District : South 24-Parganas.

Before the Hon’ble District Consumer Disputes Redressal Forum, at Alipore, Kolkata – 700 027, South 24-Parganas.

Complaint Case no. _______of 2014.

In the matter of :-

An application under Section 12 of the Consumer Protection Act’ 1986;

A N D

In the matter of:

1. Shri Prithwish Sarkar, Son of Shri Parimal Sarkar, residing at Flat no. B-703, Kumar Pragati, NIBM Road, Kondhwa, Pune – 411048, Police Station – Kodhwa, represented by his Constituted Attorney Shri Digendra Nath Roy, Son of Late Mahendra Nath Roy, residing at premises being no. 35, School Road, Santoshpur, Flat no.6, Kolkata – 700 075.

2. Smt. Sangita Sarkar, Wife of Shri Prithwish Sarkar, residing at Flat no. B-703, Kumar Pragati, NIBM Road, Kondhwa, Pune – 411048, Police Station – Kodhwa, represented by his Constituted Attorney Shri Digendra Nath Roy, Son of Late Mahendra Nath Roy, residing at premises being no. 35, School Road, Santoshpur, Flat no.6, Kolkata – 700 075.

…COMPLAINANTS / PETITIONERS

- Versus –

1. M/s. Greenhaven Realty Private Limited, having Registered Office at Premises being no. GF -12, 1953, Rajdanga Main Road, (1^st floor ), Kolkata – 700 107, Police Station - Kasba.

2. Mr. Biswanath Mondal, Son of not known, Chairman cum Managing Director and Authorised Signatory, of M/s. Greenhaven Realty Private Limited,

a) M/s. Greenhaven Realty Private Limited, having Registered Office at Premises being no. GF -12, 1953, Rajdanga Main Road, (1^st floor ), Kolkata – 700 107, Police Station - Kasba.

b) Residing at Village – Purba Goyalbati kheyadaha, Sonarpur, South 24 Parganas, Kolkata – 743369.

3. Mrs. Ira Mondal, wife of not known, Director of M/s. Greenhaven Realty Private Limited,

a) M/s. Greenhaven Realty Private Limited, having Registered Office at Premises being no. GF -12, 1953, Rajdanga Main Road, (1^st floor ), Kolkata – 700 107, Police Station - Kasba.

b) Residing at Village – Purba Goyalbati kheyadaha, Sonarpur, South 24 Parganas, Kolkata – 743369.

4. Mr. Sudipta Kumar Ghosh, Son of not known, Director of M/s. Greenhaven Realty Private Limited,

a) M/s. Greenhaven Realty Private Limited, having Registered Office at Premises being no. GF -12, 1953, Rajdanga Main Road, (1^st floor ), Kolkata – 700 107, Police Station Kasba.

b) Residing at premises being no. C-181, Baisakhi Abasan Block AG, Salt Lake, Kolkata – 700 091.

… RESPONDENTS / OPPOSITE PARTIES

The humble petition of the complainant / petitioner above named Shri Prithwish Sarkar, most respectfully;

SHEWETH AS UNDER :-

That the Complainants / Petitioner are peace loving and law abiding Citizen of India, residing at the address as given in the cause title of this instant application.

That The Complainants are residing at Pune, and the Complainant no.1, is in service at Pune, and the Complainant no.2, is wife of the Complainant no.1, and both are represented by their constituted Attorney Shri Digendra Nath Roy, Son of Late Mahendra Nath Roy, residing at premises being no. 35, School Road, Santoshpur, Flat no.6, Kolkata – 700 075, who is father in law of the complainant no.1, and father of the complainant no.2, herein.

That Since the complainants are not able to look after the matter concern of the immovable property affairs at Kolkata, they granted and executed a General Power of Attorney in favour of Shri Digendra Nath Roy, Son of Late Mahendra Nath Roy, residing at premises being no. 35, School Road, Santoshpur, Flat no.6, Kolkata – 700 075.

That M/s. Greenhaven Realty Private Limited, is a private limited Company incorporated under Companies Act’ 1956, having registered office at Premises being no. GF -12, 1953, Rajdanga Main Road, (1^st floor ), Kolkata – 700 107, represented by it’s Chairman cum Managing Director and other Directors being the respondent no. 2, 3, and 4. The Director being the respondent no. 2, 3, and 4, are looking after the day to day business of the respondent no.1, company, and are wholly responsible and liable for the same.

That the Respondent Company is a Developer of Land into different nature of plot of Land, and the developer has decided to develop land under the brand name of Green Haven Realty Private Limited with several 400 Bighas of land lying and situate in Mouza Sangur within Police Station Sonarpur, District South 24 Parganas, divided in various scheme plots of land measuring an area 02 (two ), 04 ( four ), 06 ( six ) and 10 ( ten ) cottahas plots and the Developer has undertaken to execute such development work such as preparation, conversion and drawing suitable plan etc. for necessary approval by the competent authority.

That the Complainant no.1, with his wife Smt. Sangita Sarkar, was interested to purchase a plot of land as to build their own house in the state of West Bengal, and they came across about the offer of the respondent persons through different media advertisement.

That the Complainants paid ₹ 88,000/- ( Rupees Eighty Eight Thousand ) only, vide Cheque being no. 002681, dated 20-12-2011, drawn on IDBI Bank, as of 20% valuation of the plot, to the respondent company, as per the respondents terms and the respondent company acknowledge the same vide letter dated 06.01.2012, and intimated that the plot being number 4B111, in the Township project GREEN CITY SONARPUR, has been allotted.

That the Complainants regularly made payments of the installments, as per the terms of the respondent company, and subsequently the respondent company entered into an Agreement for Sale dated 26^th day of October’ 2012, with the complainant no.1 and his wife Smt. Sangita Sarkar, at the total consideration of ₹ 4,40,000/- ( Rupees Four Lakhs and Forty Thousand ) only, in respect of the schedule of Land as Land measuring 4 ( four ) Cottahs being Scheme Plot no. 4B111, lying and situated at Mouza SANGUR, J.L. no. 108, Police Station and Sub Registry Office at Sonarpur, in the District South 24 Parganas, together with right to take Electric, Tap Water, Telephone etc., connection through over and under the said 20 feet wide common passage adjacent to the said plot of land together with all easement rights and appurtenance thereto.

That the said Agreement for Sale dated 26^th day of October’ 2012, has been notorized on 6^th day of May’ 2013, before the Notary A.K. Sinha, having Regd. No. 608 of 1995, District South 24 Parganas.

That at the execution of the said Agreement for Sale with the respondent person / company, it has been specifically acknowledged that as on the date of execution of the said agreement for sale complainant has paid as of ₹ 2,20,002.34 ( from December 2011 to October 2012 ).

That the Complainants paid as of ₹ 4,40,008/- ( Four Lakhs Forty thousand and eight ) only, to the respondent company, in several equal installments, as per the respondent company terms, and the said payments has been acknowledged by the Directors through money receipts. Furnishing the following details of payments :

Sl. No.	Date	Money Receipt no. and date	Amount
1	20-12-2011	031 dated 03-01-2012	88,000.00
2	20-03-2012	110, dated 29-03-2012	14,667.00
3	23-03-2012	111, dated 29-03-2012	29,334.00
4	13-04-2012	136, dated 29-04-2012	14,667.00
5	07-05-2012	335, dated 31-07-2012	14,667.00
6	06-06-2012	331, dated 30-06-2012	14,667.00
7	09-07-2012	334, dated 31-07-2012	14,667.00
8	10-08-2012	046, dated 11-10-2012	14,667.00
9	07-09-2012	110, dated 07-09-2012	14,667.00
10	03-10-2012	077, dated 08-10-2012	14,667.00
11	14-11-2012	444, dated 11-12-2012	14,667.00
12	07-12-2012	025, dated 11-05-2013	14,667.00
13	16-01-2013	222, dated 16-01-2013	14,667.00
14	11-02-2013	280, dated 13-02-2013	14,667.00
15	06-03-2013	478, dated 06-03-2013	14,667.00
16	12-04-2013	393, dated 12-04-2013	14,667.00
17	03-05-2013	346, dated 03-05-2014	14,667.00
18	03-06-2013	074, dated 05-06-2013	14,667.00
19	09-07-2013	155, dated 15-07-2013	14,667.00
20	03-08-2013	199, dated 13-08-2013	14,667.00
21	26-09-2013	915, dated 26-09-2013	14,667.00
22	04-10-2013	938, dated 04-10-2013	14,667.00
23	07-11-2013	957, dated 07-11-2013	14,667.00
24	13-12-2013	520, dated 13-12-2013	14,667.00

That the Complainants after making the payments more than the payments asked for by the respondent, the complainant visited the office of the respondents on several occasions with a request to cause necessary endavour to execute a Deed of Conveyance in favour of the complainant no.1, and his wife as per the terms of Agreement for Sale dated 26^th day of October’ 2012, and on all occasions the respondents assured to take necessary steps but all in vain.

That in the month of April’ 2014, the respondent persons came with the another proposal as of that they have decided to modify their projects as “PLOT with Bunglow” and asking for further payments towards additional costs. The complainants decline to take such offer of the respondents, and asked for refund of their money paid with banking rate of interest along with compensation.

That as on 9^th day of May’ 2014, the complainant no.1, sit with the respondent persons and clearly acknowledge that he and his wife are not interested in modified and or revised projects and therefore the complainants seeks to get their money back with bank interest and compensation.

That on 10^th day of May’ 2014, the complainant no.1, communicate through email to the respondent person, and on 19^th May’ 2014, again the complainant no.1, communicate such thing to the respondent person. On 19^th May’ 2014, respondent no.4, Shri Sudipta Kumar Ghosh, send a mail to the complainant no.1, admit and acknowledge the conversation dated 9^th May’ 2014, and assured to place such conversation into Board meeting for a suitable resolution.

That on 16^th day of June’ 2014, the Complainant no.1, again send an email to the respondent person as he did not get any response after the 19^th day of May’ 2014.

That on 19-06-2014, the Complaints, through their Constituted attorney Shri Digendra Nath Roy, made an application to the respondent person requesting inter alia with the earlier prayer for refund of money with banking interest and compensation, which has been received and acknowledge with the seal of the respondent company on 19-06-2014.

That on 16-08-2014, the respondent no.1, issued a letter under the signature of the respondent no.4, intimating the refund of the amount as of ₹ 6,00,000/- ( Rupees Six Lakhs ) only, through Cheque being no. 098878, dated 16-09-2014, drawn on ICICI Bank, Kasba Branch, and the respondent no.2, being the Chairman cum Managing Director issued the said Cheque and also acknowledge the contents of the said cheque seperatly, under his signature and under the seal of the respondent no.1, company, in favour of the complainant no.1.

That it is to state that in discharge of existing legal debts and or liabilities, a Cheque being no. 098878, dated 16-09-2014, drawn on ICICI Bank, Kasba Branch, has been issued by the respondent no.2, being the Chairman cum Managing Director and also the Authorised Signatory of the respondent no.1, company, from an account maintained by the respondent no.1, company, in favour of the complainant.

That the respondent no. 2, 3, and 4, being the Managing Director and the Directors of the respondent no. 1, company, were in charges of and were responsible for the conduct of the business of the respondent no.1, company, and were at the helm of affairs of the company at the time of issuing the said cheque, in favour of the complainant.

That on 15^th day of September’ 2014, the respondent no. 4, requested the complainant through email dated 15-09-2014, to present the said cheque on 27^th September’ 2014, instead of 16^th September’ 2014, which will be unchanged at any condition, as of stated in such email.

That on 19^th day of September’ 2014, the complainant no.1, send email to the respondent no.4, stating inter alia seeking confirmation of honour of the said cheque on the presentation on 27^th day of September’ 2014, the respondent no.4, replied the said mail on the same day and again request to present the said cheque on 10^th October’ 2014, on the commitment of the respondent no.2.

That on 23^rd day of September’ 2014, the complainant no.1, write email to the respondent no. 2, intimating therein that a substantial period has been expired and thus he want to present the said cheque as on 4^th day of October’ 2014, with a request to the respondent person to honour the said cheque.

That on 8^th October’ 2014, the complainant no.1, write email to the respondent no.2, intimating that as he did not get any response and or reply of his earlier email, he did not present the said cheque on 4^th day of October’ 2014, and intended to present the said cheque on 10^th day of October’ 2014, as earlier was intimated by the respondent person.

That the Complainant no.1, presented the said cheque to his banker AXIS Bank, as on 10^th day of October’ 2014, for collection of value of the said cheque being no. 098878, dated 16-09-2014, drawn on ICICI Bank Limited, Kasba Branch, Balaji Towers, 59, K.N. Sen Lane, Kasba, Kolkata – 700 042, for amount of ₹ 6,00,000/- ( Rupees Six Lakhs ) only, but the same was dishonored with the remarks “Funds Insufficient” vide Cheque Return memo dated 11-10-2014, which fact came to the knowledge of the complainant no.1, on or about 11-10-2014, from his Banker along with Banker’s Cheque return Memo, dated 11-10-2014.

That the above facts make it abundantly clear that the respondent persons have mischievously and intentionally issued the said cheque with ulterior design knowing fully well that the said cheque would not be honoured on presentation on account of insufficiency of funds.

That the Complainant no.1, served one Legal Notice under Section 138 (b) of the Negotiable Instrument Act, 1881, through his Learned Advocate Shri Ajit Shinde, vide notice dated 30-10-2014, within prescribed period of the Negotiable Instrument Act, 1881, calling upon all the respondent persons to make the payment of the said cheque value of ₹ 6,00,000/- ( Rupees Six Lakhs ) only, within a period of ( 15 ) fifteen days from the date of receipt of such notice, through Registered Post with A/D, as on 31-10-2014.

That on 17-11-2014, the Learned Advocate of the Complainant received the returned envelop with A/D card which shows the postal remarks as “UNCLAIMED” and also shows the last date of intimation of postal peon as on 07-11-2014, and thus it is well presumed that on 07-11-2014, the service of notice in accordance with the law complied with and good service causes on the respondent person.

That the respondent persons are well within the knowledge of the dishonor of the said cheque and the notices served on them but the respondent persons did not make any payment towards the value of the said cheque within a period of fifteen days from the date of knowledge which expire on 22-11-2014, and therefore the cause of action for case under Section 138 read with Section 141 of the Negotiable Instrument Act’ 1881, has arose.

That the Complainant no.1, filed a complaint case under Section 200 of Cr.P.C. 1973, against the respondents for their offences committed to be punishable under Section 138 read with Section 141 of the Negotiable Instrument Act’ 1881, before the Learned Additional Chief Judicial Magistrate, at Alipore, South 24 Parganas, which is still pending for adjudication before the Learned Court.

That in the Agreement for Sale dated 26^th October’ 2012, at page no. 3, para 1, at last portion it has been described as “ In the event of failure to give maraketable title to the Purchaser / Allottee the Developer under takes to refund the amount that will be paid upon execution of these presents to the Purchaser / Allottee.” And in para 3, stated as “ Each allotte along with the Developer will be entitled to the following easement rights and similarly be subject to similar easements and rights to the other unit allottees as also the developer i) Right of access and way in common with the Developer and / or other allottees at all time with the use and enjoyment of common area and facilities to which they are entitled to. Ii) Easements quasi easements, appendages and appurtenances belonging to or appurtenant to plots as usually held used and occupied or known as part or parcel thereof or appertaining thereto provided always that nothing herein contained shall permit the allottee or any person deriving title under him or his agent and invitee to obstruct in any way by vehicle, deposit or materials, rubbish or otherwise free passage of other person or persons including the developer and other allottee entitled to such way as aforesaid. iii) the right of protection of the plot by and from all parts of the project as far as they are normally protected. iv) the right of flow in common of electricity, telephone, water and waste or soil from and to the plot through pipes, drains, wires, and conduits lying or being in under through or over the other parts of the said project as applicable, so far as may be reasonably necessary for the beneficial use occupation and enjoyment of each plot.

That the Complainants beg to state that the Complaints dream of their own house in the state of west Bengal has been shuttered at the instances of willful and deliberate unfair trade practices of the respondents.

That the Complainants beg to state that the Complainants paid such amount of valuable consideration as per Agreement for Sale dated 26^th day of October’ 2012, to the respondents from their hard earned and saved money to fulfill their dream but all in vain at the instances of unfair trade practices of the respondents.

That the Complaintants state and submits that the Complainants are victim of the purported acts and deficiency in services at the instances of the opposite parties and the acts of the opposite parties as well as the facts are well constitute the deficiency in services on the part of the opposite parties.

That the Complainants solely seeks to get money or value of the purported cheque, as of ₹ 6,00,000/- ( Rupees Six Lakhs ) only, from the Opposite Parties / Respondents, as was ascertained and given by the Opposite Parties / Respondents at the event of change of the nature of their projects.

That the Complainants state and submits that the respondents shall also pay the compensation due to the complainant petitioner for the harassment, troubles, physical inconvenience and mental agony arising directly out of the breach of the agreement and breach of duty on the part of the respondents. The complainants assesses such loss and damages at ₹ 3,00,000/- ( Rupees Three lakhs ) only.

That the Complainants states and submits that the purported activities of the respondents established deficiency in services, which is contrary to the Law.

That the Complainants / Petitioners States and submits that from all of the statements made above, it is clear that the opposite parties are guilty of deficiency in service as meant in the Consumer Protection Act.

That the Complainants enclosing herewith the following documents / Papers :

Sl. No.	Documents / Papers	Annexure
1	General Power of Attorney in favour of Sri Digendra Nath Roy,	A
2	Letter of Allotment dated 06-01-2012,	B
3	Agreement for Sale Dated 26-10-2012,	C
4	Money receipts,	D
5	E-mail Conversation,	E
6	Letter dated 19-06-2014,	F
7	Letter dated 16-08-2014,	G
8	Cheque being No. 098878, dated 16-09-2014, drawn on ICICIC BANK, Kasba Branch, Kolkata,	H
9	Bank’s Return Memo dated 11-10-2014,	I
10	Complainant’s Advocate Notice dated 30-10-2014, and Postal receipts of Regd. Post with A/D, dated 31-10-2014,	J
11	Return Envelopes and Postal Track Report,	K

That the Cause of action for the present proceeding arose on 20^th day of October’ 2012, at the execution of the Agreement for Sale, and thereafter on several occasions as per communication between the parties, and lastly on 11^th day of October’ 2014, while the given cheque of ₹ 6,00,000/- ( Rupees Six Lakhs ) only has been dishonoured by the banker of the Opposite Parties at the remarks of insufficient fund, and thereafter adverse date and the same is continuing and the respondents / opposite parties are residing as given in the cause title of this application, which is within the jurisdiction of the Hon’ble Forum.

That the instant application / Petition, is within the jurisdiction of this Hon’ble District Consumer Disputes Redressal Forum, at Alipore, South 24-Parganas.

That the present complaint is being filed within the period as prescribed under section 24 A, of the Consumer Protection Act.

That your Petitioner crave leave to produce the relevant documents and / or papers at the time of hearing or evidence, before the Hon’ble Forum.

That the present complaint being made bona-fide and in the interest of justice.

The Petitioner therefore prayed for :

Under the above facts and circumstances, It is prayed that your Honour would be graciously pleased to grant the following prayers / relief :-

a) to direct the respondents / opposite parties to pay ₹ 6,00,000/- ( Rupees Six Lakhs ) only, being the value of the purported cheque, to your petitioner, as was ascertained and given by the Opposite Parties / Respondents at the event of change of the nature of their projects;

b) To direct the opposite parties to pay compensation, as for the harassment, troubles, loss of business, physical inconvenience and mental agony, suffered by the petitioners from the purported activities and others by the opposite parties as assessed as ₹ 3,00,000/- ( Rupees Three Lakhs ) only to your petitioners;

c) To grant the cost of the proceedings ;

d) To grant any other relief or alternate relief to the applicants / petitioners as found out by your Honour, in the facts and circumstances of the Complaint.

And to pass such other necessary order or orders as your Honour , may deem fit and proper for the ends of justice.

And for this act of kindness, the Petitioner, as in duty bound shall ever pray.

Verification

I, Sri Digendra Nath Roy, being the constituted attorney of Petitioners herein, do hereby declare that the forgoing paragraphs no________to ________are true to the best of my knowledge and rest prayers portions are my humble submission before the Hon’ble Forum and I duly sign and verify this application on _____________2014, at the Alipore, Kolkata.

Sri Digendra Nath Roy

Identified by me,

Advocate.

Prepared in my Chamber,

Advocate.

Dated : ____________2014.

Place : Alipore, Kolkata.

District : 24-Parganas South.

BEFORE THE HON”BLE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT ALIPORE, KOLKATA – 700 027.

Complaint Case no…………..…of 2014.

In the matter of :-

Sri Prithwish Sarkar and Anr,

…….Applicants / Petitioners.

- Versus –

M/s. Greenhaven Realty Private Limited, and others,

………Respondents / Opposite Parties.

AFFIDAVIT

Affidavit of Shri Digendra Nath Roy, Son of Late Mahendra Nath Roy, aged about ______ years, by faith Hindu, by Occupation _____________, residing at premises being no. 35, School Road, Santoshpur, Flat no.6, Kolkata – 700 075.

I, the above deponent do hereby solemnly affirm and declare as under :-

1 : That I am the constituted attorney of the Complainants / Petitioners, and thoroughly conversant with the facts and circumstances of the present case and am competent and authorized to swear this affidavit.

2 : That the facts contained in my accompanying complaint / application, the contents of which have not been repeated herein for the sake of brevity may be read as an integral part of this affidavit and are true and correct to my knowledge.

DEPONENT

Verification

I, the above named deponent do hereby solemnly verify that the contents of my above affidavit are true and correct to my knowledge, and no part of it is false and nothing material has been concealed therein.

Verified this ………….the day of …………….2014, at the Alipore, Kolkata.

DEPONENT

Identified by me,

Advocate.

Prepared in my Chamber,

Advocate.

Dated :……………2014.

Place : Alipore, Kolkata.

N O T A R Y

Vakalatnama

District : South 24-Parganas.

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT ALIPORE, SOUTH 24 PARGANAS

Case No. of 2014.

Shri Prithwish Sarkar and Anr, COMPLAINANTS

Versus .

M/s. Greenhaven Realty Private Limited, and others,

RESPONDENTS

KNOW ALL MEN by this presents that I Shri Digendra Nath Roy, Son of Late Mahendra Nath Roy, residing at premises being no. 35, School Road, Santoshpur, Flat no.6, Kolkata – 700 075, being the Constituted Attorney of the Complainants / Petitioners,

do hereby constitute and appoint the undermentioned Advocate, Pleaderes, Vakils, jointly & each of them severally to be pleader of ME / US and on MY / OUR behalf to appear for ME / US in the above cause and to take such steps and proceeding as may be necessary on MY/ OUR behalf and for the purpose to make sign verify and present all necessary petitions, plaints, written statements and other document and do nominate and appoint or retain senior Counsels, Vakils, Advocate and other persons, lodge and deposit moneys and document and other papers in court and the same again to withdraw and to take out of Court and to obtain or grant as the case may be effectual receipts and discharge for the same and for all moneys which may be payable to ME / US in the premises. To enter into compromise with MY / OUR approval and withdraw all moneys from the court: AND GENERALLY to act in the premises and proceeding arising thereout whether by woy of execution, riview appeal or otherwise or in any manner contested therewith as effectually and to all intents and purpose as I / WE could act if personally present and ALSO for all and of the purpose aforesaid to appoint a substitute or substitutes and such substitution and as pleasure to revoke I / WE hereby ratifying and agreeing to confirm whatever may be lawfully done by virtue hereof : IN WITNESS WHEREOF this Vakalatnama has by MY / US.

This_____________ day of __________ 2014 been executed

Shri Manoj Kumar Halder, Advocate.
Shri Ashok Kumar Singh, Advocate.
Shri Rabindra Nath Das, Advocate.
Shri Saheb Halder, Advocate.
Shri Sandip Roy Chowdhury, Advocate.
Shri Pradip Paul, Advocate.
Miss Jahira Begum, Advocate.

ASHOK KUMAR SINGH

Friday, June 11, 2021

Consumer application

AFFIDAVIT

Verification

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