|
Before the Hon’ble District Consumer
Disputes Redressal Commission |
|
South 24 Parganas |
|
Baruipur, Kolkata - 700 144. |
IA no. of
2023
Arising out of
Consumer
Complaint no. 175 of 2022
In the matter
of :
Smt.
Prattusha Ghosh.
________Complainant
-
Versus
–
Smt. Anima Das
& Others
_________Respondents
WRITTEN OBJECTION
OF RESPONDENT
NO. 7
M/s. Elite
Construction
The humble
petition on behalf of the above named respondent no.7, M/s. Elite Construction most
respectfully;
Sheweth as
under;
1.
That
the Petitioner has been served with the purported copy of petition being an
application for appointment of Engineer Commissioner, made by the Complainant
without any copy of annexure, thereof. The Petitioner have gone through the contents
of the purported petition and made replies to the same, are as follows.
2.
That
the petition being an application for appointment of Engineer Commissioner, is
suffering from suppression of material facts and necessary information, and
therefore liable to be dismissed at once with exemplary costs.
3.
That
the petition being an application for appointment of Engineer Commissioner, is
suffering from any legal demand and thereby cause of action, the present
petition is motivated and without any jurisdiction.
4.
That
as
per Section 38(9)(e) of the Consumer Protection Act, 2019, corresponding to
Section 13(4)(V) of the erstwhile Act of 1986, a District Commission has the
same power vested in a Civil Court, under the Civil Procedure Code, 1908 for
issuance of a Commission. This provision specifically deals with the power to
issue a commission for examination of any witness or any document. The Act
however, is silent on whether a District Commission has the competency to issue
a commission for local inspection or scientific investigation.
5.
That
it is pertinent to note that expert evidence is of two types, i.e. opinion
sought by a Consumer Forum under Section 38(2)(c) and opinions filed by the
Parties, as a part of their respective evidence. Section 38(2)(c) provides that
a District Commission, may at its discretion seeks analysis and testing of the
alleged defective goods, by sending them to an appropriate laboratory,
recognized by the Central or State Government.
6.
That
it cannot be denied that the parties are at liberty to lead expert evidence, by
way of affidavit. In this regard, the case of Yogendra Builders & Anr.
Versus Vidya Paradise Owners Welfare Association & Another, AIR 2008 AP 31
may be referred to where the Single Judge of the High Court of Andhra Pradesh
had observed that the Consumer Commissions lack the power to issue a Commission
for any other purpose than what is provided under Section 13(4) (v) of the
Consumer Protection Act, 1986. The Division Bench of the High Court, in the
case of Sivashakthi Builders, Hyderabad Versus A.P. State Consumer Disputes
Redressal Commission, 2009(6) ALL MR (JOURNAL) 27, took a different view than
to the Single Judge Bench. It was observed that the Consumer Forum have no
competency, under any circumstances to issue a commission for local inspection.
Since, the intention of the legislature was to limit the power of the consumer
forums to issuance of commission for examining a witness only. Thus the finding
of the Hon’ble Division Bench of the Andhra Pradesh High Court is well
established and binding that the Consumer Commissions have no competency to
issue a Commission for inspection.
7.
The
Division Bench of the High Court, in the case of Sivashakthi Builders,
Hyderabad Versus A.P. State Consumer Disputes Redressal Commission, 2009(6) ALL
MR (JOURNAL) 27, specifically states that Consumer Protection Act (1986),
S.13(4) - Civil P.C. (1908), O.26, R.9 - Consumer disputes - Applicability of
O.26, R.9 - Consumer Forum cannot appoint Advocate Commissioner to make local
inspection.
8.
Thus
in view of decision of the Division Bench of the High Court, in the case of
Sivashakthi Builders, Hyderabad Versus A.P. State Consumer Disputes Redressal
Commission, 2009(6) ALL MR (JOURNAL) 27, the petition being an application for
appointment of Engineer Commissioner, made by the Complainant is not tenable
and therefore liable to be rejected inlimnie.
9.
That
this Opposite Party namely M/s. Elite Construction is a partnership firm,
having its office at premises being no. 1/429, Gariahat Road (South), Police
Station – Lake, Kolkata 700068, District South 24 Parganas, represented by its
Partners namely (1) Smt. Sabita Ghosh, (2) Smt. Sonali Nag, (3) Sri Nantu
Ghosh, (4) Sri Sudip Ghosh, and Smt. Mithu Majumder. This Opposite Party is
carrying business of Construction and Development of Land and premises, in the
Kolkata City and its surrounding places, in the District South 24 Parganas.
10.
That
the Opposite Parties no. 1, 2, 3, 4, 5, and 6, are the Land Ownersin respect of
piece and parcel of Bastu land measuring an area of 29 satak (23 satak i.e. 13
cottah 15 chittacks 2 sqft. Bastu + 6 chittak i.e. 3 Cottahs 10 chittaks 8 sqft
pukur) i.e. physical land area is 17 cottahs 09 chittak 10 sqft. Little more or
less with existing building ground floor 500 sqft + 1st floor having
500 sq. ft. (about 3 years old cemented floor) lying and situated in ward no.
17 (old 16) being premises no. 68 (Old 36) SB Das Road, Rajpur, Kolkata –
700149, in the District South 24 Parganas comprised in MOuza Rajpur, Police
Station – Sonarpur, Plot No. 591, Khatian No. 2744, J.L. No. 55, Touzi No. 251,
R.S. No. 109, ADSR Sonarpur, under the jurisdiction of Rajpur- Sonarpur
Municipality.
11.
That
for beneficial and smooth accomplishment of new proposed building at the
premises of the land owners, the land owners entrusted this opposite party, on
such terms and conditions specifically mentioned in the Development agreement
coupled with a Development Power of Attorney. The Development Agreement was
executed on 10-07-2013, which is registered in Book no. I, CD Volume No. 30,
Pages from 1141 to 1172m Being no. 05728 for the year 2013, at the office of
DSR-IV South 24 Parganas, West Bengal, and the Development Power of Attorney
was registered ast the office of the DESR-IV, 24 Parganas South, vide Book No.
1, CD Volume No. 30, Pages from 1173 to 1193 Being No. 05729 for the year 2013.
12.
That
this Opposite Party started construction of the proposed building in accordance
with the sanctioned plan of the Rajpur- Sonarpur Municipality vide Plan No.
110/CB/17/17 dated 19-08-2016.
13.
That
the said proposed building on completion named and known as “:ARPAN”.
14.
That
the Land Owners entered into a Supplementary Development Agreement, with this
Opposite Party, on 12th day of December’ 2017, by which all points
in the referred previous agreement will remain same except those hereunder
written for the purpose of new construction in the said property as described
in the First Schedule of this agreement to maintain the conventional Rules
& Regulations of the concerned department of Government of West Bengal.
15.
That
the said Supplementary Development Agreement dated 12th day of
December’ 2017, redefined about Developer’s allocation, Owner’s allocation, and
the Common portion of areas at the said premises, which described as follows ;
FOURTH SCHEDULE ABOVE REFERRED TO IN
THE PROJECT AREA
i)
Staircase
on all floors.
ii)
Staircase
landing on all floors.
iii)
Common
Passage and lobbies in the ground floor.
iv)
Water
Pump, Water Tank, Water Pipes and other Plumbing installations.
v)
Electric
Supply, Transformer, Electric Wiring, meters and fittings ( excluding those as
are installed for any particular unit).
vi)
Drainage
and Sewers.
vii)
Boundary
Walls and Main Gate.
viii)
Lift
or Elevator.
ix)
Such
Common parts, area equipment, installations, fixture, fittings, and spaces as
well as the roof and terrace in or about the said buildings as are necessary
for passage user and occupation of the units in common as are specified by the
Vendor expressly to be common parts after construction of the Building.
16.
The
said Supplementary Development Agreement dated 12th day of December’
2017, removed the following from the Fourth Schedule given in the earlier
Development Agreement dated 10th day of July’ 2013;
THE FOURTH SCHEDULE
REFERRED TO:
a)
Lawns
and Gardens.
b)
Swimming
Pools.
Therefore
there was no occasion to lodge such Lawns, and Gardens, and Swimming Pools, at
the said Premises.
It is
pertinent to states that the said premises comprising a pond for the beneficial
exclusive uses of the occupants of the said premises.
17.
The
Complainant have taken inspection of the copies of the relevant title deeds and
the approved plans in respect of the said land and the building being
constructed thereon and are satisfied about the title of the land owners to the
said land, and about the proposed building scheme of the project on the said
land.
18.
The
Complainant being so satisfied are desirous of acquiring a flat which is marked
and identified as no. “A4” on the First Floor, facing south, measuring super
built up area of about 749 sq. ft. ( more or less ) 42.53 sqm carpet area, upon
the terms and conditions as more particularly given in the Agreement for Sale
dated 17th day of November’ 2020.
19.
The
Complainant entered into an Agreement for Sale dated 17th day of
November’ 2020, in respect of a self contained FLAT No. “A4” , measuring super
built up area more or less 749 sqft or more or less 42.53 sqm carpet area on
the First Floor, South facing of the G + IV Storied building at premises no.
68, S.B. Das Road, Rajpur, Kolkata – 700149, Ward no. 17, under the
jurisdiction of Rajpur Sonarpur Municipality comprising 2 bedrooms, I
dinning-cum-kitchen-cum-living room, 1 toilet, 1 W.C. and 1 verandah, against
the consideration money as Rs. 22,00,000/- ( Rupees Twenty Two Lakhs ) only.
20.
The
said Agreement for sale dated 17th day of November’ 2020, contained
the following specified terms to be performed by the complainant and this
opposite party;
(1) At page number
6, paragraph number 2 – That for any additional work or changes in
specification desired by the Purchaser, the Developer shall be carrying out the
same against extra payment and the list of extra work should be given at the
time of agreement by the Purchaser along with 50% payment on account of extra
work.
(2) At page number
6, paragraph number 3 – That the Purchaser hereby agrees to pay all the amounts
payable in time as per the THIRD SCHEDULE hereunder written and time in this respect is the essence of this contract.
(3) At page number
6, paragraph number 5 – That if the dues of the Developer are not paid in time
as per the Schedule hereunder written the Developer shall be at liberty to
terminate and rescind this agreement for sale and shall be at liberty to sell
the flat to any intending purchaser and will refund the advance amount so far
paid by the purchaser of this agreement within 45 days from the date of such
termination.
(4) At page number
7, paragraph number 10 – That the Purchaser shall take and be deemed to have
taken delivery of the Flat on the date of delivery and as from such date of
delivery the Purchaser shall become liable to pay a proportionate share of the
common expenses whenever demanded.
(5) At page number
8, paragraph number 17 – That the Purchaser shall bear and pay the proportionate
share of the costs of formation and expenses of an Association as may be
necessary by the co-owners for peaceful enjoyment of respective units in the
building and the Developer will not be responsible for formation of any such
Association.
(6) At page number
8, paragraph number 21 – That so long as such flat in the said building shall
not be separately assessed for the purpose of the Rajpur Sonarpur Municipality
Taxes maintenance charges and water charges, the purchaser shall pasy
proportionate share of water taxes, maintenance charges and municipal taxes and
other taxes assessed on the entire building, the charges for electricity and
water and in the event of the default in payment by the purchaser, the
developer/ co-owners of the building shall have the right to claim interest @
12% p.a. on all such outgoings and discontinue supply of water and electricity
in the said flat.
(7) At page number
9, paragraph number 22 – That the Purchaser shall have no right or claim save
and except in respect of the said residential flat hereby agreed to be acquired
by him on other space of the said premises.
(8) At page number
9, paragraph number 23 – That the Purchaser shall not use the said flat or
permit the same to be used for any purpose whatsoever other than as a Private
Dwelling purpose and shall not commit any act, deed or thins which is likely to
cause nuisance or annoyance to the other owners/ occupiers of the building as
well as of the neighbouring properties nor for any illegal and / or immoral
purposes.
(9) At page number
9, paragraph number 27 – That the Purchaser shall not have any right to
obstruct any further development or additional construction which may be done
by the Developer in the said building or any part of the said land.
(10)
At
page number 9, paragraph number 28 – If the building deviates from the building
sanction plan then the Developer shall regularize the building as per Rajpur
Sonarpur Municipality rules and if in that case the area of the flat increases
then the purchaser shall pay the price of that extra area at the rate at which
the flat was purchased earlier and in the same manner if the area decreases
then the developer shall refund/ adjust the price of that area at the rate at
which the flat was purchased earlier.
(11)
At
page number 9, paragraph number 29 – That any notice required to be given by
one party to the other party herein shall without prejudice to any other mode
or service available to be deemed to
have been served if delivered by hand or sent by prepaid registered post.
(12)
At
page number 10, paragraph number 31 – the purchaser shall arrange for separate
electric meter at his own cost to be installed in the name of the purchaser for
his flat before taking physical possession of the flat and in no circumstances
the purchaser can use common meter for their personal enjoyment.
21.
On
accomplishment of the terms of the payment in the said Agreement for Sale dated
17th day of November’ 2020, the Deed of Conveyance on 3rd
February’ 2021, has been executed and registered in favour of the complainant
by this opposite party, in respect of the self contained FLAT No. “A4” ,
measuring super built up area more or less 749 sqft or more or less on the
First Floor, South facing of the G + IV Storeyed building at premises no. 68,
S.B. Das Road, Rajpur, Kolkata – 700149, Ward no. 17, under the jurisdiction of
Rajpur Sonarpur Municipality comprising 2 bedrooms, I
dinning-cum-kitchen-cum-living room, 1 toilet, 1 W.C. and 1 verandah, against
the consideration money as Rs. 22,00,000/- ( Rupees Twenty Two Lakhs ) only,
which registered in Book I, Volume number 1604-2021, pages from 68571to 68629,
Being no. 160400645 for the year 2021.
22.
The
Complainant has inspect the construction work on several occasion and more
particularly while entering into an agreement for sale for the said flat with
this opposite party. The complainant on being satisfaction in respect of the
measurement of the said subjected flat, arranged for the execution and
registration of the said subjected flat, in his favour. It is pertinent to
mention that the price of the said subjected flat has never been calculated on
the basis of Super built up area but on the basis of carpet area. For the sake
of registration it was amicably settled by and between the parties, that super
built up area should be mentioned along with carpet area. Thus the Agreement
for Sale, as well as Deed of Conveyance and other related documents, all shows
together with the Carpet area and the Super built up area, in showing the
measurement of the said subjected flat. The Carpet area is a pivot for the
actual measurement of the said subjected flat, and thus the price has been
ascertained on the Carpet area and not of the Super Built up area. Since the
Super Built up area has never taken into consideration in assessment of the
price for the said subjected flat. The Complainant herein agreed to that and
entered into an agreement for sale dated 17th day of November’ 2020,
which clearly and sufficiently states about the Carpet area for the said
subjected flat and whereas on full satisfaction by the complainant, the
complainant proceeded for the execution and registration of the Deed of
Conveyance in respect of the said subjected flat. Thus there is no equation as
of per sqft price like that. The price was fixed on the carpet area given in
respect of the said subjected flat, and the same has been duly agreed and
undertaken by the purchaser being the complainant herein. The said agreement
for sale and the deed of conveyance in respect of the said subjected flat the
schedule thereof are the same and are binding on both the parties therein, i.e.
the Complainant and this Opposite Party.
23.
The
subjected flat was sold at a price on the basis of the calculation of carpet
area of the said subjected flat, and the same was agreed by the Complainant,
while entering into an agreement for sale for the said subjected flat, while
making payments to this opposite party in respect of the said subjected flat,
when the deed of conveyance has been registered in his favour upon his
arrangement, and finally while he is taking the physical possession of the said
subjected flat at the said given premises, and consequently on enjoying the
said subjected flat in staying therein with his family members.
24.
The
Complainant further entered into an agreement sale dated 2nd day of
February’ 2021, in respect of one self contained PARKING No. “2” measuring an
area of 120 sqft. At the ground floor of the G+IV Storeyed building at premises
no. 68, SB Das Road, Rajpur , Kolkata – 700149, Ward no. 17, under the
jurisdiction of Rajpur Sonarpur Municipality, against the consideration money
as Rs. 2,75,000/- ( Rupees Two Lakhs and Seventy Five Thousand ) only.
25.
The
said Agreement for Sale dated 2nd day of February’ 2021, contended
the following specified terms and conditions to be performed by the complainant
and this opposite party;
(1) At page number
6, paragraph number 2 – That the Purchaser hereby agrees to pay all the amounts
payable in time as per the THIRD SCHEDULE hereunder written and time in this
respect is the essence of this contract.
(2) At page number
6, paragraph number 4 – That if the dues of the Developer are not paid in time
as per the payment schedule hereunder written the Developer shall be at liberty
to terminate and rescind this agreement for sale and shall be at liberty to
sell the parking space to any intending purchaser and will refund the advance
amount so far paid by the purchasers of this agreement within 45 days from the
date of such termination.
(3) At page number
7, paragraph number 6 – If the purchaser wants to cancel the agreement for sale
for his/ her inconvenience/ fault/ problem then the Developer shall refund the
advance amount paid till date by the purchaser after deducting 10% of the
advance / payment made till date within 60 days.
(4) At page number
7, paragraph number 7 – That until the date of delivery and / or actual
delivery of the parking space, the Developer shall exclusively be entitled to
use and possess the unit and every part thereof.
(5) At page number
7, paragraph number 8 – That upon delivery of the parking, the purchaser shall
be entitled to use and possess the same and every part thereof exclusively and
to the rent issues and profit thereof.
(6) At page number
7, paragraph number 12 – That after completion of construction of the said
parking the developer shall give notice to the purchaser for taking over
possession of the said parking upon payment of all dues payable by the
purchaser to the developer and within 7 days from the date of receipt of notice
and simultaneously or within a reasonable time thereafter purchaser shall get
his parking registered by a registered deed of conveyance in his favour at his/
her expenses by the Developer’s lawyer.
(7) At page number
8, paragraph numbe4r 14 – That the Purchaser from the date of delivery of flat/
parking shall be liable to pay proportionately any taxes and imposition by any
statutory authority in respect of the building and /or his flat/ parking space
and common meter electric bill, salary of security guard and sweeper and other
expenses required to maintain the building premises.
(8) At page number
8, paragraph number 19 – That the Purchaser shall have no right or claim save
and except in respect of the said residential flat/ parking space hereby agreed
to be acquired by him/ her on other space of the said premises.
(9) At page number
9, paragraph number 22 – That the purchaser shall observe and perform all rules
and regulations or restrictions from time to time in force and perform
accordingly for the purpose of the proper use and enjoyment and management of
the said building.
(10)
At
page number 9, paragraph number 23 – That the Purchaser shall not have any right
to obstruct any further development or additional construction which may be
done by the Developer in the said building or any part of the said land.
(11)
At
page number 9, paragraph number 24 - That any notice required to be given by
one party to the other party herein shall without prejudice to any other mode
or service available to be deemed to have been served if delivered by hand or
sent by prepaid registered post.
26.
The
Complainant has paid a sum of Rs. 50,000/- ( Rupees Fifty Thousand ) only, by
Cheque no. 637113, drawn on State Bank of India, Rajpur Branch on 24-02-2021,
in pursuing the said Agreement for Sale dated 2nd day of February’
2021, and consequently on 18/05/2022, a sum of Rs. 1,00,000/- ( Rupees One Lakh
) only, has been paid by the Complainant to this Opposite Party. Thus a total
sum of money being Rs. 1,50,000/- ( Rupees One Lakh and Fifty Thousand ) only,
has been paid by the Complainant to this Opposite Party out of the total
consideration money being Rs. 2,75,000/- ( Rupees Two Lakhs and Seventy Five
Thousand ) only. Therefore a sum of Rs. 1,25,000/- ( Rupees One Lakh and Twenty
Five Thousand ) only, is a balance sum of money, which is payable by the
complainant to this opposite party in compliance of the said Agreement for Sale
dated 2nd day of February’ 2021.
27.
The
said agreement for sale dated 2nd day of February’ 2021, in respect
of car parking space is still awaiting for performance in respect of payment by
the complainant. This is the complainant on whose behest the said agreement is
still awaiting to perform by this opposite party. However, this opposite party
is awaiting upon request of the complaint, who took some time to pay the
balance consideration money in respect of the subjected car parking space, in
terms of the said agreement for sale dated 2nd day of February’ 2021.
28.
That
the contents and purports of the present consumer complaint have not ever been
substantiated with any evidentiary value documents. Thus failed to substantiate
the followings purports of the present consumer complaint;
(i)
Paragraph
number 14. That the complainant since the time of receipt of the delivery of
possession of the said flat have raised objection with regard to the
workmanship and also with regard to measurement of the said flat and requested
the opposite party no.7 on several occasions to take the measurement of the
said flat in his presence and also to remove/ repair the defective fittings/
doors/ windows/ gate etc and to make repair the damp of the walls, ceiling etc.
but the opposite party no. 7 on all such occasions heard the request of the
complainant in deaf ear and have failed and neglected to take measurement of
the said flat and also failed and neglected to remove/ repair the defective
fittings/ doors/ windows/ gate etc and to make repair the damp of the walls,
ceiling etc and said acts and conducts on the part of the opposite party no.7
is deficiency in service & unfair trade practice.
False allegations tried to be pasted
by the complainant, without any substantial strength in his story. The
complainant did never communicate such things to this opposite party. There
have no issues of any defect in workmanship and the cause of the measurement of
the said subjected flat, while every contents and purports has described in the
agreement for sale. The complainant has no document to show that the
complainant has ever given any letter or communication in any mode or services
to this opposite party.
After lapse of
substantial period, raising vague and frivolous issues are much unwarranted and
not maintainable either in facts or in law, and therefore deserve to be
dismissed with cost thereof in terms of the provisions of the Consumer
Protection Act’ 2019.
(ii)
Paragraph
number 15. “and thereby failed and neglected to obtain the completion
certificate in respect of the said building of the said premises and the said
acts and conducts on the part of the opposite party no. 7 is deficiency in
service & unfair trade practice”.
The Complainant may be known as
FALSEHOOD, on being consideration of his statements as stated in paragraph
number 15 of his petition of consumer complaint as “and thereby failed and
neglected to obtain the completion certificate in respect of the said building
of the said premises and the said acts and conducts on the part of the opposite
party no. 7 is deficiency in service & unfair trade practice”. Since this
opposite party obtained the completion certificate in respect of the said
building premises from the Rajpur Sonarpur Municipality, on 12/05/2022, and an
authenticated copy of the said completion certificate has duly been given to
the complainant and other purchasers at the premises.
(iii)
Paragraph
number 16. That the carpet area of the said flat is 42.53 sq. mts as stated in
the said agreement for sale and in the said Deed of Conveyance which is
equivalent to the carpet area 458 sq. ft. but the opposite party no. 7
whimsically and arbitrarily calculated the super built up area equivalent to
749 i.e. the opposite party no. 7 have added 61% more on the carpet area to
calculate the super built up area of the said flat in place and instead of
adding 20% more on the carpet area as to calculate the super built up area for
wrongful gain and unlawful gain of the opposite party no. 7 and also with
intent to deceive and defraud the complainant and the said acts and conducts on
the part of the opposite party no. 7 is the gross violation of the law of the
land which tentamount to the “unfair trade practice”.
It’s a frivolous statement of the
complainant, since prior to the agreement for sale, the complainant has visited
and taken measurement and much aware of the measurement of the said subjected
flat in Carpet area. Categorically the measurement of the said subjected flat
has been given in the said agreement for sale as well as in deed of conveyance,
registered in favour of the complainant.
Representation of such calculation and
basis thereof has never been enumerated and given in the said agreement for
sale and the said deed of conveyance which consequentially registered in favour
of the complainant, with due intervention and verification of the banker of the
Complainant.
“the opposite party no. 7 have added 61%
more on the carpet area to calculate the super built up area of the said flat
in place and instead of adding 20% more on the carpet area as to calculate the
super built up area for wrongful gain and unlawful gain of the opposite party
no. 7” an illusionary statement born in the mind of the complainant in a very
purposive manner, as such basis or calculation has never been given or provided
the percentage show in the statement of the complainant is baseless, as the
same has never been described anywhere in the said agreement for sale and or in
the said deed of conveyance.
However, if the question on ratio
between the carpet area and super built up area is put forward by the
complainant, then the burden of proof is on the complainant to place such
authenticated basis comes or acquired through Government Circular, notification
or order in such aspect, in pursuance to established his contention stated in
paragraph number 16 of the petition of consumer complaint. In absence of such
the statement of the complainant is baseless and not in any way to consider any
more, either in the facts or in the law.
(iv)
Paragraph
number 17 - That the Opposite Party no. 7 have/had no right and/ or authority
to calculate the super built up area of the flat whimsically and at their own
choice and thereby to deceive and defraud the purchaser/s. in view of the
provisions, there is scope to add maximum 20% upon the carpet area of the flat
as to calculate the super built up area of the flat and thereby the super built
up area of the said flat would be ( carpet area 42.53 sq. mts = 458 sq. ft. 20%
on 458 sq. ft. = 92 sq. ft. and super built up area would be of 458 sq. ft + 92
sq. ft ) of 550 sq. ft. in respect of the said flat instead and in place of 749
sq. ft. of super built up area.
It’s a frivolous statement of the
complainant, since prior to the agreement for sale, the complainant has visited
and taken measurement and much aware of the measurement of the said subjected
flat in Carpet area. Categorically the measurement of the said subjected flat
has been given in the said agreement for sale as well as in deed of conveyance,
registered in favour of the complainant.
Representation of such calculation and
basis thereof has never been enumerated and given in the said agreement for
sale and the said deed of conveyance which consequentially registered in favour
of the complainant, with due intervention and verification of the banker of the
Complainant.
“in view of the provisions, there is
scope to add maximum 20% upon the carpet area of the flat as to calculate the
super built up area of the flat and thereby the super built up area of the said
flat would be ( carpet area 42.53 sq. mts = 458 sq. ft. 20% on 458 sq. ft. = 92
sq. ft. and super built up area would be of 458 sq. ft + 92 sq. ft ) of 550 sq.
ft. in respect of the said flat instead and in place of 749 sq. ft. of super
built up area”, an illusionary statement born in the mind of the complainant in
a very purposive manner, as such basis or calculation has never been given or
provided the percentage show in the statement of the complainant is baseless,
as the same has never been described anywhere in the said agreement for sale
and or in the said deed of conveyance.
However, if the question on ratio
between the carpet area and super built up area is put forward by the
complainant, then the burden of proof is on the complainant to place such
authenticated basis comes or acquired through Government Circular, notification
or order in such aspect, in pursuance to established his contention stated in
paragraph number 17 of the petition of consumer complaint. In absence of such
the statement of the complainant is baseless and not in any way to consider any
more, either in the facts or in the law.
(v)
Paragraph
number 21 – That the opposite party no. 7 have also failed and neglected to
construct the swimming pool, lawn, gardens and children park etc at the said
premises, which have been specifically mentioned in the fourth schedule of the
development agreement dated 10-07-2013. It is specifically mentioned herein
that the complainant has purchased the said flat at the said premises on being
allured about the said amenities and facilities mentioned in the said
development agreement. The opposite party no. 7 have failed and neglected to
keep their promise towards the complainant and the said acts and failure of
promise on the part of the opposite party no. 7 is the deficiency in service
& unfair trade practice.
It is very surprising, while the
complainant has inspected all the documents including the development agreement
and supplementary development agreement dated 12-12-2017, much prior to
execution of the said agreement for sale in respect of the said subjected flat
as the amenities described in the development agreement has been abolished by
way of supplementary development agreement and there was no such provisions of
the said alleged amenities. More particularly the said agreement for sale did
not provide any description of the said alleged amenities to the
complainant. There was no such alleged
commitment has ever been given by this opposite party. Therefore such alleged
statement of the complainant is false & frivolous one in pursuance to
in-clinch issues in his favour.
(vi)
Paragraph
number 22 – “the opposite party no. 7, out of their own choice, arbitrarily and
whimsically drawn a floor plan in respect of the ground floor of the building
premises by deviating the sanctioned building plan and thereafter constructed
as many as six shop rooms on the and in place of the parking space no. 1 to 5,
and also on the service area in front of the stair case”.
Untrue statement of the complainant,
as the from the very beginning the complainant has seen the shop area being
constructed and the new ground floor plan is being attached with the agreement
for sale of parking space where the car parking space is being sold to the
complainant is delineated red marked and is numbered and the same has signed by
the complainant and by this opposite party. So, there is no question of handing
over any substitute car parking space to the complainant. The space that was
delineated red marked is still there unsold and this opposite party is ready
and willing to handover the same on receipt of the balance consideration money,
in respect of the parking space as per the said agreement for sale.
Shop rooms has prepared in consonance
with the Land Owners, and without disturbing any space, which has already
booked with any intending purchaser/s. it is also stated that the said Shop
Rooms has been duly shown in the sketch map enclosed with the said agreement
for sale for parking space with the complainant.
Pertinently, the Completion
certificate has been given by the Rajpur Sonarpur Municipality, in respect of
the construction of the newly constructed building at the premises, which duly
certified the authentication of the construction of the flats, shops, and parking
spaces, etc. at the premises.
(vii)
Paragraph
no. 24 – That the opposite party no. 1 to 7 are also bound and liable to
demolish all unauthorized construction of the said premises and to keep free
the service/ common areas of the building of the said premises for the
beneficial use and enjoyment of the complainant.
Such an alleged statement of the
complainant is an illusion at peak and it’s at own height which has no
connection with any reality and true states of affair are far from such alleged
statement of the complainant.
Since the completion certificate has
been issued by the Rajpur Sonarpur Municipality in respect of the said premises
on holding due inquiry and physical investigation by the concerned Engineer of
the said Municipality. Such alleged statement of the complainant has no leg to
stand in any manner, whatsoever.
29.
That
the followings are the established factual calculation in respect of the flat;
|
Floor No. |
Party Name |
Flat no. |
Carpet area (sqft) |
Cover area (sqft)
(excluding stair) |
Built up area (sqft)
including stair |
Service area (sqft)
per floor |
Super built up area |
|
1st |
Prattusha Ghosh |
A4 |
455 |
525 |
575 |
224 |
749 |
30.
That
the points for inspection and investigation stated in the said petition being an
application for appointment of Engineer Commissioner, made by the Complainant,
are inappropriate, and tenable, therefore liable to be rejected inlimnie.
31.
That the petition being
an application for appointment of Engineer Commissioner, made by the
Complainant, is out of jurisdiction, therefore liable to be rejected inlimnie.
32.
That the application is made bonafide
and in the interest of administration of Justice.
It is therefore prayed that the
Hon’ble District Consumer Disputes Redressal Commission, Baruipur, South 24
Parganas, would graciously be pleased to allow this Written Objection of the
Opposite Party, and to dismiss and or reject inlimnie the petition being an application for appointment
of Engineer Commissioner, with
costs, in terms of the provisions of the Consumer Protection Act’ 2019, and
rules made therein, in the interest of administration of justice, and or to
pass such other necessary order or orders or further order or orders as the
Hon’ble Commission, may deem, fit, and proper for the end of justice.
And for
this act of kindness, the Petitioner, as in duty bound shall ever pray.
Verification
I,
Sri Sudip Ghosh, being one of the Partner of the Opposite Party no.7, in the
instant Consumer Complaint matter, states that I am well conversant with all
the material facts and circumstances as stated in the foregoing paragraphs of
the written objection and I am well acquainted thereto. And I verify and sign
this instant Written Version, as on _______________2023, at Baruipur, South 24
Parganas.
Sudip Ghosh
Partner
M/s. Elite Construction
The Opposite Party no. 7,
Identified by me,
Advocate.
Prepared
in my Chamber,
Advocate.
Dated
: _______________________2023.
Place
: Baruipur, South 24 Parganas.
A F F I D A V I T
I
Sudip Ghosh, Son of Sri Haradhan Chandra Ghosh, aged about ______years, by
faith Hindu, by Occupation Business, residing at premises being no. 26/1A,
Gariahat Road, Police Station Lake, Kolkata - 700031, District South 24
Parganas, do hereby solemnly affirm and declare as follows :
- That
I being one of the Partner of the Opposite Party no. 7, in the instant
case being filed by the Complainant herein, and I am well conversant with
the facts and circumstances of the said consumer case.
This is true to
my knowledge.
- That
I am authorized by the Opposite Party no. 7, to submit this written
version, verify, and to affirm on affidavit for the opposite Party no. 7,
M/s. Elite Construction. The Opposite Party no. 7, is not suffering with
any legal disability, and competent to place this affidavit. I am
competent to swear this affidavit.
This is true to
my knowledge.
- That
the statements made in paragraphs 1 to __________of my Written Objection
are true to the best of my knowledge and belief and the rests are my
humble submissions before your Honour’s Commission.
D E P O N E N T
Identified by me
Advocate.
Prepared
in my Chamber,
Advocate.
Date
: ________________________2023.
Place
: Baruipur, South 24 Parganas.
N O T A R Y
N O T A R Y
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