application for appointment of Engineer Commissioner

 

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLKATA UNIT-III,

AT ALIPORE, KOLKATA – 700 027.

 

 

Misc. Application no.               of 2019

Consumer Case no. CC/24/2015

 

 

In the matter of :

 

Shri Ashis Sen,

                                                                   __________Complainant

-      Versus –

 

Shri Sushil Kumar Das,

          ___________Opposite Party

 

 

An application under Section 13 of the Consumer Protection Act’ 1986, for holding investigation / inspection by a Survey Passed Commissioner;

 

 

The humble petition on behalf of the Opposite Party Shri Sushil Kumar Das, most respectfully;

 

 

Sheweth as under :

 

 

1.   That the Opposite Party is a Land Owner / Vendor in respect of the Suit flat, and whereas the Opposite Party appeared in the present Consumer proceeding, before the Hon’ble Forum, and submitted his written Version, stating inter alia the following terms of facts for appropriate adjudication of the present consumer proceeding :

 

a)    The Opposite Party entrusted the complainant to draft the agreement and the complainant with ulterior motive wrote the measurement as 873 Sq. Ft. Instead of 950 Sq. Ft. And Consideration was Rs. 16,50,000/- Be it noted that the Complainant shall pay Rs. 1,800/- per Sq. Ft.

 

b)   That as per agreement the Opposite Party handed over possession of the complete flat on April’ 2013 and the complainant took possession of the Flat after verification each and every items.

 

c)    That as the Construction of the Building being completed befte the agreement was executed the complainant made some addition and alteration in the said subjected flat for his own purposes.

 

d)    That the Opposite Party is always ready and willing to register the deed of conveyance after receiving the balance consideration of Rs. 4,50,000/- ( Rupees Four Lakhs and Fifty Thousand ) only.

 

e)    That the Complainant did not handover any material of Rs. 75,000/- to this opposite party as such deduction of the same did or could at all arise.

 

f)     That this Opposite Party submit that a defaulter in payment of consideration cannot get relief under Consumer Protection Act’ 1986.

 

g)    That the Agreement for Sale dated 06-10-2012, is between the Vendor and the Purchaser, and whereas the Vendor is not a Developer and or Promoter and or Service Provider, and whereas the said Agreement for Sale is Sale Simplicitor, which does not fall under the jurisdiction of the Consumer Protection Act’ 1986.

 

h)   That at Page no. 3 of the said Agreement for Sale dated 06-10-2012, states as “ AND WHEREAS that the Vendor will handover delivery of Possession to the Purchaser of said proposed flat within April’ 2013, in a habitable condition, and final payment will be paid on the basis of actual measurement of said proposed flat herein, and whereas the Purchaser will fail the payment agreement, then the vendor will have right to cancel the agreement for Sale and return the money deduction Rs. 5% financial compensation for loss and the money will be returned immediately.

 

i)     That at Page no. 4 of the said Agreement for Sale dated 06-10-2012, describe the SCHEDULE “A” OF THE PROPERTY – ALL THAT the residential apartment or portion of the building being Flat on the 2^nd Floor containing an area of 873 Sq. Ft. More or less ( East Facing ) including 20% Super Build up area which includes the area of the apartment consisting of two bed rooms, one kitchen, one toilet, one attached bath, one varandah – cum reading room and one veranda and one drawing –cum-dinning room and pillars and common staircase, roof and all common passage thereof situated at 3/95, Sanghati Colony, Kolkata – 700 047, Police Station Patuli, South 24 Parganas.

 

2.   That this Opposite Party handed over the Flat having 950 Sq. Ft. To the Complainant, and whereas the Complainant had taken such larger Sq. Ft area though did not agree to that therefore such facts require to take measurement by one Survey Passed Commissioner, as may be appointed by the Hon’ble Forum, for appropriate adjudication of the present Consumer proceeding. This opposite party undertake to pay all necessary cost and expenses of the Survey Passed Commissioner.

 

3.   That the Hon’ble Forum may appoint the Survey Passed Commissioner to cause necessary measurement of the Schedule “A” being Flat in terms of the Agreement for Sale dated 06-10-2012.

 

4.   That in view of the above the Hon’ble Forum may be please to appoint a survey pass commissioner to hold investigation being measurement of the flat in question as per schedule “A” of the Agreement for Sale dated 06-10-2012, with a direction to survey passed commissioner to submit his report on actual measurement of the flat in question in terms of the said agreement for sale dated 06-10-2012, before the Hon’ble Forum.

 

5.   That the distance of the place of the said investigation from the Hon’ble Forum is about 3 ( three ) Km and the investigation can be completed by one sitting and your petitioner is ready to bear the expenses and cost for such commission work.

 

6.   That this application is made bonafide in the interest of administration of justice.

 

It is therefore prayed that your Honour would graciously be pleased to consider the facts as enlightened herein above and to appoint a Survey Passed Commissioner to hold investigation and or enquiry as of actual measurement of the flat as per schedule “A” of the Agreement for Sale dated 06-10-2012, and to submit report on such actual measurement of flat as per schedule “A” of the Agreement for Sale dated 06-10-2012, before the Hon’ble Forum, in the interest of administration of justice, and or to pass such other necessary order or orders as your Honour 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.

 

 

SCHEDULE FOR INVESTIGATION / ENQUIRY

 

To hold and note down the ACTUAL measurement of the SCHEDULE “A” OF THE PROPERTY – ALL THAT the residential apartment or portion of the building being Flat on the 2^nd Floor containing an area of 873 Sq. Ft. More or less ( East Facing ) including 20% Super Build up area which includes the area of the apartment consisting of two bed rooms, one kitchen, one toilet, one attached bath, one varandah – cum reading room and one veranda and one drawing –cum-dinning room and pillars and common staircase, roof and all common passage thereof situated at 3/95, Sanghati Colony, Kolkata – 700 047, Police Station Patuli, South 24 Parganas, at Page no. 4 of the said Agreement for Sale dated 06-10-2012.

 

a)    Whether it’s 873 Sq. Ft., or

b)   It’s 950 Sq. Ft., or

c)    What’s actual measurement;

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Affidavit

 

I, Shri Sushil Kumar Das, Son of Late Nakul Chandra Das, aged about 65 years, by faith Hindu, by Occupation retired, residing at Premises being no. 3/95, Sanghati Colony, Police Station – Patuli, now presently Netajinagar, Kollkata – 700047, do hereby solemnly affirm and say as follows :

 

1.   That I am the Opposite Party in the present Consumer Proceeding, and whereas I am Conversant and acquainted with the material facts, and thus I am Competent to swear this affidavit.

 

2.   That the statements made in paragraph no. ______to _______, are true to my knowledge and belief and the rests are my humble submissions, before the Hon,ble Forum.

 

 

 

 

DEPONENT

Identified by me,

 

 

Advocate

 

Prepared in my Chamber,

 

 

Advocate

Date : ______________2019

Place : Alipore Kolkata

 

NOTARY