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anil (Proprietor)     22 August 2021

Second buyer denied car park facility.

Dear Sir,

I bought a flat in 2011 Dec. I am the “second buyer” of my flat  in Kerala.

The present administration is done by the flat owners association which was formed in 2008.

During the purchase time, we found that there was no vehicle parking facility mentioned in the document.

We insisted that without vehicle parking this deal wont go further.

Upon this, the Builder prepared an affidavit stating that he is the Managing Director of the company which developed the land and constructed a multi storied building in the aforesaid land as per the building permit  and plan and the first owner has purchased undivided share land and entrusted the Builder to construct an apartment int the 19th floor with 2800 sq ft and a covered car parking as per the building permit and plan, and had  handed over the same to my first purchaser and received all the amounts payable by the first purchaser for the aforesaid construction and no amount is due from him, in this account.  This affidavit was handed over to my first purchaser, which in turn handed over to me. According to this we bought (registered) the flat.

The first owner along with the builder showed us the parking slot and we were enjoying the same for the past 8 years.

In Sep.2020,the Builder through his daughter, filed an injection suit stating that he has transferred the said car park to his daughter (allotted the said car park to her flat) in 2012 and we are illegally holding the car park , and had obtained an Injunction order from Hon: Magistrate court.

We challenged it, but the Hon. Magistrate court dismissed our petition with expense, again putting burden on to us. As a law abiding citizen I removed my car from the slot ( which was using since 2011 Dec.) now parked in open space.

We have filed an appeal in the Hon: District Court, which is about to adjourn in the coming week.

I want to know the following queries:

1.Is an unregistered notarized affidavit valuable?

2.How can a second owner claim a car park, which was transferred by the first owner,  which was not  mentioned in his prior document , despite Builder’s unregistered Affidavit?

3.Now I am parking my vehicle in open space now, which has caused irreparable damage to my investment and property. How can I claim this damage?

4. What legal measures to be taken against the seller/builder?

5. Am I legally entitled to get a car park?

I humbly request to give a solution to my above said grievance



 4 Replies

G.L.N. Prasad (Retired employee.)     23 August 2021

When the matter is in the Appeal stage with District Court and a competent court trust him, and you will certainly get a favorable verdict as that car parking was allotted to you and in your possession and enjoyment for 8 years and you are lured to purchase the flat showing the parking lot, and now if they deny such access it amounts to cheating and criminal breach of trust.

P. Venu (Advocate)     23 August 2021

The facts posted are too disjointed that  any meaningful suggestion requires the perusal of the connected documents.

Dr J C Vashista (Lawyer)     23 August 2021

1. Is an unregistered notarized affidavit valuable?

What are the contents of affidavit, has to be pursued and analysed. It may or may not be used in evidence depends upon its contents. 

2.How can a second owner claim a car park, which was transferred by the first owner,  which was not  mentioned in his prior document , despite Builder’s unregistered Affidavit?

Parking can not be sold / transferred as law laid down by Hon'ble Supreme Court of India. 

3.Now I am parking my vehicle in open space now, which has caused irreparable damage to my investment and property. How can I claim this damage?

What about other flat owners parking of their car(s) i.e., whether they do park in open or some covered parking ?

4. What legal measures to be taken against the seller/builder?

and

5. Am I legally entitled to get a car park? 

It is repetition of earlier questions

 /You have already engaged an able, competent and intelligent lawyer who is well aware about facts and circumstances of the case(s) just have faith and follow his/ her advise.

However if you have lost faith in your lawyer it is better to consult another local prudent lawyer for better analyses of facts/ documents, professional advise and necessary proceeding.

Best of luck

anil (Proprietor)     24 August 2021

Dear sir,

Thank you for your reply.

Sorry to disclose the names and place. The content of the notarized affidavit is: 

I “A” s/o Late B , aged xx years residing at xxxxxxx, do hereby solemnly affirm and state on following:

  1. I am the managing director of XYZ Builders Pvt Ltd, a company incorporated under the companies act 1956.
  2. We have developed the land having an extent of 100.25 cents in xxxxx village, xxxxx District, belonging to myself and my sister(Land owners name and address). We are the owners of 100.25 cents of land in xxxxx Village, xxxxx District. We developed the land and constructed a multi storied building in the aforesaid land as per the Building permit No. “xxxxxxxx/xxx/94” dated xx/xx/1996 and plan of Corporation.
  3. Mr. R (seller of my flat) who had purchased x.xx cents of undivided share in the said land, entrusted us to construct apartment No. 19 in the 19th floor with 2800 sq.ft of super built up area and a covered car parking in the ground floor and we have constructed the apartment 19 and provided car parking as per the building permit and plan and the same was handed over to Mr.R. The aforesaid apartment was numbered by the Corporation as XX/123. We have received all the amount payable by Mr.R for the aforesaid construction and no amount is due from him on the aforesaid account.

 

All facts stated above are true to the  best of my knowledge, information and belief.


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