This complaint case is registered under Section 17(1)(a) of C.P Act, 1986 read with Section 18 of the same Act. The gist of the Complainant case in nutshell is that the Complainant Nos. 1 & 2 are husband and wife purchased a 721 sq.ft flat which was constructed in Plot No. 11558/14128 in Khatian No. 2955/2 of Mouja Siliguri under Siliguri Municipal Corporation along with a car parking space in the said premises measuring 165 sq.ft in area in the open garage in the ground floor located in the same building where the flat of the Complainant was allotted. The Complainant paid Rs. 17,30,400/- for the 721 sq.ft flat and Rs. 2,39,250/- for the said car parking space by virtue of a deed of agreement for sale between the Complainant and the Opposite Party of this case dated 20.04.2016 and in pursuant of that deed of agreement the sale deed was executed and registered on 05.07.2016. The said building was comprised in the Siliguri Municipal Corporation area and for that reason prior to construction of the said building Siliguri Municipal Corporation has sanctioned the plan Bearing No. 995 dated 14.02.2014. The further case of the Complainant is that in the said sanctioned plan which has shown in the Schedule “C” of the complaint the actual car parking space was sanctioned for parking four vehicles. The further case is that the Complainants purchased the said car parking space in Schedule “C” for their personal convenience of parking their vehicle and for the daily requirements to move anywhere the car and its parking space required by the Complainants but the Opposite Party deliberately and intentionally put the Complainant in hardships and to deprive the Complainants to get the due possession of the said open car parking space in spite of having fully received purchased consideration money of Rs. 2,39,250. The further case is that the Opposite Party has failed to keep their burden and obligation in handing over the car parking space. There was deficiency of service and unfair trade practice on the part of the Opposite Parties and for that reason the Complainants has registered the instant Consumer Complaint with a prayer either to direct the O.P to handover the possession of the 165 sq. ft car parking space in favour of the Complainants and alternatively the Opposite Parties may be directed to refund the amount of Rs. 2,39,250/- including stamp duty, registration charges, lawyer’s fees and interest at the rate of 12% Per-annum from the date of payment of consideration money of Rs. 2,39,250/- Rs. 3,50,000/- as compensation for causing physical harassment, mental agony etc to pay 1,00,000/- for compensation for loss of injury suffered by the Complainants and interest at the rate of 12% Per-annum on the amount of compensation from the date of filing the complaint case and also the litigation cost.
The Instant Consumer Complaint was admitted in due course and notice was sent to the Opposite Party Smt. Sudipta Paul who has contested the case by filing the W.V and contended inter-alia that the Commission has no jurisdiction to entertain to adjudicate the dispute as the dispute does not fall within the ambit of the provision of C.P Act, 1986 and the complaint is liable to be dismissed on the ground that lack of pecuniary jurisdiction. The positive case of the Opposite Party is that on the date of registration and execution of the sale deed on 05.07.2016 the delivery of possession of the flat measuring 721 sq. ft and the car parking space measuring 165 sq. ft was handed over and delivered to the Complainant to their full satisfaction free from all incumbrances. And the Complainant in order to securing some unlawful gain in a motivated manner had registered the instant Consumer Complaint which is liable to be dismissed. The further case of the Opposite Party is that the car parking area is not less than 1,100 sq. ft whereas the five number of tenements in the said building has purchased the car parking space including the Complainants which covers 765 sq. ft and there was no inconveniences of the Complainants to put their vehicle in the said car parking space allotted to them. The Complainant No. 1 has examined himself and he was cross-examined by questionnaires and reply. On the other hand, the Opposite Party also has been examined through witnesses and process of cross-examination was exhausted by the method of questionnaires and reply. All the relevant documents have been produced in this case on the part of both sides like deed of agreement, deed of sale sanctioned municipal plan etc. During the course of hearing of the case the S.M.C was asked to submit a report on the basis of local Inspection Commission petition filed by the Complainants and in presence of both sides the competent authority of S.M.C has visited the spot and submitted the report. Argument of both sides were heard and Ld. Advocate of both sides has conducted the hearing on the part of their clients.
POINTS:
- Are the Complainant Consumers under the provisions of C.P Act, 1986?
- Has the Complainants any cause of action to register the Consumer Complaint?
- Wether there is deficiency of service and unfair trade practice on the part of the Opposite Party?
- Are the Complainants entitled to get the reliefs as prayed for?
Decision with reasons
(Point Nos: 1&2) are taken up for hearing.
The maintainability of the case is challenged on the part of the Opposite Party from the angle of two sides. Firstly, the Opposite Party pointed out that the instant dispute does not come within the purview of the Consumer Protection Act, 1986 as Civil Dispute right in this case involved and secondly the question of pecuniary jurisdiction is involved and according to the perception of the Opposite Party the subject matter of the dispute is less than the lower pecuniary limit of this Bench. Whereas, the Complainants have chosen this Forum wrongly and this Forum that is the State Commission cannot entertain such Consumer Complaint as the pecuniary limit is far below than the prescribed limit enunciated in the C.P Act, 1986. Ld. Advocate of the Complainant mentioned that according to Section 2(7) of C.P Act, 1986. The Complainants are consumers as because they have purchased the flat and the car parking space in consideration of paying money and as such they are consumers as because they raised the dispute on the ground that unfair trade practice and deficiency of service was there on the part of the seller. After, hearing both sides it has become crystal clear that the Complainants entered into an agreement of sale with the Opposite Party for purchasing the residential flat along with a car parking space and thereafter the Opposite Party has executed the sale deed 05/07//2016 after procuring the sale price from the Complainants. So, undoubtedly the complainants are come within the purview of the Consumer Protection Act, 1986. Being bonafide consumers it is also revealed that at first the Complainant registered a Consumer Complaint before the Ld. D.C.D.R.F., Siliguri where for the want of pecuniary jurisdiction the Complainant was asked to file the case in an appropriate Forum having sufficient pecuniary limit and jurisdiction to entertain. The purchase price of the flat along with the car parking space covers the lower limit of the State Commission and for that reason he registered the instant Consumer Complaint without challenging the order of the Ld. D.C.D.R.F., and this Commission has got ample pecuniary jurisdiction to entertain the instant dispute. So, the two points are hereby answered in favour of the Complainants.
Point Nos : 3 & 4
All the two points are hereby taken up for the sake of convenience and gravity. The main dispute in this case relates to specification and measurement and allotment of car parking space measuring 165 sq. ft which the Complainants were intended to purchase by paying Rs. 2,39,250/- they have no other allegations about the residential flat which was handed over to them by the Opposite Party. The Complainant’s allegation are that as per sanctioned building plan only four numbers of car parking space was sanctioned in the said building whereas the Opposite Parties have sold out five number of tenements in the said car parking space and for that reason no space could be allotted in car parking area in favour of the Complainants who got execution and registration of the sale deed at last out of the said five number of tenements. The Complainants was not provided the said car parking space of 165 sq. ft and for that reason the dispute cropped up. It is admitted on the part of the Opposite Parties that out of the said five tenements the sale deed of car parking space in favour of Soubhik Ghosal was registered on 19.04.2016, one Sudhangshu Majumder got registration of his deed for purchasing 150 sq. ft car parking space was completed on 08.03.2016, one Smt. Sampa Das was allotted car parking space about 150 sq. ft by registration sale deed on 27.04.2016 and the Complainants got registration of the sale deed for their purchase of car parking space was completed on 05.07.2016. So, it is palpably clear that the Complainants were allotted the car parking space not before 05.07.2016 and before that the other four number of tenements have already got possession of their respective areas in the car parking space. Now, the question is whether the Complainants got sufficient possession of 165 sq. ft in the said car parking space or not. The Municipal Corporation Authority by their sanctioned plan only allowed to have four number of car parking space in the area whereas the Opposite Party has violated the norms of the Municipal Corporation sanction rules and allotted five number of car parking space to the tenements which is apparently illegal on their part. Ld. Advocate of the Complainant during the course of argument mentioned that on the date of execution of the sale deed on 05.07.2016 the Opposite Party has duly handed over the physical possession of the residential flat 721 sq. ft in their favour in the said building as per specifications but could not rightly handover the possession of the car parking space in favour of them and assured them that after completion of some finishing works. Car parking space in proper manner would be handed over soon but the Opposite Parties have yet handover the said car parking space in the Schedule “C” property. The Municipal Corporation Authority after verification of the spot has clearly mentioned in their report that the O.P was permitted to allow to allot the four number of car parking space in that said building and beyond that limit the O.P was unauthorized to sale out any other car parking space to another tenements exceeding the four. Ld. Advocate of the O.P during the course of hearing of the case mentioned that the Complainant illegally demanded specifically demarcated the car parking space in spite of knowing it very well that they have entered into a contact with the O.P to purchase one open car parking space measuring 165 sq. ft in common car parking area. He, further argued the Complainants at the time of execution and registration of the sale deed specifically acknowledged delivery of physical possession of both the residential flat and open car parking space as mentioned in the Schedule of the deed of sale and for that reason they were silent for about two years and thereafter after registration the case only intended to harass the Opposite Parties and intended to gain some money illegally. It is further argued that in the said residential building total number of tenements was nine out of which only five tenements have purchased their respective open parking space in the common parking in the building and altogether 765 sq. ft of open parking space in common area was required out of total parking area of more than 1,100 sq. ft. And no inconveniences were there on the part of the Complainant to enjoy the facility in the car parking in the common parking area.
After, perusal of the building plan and Municipal Corporation inspection report and other documents it has become crystal clear that the Complainants was deprived in getting possession of their acquired right in enjoying the car parking facility in the open car parking space as because the O.P was permitted to sold out car parking space not more than four tenements and for that reason the Complainants were deprived in getting sufficient space for parking their vehicle in the allotted car parking space and such act and conduct on the part of the O.P is nothing but deemed to be the deficiency of service on their part and they have adopted the practice of unfair trade.
The OP knowing fully well the prescribed limit with the ambit of Municipal sanction plan has violated Municipal rule and in unauthorized way has received Rs. 2,39,250/- from the complainants in the guise of selling out car parking space of 165 sq.ft.. She is in no way could be directed to handover 165 sq.ft. garage space in the open car parking area in favour of the complainants.
And for that reason, the Complainants are entitled to get the reliefs. All the points are hereby settled accordingly.
Hence, it’s ordered
That the instant Consumer Complaint filed by Mr. Utpal Bannerjee & Others is allowed on contest with cost aganist O.P. Smt. Sudipta Paul. The Opposite Party is directed to refund the amount of Rs. 2,39,250/- which she received from the Complainant for allotting the car parking space of 165 sq. ft within 45 days along with interest at the rate of 6% Per-annum since the date of registration of the deed dated 05.07.2016 within 45 days. The Opposite Party is further asked to pay compensation of Rs. 50,000/- to the Complainants for deficiency of service and unfair trade practice on her part.
The litigation cost is awarded in favour of the Complainants to the tune of Rs. 10,000/- and all such awarded money are to be paid to the Complainants within 45 days, failing which the Complainants would be entitled to get interest @6% pa over the entire decretal amount
Let the copy of this order be supplied to the parties free of cost.
