Appeal No.32 of 2023

What the case concerned

Appeal No.32 of 2023 concerned apartment G-03 in the UDITA project developed by M/s. Kgeyes Residency Private Limited. A. Ashok Kumar bought the apartment from the original allottee, M. Jyothiprakash, through a registered sale deed dated 1 July 2016.

The original allottee's construction agreement dated 22 August 2005 stated that the construction cost included one covered car parking space. However, the allotment letter issued on the same date did not mention car parking. The promoter maintained that the original allottee had not opted for parking and had received a deduction of Rs.1,00,000 from the total cost.

History of the parking dispute

The Tamil Nadu Real Estate Appellate Tribunal noted the following facts:

• Possession of the apartment was handed over during March 2007.
• Correspondence from November 2008 onwards showed a serious dispute about parking.
• The promoter cancelled and re-allotted the parking space to another allottee during February 2009.
• The original allottee issued a legal notice dated 22 August 2009 but did not begin legal proceedings.
• The 2016 sale deed transferring the apartment to A. Ashok Kumar did not mention car parking.
• A. Ashok Kumar filed his complaint before the Tamil Nadu Real Estate Regulatory Authority only in 2022.

Tribunal's findings

The Tamil Nadu Real Estate Appellate Tribunal found that the parking claim was barred by limitation because it was not filed within three years from the apartment purchase. It stated that application of the Limitation Act was not barred by the Real Estate (Regulation and Development) Act, 2016.

The Tribunal also rejected the argument that every parking area must be treated simply as a common area available to all owners. It distinguished between a common area for all allottees and a limited common area reserved for one or more apartments to the exclusion of others.

Relying on the Supreme Court judgment in Nahalchand Laloochand Private Limited v. Panchali Co-operative Housing Society Limited, the Tribunal held that the promoter was entitled to charge for car parking proportionate to the carpet area of the flat. It dismissed the appeal and made no order as to costs.

Who may be affected

The decision is relevant to apartment purchasers, subsequent buyers, promoters and resident associations dealing with disputed parking rights. Buyers should check whether parking is identified in the construction agreement, allotment letter and sale deed, and should note that long delays in bringing a claim may prevent it from being considered.