West Bengal

South 24 Parganas

CC/436/2015

Mira Karmakar, W/O Late Ratan Karmakar. - Complainant(s)

Versus

SKS Developer, Prop. Sujit Saha. - Opp.Party(s)

Ramanuj Banerjee.

04 Aug 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _436_ OF ___2015__

 

DATE OF FILING : 28.9.2015                        DATE OF PASSING JUDGEMENT:  04.08.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu

                                                                             

COMPLAINANT                :   Mira Karmakar,w/o late Ratan Karmakar of 97, Kalitala Laskarpur, P.S. Sonarpur, Dist. South 24-Parganas.

 

• VERSUS  -

 

O.P/O.Ps                           :  S K S Developer, prop. Sujit Saha of 185, Ramgarh, P.S. Netaji Nagar, Kolkata – 47.

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                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President          

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that he entered into a development agreement with the O.P on 18.6.2015 for development and her co-sharer property measuring about 10 cottah 3 chittak 33 sq.ft of land at Mouza Laskarpur, J.L. no.57, P.S. Sonarpur under Rajpur Sonarpur Municipality Ward no.30 . It has further stated that in terms of the agreement O.P will pay a sum of Rs.6,500/- per month towards the shifting rent of the shifting charges since O.P has already taken possession of the schedule property but did not pay monthly rent to the complainant as per terms of the development agreement. Complainant also sent a notice with a request to pay the monthly rent as per terms of the development agreement which are annexed herewith including the reply of the O.P. Hence, this case to direct the O.P to pay rent of Rs.6500/- to the complainant as per development agreement and pass such further order or orders and complainant intends to get Rs.26000/- as total dues.

The O.P filed written version supported by an affidavit and has claimed that this case is not maintainable in its present form and liable to be dismissed at once with exemplary cost. It is the positive case of the O.P that he is not admitting the allegations leveled against him. The positive case of this O.P is that the O.P being a developer shall , however, pay to the owners a sum of Rs.6500/-per month  to the owners as and by way of monthly rent. Accordingly developer arranged to make payment of Rs.541.66/- to each owners and thereafter in total paying as of Rs.6500/-  only in terms  as specified at page no.15 of the development agreement. It has stated that the two owners have already refused to take such payment of Rs.541.66/- demanding more money out of the agreement but the five owners are taking such money as of Rs.541.66p as per agreement.

It has been stated by the O.P that this O.P all along is ready and willing to make payment of Rs.541.66 only in terms of the development agreement to the present complainant, for which contesting O.P has replied the letter of the complainant in accordance with the development agreement. It has also stated that all owners are not party in the present complaint. Accordingly, O.P wanted to dispose of the case seeking compensation of Rs. 1 lac only for harassment and mental anxiety arising out of these present proceedings by the complainant.

Now, let us see whether any deficiency of service has been cropped up by not giving a sum of Rs.6500/- towards the rent to the complainant or not.

                                                            Decision with reasons

After hearing both parties and on perusal of the development agreement  at para 7 page 15 we find that  Developer shall, however, pay to the owners a sum of Rs.6500/- per month to the owners as and by way of monthly rent.

From the development agreement we find that there are seven owners. So ,that amount will be divided equally against all the land owners. But herein only one land owner Mira Karmakar ,who is land owner no.1, has filed this complaint claiming Rs.6500/-. But the other owners have not yet been made  party in this case even proforma O.P. So, it is very difficult to ascertain whether all the owners are getting in all Rs.6500/- in terms of the development agreement or not since the development agreement is binding upon the parties. It should be mentioned here that this complainant will not get alone Rs.6500/- from the O.P but this complainant and other six land owners will get equally Rs.6500/- in all. So, in arithmetical calculation it comes to Rs.928.57p . But we find that developer has tendered only Rs.541.66 to this complainant which is not in accordance with the development agreement. Thus it amounts to deficiency of service, that is why complainant has been able to prove his allegation and the contention of the O.P in  his written version in para 11(vii) that the O.P is all along ready and willing to make payment of Rs.541.66 is not suffice to say that this Rs.541.66 comes to Rs.6500/-. So, that readiness and willingness has no leg to stand upon. This is undoubtedly an unfair trade practice.

Moreover, in terms of the  written  version of 11(v) at page 4 bottom five owners are taking such money as of Rs.541.66 but that contention has no leg to stand upon because acceptance of the five owners have not been submitted .Moreover, if the developer submits the said document then also the said amount accepted by the five owners of Rs.541.66 each is not covered the agreement money of Rs.6500/- in terms of the Development Agreement dated 18.6.2015 with all the seven land owners ,that is why the two owners refused to take such payment, which has also been  mentioned in the written version at page 4 para 11 (IV). So, all these circumstances clearly suggest that complainant has been able to prove his case regarding deficiency of service and after determining the same in the open Forum, Ld. Advocate of the O.P has agreed to pay the same, for which, it is

                                                            Ordered

That the case is allowed on contest against the O.P with cost of Rs. 1000/- which will be paid by the O.P to the complainant within 30 days from this date.

The O.P is directed to go on payment of Rs.928.57p to each of the land owners (seven land owners) in terms of the development agreement dated 18.6.2015  till the possession of the flat is being handed over to the land owners .

Since the O.P/developer agreed to pay the said amount we do not propose any compensation at this stage but the payment along with cost be paid to the complainant within 30 days from this date.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

 

 

                                                                        Member                                              President

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

 

Ordered

That the case is allowed on contest against the O.P with cost of Rs. 1000/- which will be paid by the O.P to the complainant within 30 days from this date.

The O.P is directed to go on payment of Rs.928.57p to each of the land owners (seven land owners) in terms of the development agreement dated 18.6.2015  till the possession of the flat is being handed over to the land owners .

Since the O.P/developer agreed to pay the said amount we do not propose any compensation at this stage but the payment along with cost be paid to the complainant within 30 days from this date.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

 

 

                                                                        Member                                              President