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Consumer
Complaint no. 60 of 2023
In the matter
of :
Sri Sudam Saha,
Son of Late TirthabasiSaha, 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
REPLY ON
AFFIDAVIT
OF RESPONDENTS
M/s. S.K.S.
Developer and Shri Sujit Saha,
AFFIDAVIT
I,
Sujit Saha, Son of Late Amar Chandra Saha, aged about 56 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 and
Competent to swear this affidavit.
2.
I am in receipt of the Questionnaire
being series of questions put forward by the Complainant, in the present
consumer case, against the Evidence on Affidavit submitted by me. I have gone
through the questions of the Complainant and replying on those questions in
seriatim, as follows;
(a) Answer
of Question no. 1 : Relationship subsisting between me and the
complainant is at the same footing as of with the other Co-sharer and the joint
owner of the property, who obliged to take their Owner’s allocation, save and
except you, who choose to lodge the present consumer complaint against me, with
oblique motive and to harass severally to me.
(b) Answer
of Question no. 2 : The paragraph numbers 3, 4, 5, 6, and 7
of my affidavit in chief are specific statements, which categorically stated
that the present consumer complaint is vague and based on after thought
concocted story made out by the complainant to in-clinch issues in his favour.
(c) Answer
of Question no. 3 : Disagree
(d) Answer
of Question no. 4 : 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.
(i)
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 RajpurSonarpur 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 RajpurSonarpur
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 RajpurSonarpur 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 RajpurSonarpur
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.
(ii)
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.
(iii)
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.
(iv)
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.
(v)
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.
(vi)
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.
(vii)
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 SudamSaha, 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.
(viii)
This Opposite Party is all along ready
and willing to deliver the owners allocation subject to their joint approach
until partitioned among them.
(e) Answer
of Question no. 6 : Agree.
(f)
Answer of Question no. 7 : Agree.
(g) Answer
of Question no. 8 : The same are the contents & purports
of the Development Agreement.
(h) Answer
of question no. 9 : Referred to the answer of question no.
5.
(i)
Answer of Question no. 10 : I
have elaborately stated in my Evidence on Affidavit.
(j)
Answer of Question no. 11 : I
have elaborately stated in my Evidence on Affidavit.
(k) Answer
of Question no. 12 : I have elaborately stated in my Evidence
on Affidavit.
(l)
Answer of Question no. 13 : I
have elaborately stated in my Evidence on Affidavit.
3.
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.
4.
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 RajpurSonarpur 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.
5.
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.
6.
That in the facts and in the laws, it
is totally evident from the application itself that the complainant is trying
to miss utilizing the jurisdiction of this Hon’ble Commission.
7.
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.
8.
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.
9.
That the entire facts are Commercial
in nature, therefore the present consumer complaint should be dismissed
inlimnie.
10.
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.
11.
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.
12.
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.
13.
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.
14.
That the Petitioners, are not entitled
to any relief as prayed in the Consumer Complaint, and the same is liable to be
dismissed inlimnie.
15.
That in the aforesaid circumstances,
the Opposite Party is seeking the dismissal of the Complaint filed by the Petitioners,
with exemplary cost.
16.
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.
17.
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 Reply of the Opposite Party, and to dismiss and or reject at once
the petition of consumer complaint filed by the Petitioner, 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, Sujit Saha being
the Opposite Party number 2, in the present consumer proceeding, I am
acquainted and conversant with the material facts stated in my reply. I am
Proprietor of the Opposite Party number 1, M/s. SKS Developer. I verify, &
sign the Reply on Affidavit on 19th day of March’ 2025, at the Alipore
Judges’ Court Premises.
DEPONENT
Identified
by me,
Advocate
Prepared
in my Chamber,
Advocate
Date
: 19th day of March’ 2025
Place
:Alipore Judges’ Court
N O T A R Y
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