State Consumer Disputes Redressal Commission
M/S. Green Vista Housing Complex vs M/S. Baghbaan Developers & Others on 22 November, 2012
Daily Order
STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL, BHABANI BHAWAN (Gr. Floor) 31, Belvedere Road, Kolkata - 700027 CC NO. 1 Of 2012 M/s Green Vista Housing Complex. Vs. M/s Baghbaan Developers. and Others BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. SHANKAR COARI Member HON'BLE MRS. MRIDULA ROY MEMBER For the Complainant: Mr. Barun Prasad., Advocate For the Opp. Party: Mr. S.K. Bhattacrharjee, Advocate Mr. S.K. Bhattacrharjee , Advocate Dated : 22 Nov 2012 ORDER ORDER NO. 11 DT. 22.11.12
MR. S.COARI, LD. MEMBER
The record is placed today for passing necessary orders in respect of the Misc. Applications being numbered MA-209/2012 and MA-278/2012.
MA-209/2012 MA-209/2012 has been filed by the Ops with a prayer for amendment of the written version as per schedule of the amendment annexed to the Misc. Application.
The main contention of the Misc. Applicants, in brief, is that the present case has been filed by the Complainant, OP in the Misc. Application, who has alleged deficiency in service at the instance of the Ops in respect of the housing complex namely M/s. Green Vista Housing Complex, of which the Misc. Applicants are the developers/promoters. According to the Misc. Applicants, the Misc. Applicants have duly entered appearance in respect of the petition of complaint and filed written version, but subsequently it has come to light that due to inadvertence, in Paragraph-9 of the written version the rate of charges for execution and registration payable by the intending flat purchasers has been wrongly written as 8.25% of the market value of the respective flat instead of 8.75%. It is the further case of the Misc. Applicants that the mistake is totally unintentional and although it has been mentioned in the written version that it was agreed upon between the flat owners and the Ops that the flat owners would pay 8.25% of the market value of the flat for the purpose of registration of the same, but actually it should have been 8.75% of the market value of the respective flat. According to the Misc. Applicants, unless and until this mistake, which is pure and simple unintentional and is the result of inadvertence, is rectified/corrected by way of amendment, the interest of the Misc. Applicants would be highly prejudiced and that, if allowed, the amendment so proposed will not affect the interest of the complainant and/or the prospective flat owners in any way or that there would be possibility of changing nature and character of the complaint case in question and under the circumstances, the amendment application may kindly be allowed.
At the time of hearing it has been submitted on behalf of the Misc. Applicants that the proposed amendment is of formal nature and that, if allowed, it will not affect the nature and character of the complaint case in any way and that the Misc. Application for the proposed amendment has been filed only to eradicate an unintentional error that has cropped up in the written version so far as it relates to rate of charges payable at the instance of the flat purchasers for registration of their respective flat, which is also of negligible amount and considering all these aspects the Misc. Application should be allowed for ends of justice. Ld. Advocate for the OP while opposing such submissions has submitted before us that there is no denial of the proposition that the complainant has based its allegations so far as it relates to deficiency caused at the instance of the Ops for the rate of charges for registration of respective flat on different purchasers are not uniform, which, according to the Complainant, not only tantamounts to unfair trade practice but also deficiency in service. According to the Ld. Advocate, if that be the position, if at this stage when the complainant has already filed its evidence on affidavit and after that the Ops have come up with the Misc. Application for amendment of the written version on material points, as mentioned above, will certainly affect the complaint case on material points, which, according to the Complainant, is not permissible under the law. In this regard, the Ld. Advocate for the OP/Complainant has also submitted that by way of amendment a party is not permitted to make out a new case and/or pray for an amendment, which changes the nature and character of the allegations so put forward against the Ops and under the circumstances, the application is liable to be dismissed.
We have duly considered the submissions so put forward on behalf of both sides and have also gone through the materials on record including the Misc. Application and find much substance so put forward on behalf of the Complainant/OP. When admittedly the petition of complaint is based on the rate of charges for registration payable by the intending purchasers itself, question of allowing amendment of such rate of charges and that too after filing of the evidence on affidavit by the complainant will certainly affect the complainant's case materially and also result in change in nature and character of the complaint case, which, in our opinion, is not permissible under the law. Having considered the present Misc. Application in the light of above discussions we find no merit in the Misc. Application, which is liable to be dismissed.
Hence, it is ORDERED that the Misc. Application No. MA-209/2012 stands dismissed on contest but without any order as to costs.
MA-278/2012 The main contention of the Complainant/Misc. Applicant in Misc. Application No. MA-278/2012, in brief, is that after receipt of notice from this Commission the Ops/Promoters have adopted unfair means thereby charging excess maintenance charges from the flat owners and causing unnecessary delay in the matter of registration of the flats in question and not complying with the terms and conditions entered into by and between the parties so far as it relates to smooth and effective running of the housing project and depriving the flat owners of the service of the transformer installed in the housing project and that even after accepting money from the flat owners for installing a generator set of 320 KVA producing 360 KW, but the flat owners are actually getting only 500 Wt. individually, which is insufficient for daily consumption and use of the flat owners. The Ops in order to put the flat owners in practical troubles and difficulties have disconnected the generator connection of the flat owners and have also reduced the number of security guards to the detriment of interest of the flat owners and hence, the application U/S 13(3)(B) of the Consumer Protection Act thereby praying for restraining the Ops by an interim order from causing different sorts of disturbances to the flat owners, as mentioned above, and also for restraining the Ops from disconnection the generator connections to the flat owners, etc. At the time of hearing it has been submitted by the Ld. Advocate for the Ops that the Ops have already entered appearance and filed a written version, but due to inadvertence there is a mistake in the written version which requires correction by way of amendment, for which a Misc. Application has been filed by the Ops and unless and until the amendment application is allowed/disposed of, the Ops are not in a position to contest the Misc. Application filed by the Complainant having put forward wild allegations, which have not been substantiated at all, there is no merit in the Misc. Application and the same is liable to be dismissed.
We have duly considered the submissions so put forward on behalf of the Ops and have gone through the materials on record and find that in this case the Complainant/Misc. Applicant has come forward with a case to the effect that after the institution of the present complaint case the Ops/Promoters/Developers have taken a standpoint so as to cause some practical disturbances in the use of different flat owners in respect of their respective flat and have made out a number of deficiencies and/or acts and omissions on the part of the Ops in this regard and in order to safeguard peaceful possession of the flat owners, some sorts of restrictions should be imposed upon the Ops. Otherwise the peaceful possession of the respective flat owner will be highly jeopardized at the instance of the Ops. Having considered the facts and circumstances of the case and the materials on record including the submissions so put forward on behalf of both sides we are of the considered opinion that the complainant has been able to make out a prima facie case in support of the Misc. Application with a prayer of injunction as per provisions of Section 13 (3)(B) of the Act. We are also of the opinion that if the restraint order as per prayer of the Misc. Applicant is granted, there will be no chance of suffering of the Ops/Promoters/Developer at all and having considered the present matter in the light of above discussions we allow the Misc. Application on contest but without any order as to costs. The Ops are hereby restrained from causing any disturbance to the flat owners so far as it relates to disconnection of generator connections to different flat owners. The Ops are further directed to maintain the facilities annexed to the building project as agreed by and between the parties so far as it relates to lift facilities, security facilities and other technicians' helps that are required for effective habitation of the flat owners in the housing project.
The above Misc. Applications are thus disposed of.
Fix 22.01.2013 for filing questionnaire by the Ops.
[HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. SHANKAR COARI] Member [HON'BLE MRS. MRIDULA ROY] MEMBER