IMPORTANT POINT
(1) Privity of Contract – absence of privity of contract is not a bar for maintaining a Complaint against a service provider

ORDER

R.K. Agrawal, President.—The present Appeal has been filed against the Order dated 25.04.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission (hereinafter referred to as State Commission), whereby the State Commission dismissed the Complaint filed by Dr. Indu G. Nainani & Gobind N. Nainani (hereinafter referred to as the Complainants) by holding that since there was no privity of contract between M/s. Kamla Park Developers (hereinafter referred to as the Opposite Party Developer) and the Complainants in respect of sale of flat together with parking lots, no deficiency can be alleged against the Opposite Party Developer.

2. Brief facts of the case are that the Complainants had purchased a Flat No.901 on 9th floor in the Building ‘Casa-Di-Angels’ situated on a plot of land at City Survey No. F/450 of Village Bandra, Mumbai alongwith two Stilt Car Parking and One Open Car Parking from Mr. Aditya Gupta and Mr. Anuj Gupta vide Sale Deed dated 27.08.2009 for a total consideration of Rs.3,15,00,000/-. The original Sale Deed was executed by the Developer on 16.03.2009 in favour of Mr. Aditya Gupta and Mr. Anuj Gupta and they were the confirming party to the second sale deed dated 27.08.2009.

3. In the month of April 2010, the Complainants requested the Developer to allow their Contractor to carry out interior works in the said Flat. Vide letter, dated 22.04.2010 the possession of the flat was handed over by the Developer to the Complainants for a limited purpose of carrying out interiors as at that point of time no occupation certificate was issued for the building. It was also made clear that the complete possession would be delivered to the Complainants on receiving the Occupation Certificate.

4. On 22.2.2011, Developer handed over a copy of the Full Occupancy Certificate dated 9.9.2010 to the Complainants alongwith letter dated 10.9.2010 calling upon them to clear the entire payment of sale consideration of the said flat to enable them to issue possession letter. By Demand draft in the sum of Rs.15,44,721/- and a cheque for Rs.4,49,600/-, the Complainants paid the entire balance amount to the Developer and Nandita CHS Ltd. respectively. Since, the entire sale consideration was paid, the Complainants, vide emails dated 30.04.2010 and 03.07.2010 as also by letter dated 12.02.2011, informed the Developer that stilt Parking No.07 & 08 are their first preference and stilt Parking Nos. 10 & 11 are their second preference. However, after receiving the total sale consideration, there was absolutely no response from the OP Developer regarding allotment of parking and to the utter shock of the Complainants, the watchman of the building prevented their contractor in April-May 2011 from parking their vehicle in the stilt parking and informed them that Open Parking bearing Nos. 18, 19 and 20 have been allotted to the Complainants. Complainants sent an email to the Developer on 02.05.2011 requesting them to make an allotment of stilt parking in accordance with the Agreement but in vain. Consequently, Complainants issued a legal notice to the Developer which also was not responded by them. Alleging deficiency in service on the part of Developer in not providing the two Stilt and One Open Car parking space, the Complainants filed Complaint before the State Commission seeking directions to the Developer to (i) issue allotment letter specifying by distinctive numbers of the two Stilt Car Parking and One Open Car parking in the Building and to make available the same to them and (ii) in the alternate, to pay compensation of Rs.95,00,000/- with interest @ 12% p.a. from the date of the Complaint.

5. The Opposite Party Developer contested the Complaint by filing its Written Statement and denied all the allegations made in the Complaint. A preliminary issue was raised that the Complainants were not the “Consumers” as defined under the Consumer Protection Act, 1986 (for short, “the Act”) inasmuch as the Sale Deed dated 27.08.2