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Consumer
Complaint no. 60 of 2023
In the matter
of :
Sri Sudam
Saha, Son of Late Tirthabasi Saha, Resident of 438, Laskarpur, Peyarabagan,
Post Office – Laskarpur, Police Station – Narendrapur, Kolkata – 700153,
District South 24 Parganas,
________Complainant
-
Versus
–
1)
M/s.
S.K.S. Developer, Proprietor Shri Sujit Saha, having its Office at Premises
being no. E-185, Ramgarh, Post Office – Naktala, Police Station – Netaji Nagar,
Kolkata – 700047.
2)
Shri
Sujit Saha, Son of Late Amar Chandra Saha, residing at Premises being no. 521,
Peyara Bagan, Post Office – Laskarpur, Police Station – Narendrapur, Kolkata – 700153.
_________Respondents
WRITTEN
VERSION
OF RESPONDENTS
M/s. S.K.S.
Developer and Shri Sujit Saha,
The humble
petition on behalf of the above named respondents M/s. S.K.S. Developer and Sri
Sujit Saha, most respectfully;
Sheweth as
under;
1.
That
the Petitioner has been served with the purported copy of petition, made by the
Complainant. The Petitioner have gone through the contents of the purported
petition and made replies to the same, are as follows.
2.
That
the Consumer Complaint is not maintainable in its present form, either in term
of the facts or in term of the Law.
3.
That
the Petition is speculative, harassing, motivated and barred by the Principles
of Law and hence it is liable to be rejected at once.
4.
That
the petition is suffering from misjoinder and non-joinder of necessary party in
the proceeding, and therefore liable to be dismissed at once with exemplary
costs.
5.
That
the petition is suffering from suppression of material facts and necessary
party, and therefore liable to be dismissed at once with exemplary costs.
6.
That
the petition is suffering from any legal demand and thereby cause of action,
the present petition is motivated and without any jurisdiction.
7.
That
the Opposite Party, do not admit all the allegations made in the application of
the Petitioners / Complainants, to be true and save and except those that are
specifically admitted he put the Petitioner, to the strict proof of the rest.
8.
That
the contents of the Complaint is vague and based on after thought concocted
story, made out by the Complainant to in-clinch issues in his favour, and thus
no part of the contents of the Complaint has ever been admitted by the Opposite
Party, except those are the matter of records.
9.
That
the Opposite Party states that the present Complaint has been instituted by the
Complainant against this Opposite Party to cause several hassle and harassments
to this Opposite Party.
10.
That
the complainant is not a Consumer as per provision of Section 2 (7) of the
Consumer Protection Act’ 2019, and therefore deserve to be dismissed with cost
thereof in terms of the provisions of the Consumer Protection Act’ 2019.
11.
That
the present complaint has not been placed in terms of the provision of Section
35 of the Consumer Protection Act’ 2019, and therefore deserve to be dismissed
with cost thereof in terms of the provisions of the Consumer Protection Act’
2019.
12.
That
the present Complaint did not disclose any cause of action to be accrued ever
to place the present consumer application, more particularly against this
opposite party.
13.
That
the present complaint has no cause of action to place before the Hon’ble
Commission, in any terms of the provisions of the Consumer Protection Act’
2019, and therefore deserve to be dismissed with cost thereof in terms of the
provisions of the Consumer Protection Act’ 2019.
14.
That
the present complaint has no accrual of any cause of action to place before the
Hon’ble Commission, in any terms of the provisions of the Consumer Protection
Act’ 2019, and therefore deserve to be dismissed with cost thereof in terms of
the provisions of the Consumer Protection Act’ 2019.
15.
That
the story of the complainant does not constitute the consumer disputes in terms
of the provisions of the Consumer Protection Act’ 2019, and therefore deserve
to be dismissed with cost thereof in terms of the provisions of the Consumer
Protection Act’ 2019.
16.
That
the present Consumer application has not been valued appropriately for the
purpose of pecuniary jurisdiction of the Hon’ble Commission, and therefore
deserve to be dismissed with cost thereof in terms of the provisions of the
Consumer Protection Act’ 2019.
17.
That
the present application of the complainant is an endavour of him to cooked up a
false story with him, and manufactured documents shown to be relied on by him,
before the Hon’ble Commission, for his wrongful gains and others, and therefore
deserve to be dismissed with cost thereof in terms of the provisions of the
Consumer Protection Act’ 2019.
18.
That
the present complaint is false, vague, and frivolous one, and thus entitle the
rejection with cost on the complainant, in terms of the provisions of the
Consumer Protection Act’ 2019.
19.
That
there is no Consumer disputes to be adjudicated before the Hon’ble Commission,
between the parties herein, and therefore deserve to be dismissed with cost
thereof in terms of the provisions of the Consumer Protection Act’ 2019.
20.
That
the Opposite Party states and submits that the Complainant’s disputes, is not a
Consumer dispute and the Complainants are not a consumer, as defined and
enumerated in the relevant provisions of the Consumer Protection Act’ 2019.
21.
That
before dealing with the statements made in the petition under objection
paragraph wise, this Opposite Party states the following facts for Your
Honour’s kind perusal :
(i)
By virtue of a Registered Deed of Gift
dated 15/05/1992, executed by the Governor of the State of West Bengal, in
favour of Tirtha Basi Saha, Son of Late Rasaraj Saha, Since deceased as Refugee
from East Pakistan now Bangladesh in respect of the property being homestead
land measuring about more or less 4 (four) Cottahas, comprised in C.S. /R.S.
Plot No. 589 (P), 586 (P), L.O.P. No. 438, J.L. No. 57, Mouza – Laskarpur,
Police Station Sonarpur, within the limits of the Rajpur Sonarpur Municipality,
under its Ward No. 31, Kolkata – 700153, and the said Deed of Gift was
registered in the Office of the Sub Registry Office at Alipore, recorded in the
Book No. I, Volume No. 9, Pages from 233 to 236, Being No. 659 for the year
1992.
(ii)
The said Tirtha Basi Saha, while seized
and possessed of the property being homestead land
measuring about more or less 2 (two) Cottahas out of land measuring 4 (four)
Cottahas, comprised in C.S. /R.S. Plot No. 589 (P), 586 (P), L.O.P. No. 438,
J.L. No. 57, Mouza – Laskarpur, Police Station Sonarpur, within the limits of
the Rajpur Sonarpur Municipality, under its Ward No. 31, Kolkata – 700153, to
and unto in favour of his second son namely Sri Sridam Saha, by a Deed of Gift
on 03/04/2003, which was registered in the office of Additional District Sub
Registrar Sonarpur and recorded in Book No. I, Volume No. 62, Pages 298 to 303,
Being No. 3515 for the year 2003.
(iii)
The said Sridam Saha become absolute
sole owner of the said land of 2 (two) Cottahas, and the said land known and
numbered as Holding no. 486, Peyara Bagan, under Ward no. 31, under the Rajpur
Sonarpur Municipality, Kolkata – 700153, District South 24 Parganas.
(iv)
The said Tirtha Basi Saha while he died
intestate on 22/11/2023, leaving behind his wife namely Smt. Anima Saha, three
Sons namely (1) Subal Chandra Saha, (2) Sridam Saha, & (3) Sri Sudam Saha,
as his legal heirs and successors and thereafter the said Anima Saha died
intestate on 07/10/2010, leaving behind her three sons namely (1) Subal Chandra
Saha, (2) Sridam Saha, & (3) Sri Sudam Saha.
(v)
The said (1) Subal Chandra Saha, (2)
Sridam Saha, & (3) Sri Sudam Saha, have decided to amalgamation for development
of the their property and the deed of exchange/ amalgamation deed was
registered in the office of ADSR Garia and recorded in Book No. 1, Volume No.
1629 of 2017, Pages from 9681 to 9703, Being No. 162900399 for the year 2017,
and after such amalgamation they become joint owners in respect of the property
being homestead land measuring about more or less 4 (four) Cottahas, comprised
in C.S. /R.S. Plot No. 589 (P), 586 (P), L.O.P. No. 438, J.L. No. 57, Mouza –
Laskarpur, Police Station Sonarpur, within the limits of the Rajpur Sonarpur
Municipality, under its Ward No. 31, Kolkata – 700153, district South 24
Parganas.
(vi)
The Owners (1) Subal Chandra Saha, (2)
Sridam Saha, & (3) Sri Sudam Saha, being desirous to make the best use of
the said premises decided to construct a multi storied (G+3) building at the
said premises but due to paucity of fund and lack of man power could not
fulfill their dream and were in search of a Developer, who would be in a
position to prepare the said scheme of development of the said premises by
constructing a multi storied building on their premises with his men and
materials.
(vii)
The Owners (1) Subal Chandra Saha, (2)
Sridam Saha, & (3) Sri Sudam Saha, to fulfill their desire approached this
Opposite Parties and entered into a Development Agreement dated 21st
day of June’ 2017, which registered in Book No. I, Volume number 1629-2017,
Pages from 55274 to 55318, being Number 162902322 for the Year 2017, in the
office of the Additonal District Sub –Registrar, Garia, West Bengal.
(viii)
The said Development Agreement dated 21st
day of June, 2017, contained the following terms to be acted upon all the
parties therein;
(a) Page
number 8, paragraph number g – New Building shall mean the multi storied (G+3)
building to be constructed at Holding No. 486, Peyarabagan, Kolkata – 700084,
within the limits of the Rajpur Sonarpur Municipality under its Ward No. 31, by
the Developer in accordance with the building plan or plans to be prepared by
the Architect under the supervision and cost of the Developer, subject to the
approval of the owners and sanctioned by the Municipal authority.
(b) Page number 9, Paragraph number h – Owner’s
allocation ALL THAT the owners will be jointly entitled to get from the
Developer i.e.
(1) Sri
Subal Chandra Saha :
(i)
1 (one) flat 630 sq. ft. per flat,
built up area, on 3rd floor, front side, South-East Side, flat no.
3A,
(ii)
110 sq. ft. Car Parking space at Ground
Floor,
(iii)
Rs. 2,50,000/- (Rupees Two Lacs fifty
thousand) only, Non-adjustable which will paid in following manner;
(a) On
the date of Agreement paid Rs. 1,00,000/-
(b) Balance
account paid of vacant possession Rs. 1,50,000/-
(2) Sri Sridam Saha :
(i)
2 (two) flats 630 sq. ft. built up
area, on 2nd floor, fron side, Flat no. 2A, South-East and Flat no.
2B, North-East Side,
(ii)
220 sq. ft. Car Parking space on Ground
Floor and 200 Sq. ft. Store Room back side of the building,
(iii)
Rs. 5,00,000/- (Rupees Five lacs) only
Non-Adjustable which will paid in the following manner;
(a) On
the date of agreement paid Rs. 2,00,000/-
(b) Balance
amount to be paid of vacant possession Rs. 3,00,000/-
(iv)
Shifting @ Rs. 4,000/- per month after
taken of vacant possession.
(3) Mr.
Sudam Saha :
(i)
1 (one) flat 630 sq. ft. built up area
on 3rd floor, front side, north-east side, flat no. 3B,
(ii)
110 sq. ft. Car Parking Space at Ground
Floor,
(iii)
Rs. 2,50,000/- (Rupees Two Lacs fifty
thousand) only Non-Adjustable which will paid in the following manner;
(a) Date
of Agreement Paid Rs. 1,00,000/-
(b) Balance
amount paid of vacant possession Rs. 1,50,000/-
(iv)
Shifting @ Rs. 4,000/- per month after
taken of vacant possession.
Upon the said premises, together with
undivided proportionate share and interest of land and right of use and
enjoyment of the common areas and/ or facilities.
(c) Page
number 11, paragraph number m – Force Majure shall means floods, earth quake,
riot, war, storm, tempest, civil commotion, strike, lock-out, and/ or any other
acts or commission beyond the control of parties hereto affected thereby and
also non-available of essentoial like cement, steel etc. But insufficient fund
shall not be considered as force majure in any way.
(d) Page
number 13, paragraph number 3 – The Owners will execute a General Power of
Attorney in favour of the Developer in connection with all the matters of the
consideration and to executed all such agreement/ conveyance for and on behalf
of the Owners concerning the Developer’s share in the said proposed building
with proportionate share of land in the said Premises described in the Schedule
“A” hereunder written as required by the Developer, at the cost of the Developer.
The Developer shall pay Rs. 4,00,000/-
to the owners at the times of signing of this agreement and also shall pay Rs.
6,00,000/- to the owners at the time vacating of the entire possession of
schedule premises.
(e) Page
number 13, paragraph number 4 – The Developer has agreed and shall deliver
possession of the Owner’s allocation of the proposed multi-storied building to
the owners within 18 months from the sanction of plan from the Rajpur Sonarpur
Municipality. But for any unavoidable circumstances the aforementioned period
should be extended for further 6 months.
(f)
Page number 17, paragraph number 16 –
The Builder shall construct the said Multi-Storied Building in accordance with
Sanctioned Plan and terms of the agreement. The Owner if desire in respect of
their flats any change, addition and renovation may get it done on payment of
different costs of price of materials required for this purpose, provided such
change is not legally barred by the competent authority, which may demand by
the Builder. The cost materials shall be given in cash to the Builder by the
Owner either in advance or after completion of such work as settled by the parties.
(g) Page
number 18, paragraph number 21 – The layout design/ construction/ materials of
the building may be altered if required for cause of betterment and/ or
statutory obligation with the prior permission of the owners in writing.
(h) Page
number 19, paragraph number 24 – The disputes between the owners of the land
and the Builder if arises for any matter shall be resolved amicably by particle
negotiation and if necessary help of a common well-wisher may be availed of
before going to the Court of Law.
(i)
Page number 19, paragraph number 25 –
in case of violation of terms and conditions of this agreement either of the
parties shall have the right to rescind this agreement and claim/ compensation
and remedy against other.
(j)
Page number 21, paragraph number 29 –
The Owners shall accept in full satisfaction of their claims against their land
mentioned in Schedule “A” hereunder written in regard to the allotment as per
clause no. h, as more particularly mentioned in Schedule “B” hereunder written.
(k) Page
number 22, paragraph number 33 – The Owners and the Developer do hereby agreed
that in case of any unforeseen happening such as non-availability of basic raw
materials for the constructional work, natural disturbance, riots, natural
calamities like flood earthquakes etc. which are not under the control of the
developer herein, the period of time within which the construction work is to
be completed may be extended by a further period of time but to be decided by
mutual discussion of both the parties.
(l)
Page number 23, paragraph number 37 –
As soon as the said proposed building shall be completed, the Developer shall
issue written notice to the Owners to take possession of their allocation
mentioned in the Schedule “B” hereunder written. Then after 30 days from the date
of receipt of such notice at all times thereafter the Owners shall be
exclusively responsible for payment of all Municipality taxes and other
outgoings in respect of their allocation.
(m) Page
number 25, paragraph number 40 – The Developer hereby declare that after
sanction plan from the Rajpur Sonarpur Municipality, the Owners herein have
right to partition the said property/ flats between themselves and the
developer herein also agreed to help them for the said purpose, but the
expenses of the said partition deed will be borne by the owners. It is
morefully mention herein the owners after execution and partition of the said
property should not submit for mutation of the same in the office of Rajpur
Sonarpur Municipality before completion of the said building by the Developer/
Promoter. If the Owner will do so then owners will liable to compensate the
same.
(ix)
The Owners executed the General Power
of Attorney in favour of this Opposite Party, which registered on 21-06-2017,
in the office of the Additional District Sub-Registrar, Garia, South 24
Parganas, recorded in Book no. I, Volume no. 1629-2017, pages from 54793 to
54813, Being no. 162902325 for the year 2017.
(x)
The Complainant delivered the vacant
possession only on 04/01/2018, jointly with his other two brothers, thereafter
this opposite party take endavour and obtained the Building Sanctioned Plan on
15/02/2019, from the concerned Civic Body Rajpur Sonarpur Municipality.
(xi)
It is pertinent to states that the
Complainant obliged to give his contribution towards installation of Electric
Connectivity through “Transformer” at the said premises. The said Contribution
comes as Rs. 27,000/- (Rupees Twenty Seven Thousand) only, more or less, and
the GST payable on the value of the Flat and Car Parking being the Owners
allocation allotted to the Complainant.
(xii)
The present consumer application is an
endavour to take benefit of his own wrong, as the distorted fact has been
placed by the complainant in accusing the opposite party.
(xiii)
The Complainant Sri Sudam Saha, given a
Letter dated 23/03/2022, to this Opposite Party, through his Learned Advocate
Amar Mondal, claiming about the money from this opposite party. This opposite
party sufficiently replied the said letter dated 23/03/2022, through his
Learned advocate’s letter dated 18th day of April’ 2022. This
opposite party obliged to performed in terms of the Development Agreement.
(xiv)
It is pertinent to states that the said
Development Agreement dated 21st day of June, 2017, contained in
Page number 25, paragraph number 40 – The Developer hereby declare that after
sanction plan from the Rajpur Sonarpur Municipality, the Owners herein have
right to partition the said property/ flats between themselves and the
developer herein also agreed to help them for the said purpose, but the
expenses of the said partition deed will be borne by the owners. It is
morefully mention herein the owners after execution and partition of the said
property should not submit for mutation of the same in the office of Rajpur
Sonarpur Municipality before completion of the said building by the Developer/
Promoter. If the Owner will do so then owners will liable to compensate the
same, which clearly speaks that the Owners will partitioned their allocation
among them, and subsequently take their allocation from this opposite party.
This Opposite Party is not able to give the owners allocation individually
either any one of the owner among three owners. Thus due to such reason alone,
this opposite party is not able to deliver the owners allocation to Sri Sudam
Saha, even after completion of the building premises in all respect. The owners
are not jointly come to this opposite party to take their allocation from this
Opposite Party. The Owners are not taking any arrangement for their partition
of the allocation in terms of the Development Agreement dated 21st
day of June, 2017.
(xv)
This Opposite Party is all along ready
and willing to deliver the owners allocation subject to their joint approach until
partitioned among them.
(xvi)
The application under objection is not
maintainable since the same has been made by the complainant individually, and
the other Two Owners did not approach this Hon’ble Commission. The other Two
Owners do not have any grievances against this Opposite Party, therefore the
grievances as ventilated by the complainant is not true and liable to be
dismissed inlimnie.
(xvii)
That
the complainant is not a Consumer as per provision of Section 2 (7) of the
Consumer Protection Act’ 2019.
(xviii)
That
there is no Consumer disputes to be adjudicated between the parties, before the
Hon’ble Commission, between the parties herein.
(xix)
That
the present claim of the Complainants if any, is barred by the Limitation as
enshrined under the provision of Section 69 of the Consumer Protection Act’
2019.
(xx)
That
the Opposite Party, have no iota of knowledge about the alleged story of the
complainant herein.
(xxi)
That
the Opposite party, herein have no relationship with the complainant herein as
alleged by him, in his petition of consumer complaint.
(xxii)
That
the opposite party, herein have no disputes as alleged by the complainant
herein, in the petition of consumer complaint.
(xxiii)
That
the present Consumer disputes as alleged by the complainants herein, is not
maintainable in the facts and in the law against the opposite party, in the
terms of the Consumer Protection Act’ 1872.
(xxiv)
That
the allegations as contended by the complainant herein are all fake and
frivolous one, as those are not substantiated with any single piece of papers
or evidentiary value papers.
(xxv)
That
the present complaint has been made before the Hon’ble Commission, motivated
and with an intention for the wrongful gain and acquire of wrongful claim
thereby the complainants herein.
(xxvi)
That
the Opposite Party, herein did not cause any deficiency in services, and or
unfair trade practices, in terms of the provisions of the Consumer Protection
Act’ 2019, and rules made thereof.
(xxvii) That the Complaints
are not a Consumer, in terms of the provision of Section 2(7) of the Consumer
Protection Act’ 2019.
(xxviii)
That
there is no cause of action has ever been described and or more particularly
raised against this opposite party, by the complainant.
22.
That
without waiving any of the aforesaid Objections and Facts and fully relying
thereupon and without prejudice to the same. This Opposite Party now deals with
the specific paragraphs of the said Application in seriatim as hereunder.
23.
That
the Application is not maintainable either in facts or in its present form and
the petitioner has no cause of action for bringing this suit against the
Opposite Party as the said application is speculative, harassing, motivated,
concocted and baseless as is barred by the Principles of Law and hence same is
liable to be rejected at once.
24.
Save
and except the statements made in the said application which are matter of
record, the Opposite Parties denies each and every allegations contained in the
said application and calls upon the petitioner to strict proof of the said
allegations.
25.
That
with references to the statements made in paragraph nos. 1, 2, 3, 4, 5, 6, 7,
8, 9, 10, and 11, of the application, this Opposite Parties deny and disputes
each and every allegations made therein save and except what are the matters of
record and not related to this opposite party. The Opposite Party repeats and
reiterates the statement made in paragraph no.21, herein above. The Opposite
Party states that the
By virtue of a Registered Deed of Gift dated 15/05/1992, executed by the
Governor of the State of West Bengal, in favour of Tirtha Basi Saha, Son of
Late Rasaraj Saha, Since deceased as Refugee from East Pakistan now Bangladesh
in respect of the property being homestead land measuring about more or less 4
(four) Cottahas, comprised in C.S. /R.S. Plot No. 589 (P), 586 (P), L.O.P. No.
438, J.L. No. 57, Mouza – Laskarpur, Police Station Sonarpur, within the limits
of the Rajpur Sonarpur Municipality, under its Ward No. 31, Kolkata – 700153,
and the said Deed of Gift was registered in the Office of the Sub Registry
Office at Alipore, recorded in the Book No. I, Volume No. 9, Pages from 233 to
236, Being No. 659 for the year 1992. The said Tirtha Basi Saha, while
seized and possessed of the property being homestead land measuring about more
or less 2 (two) Cottahas out of land measuring 4 (four) Cottahas, comprised in
C.S. /R.S. Plot No. 589 (P), 586 (P), L.O.P. No. 438, J.L. No. 57, Mouza –
Laskarpur, Police Station Sonarpur, within the limits of the Rajpur Sonarpur
Municipality, under its Ward No. 31, Kolkata – 700153, to and unto in favour of
his second son namely Sri Sridam Saha, by a Deed of Gift on 03/04/2003, which was
registered in the office of Additional District Sub Registrar Sonarpur and
recorded in Book No. I, Volume No. 62, Pages 298 to 303, Being No. 3515 for the
year 2003.
The said Sridam Saha become absolute sole owner of the said land of 2 (two)
Cottahas, and the said land known and numbered as Holding no. 486, Peyara
Bagan, under Ward no. 31, under the Rajpur Sonarpur Municipality, Kolkata –
700153, District South 24 Parganas. The said Tirtha Basi Saha while he died
intestate on 22/11/2023, leaving behind his wife namely Smt. Anima Saha, three
Sons namely (1) Subal Chandra Saha, (2) Sridam Saha, & (3) Sri Sudam Saha,
as his legal heirs and successors and thereafter the said Anima Saha died
intestate on 07/10/2010, leaving behind her three sons namely (1) Subal Chandra
Saha, (2) Sridam Saha, & (3) Sri Sudam Saha. The said (1) Subal Chandra
Saha, (2) Sridam Saha, & (3) Sri Sudam Saha, have decided to amalgamation
for development of the their property and the deed of exchange/ amalgamation
deed was registered in the office of ADSR Garia and recorded in Book No. 1,
Volume No. 1629 of 2017, Pages from 9681 to 9703, Being No. 162900399 for the
year 2017, and after such amalgamation they become joint owners in respect of
the property
being homestead land measuring about more or less 4 (four) Cottahas, comprised
in C.S. /R.S. Plot No. 589 (P), 586 (P), L.O.P. No. 438, J.L. No. 57, Mouza –
Laskarpur, Police Station Sonarpur, within the limits of the Rajpur Sonarpur
Municipality, under its Ward No. 31, Kolkata – 700153, district South 24
Parganas.
The Owners (1) Subal Chandra Saha, (2) Sridam Saha, & (3) Sri Sudam Saha,
being desirous to make the best use of the said premises decided to construct a
multi storied (G+3) building at the said premises but due to paucity of fund
and lack of man power could not fulfill their dream and were in search of a
Developer, who would be in a position to prepare the said scheme of development
of the said premises by constructing a multi storied building on their premises
with his men and materials. The Owners (1) Subal Chandra Saha, (2) Sridam Saha,
& (3) Sri Sudam Saha, to fulfill their desire approached this Opposite
Parties and entered into a Development Agreement dated 21st day of
June’ 2017, which registered in Book No. I, Volume number 1629-2017, Pages from
55274 to 55318, being Number 162902322 for the Year 2017, in the office of the
Additonal District Sub –Registrar, Garia, West Bengal.
26.
That
with references to the statements made in paragraph nos. 12, 13, 14, 15, 16,
17, 18, 19, and 20, of the application, being the petition of the complaint
made by the complainant, this Opposite Parties deny and disputes each and every
allegations made therein save and except what are the matters of record and not
related to this opposite party. The Opposite Party repeat and reiterate the
statements made in paragraph no. 21, herein above. The Complainant delivered
the vacant possession only on 04/01/2018, jointly with his other two brothers,
thereafter this opposite party take endavour and obtained the Building
Sanctioned Plan on 15/02/2019, from the concerned Civic Body Rajpur Sonarpur
Municipality. It is pertinent to states that the Complainant obliged to give
his contribution towards installation of Electric Connectivity through
“Transformer” at the said premises. The said Contribution comes as Rs. 27,000/-
(Rupees Twenty Seven Thousand) only, more or less, and the GST payable on the
value of the Flat and Car Parking being the Owners allocation allotted to the
Complainant. The present consumer application is an endavour to take benefit of
his own wrong, as the distorted fact has been placed by the complainant in
accusing the opposite party. The Complainant Sri Sudam Saha, given a Letter
dated 23/03/2022, to this Opposite Party, through his Learned Advocate Amar
Mondal, claiming about the money from this opposite party. This opposite party
sufficiently replied the said letter dated 23/03/2022, through his Learned
advocate’s letter dated 18th day of April’ 2022. This opposite party
obliged to perform in terms of the Development Agreement. It is pertinent to
states that the said Development Agreement dated 21st day of June,
2017, contained in Page number 25, paragraph number 40 – The Developer hereby
declare that after sanction plan from the Rajpur Sonarpur Municipality, the
Owners herein have right to partition the said property/ flats between
themselves and the developer herein also agreed to help them for the said
purpose, but the expenses of the said partition deed will be borne by the
owners. It is morefully mention herein the owners after execution and partition
of the said property should not submit for mutation of the same in the office
of Rajpur Sonarpur Municipality before completion of the said building by the
Developer/ Promoter. If the Owner will do so then owners will liable to
compensate the same, which clearly speaks that the Owners will partitioned
their allocation among them, and subsequently take their allocation from this
opposite party. This Opposite Party is not able to give the owners allocation
individually either any one of the owner among three owners. Thus due to such
reason alone, this opposite party is not able to deliver the owners allocation
to Sri Sudam Saha, even after completion of the building premises in all
respect. The owners are not jointly come to this opposite party to take their
allocation from this Opposite Party. The Owners are not taking any arrangement
for their partition of the allocation in terms of the Development Agreement
dated 21st day of June, 2017. This Opposite Party is all along ready
and willing to deliver the owners allocation subject to their joint approach
until partitioned among them. The application under objection is not
maintainable since the same has been made by the complainant individually, and
the other Two Owners did not approach this Hon’ble Commission. The other Two
Owners do not have any grievances against this Opposite Party, therefore the
grievances as ventilated by the complainant is not true and liable to be
dismissed inlimnie.
27.
That
with references to the statements made in paragraph nos. 21, and 22, of the
application, this Opposite Parties deny and disputes each and every allegations
made therein save and except what are the matters of record and not related to
this opposite party. The Opposite Party repeat and reiterate the statements
made in paragraph no. 21, herein above. This Opposite Party states that the
Complainant is entitled to take rent for his alternative accommodation on and
after delivery of the vacant possession to this Opposite Party the said date is
04/01/2018. The consumer complainant refused to take the rent for few months
and did not collect the cheque from this opposite party. The Complainant
delivered the vacant possession only on 04/01/2018, jointly with his other two
brothers, thereafter this opposite party take endavour and obtained the
Building Sanctioned Plan on 15/02/2019, from the concerned Civic Body Rajpur
Sonarpur Municipality. It is pertinent to states that the Complainant obliged
to give his contribution towards installation of Electric Connectivity through
“Transformer” at the said premises. The said Contribution comes as Rs. 27,000/-
(Rupees Twenty Seven Thousand) only, more or less, and the GST payable on the
value of the Flat and Car Parking being the Owners allocation allotted to the
Complainant. The present consumer application is an endavour to take benefit of
his own wrong, as the distorted fact has been placed by the complainant in
accusing the opposite party.
28.
That
with references to the statements made in paragraph nos. 23, and 24, of the
application, this Opposite Parties deny and disputes each and every allegations
made therein save and except what are the matters of record and not related to
this opposite party. The Opposite Party repeat and reiterate the statements
made in paragraph no. 21, herein above. This Opposite Party put forward his
comments in the followings;
The complainant is
not a Consumer as per provision of Section 2 (7) of the Consumer Protection
Act’ 2019.
There is no Consumer
disputes to be adjudicated between the parties, before the Hon’ble Commission,
between the parties herein.
The present claim of
the Complainants if any, is barred by the Limitation as enshrined under the
provision of Section 69 of the Consumer Protection Act’ 2019.
The Opposite Party,
have no iota of knowledge about the alleged story of the complainant herein.
The Opposite party,
herein have no relationship with the complainant herein as alleged by him, in
his petition of consumer complaint.
The opposite party,
herein have no disputes as alleged by the complainant herein, in the petition
of consumer complaint.
The present Consumer complaint
as alleged by the complainants herein, is not maintainable in the facts and in
the law against the opposite party, in the terms of the Consumer Protection
Act’ 2019.
The allegations as
contended by the complainant herein are all fake and frivolous one, as those
are not substantiated with any single piece of papers or evidentiary value
papers.
The present consumer complaint
has made motivated and with an intention for the wrongful gain and acquire of
wrongful claim thereby the complainants herein.
The Opposite Party,
herein did not cause any deficiency in services, and or unfair trade practices,
in terms of the provisions of the Consumer Protection Act’ 2019, and rules made
thereof.
There is no cause of
action has ever been described and or more particularly raised against this
opposite party, by the complainant.
The
Complainant is not entitled to get any relief in terms of his/ her prayer more
particularly any relief as prayed to acquire from this opposite party. The
allegations of the complainant are baseless, false and frivolous one, thus the
prayer of the complainant is not tenable to give on the direction of this
opposite party.
This opposite
party is not a cup of tea for the complainant’s relief, as the same has been
consumed by the complainant on full satisfaction.
The present
consumer complaint is not tenable either in the facts or in the law, thus
liable to be dismissed inlimnie with
cost on the complainant.
The instant
matter comes within the purview of Commercial dispute, which is within the
ambit of the Commercial Courts Act, 2015, therefore the present Consumer
Complaint should be dismissed at once.
The Petition
of Consumer Complaint is not in terms of the Provisions of Section 35 of the
Consumer Protection Act, 2019.
29.
That
this opposite party states that the present petition of complaint is not bonafide
against this opposite party, and the complainant is not entitled to get any
relief in terms of her prayer made therein from this opposite party in terms of
the provision of the Consumer Protection Act’ 2019.
30.
That
in the facts and in the laws, it is totally evident from the application itself
that the complainant made his endeavor to put the Hon’ble Commission into
motion to get their wrongful gains by procuring orders in terms of their prayer
before the Hon’ble Commission.
31.
That
this Opposite Party relied on the following documents, which are enclosing
herewith, to place before the Hon’ble Consumer Disputes Redressal Commission,
in the present Consumer proceeding for pursuance and necessary consideration in
adjudication of the present consumer complaint, instituted by the complainant;
(a) Government Gift Deed dated 15th
May, 1992, in favour of Tirtha Basi Saha;
(b) Tax Receipts of Municipality
dated 31/03/2023;
(c) Development Agreement dated
21/06/2017;
(d) Development Power of Attorney
dated 21/06/2017;
(e) Ledger Inquiry report of Punjab
National Bank;
32.
That
in the facts and in the laws, it is totally evident from the application itself
that the complainants are trying to miss utilizing the jurisdiction of this
Hon’ble Commission.
33.
That
in the above circumstances, there is no cause of action for the present
proceedings by the Petitioners, against the Opposite Party, the Opposite Party,
accordingly pray that the Consumer Complaint be dismissed with costs.
34.
That
in the above circumstances, there is no deficiency in service, and or unfair
trade practices, on the part of the Opposite Party, rather the Opposite Party
is victim of the concocted story and wrongful demand of the complainant.
35.
That
the entire facts are Commercial in nature, therefore the present consumer complaint
should be dismissed inlimnie.
36.
That
the instant matter comes within the purview of Commercial dispute, which is
within the ambit of the Commercial Courts Act, 2015, therefore the present
Consumer Complaint should be dismissed at once.
37.
That
in view of the facts that the Opposite Party is victim of the purported alleged
allegations and wrongful demand, the Opposite Party thereby seeking
compensation as of Rs. 1,00,000/- ( Rupees One Lakh ) only, for harassment and
mental anxiety, arising from the institution of the present proceeding by the
complainants, against this opposite party, before the Hon’ble Commission.
38.
That
the Petitioner, neither has any cause of action nor the basis for filling the
present consumer complaint and the Petitioners’ consumer complaint is entirely
baseless and misconceived and deserve to be dismissed on this ground alone.
39.
That
the Consumer Complaint is false, frivolous and vexatious and has been filed
with the mala fide intention, and as such deserves to be dismissed with special
costs.
40.
That
the Petitioners, are not entitled to any relief as prayed in the Consumer
Complaint, and the same is liable to be dismissed inlimnie.
41.
That
in the aforesaid circumstances, the Opposite Party is seeking the dismissal of
the Complaint filed by the Petitioners, with exemplary cost.
42.
That
the Opposite Party crave leave to produce any necessary documents and or
papers, in the proceeding at the time of hearing and or placing the Evidence on
Affidavit, before the Hon’ble Commission, in the interest of Administration of
Justice.
43.
That
the present consumer complaint should be dismissed at once in terms of the
provisions of the Consumer Protection Act’ 2019, as the same is found frivolous
and vexatious one, against this opposite party.
It is therefore prayed that the
Hon’ble Consumer Disputes Redressal Commission, would graciously be pleased to
allow this Written Version of the Opposite Party, and to dismiss and or reject
at once the petition of consumer complaint filed by the Petitioners, against
this opposite party herein, 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, being
the Opposite Party number 2, in the present consumer proceeding, I am
acquainted and conversant with the material facts stated in the Written Version.
I am Proprietor of the Opposite Party number 1, M/s. SKS Developer. I verify,
& sign the written version on ______June’ 2023, at the Alipore Judges’ Court
Premises.
AFFIDAVIT
I,
Shri Sujit Saha, Son of Late Amar Chandra Saha, aged about 55 years, by faith
Hindu, by Occupation Business, residing at Premises being no. 521, Peyara
Bagan, Post Office – Laskarpur, Police Station – Narendrapur, Kolkata – 700153,
do hereby solemnly affirm and say as follows;
1.
I
am Proprietor of the Opposite Party number 1, M/s. SKS Developer. I am the
Opposite Party number 2, in the present Consumer Proceeding.
I am acquainted and conversant with the material facts stated in the Written
Version and Competent to Swear this affidavit.
This
is true to our knowledge.
2.
That the statements made in paragraph
number 1 to 21 of the Written Version are true to my knowledge and the rests
are my humble submissions before the Learned Commission.
The
above statements are true to our knowledge and belief.
DEPONENT
Identified
by me,
Advocate
Prepared
in my Chamber,
Advocate
Date
: _______June’ 2023
Place
: Alipore Judges’ Court
N
O T A R Y
very helpful......thanks
ReplyDeletehelpful....thanks
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