordingly a deed of conveyance has also been executed. According to her, she is also in possession of the parking space but it has not been stated in the deed of conveyance by the opposite parties. In support of her case, Complainant has filed only a deed of conveyance in original. No document is forthcoming to show that the parties entered into an agreement for purchase of flat and for a car parking space also. The deed of conveyance in favour of Complainant has been executed on 7.4.1992 and the present complaint has been filed on 4.5.2018 i.e. after about 25 years. It is settled principle of law that party seeking the relief has to establish his/her case by cogent evidence. So, the Complainant has to establish that he also purchased parking space and there was an agreement not only to purchase a flat but also car parking space. The best document to show that there was such an agreement, was the agreement for sale itself but for the reason best known to the Complainant, the agreement for sale has not been filed by her in this case. There was an agreement for sale is evident from the recital of the deed of conveyance. It is stated categorically that pursuant to agreement of sale dated 14.12.1988 whereby the vendor (opposite party) agreed to sell an apartment containing super built area measuring 799 sq.ft. to the purchaser (Complainant), said deed of conveyance was executed. By not filing that agreement dt.14.12.1988, Complainant has withheld the material document. Neither she has filed the original possession letter in respect of parking space in spite of opportunity given to her.

            Unless the agreement for sale dt.14.12.1988 is filed, it cannot be said that there is any violation on the part of opposite parties resulting deficiency in service. So, the Complainant has failed to establish that there was also an agreement for sale of parking space along with the flat and thus she is not entitled to any relief as prayed.

            So far as following decisions cited by the Ld. Advocate for the Complainant, (1) Meerut Development Authority vs Sri Om Prakash Gupta, (2) Satadal Gupta versus Flat Owners Association of Kheya Apartment and (3) Meerut Development Authority versus Ashok Kumar Sood, on the point of continuing cause of action, will not be applicable in view of the discussions as highlighted. Those decisions were cited as there is delay of about 25 years in filing this complaint. But, the case of the Complainant has not been accepted by this Forum totally on different ground as no agreement for sale dated 14.12.1988 is filed in spite of document being in existence.

            Hence

Ordered

CC/233/2018 is dismissed ex-parte against the opposite parties.