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Consumer
Complaint no. 34 of 2023
In the matter
of :
Sri
Himansu Bikas Majumdar,
________Complainant
-
Versus
–
M/s. Vastu
Realtors, & Others
_________Respondents
PETITION ON
MAINTAINABILITY
The humble
petition on behalf of the above named respondent no.1, M/s. Vastu Realtors, most
respectfully;
Sheweth as
under;
1.
That
the Petition is a counter blast of the Suit lodged by the Respondent no. 1,
wherein the Respondent number 2, is a Proforma Consumer Complainant, and the
Consumer Complainant is a Consumer Complainant, therein. The said Suit is for
Specific Performance of Development Agreement dated 11-09-2019, and Injunction,
before the Learned Civil Judge (Senior Division), 3rd Court at
Alipore, South 24 Parganas, which is still pending, before the Learned Civil
Court.
2.
That
in a Misc. Appeal no. 44 of 2023, which arising out the said Title Suit no. 118
of 2023, has been preferred by the respondent number 1, before the Learned
District Judge, at Alipore, South 24 Parganas, wherein by Order No. 01, dated
09-02-2023, the Learned District Judge, Alipore, South 24 Parganas, was pleased
to pass necessary order with a direction of allowing for ad-interim injunction
as “the appellant/ plaintiff and the respondent/ defendant are both directed to
maintain status quo in respect of the nature and character and possession of
the schedule property till 09-03-2023”, subsequently the said ad-interim
injunction has been extended time and again, and still continued.
3.
That
the Consumer Complainant appeared on 09-03-2023, in the said Misc. Appeal no.
44 of 2023, which arising out the said Title Suit no. 118 of 2023, has been
preferred by the respondent number 1, before the Learned District Judge, at
Alipore, South 24 Parganas, and praying to submit his reply. The said Misc.
Appeal is still pending.
4.
That
the suit for specific performance is pending between the parties thus the
present consumer complaint lost its jurisdiction to try any further.
5.
That
the present consumer complaint has been lodged by the complainant suppressing the material facts
that a Title Suit no. 118 of 2023, is pending before the Learned Court of Civil
Judge ( Senior Division), 3rd Court, Alipore South 24 Parganas, and
a Misc. Appeal no. 44 of 2023, before the Learned District Judge, at Alipore,
South 24 Pasrganas, are still pending for adjudication, for Specific
Performance of Development Agreement dated 11-09-2019, and injunction in
respect of the Owners allocation, specifically described for the Consumer
Complainant.
6.
That
the Consumer Complainant and the Proforma Respondent are the joint Land Owners
in respect of ALL THAT piece and parcel of homestead land measuring more or
less 4 (four) Cottahas together with an old dilapidated one storied building
measuring more or less 200 Sq. ft. standing thereon situated and lying at Mouza
– Kamdahari, J.L. No. 49, comprising in C.S. Plot (Dag) No. 1032 (P), L.O.P.
No. 1607, within the limits of the Kolkata Municipal Corporation, Ward no. 111,
Premises No. 41, Atabagan, having its Postal Premises No. B-89, Atabagan, Post
Office – Laskarpur, Police Station formerly Regent Park, presently Bansdroni
Police Station, Kolkata – 700153, District South 24 Parganas, which Butted and
Bounded as On the North : L.O.P. No. 1606, On the South : L.O.P. No. 1610, On
the East : L.O.P. No. 1608, On the West : 24’-6’ wide Road.
7.
That
the Consumer Complainant and proforma respondent approached the Respondent
number 1, for development and construction of their joint land by construction
of new building structure in terms of sanctioned building plan of the concerned
Kolkata Municipal Corporation, against the consideration of the developer’s
allocation in the newly constructed building premises at their joint
ownership’s land, under the jurisdiction of the Bansdroni Police Station,
District South 24 Parganas.
8.
That
the Respondent number 1, and the Consumer Complainant and Proforma Respondent
entered into a Development Agreement on 11-09-2019. The said Development
Agreement duly executed and registered in Book no. I, Volume no. 1601-2019,
Page from 137670 to 137724, Being no. 160102814 for the year 2019, in the
office of the District Sub Registrar – I, South 24 Parganas. The Consumer
Complainant who is one of the two owners of the Suit plot of Land which is
under the said Development Agreement dated 11-09-2019. The said Development
Agreement contained the descriptions of the Owners’ allocation as ALL THAT
after completion of the said proposed building, the Owners namely Mr. Himansu
Bikas Majumdar and Smt. Dipali Seth shall allotted Entire Second floor Flat,
one 2 BHK & one 1BHK Flat on the Third Floor, one 2BHK Flat on the Fourth
Floor and 2 (two) Car Parking spaces on the Ground Floor along with a
forefieted amount of Rs. 3,00,000/- ( Rupees Three Lakh) only, will pay at the
time of signing this agreement unto and in favour of the said Himansu Bikas
Majumdar and Smt. Dipali Seth by the Developer and the said Developer also
provide a shifting charges of Rs. 7,000/- (Rupees Seven Thousand) only per
month to the Owners until hand over the possession of their aforestated owners’
allocated portion.
9.
That
the said Development Agreement dated 11-09-2019, contained the Developer
Indemnity in Article – VIII, which are as follows;
(a) The
Developer hereby undertake to keep the Owners indemnified against all Third
Party claims and actions arising out of any sort of act or commission of the
Developer in or relative to the construction of the said new building.
(b) The
Developer shall on completion of the new building put the Owners in undisputed
possession together with all rights therein including proportionate rights in
common to the common portion.
10.
That the said Development Agreement
dated 11-09-2019, contained the Owners’ Indemnity in Article – VII, which are
as follows;
(a) Owners
hereby undertakes that the Developer shall be entitled to the said construction
and shall enjoy its allocated space without any interference.
(b) The
Owners shall be liable to meet up all previous outstanding and liabilities and
Documentation including Corporation Taxes in respect of the entire holding if
any. But during construction work of the Venture all the liabilities in
connection with the construction work if any labour or mason or any man
connected with the said venture dies due to accident Owners shall not be held responsible
and liable to pay any compensation for the same.
(c) The
Owners hereby agree and covenant with the Developer not to cause any
interference or hindrance in the construction of the said new building at the
said property by the developer.
(d) The
Owners hereby agree and covenant with the Developer not to do any act, deed or
thing whereby the Developer may be prevented from selling, assigning and /or
disposing of any of the Developer allocated portion in the building after
completion of the new building.
11.
That the said Development Agreement
dated 11-09-2019, contained the Procedure in Article – IV, which are as
follows;
(a) Developer
will get the said Property measured and surveyed on behalf of the Owners and
will pay all the necessary expenses.
(b) The
Owners’ shall deliver the entire holding after sanctioned the building plan of
the proposed building at the said premises to the Developer who shall erect the
proposed building in the said holding/ premises.
(c) The
said premises have been mutated in the name of the Owners under the Kolkata
Municipal Corporation and the Owners have paid the necessary taxes to the
authority concerned.
(d) Some
taxes may be dues for the said Property to the Kolkata Municipal Corporation
and /or other concerned authorities. These amount of due taxes will be paid by
the Owners.
(e) The
Developer shall take the sanction the building plan in connection with the said
property as described in the First Schedule hereunder written.
(f)
After execution of this agreement the
Developer shall take proper steps for the sanctioning the building plan, in
respect of the proposed project.
(g) Developer
will prepare all necessary documents, architectural Plan, structural design
etc. and will submit the plan in the name of the Owners before the Kolkata
Municipal Corporation and for the same the Owners shall give full co-operation
to the Developer without raising any objection.
(h) After
getting sanction of the building plan on proposed land area from the Kolkasta
Municipal Corporation the Developer shall erect, construct and complete the
said building within 24 (Twenty Four) months to be calculated from the date of
obtaining sanctioned plan from the appropriate authority. Time is the essence
of this agreement.
(i)
At the time of construction of the new
building the Developer can enter into an Agreement for sell or any kind of
transfer or in any way deal with Developer’s allocation with any third party or
parties as absolute ownership thereof, the owners shall not interfere.
(j)
As soon as the new building shall be
completed including the Developer’s allocation the Owners shall execute the
deed of conveyances, in respect of the Developer’s allocation together with the
undivided proportionate share of land and other common facilities in favour of
the Developer and /or its nominees.
(k) From
the date of taking over possession of the Owners’ allocation, the Owners shall
pay the proportionate share of maintenance and taxes on their allocation as
mentioned in the Second Schedule Part – I below.
12.
That the said Development Agreement
dated 11-09-2019, contained the Consideration in Article – VI, the relevant
contents reproduced which are as follows;
(a) As
soon as the new building shall be completed the Developer shall give written
notice to the Owner for taking the vacant possession of the Owners allocation
in the new building as within mentioned and the Owners shall then take the
possession in the said allocation of the owners and since the date of receiving
the such notice the owners shall pay the proportionate taxes and maintenance
cost of their allocation.
13.
That the said Development Agreement
dated 11-09-2019, contained the contents of Developer’s allocation which are as
follows;
“Save and except the Owners’
allocation mentioned herein above remaining constructed area i.e. entire First
Floor, one 2 BHK on the Third Floor, one 2 BHK & 1 BHK on the Fourth Floor
along with remaining car parking space on the Ground Floor together with
proportionate impartible undivided share in the land underneath together with
proportionate share and/ or interest in the land and the common areas and
facilities in accordance Third Schedule hereunder written will be in the
exclusive share of the Developer and the Developer will be entitled to deal
with its allocation as they likes of which the owners shall have no right title
interest or claim in any way whatsoever. The entire building shall be erected
at the cost of the Developer as per maximum permissible law of the Kolkata
Municipal Corporation.”
14.
That in terms of the said Development
Agreement dated 11-09-2019, the Consumer Complainant being one of the two
Owners is entitled to get two numbers of Residential Flats being no. 2C &
2D, Entire 2nd Floor, South –East- North- Western side no. 3 &
4, and Two Car Parking Spaces North- East- Western side, in the premises being no.
41, Atabagan, having its Postal Premises No. B-89, Atabagan, Post Office –
Laskarpur, Police Station – Bansdroni, Kolkata – 700153, District South 24
Parganas. The Other Owners namely Smt. Dipali Seth, has already taken
possession of the completed flat and other facilities from the Respondent
number 1,, against the necessary Govt. Charges (i.e. GST).
15.
That the Respondent number 1, on
repeated occasion, has been intimated that his flats and garage spaces are
completed and to take possession of the same against payment of Rs. 2,24,751/-
(Rupees Two Lakhs and Twenty Four Thousand and Seven Hundred Fifty One ) only, on
account of GST, maintenance charges as of Rs. 21,972/- (Rupees Twenty One
Thousand and Nine Hundred Seventy Two ) only, and electrical charges being
installation of Main Electric Meter and connection thereof as sum of Rs.
1,37,325/- ( Rupees One Lakh and Thirty Seven Thousand and Three Hundred Twenty
Five ) only. The GST Charges and maintenance charges calculated up-till
November’ 2022.
16.
It is pertinent to mention that the
joint Development agreement is a contract between a landowner and real estate
developer to build a new project on the land of owner. The real estate builder,
construct the building and other things. On the contrary, the owner of the land
will provide land to construct the building. Moreover, there are two kinds of
Joint Development Agreement and they are (a) Area Sharing Joint Development
Agreement, (b) Revenue Sharing Joint Development Agreement. Under this Joint Development Agreement the landowner
has to transfer its development right to the developer. In return, the
landowner gets a continuous supply of construction service from the developer
over a period of time. Moreover, the GST is applicable at the time of supplying
such construction services. If the landowner gives his land to the developer and
after a while in return gets a constructed property, then in such a case the
landowner will be liable to pay GST on landowners share. At the point when a
developer comes into contract with the landowner using Joint Development
Agreement, GST will be payable by the owner of the land at the time when the
developer transfers back the rights or possession to the landowner by signing a
possession letter.
17.
That
the statutory payment being GST is payable in the following ( as calculated on
08-11-2021 ) ;
(a) GST of Flat
no. 2C – 1% of Rs. 25,06,300 being Govt. Market Value - which come as Rs. 25,063/-
(b) GST of Flat
no. 2D – 5% of Rs. 39,93,750/- being Govt. Market Value – which come as Rs.
1,99,688/-
(c) The payment of
GST in total come as Rs. 2,24,751/- ( Rupees Two Lakhs and Twenty Four Thousand
and Seven Hundred Fifty One ) only.
(d) GST may varied
on calculation of present market valuation, which raises day by day.
18.
That
the Proportionate sum of money for installation of Main Electric Meter for 2nd
Floor S.B.A. 1831 Sq. Ft. @ Rs. 75/- per sq. ft. which come as of Rs.
1,37,325/- ( Rupees One Lakh and Thirty Seven Thousand and Three Hundred Twenty
Five ) only.
19.
That
the maintenance Charges @ Re. 1/- ( Rupee One ) only, per Square Ft., on and
from December’ 2021, uptill November’ 2022, for 1831 Sq. Ft. in the following;
a) December’ 2021 – Rs. 1,831/-
b) January’ 2022 -
Rs. 1,831/-
c) February’ 2022 -
Rs. 1,831/-
d) March’ 2022 - Rs. 1,831/-
e) April’ 2022 - Rs. 1,831/-
f) May’ 2022 - Rs. 1,831/-
g) June’ 2022 - Rs. 1,831/-
h) July’ 2022 - Rs. 1,831/-
i) August’ 2022 -
Rs. 1,831/-
j) September’ 2022 -Rs. 1,831/-
k) October’ 2022 -Rs. 1,831/-
l) November’ 2022 -Rs.
1,831/-
m)Total - Rs. 21,972/-
The maintenance Charges @ Re. 1/- (
Rupee One ) only, per Square Ft., on and from December’ 2021, uptill November’
2022, for 1831 Sq. Ft. calculated in total as Rs. 21,972/- ( Rupees Twenty One
Thousand and Nine Hundred Seventy Two ) only. Further, the same will be
calculated till date of realization.
20.
That the Respondent number 1, served
its contention by way of Letter dated 08-11-2021, and consequently several
communication made between the Respondent number 1, and the Consumer
Complainant by way of letter dated 04-12-2021, 24-01-2022, 17-02-2022,
25-02-2022, 03-03-2022, and 24-11-2022, as well as several meeting has been
held by and between the Respondent number 1, and the Consumer Complainant; But
yield no result.
21.
That the Respondent number 1, has also
been served with a legal notice 28th November’ 2022, sent by the
Learned Advocate of the Respondent number 1, but the Consumer Complainant did
not make the payment of the said amount, even did not answer on the said notice
of the Respondent number 1,.
22.
On 15th January’ 2023, at
about 11:30 am, the Consumer Complainant with his associates, men and agents,
came to the said flat no. 2C and 2 D at “VASTU PEARL” at Premises No. 41,
Atabagan, having Postal Premises no. B-89, Atabagan, Post Office – Laskarpur,
Police Station Bansdroni, Kolkata – 700153, District South 24 Parganas, and
tried to break open the pad lock to take forceful physical possession of the
said flats, which is totally, illegal.
23.
On being come into knowledge, the
Respondent number 1, reached there and tried to stop him in doing such illegal
acquisitions of the said flats by him. The intervention of local people come
forward in the issues and thus he stopped in taking the said flats; But by the
time he and his associates, men, and agents, used most filthy languages, and
trying to assault the Respondent number 1,. He threatened the Respondent number
1, that he will take possession of the flats, very soon, without paying his
dues, demanded by the Respondent number 1,.
24.
That the Respondent number 1, visited
the Bansdroni Police Station to inform such fact. The Police suggested to give the
complaint in written form to register the case and to take action against the
said Land Owner.
25.
That the Consumer Complainant took a
mischievous posture while he tried to take forceful possession of the said
flats, by braking padlock. The incident has been informed to the local police
station, vide written complaint posted on 16th day of January’ 2023.
26.
That in the terms of the law of the
land the Respondent number 1, is entitled to enforce the said Development
agreement and is further entitled to his relief under Section 34 of the
Specific Relief Act’ 1963.
27.
That the Consumer
Complainant has created unnecessary criminal trespass, house lurking &
breaking, pursuing criminal breach of trust and misappropriation of money due
to the Government as well as to the Respondent number 1.
28.
That
the Respondent number 1, has preferred a Suit for Specific Performance of
Development Agreement dated 11-09-2019, and Injunction, against the Consumer
Complainant, herein. The said Suit is for Specific Performance of Development
Agreement dated 11-09-2019, and Injunction, before the Learned Civil Judge
(Senior Division), 3rd Court at Alipore, South 24 Parganas, which is
still pending, before the Learned Civil Court.
29.
That
in a Misc. Appeal no. 44 of 2023, which arising out the said Title Suit no. 118
of 2023, has been preferred by the respondent number 1, before the Learned
District Judge, at Alipore, South 24 Parganas, wherein by Order No. 01, dated
09-02-2023, the Learned District Judge, Alipore, South 24 Parganas, was pleased
to pass necessary order with a direction of allowing for ad-interim injunction
as “the appellant/ plaintiff and the respondent/ defendant are both directed to
maintain status quo in respect of the nature and character and possession of
the schedule property till 09-03-2023”, subsequently the said ad-interim
injunction has been extended time and again, and still continued.
30.
That
the Consumer Complainant appeared on 09-03-2023, in the said Misc. Appeal no.
44 of 2023, which arising out the said Title Suit no. 118 of 2023, has been
preferred by the respondent number 1, before the Learned District Judge, at
Alipore, South 24 Parganas, and praying to submit his reply. The said Misc.
Appeal is still pending.
31.
That
the suit for specific performance is pending between the parties and the
owner’s allocation means for the consumer complainant is in status quo as
granted by the Learned District Judge, at Alipore, South 24 Parganas, in Misc.
Appeal no. 44 of 2023, thus the present consumer complaint lost its
jurisdiction to try any further.
32.
That
the present consumer complaint has been lodged by the complainant suppressing the material
facts that a Title Suit no. 118 of 2023, is pending before the Learned Court of
Civil Judge ( Senior Division), 3rd Court, Alipore South 24
Parganas, and a Misc. Appeal no. 44 of 2023, before the Learned District Judge,
at Alipore, South 24 Pasrganas, are still pending for adjudication, for
Specific Performance of Development Agreement dated 11-09-2019, and injunction
in respect of the Owners allocation, specifically described for the Consumer
Complainant.
33.
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.
34.
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) Development Agreement dated
11-09-2019;
(b) Letter dated 08-11-2021,
04-12-2021, 24-01-2022, 17-02-2022, 25-02-2022, 03-03-2022, and 24-11-2022;
(c) Legal
Notice dated 28-11-2022;
(d) Written
Complaint to Bansdroni P.S., dated 16-01-2023;
(e) Order
no. 01 dated 31-01-2023, in Title Suit no. 118 of 2023;
(f)
Order
no. 01, dated 09-02-2023, passed in Misc. Appeal no. 44 of 2023, by the Learned
District Judge, Alipore, South 24 Parganas;
(g) Copy of Plaint
in Title Suit no. 118 of 2023;
(h) Documents on
GST;
35.
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.
36.
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.
37.
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.
38.
That
the entire facts are Commercial in nature which well observed in Title Suit no.
118 of 2023, by the Learned Civil Judge (Senior Division) 3rd Court,
Alipore, South 24 Parganas, therefore the present consumer complaint should be
dismissed inlimnie.
39.
That
the instant matter comes within the purview of Commercial dispute, which is
within the ambit of the Commercial Courts Act, 2015, in pursuing the Order no.
01, dated 09-02-2023, passed in Misc. Appeal no. 44 of 2023, by the Learned
District Judge, Alipore, South 24 Parganas, therefore the present Consumer
Complaint should be dismissed at once.
40.
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.
41.
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.
42.
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.
43.
That
the Petitioner, is not entitled to any relief as prayed in the Consumer
Complaint, and the same is liable to be dismissed inlimnie.
44.
That
in the aforesaid circumstances, the Opposite Party is seeking the dismissal of
the Complaint filed by the Petitioner, with exemplary cost.
45.
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 petition on maintainability as the disputes referred in the present
consumer complaint is pending in Title Suit no. 118 of 2023, before the Learned
Civil Judge (Senior Division) 3rd Court, Alipore, South 24 Parganas,
and to dismissed the present consumer complaint being CC/34/2023, 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
We, (i)
Sri Pawan Kumar Agarwal, Son of Late Roshanlal Agarwal, residing at WINDSOR
GARDEN, 957, Mahamaya Mandir Road, Post Office – Garia, Police Station –
Narendrapur, Kolkata – 700084, District – South 24 Parganas, and (ii) Sri Uma
Shankar Naik, Son of Late Dukhan Sah, residing at “ANANYA”, Flat – 1B, M-173,
Garia Garden, Post Office – Garia, Police Station – Narendrapur, Kolkata –
700084, District – South 24 Parganas, are acquainted and conversant with the
material facts stated in the plaint. We verify, & sign the petition on
maintainability, on ______May’ 2023, at the Court Premises.
AFFIDAVIT
We
(i) Sri Pawan Kumar Agarwal, Son of Late Roshanlal Agarwal, residing at WINDSOR
GARDEN, 957, Mahamaya Mandir Road, Post Office – Garia, Police Station –
Narendrapur, Kolkata – 700084, District – South 24 Parganas, and (ii) Sri Uma
Shankar Naik, Son of Late Dukhan Sah, residing at “ANANYA, Flat – 1B, M-173,
Garia Garden, Post Office – Garia, Police Station – Narendrapur, Kolkata –
700084, District – South 24 Parganas, do hereby solemnly affirm and say as
follows;
1.
We are the Partners of M/s. Vastu
Realtors, a Partnership Firm, having its Registered office at “ANANYA”, M-173,
Garia Garden, Post Office – Garia, Police Station – Narendrapur, Kolkata –
700084, District – South 24 Parganas, and we are the Respondent number 1, in
the present Consumer Complaint.
2.
We are acquainted and conversant with
the material facts stated in the Petition on maintainability and are Competent
to Swear this affidavit.
This
is true to our knowledge.
3.
That the statements made in paragraph
number 1 to _____ of the Petition on maintainability are true to our knowledge
and the rests are our humble submissions before the Learned Court.
The
above statements are true to our knowledge and belief.
DEPONENTS
Identified
by me,
Advocate
Prepared
in my Chamber,
Advocate
Date
: _______May’ 2023
Place
: Alipore Judges’ Court
N
O T A R Y
