In  the  Court  of  the

Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, 4^th Floor, Kolkata-700087.

CDF/Unit-I/Case No.  481 / 2009.

1)                   Sukla Adhikari,

            Natural View Apartment,

            Flat No. N-7, 82, Ultadanga Main Road, Kolkata-700067.                          ---------- Complainant

---Versus---

1)                   Sudhanshu Developers Private Limited,

9A, Lord Sinha Road, Kolkata-700071.

2)                   Ultadanga Natural View Residents Welfare Association,

            82,  Ultadanga Main Road, Kolkata-700067.                                            ---------- Opposite Parties

Present :           Sri Sankar Nath Das, President.

                        Dr. Subir Kumar Chaudhuri, Member.

                        Smt. Sharmi Basu, Member

Order No.   24    Dated  30/05/2012.

            The petition of complaint has been filed by the complainant Shukla Adhikary against the o.ps. Sudhanshu Developers Pvt. and another Ltd. The case of the complainant in short is that on 7.7.06 an agreement for sale was executed between complainant and o.p. no.1 for a flat in Unit no.N as duplex terrace on 7^th and 8^th floor of segment one having a super built area 2290 sq.ft. and terrace 275 sq.ft. and for which complainant had to pay at a consideration of Rs.26 lakhs. Complainant has stated that initially i.e. after taking the flat o.p. no.1 used to maintain the common facilities by 50 paise per sq.ft. for all the owners and thus o.p. no.1 had maintained one year. The common facilities were for all the owners irrespective for the size of the flat. To the complainant it is not reasonable that all the flat owners of irrespective of size of flat enjoyed common facilities but the maintenance charges for common facilities had to pay by the flat owners as per size of flat. On June, 2008 the management of maintenance was handed over to o.p. no.2. Complainant has also submitted that initially o.p. no.1 and subsequently o.p. no.2 had charged maintenance charges according to size of flat from the flat owner i.e. quire unreasonable. Complainant made request to o.p. no.2 for redressal of this dispute but all in vain. Hence the case filed by complainant with the prayer contained in the prayer portion of the petition of complaint.

            O.p. no.2 had entered its appearance in this case by filing w/v and denied all the material allegations labeled against it. O.p. no.1 did not contest this case by filing w/v and matter is being heard ex party as against o.p. no.1. O.p. no.2 submitted in w/v that the instant case is not maintainable.

Decision with reasons: -

            We have gone through the pleadings of the parties, evidence and documents in particular. It appears from the w/v of o.p. no.2 that complainant’s husband was Ex-President of o.p. no.2 earlier during his tenure and paid maintenance charges @ Re.1/- for a consecutive uninterrupted without raising any objection in this regard and complainant agreed to pay proportionate maintenance charges by sale agreement dt.7.7.06 between complainant and o.p. no.1. The contention as we find in the petition of complaint as cropped in the mind of complainant after lapse of 2 years asking for refund her maintenance charges paid by her on the self cultivated ground that such enhancement in maintenance appears to be illegal and filed the instant case.

            We find from the record that the husband of complainant while leading association of o.p. no.2 at that material time Re.1/- per month towards monthly subscription and it was adopted by resolution in a meeting of association unanimously and the husband of complainant did not throw any whisper in this regard. Now the situation has changed and complainant has put forward with a plea for refund of enhance monthly subscription towards maintenance charges adopted by the resolution by the association. Now the settle principle of law is that one cannot blow hot and cold at a time. Moreover, we are of the opinion that complainant is not a consumer as defined in C.P. Act, 1986 because the association is not a service provider to any individual except common minimum service as mutually agreed by its member and consequentially complainant cannot sue against o.p. no.2 and whiles in particular o.p. no.1 handed over the property in question to o.p. no.2 for maintenance and running common service. That being the position we are of the view that the instant case is not maintainable.

            Hence, ordered,

            That the case is not maintainable and stands dismissed on contest against o.p. no.2 and ex parte against o.p. no.1 without cost.

            Supply certified copy of this order to the parties.

        _____Sd-_____                _____SD-_______           ______Sd-_______

          MEMBER                         MEMBER                       PRESIDENT