Written Version in Consumer Case

 

 

 

District : South 24-Parganas.

 

Before the Hon’ble District Consumer Disputes Redressal Forum, at Baruipur, South 24 – Parganas.

 

                                                          C. C. no.     436             of 2015.

 

                                                          In the matter of :

 

                                                          Smt. Mira Karmakar,

___Complainant.

 

-          Versus –

 

SKS Developer, ___Opposite Party.

 

 

WRITTEN VERSION OF THE OPPOSITE PARTY M/S. S.K.S. DEVELOPER, REPRESENTED BY ITS SOLE PROPRIETOR SHRI SUJIT SAHA, AGAINST THE COMPLAINT BEING FILED BY THE COMPLAINANT HEREIN.

 

 

The humble petition on behalf of the Opp. Party, above named,

 

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 Complaint is not maintainable in its present form.

 

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 Petitioner / Complainant, 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 Complaints are vague and based on after thought concocted story, made out by the Complainant to in-clinch issues in her 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 the Opposite Party to cause several hassle and harassments to the Opposite Party.

 

10.                That the Opposite Party states and submits that the Complainant’s disputes is not a Consumer dispute and the Complainant is not a consumer, as defined and enumerated in the relevant provisions of the Consumer Protection Act’ 1986.

 

11.                That before dealing with the statements made in the petition under objection para wise, this opposite party states the following facts for Your Honour’s kind perusal :

 

i)             That the Opposite Party being M/s. S. K. S, Developer, having its office at premises being no. E – 185, Ramgarh, Police Station – Netajinagar, Kolkata – 700 047, represented by it’s Sole proprietor Sujit Saha, Son of Late Amar Chandra Saha, entered into a Development Agreement with the Owners being (1) Smt. Mira Karmakar, Wife of Late Ratan Karmakar, (2) Shri Rajib Karmakar, Son of Late Ratan Karmakar, (3) Smt. Lina Chatterjee, Wife of Sanjit Chatterjee, daughter of Late Ratan Karmakar, all are residing at premises being no. 97, Kalitala, Kolkata – 700 153, Laskarpur, Atabagan, Police Station – Sonarpur, District South 24 Parganas, (4) Smt. Sova Karmakar, Wife of Late Amal Kanti Karmakar, (5) Shri Adhiraj Karmakar, Son of Late Amal Kanti Karmakar, both are residing at Sonarpur Station Road, Prantik Abasan, Kolkata – 700 150, (6) Smt. Nirmala Karmakar, wife of Timir Karmakar, Daughter of Late Prafulla Karmakar, residing at Boral, Kalabagan, Kolkata – 700 154, (7) Smt. Dipu Dutta, Wife of Late Debidas Dutta, Daughter of Late Prafulla Karmakar, residing at premises being no. 31, Netaji Subhash Road, Kolkata – 700 148. The said Development agreement registered at the concern registry office.

 

ii)           That the OWNERS OBLIGATION under Article – II, at page 14, in para no. 7), which continues to page 15 of the said Development Agreement, extract of such para is reproduced herein below :

 

“ The Developer shall upon obtaining vacant possession of the said premises arrange for demolition of the exisisting building standing thereon. All old building materials available upon demolition of the said building shall be the property of the Developer who shall be entitled to deal with the dispose with and dispose of the same in the manner they like.

 

The owners shall immediately upon or as may be mutually agreed upon to shift to the alternative accommodation as would be arranged by themselves. The Developer shall not have any responsibility to find out suitable alternative accommodation for shifting of the owners. The Developer shall however pay to the owners a sum of Rs. 6,500/- per month, to the Owners as and by way of monthly rent”.

 

iii)          That the Developer in terms of the agreement performing his obligation and accordingly arrange to make the payment of Rs. 541.66/- ( Rupees Five Hundred forty one and paise sixty six ) only, to each owner and therefore in total paying as of Rs. 6,500/- ( Rupees Six Thousand and Five Hundred ) only, in terms as specified at page no. 15 of the Development Agreement dated 18-06-2015, “The Developer shall not have any responsibility to find out suitable alternative accommodation for shifting of the owners. The Developer shall however pay to the owners a sum of Rs. 6,500/- per month, to the Owners as and by way of monthly rent”.

 

iv)          That two owners are refusing to take such payment of Rs. 541.66/- ( Rupees Five Hundred forty one and paise sixty six ) only, and demanding more money and out of the agreement.

 

v)            That the five owners are taking such money as of Rs. 541.66/- ( Rupees Five Hundred forty one and paise sixty six ) only, in terms of the Development Agreement dated 18-06-2015.

 

vi)          That two Owners are not performing their obligations in taking the monthly accommodation rent and therefore violating the terms of the said Development Agreement dated 18-06-2015.

 

vii)         That This respondent state that the respondent all along ready and willing to make the payment as of Rs. 541.66/- ( Rupees Five Hundred forty one and paise sixty six ) only, in terms of the Development Agreement dated 18-06-2015, to the present complainant, being one of the owner, and therefore the respondent on receipt of Letter dated 28-08-2015, this respondent replied thereof in accordance with the Development Agreement dated 18-06-2015, and in terms of the acceptance of the other owners being co-sharer of the schedule property, and the necessary party of the said Development Agreement dated 18-06-2015.

 

viii)       That the Letter dated 16-09-2015, speaks itself the total contention of the respondent in terms of the Development agreement dated 18-06-2015. It is pertinent to state herein that the present complainant refused to take the said amount and the cheque thereof to the respondent.

 

12.                That without waiving any of the aforesaid Objections and Facts and fully relying thereupon and without prejudice to the same. The Respondent, now deals with the specific paragraphs of the said Application in seriatim as hereunder.

 

13. 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 respondent 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.

 

14.  Save and except the statements made in the said application which are matter of record, the respondent denies each and every allegations contained in the said application and calls upon the petitioner to strict proof of the said allegations.

 

15. That with references to the statements made in paragraph nos. 1, 2, and 3, of the application, this respondent make no comment since those are the matters of record excepting the fact that The Developer shall not have any responsibility to find out suitable alternative accommodation for shifting of the owners. The Developer shall however pay to the owners a sum of Rs. 6,500/- per month, to the Owners as and by way of monthly rent. The present complainant being one of the owner refused to take as of Rs. 541.66/- ( Rupees Five Hundred forty one and paise sixty six ) only, in terms of the Development Agreement dated 18-06-2015. The respondent repeat and reiterate the statements made in paragraph no.11, herein above.

 

16. That with reference to the statements made in paragraph nos. 4, 5, and 6, of the application, this respondent deny and disputes each and every allegations made therein save and except what are the matters of record. The respondent repeat and reiterate the statements made in paragraph no.11, herein above. This respondents state that the respondent all along ready and willing to make the payment as of Rs. 541.66/- ( Rupees Five Hundred forty one and paise sixty six ) only, in terms of the Development Agreement dated 18-06-2015, to the present complainant, being one of the owner, and therefore the respondent on receipt of Letter dated 28-08-2015, this respondent replied thereof in accordance with the Development Agreement dated 18-06-2015, and in terms of the acceptance of the other owners being co-sharer of the schedule property, and the necessary party of the said Development Agreement dated 18-06-2015.

 

 

17.                That the Letter dated 16-09-2015, speaks itself the total contention of the respondent in terms of the Development agreement dated 18-06-2015. It is pertinent to state herein that the present complainant refused to take the said amount and the cheque thereof to the respondent.

 

18.                That with reference to the statements made in paragraph nos. 7, of the application, this respondent deny and disputes each and every allegations made therein save and except what are the matters of record. The respondent repeat and reiterate the statements made in paragraph no.11, herein above. This respondents state that there is no such cause of action has ever been arisen as described by the Complainant in her petition, and the prayer made by her is not maintainable in the eye of law at any terms in the interest of administration of justice.

 

19.                That since the other co-sharer and the owners are not made party to the proceeding, this is very clear and established proposition of suppression of material facts and misconceived the facts to in clinch issues in her favour to get wrongful gains by procuring orders in terms of her prayer before the Hon’ble Forum.

 

20.                That in the facts and in the laws, it is totally evident from the application itself that the complainant made her endavour to put the Hon’ble Forum into motion to get her wrongful gains by procuring orders in terms of her prayer before the Hon’ble Forum.

 

21.                That in the facts and in the laws, it is totally evident from the application itself that the complainant trying to miss utilizing the jurisdiction of this Hon’ble Forum.

 

22.                That it is pertinent to state herein that the other co-sharer being the other Owners of the schedule property and the parties of the alleged Development Agreement Dated 18-06-2015, are not in the alleged disputes raised by the present complainant. They are in agreement with the Development Agreement dated 18-06-2015, and they co-operating with the respondent herein and they performing their obligations as enumerated in terms of the said Development Agreement dated 18-06-2015.

 

23.                That it is pertinent to states that the Seven Owners and the parties of the said Development Agreement dated 18-06-2015, as of (1) Smt. Mira Karmakar, Wife of Late Ratan Karmakar, (2) Shri Rajib Karmakar, Son of Late Ratan Karmakar, (3) Smt. Lina Chatterjee, Wife of Sanjit Chatterjee, daughter of Late Ratan Karmakar, all are residing at premises being no. 97, Kalitala, Kolkata – 700 153, Laskarpur, Atabagan, Police Station – Sonarpur, District South 24 Parganas, (4) Smt. Sova Karmakar, Wife of Late Amal Kanti Karmakar, (5) Shri Adhiraj Karmakar, Son of Late Amal Kanti Karmakar, both are residing at Sonarpur Station Road, Prantik Abasan, Kolkata – 700 150, (6) Smt. Nirmala Karmakar, wife of Timir Karmakar, Daughter of Late Prafulla Karmakar, residing at Boral, Kalabagan, Kolkata – 700 154, (7) Smt. Dipu Dutta, Wife of Late Debidas Dutta, Daughter of Late Prafulla Karmakar, residing at premises being no. 31, Netaji Subhash Road, Kolkata – 700 148, are not party in the present proceeding as placed by the complainant herein, before the Hon’ble Forum.

 

 

24.                That in the above circumstances, there is non – joinder and missjoinder of the necessary party in the present proceeding, as placed by the complainant before this Hon’ble Forum.

 

25.                That in the above circumstances, there is no cause of action for the present proceedings by the Petitioner, against the Respondent / Opposite Party, the Respondent / Opposite Party, accordingly pray that the Complaint be dismissed with costs.

 

26.                That in the above circumstances, there is no deficiency in service, and or unfair trade practices, on the part of the respondent, rather the respondent is victim of the concocted story and wrongful demand of the complainant.

 

27.                That in view of the facts that the respondent is victim of the purported alleged allegations and wrongful demand, the respondent 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 complainant, before the Hon’ble Forum.

 

28.                That the Petitioner, neither has any cause of action nor the basis for filling the present complaint and the Petitioner’s complaint is entirely baseless and misconceived and deserve to be dismissed on this ground alone.

 

29.                That the Complaint is false, frivolus and vexatious and has been filed with the mala fide intention, and as such deserves to be dismissed with special costs.

 

30.                That the Petitioner, is not entitled to any relief as prayed in the Complaint, and the same is liable to be dismissed.

 

31.                That in the aforesaid circumstances, the Opposite Party / Respondent is seeking the dismissal of the Complaint filed by the Petitioner, with exemplary cost.

 

32.                That the documents being annexed with the petition of complaint is relied upon by the respondent herein in the present proceeding before this Hon’ble Forum.

 

33.                That the respondent crave leave to produce any other necessary documents and or papers, in the proceeding at the time of hearing and or placing the Evidence on Affidavit, before the Hon’ble Forum, in the interest of Administration of Justice.

 

34.                That the present complaint should be dismissed at once in terms of the provisions of Section 26 of the Consumer Protection Act’ 1986, as the same is found frivolous and vexatious one.

 

It is therefore prayed that the Hon’ble District Consumer Disputes Redressal Forum, Baruipur, South 24 Parganas, would graciously be pleased to allow this Written Version of the Opposite Party, and to dismiss and or reject at once the petition of complaint filed by the Petitioner, herein, with costs, and or to pass such other necessary order or orders as the Hon’ble Forum, 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, Shri Sujit Saha, being the Respondent / Opposite Party, in the instant Complaint matter, states that I am well conversant with all the material facts and circumstances as stated in the foregoing paragraphs of the written version and I am  well acquainted thereto. And I verify and sign this instant Written Version, as on _______________2016, at Kolkata.

 

 

 

The Opposite Party / Respondent.

 

Identified by me,

 

Advocate.

Prepared in my Chamber,

 

Advocate.

Dated : ___________2016.

Place : Kolkata.

 

 

 

 

 

 

 

 

 

 

 

 

 

A F F I D A V I T

 

I SRI SUJIT SAHA son of Late Amar Chandra Saha, by faith Hindu, Indian, by occupation Business, aged about _______ years, on behalf of my sole proprietorship firm S.K.S. Developer, having its office at E – 185, Ramgarh, Police Station – Netajinagar, Kolkata – 700 047, District – South 24 Parganas, do hereby solemnly affirm and declare as follows :

 

1.   That I am the Opposite Party in the instant case being filed by the Complainant  and I am well conversant with the facts and circumstances of the said case.

                                This is true to my knowledge.

 

2.   That the statements made in paragraphs 1 to __________of my Written Version are true to the best of  my knowledge and belief and the rests are my humble submissions before your Honour’s Forum.

 

 

 

D E P O N E N T

 Identified by me

Advocate.

Prepared in my Chamber,

 

Advocate.

Date : __________________2016.

Place : Kolkata.

 

N O T A R Y