application under Section 72 of the Consumer Protection Act 2019 / Consumer / Execution Proceeding / Execution of Decree

 

Before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at Premises being no. 11 A, Mirza Ghalib Street, Kolkata-700087.

 

                                                Execution Application  no. 42 of 2020       

                                                { arising out of CC/57/2017 }

                            

                                                          In the matter of :

1.   Smt. Sreyashi Bandopadhyay W/o Shri Chandra Sekhar Bandopadhyay, residing at Street No.56, Quarter No.3B, P.O. & P.S.- Chittaranjan, District – Burdwan, Pin-713331.

 

2.   Shri  Chandra Sekhar Bandopadhyay Son of Late Nripendra Nath Bandopadhyay, residing at Street No.56, Quarter No.3B, P.O. & P.S.- Chittaranjan, District – Burdwan, Pin-713331.

         ………….Decree Holders.

-     Versus –

 

1.   M/s. A. S. R. Properties a partnership firm having its registered office at 66/1, North Jessore Road, P.O. & P.S.- Barasat, District 24 Parganas North, Pin-  700124.

 

2.   Shri Sumit Mukherjee S/o Late Sanat Kumar Mukherjee, residing at 66/1, North Jessore Road, P.O. & P.S.- Barasat, North 24 Pgs. Pin-700124.

 

3.   Smt. Paroma Mukherjee (Pathak) W/o Shri Sumit Mukherjee, residing at 66/1, North Jessore Road, P.O. & P.S.- Barasat, North 24 Pgs. Pin-700124.

……..Judgment Debtors.

 

An application under Section 72 of the Consumer Protection Act’ 2019

The humble petition of the above named Decree Holders, most respectfully;

Sheweth as under :

 

1.   That the Decree Holders beg to state that in a Consumer proceeding being Consumer Case CC/57/2017 { Smt. Sreyashi Bandopadhyay & another – Versus – M/s. A. S. R. Properties and Others } before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, passed the Order & Judgment dated 19^th day of December’ 2020, which reproduced herein as follows the operative portion only, for your kind references, perusal and direction for compliance thereof :

“In view of the above discussion, the complaint is disposed of with following directions:

(i) The Opposite Party Nos. 1 to 3 are jointly and severally directed to refund Rs. 4,14,000/- to the complainants along with compensation in the form of simple interest @ 9% p.a. from the date of each payment till its realisation;

(ii) The Opposite Party Nos. 1 to 3 are jointly and severally directed to pay Rs. 20,000/- to the complainants as costs of litigation;

(iii) The above payments should be made within 90 days from date in terms of the above order”.

 

2.   That the Decree Holders beg to states that the Judgment Debtors even after in due knowledge about the Order and Judgment dated 19^th day of December’ 2019, willfully and deliberately did not comply the direction as made therein by the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, and thus the Decree Holders become victim at the behest of the Judgment Debtors, herein. It is pertinent to states that the Opposite Parties no. 1 to 3, appeared in the said Consumer proceeding though did not file any written version therein taken opportunity and assailed to submit questionnaire and participate in the argument after submission of the BNA, therefore the opposite parties no. 1 to 3, are well aware of the said consumer proceeding and the result thereof being the Order & Judgment dated 19^th day of December’ 2019, passed by the Hon’ble State Consumer Disputes Redressal Communication, West Bengal, in CC/57/2017.

 

3.   That the Decree Holder beg to states that in view of the facts of non compliance of the order & Judgment dated 19^th day of December’  2019, passed in Consumer Case CC/57/2017 { Smt. Sreyashi Bandopadhyay & another – Versus – M/s. A. S. R. Properties and Others } before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, by the Judgment Debtors, herein, the Decree Holder resort before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, through this present execution application under Section 25 & 27 of the Consumer Protection Act’ 1986, for the enforcement of the order & Judgment dated 19^th day of December’ 2019, passed in Consumer Case CC/57/2017 { Smt. Sreyashi Bandopadhyay & another – Versus – M/s. A. S. R. Properties and Others } before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal.

 

4.   That the Decree Holders beg to state that the Decree Holders Seeks the enforcement of the order & Judgment dated 19^th day of December’ 2019, passed in Consumer Case CC/57/2017 { Smt. Sreyashi Bandopadhyay & another – Versus – M/s. A. S. R. Properties and Others } before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, by the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, through the machinery of the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, in terms of the provisions of Section 71 & 72 of the Consumer Protection Act’ 2019.

 

5.   That the Decree Holders states that even after due services of notices on the Judgment Debtors and the paper publication of notices in regard to the present execution case, the Judgment Debtors did not adhere to appear and to comply with the direction enshrined in the Judgment dated 19^th day of December’ 2019, passed in Consumer Case CC/57/2017 { Smt. Sreyashi Bandopadhyay & another – Versus – M/s. A. S. R. Properties and Others } before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal. Thus the Hon’ble State Consumer Disputes Redressal Commission, West Bengal was pleased to issue Warrant of Arrest against the Judgment Debtors. The said Warrant of Arrest was Bailable for Rs. 25,000/- ( Rupees Twenty Five Thousand ) only.

 

6.   That on 13/10/2022, the Judgment Debtor no. 2, Sumit Mukherjee, placed an application for his Bail, which registered as IA/857/2022. The said application was considered by the Hon’ble Commission, firstly as the payment of Rs. 25,000/- was made by the said Judgment Debtor no.2, by way of Demand Draft to the Decree Holders, and Secondly assured that he will make another payment as of Rs. 1,00,000/- ( Rupees One Lakh ) only, and therefore the Hon’ble Commission fix 28.10.2022 for appearance and making payment at least of Rs.1 lakh by this J.dr., failing which his P.R bond shall be cancelled and W.A shall be re-issued.

 

Photostat copy of the server copy of the Order dated 13/10/2022, is annexed herewith and marked as Annexure – “A”.

 

7.   That on 28/10/2022, the Judgment Debtor no.2, Sumit Mukherjee, were represented the other Judgment Debtors and himself, before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, in the present Execution Application no. EA/42/2020. The said Judgment Debtor no.2, gave a Cheque being no. 000017, dated 28/10/2022, drawn on HDFC Bank, Orchid Plaza near Rajarhat Police Station, Rajarhat, Kolkata – 700135, West Bengal, for amount of Rs. 1,00,000/- ( Rupees One Lakh ) only, duly written and signed by him. The said Judgment Debtor issued the said cheque from the account maintained by him. The said cheque given by him before the Hon’ble Bench of the Hon’ble State Consumer Disputes Redressal Commission, West Bengal. The said facts has been duly enumerated in the Order dated 28/10/2022, in EA/42/2020, passed by the Hon’ble State Consumer Disputes Redressal Commission, West Bengal.

 

Photostat copy of the server copy of the order dated 28/10/2022, in EA/42/2020, passed by the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, is annexed herewith and marked as Annexure – “B”.

 

8. That in the month of October’ 2022, the following cheque was issued in the name of Decree Holder from the Account of the Judgment Debtor no.2, the said cheque was duly signed by him.

 

Sl. No.	Cheque no.	Date	Drawn on	Amount
1	000017	28/10/2022	HDFC Bank, Orchid Plaza near Rajarhat Police Station, Rajarhat, Kolkata – 700135, West Bengal	Rs. 1,00,000/-

 

9. That in discharge of his compliance of the order of the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, the following cheque was issued in the name of Decree Holder from the Account of the Judgment Debtor no.2, the said cheque was duly signed by the said Judgment Debtor.

 

Sl. No.	Cheque no.	Date	Drawn on	Amount
1	000017	28/10/2022	HDFC Bank, Orchid Plaza near Rajarhat Police Station, Rajarhat, Kolkata – 700135, West Bengal	Rs. 1,00,000/-

 

10. That the said cheque was presented for realization within its validity period, with the banker of the Decree Holder i.e. Bank of Baroda, NSC Bose Road, but the same was dishonored with the remarks “Exceeds arrangement” vide Cheque Return Memo dated 31-Oct-2022, which fact came to the knowledge of the Decree Holder on or about 31-Oct-2022, from her Banker along with banker’s cheque Return Memo dated 31-Oct-2022.

 

Photostat copy of the said cheque being no. 000017, dated 28/10/2022, drawn on HDFC Bank, Orchid Plaza near Rajarhat Police Station, Rajarhat, Kolkata – 700135, West Bengal, for amount of Rs. 1,00,000/- ( Rupees One Lakh ) only, and Bank return memo, are annexed herewith and marked as Annexure – “C” Collectively.

 

11. That the above facts make it abundantly clear that the Judgment Debtor no.2, Sumit Mukherjee have mischievously and intentionally issued the aforesaid cheque with ulterior design knowing well fully that the said cheque would not be honoured on presentation on account of “Exceeds arrangement” in his account.

 

12. That the Judgment Debtor no.2, Sumit Mukherjee, knowing fully disobeying the directions of the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, in the given Execution proceeding in which he appeared and handed over the said Cheque with an assurance of encashment on presentation by the Decree Holder, thus the said Judgment Debtor is liable to be prosecuted under Section 72 of the Consumer Protection Act’ 2019.

 

13.                That the Decree Holders states that unless the Hon’ble State Consumer Disputes Redressal Commission, West Bengal,  direct upon the Judgment Debtors, for the Compliance in terms of the order & Judgment dated 19^th day of December’ 2019, passed in Consumer Case CC/57/2017 { Smt. Sreyashi Bandopadhyay & another – Versus – M/s. A. S. R. Properties and Others } before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, the Decree Holders will highly prejudice and suffer with irreparable loss and injury.

 

14.                That the Decree Holders states that unless the Hon’ble State Consumer Disputes Redressal Commission, West Bengal,  issue the Non-Bailable Warrant of Arrest against the Judgment Debtor no.2, Sumit Mukherjee, the Decree Holders will highly prejudice and suffer with irreparable loss and injury

 

15.                That the Decree Holders state that the balance of convenience and inconveniences are in favour of the Decree Holders and the Judgment Debtors will not prejudice.

 

16.                That this Execution application is made bonafide in the interest of administration of Justice.

 

Under the above referred facts and circumstances, it is therefore prayed that your Lordship would graciously be pleased to pass the following order or orders :

 

a)    To direct the measures in terms of the provision of Section 72 of the Consumer Protection Act’ 2019, upon the Judgment Debtors for the Compliance and or to enforce the performance of Judgment Debtors, in terms of the order & Judgment dated 19^th day of December’ 2019, passed in Consumer Case CC/57/2017 { Smt. Sreyashi Bandopadhyay & another – Versus – M/s. A. S. R. Properties and Others } before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, in the interest of administration of justice;

 

b)   To issue Non- Bailable Warrant of Arrest against the Judgment Debtor no. 2, Sumit Mukherjee, in the interest of administration of Justice;

 

c)    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.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at Premises being no. 11 A, Mirza Ghalib Street, Kolkata-700087.

 

                                                Execution Application no. 42 of 2020        

                            

In the matter of :

Smt. Sreyoshi Bandapadhyay and another.

         ………….Decree Holders.

-     Versus –

 

M/s. A. S. R. Properties and others,

………..Judgment Debtors.

 

AFFIDAVIT

 

Affidavit of Smt. Sreyoshi Bandopadhyay w/o, Shri Chandra Sekhar Bandopadhyay, aged about ____ , by faith – Hindu , by occupation – House wife and Shri Chandra Sekhar Bandopadhyay S/o Late Nripendra Nath Bandopadhyay , aged about ______, by faith – Hindu ,by occupation - Service, both are residing at Street No.56, Quarter No.3B, P.O. & P.S.- Chittaranjan, Pin-713331 , District – Burdwan.

 

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

 

1: That we are being the Decree Holders no. 1, & 2, in the present Consumer Execution proceeding, thoroughly conversant with the facts and circumstances of the present case and are competent to swear this affidavit.

 

2: That the facts contained in our accompanying Execution 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 our knowledge.

 

 

 

 

 

 

 

 

 

 

                                                                                      DEPONENTS

 

 

 

 

 

 

Verification

 

We, Smt. Sreyoshi Bandopadhyay  and Shri  Chandra Sekhar Bandopadhyay, being the petitioners no. 1, & 2, herein, do hereby declare that the forgoing paragraphs no.1 to 21 are true to my knowledge and rest prayer portions are my humble submission before the Hon’ble commission and we duly sign and verify this petition on …….2022, at Kolkata.

 

 

 

 

 

 

                                                                                      DEPONENTS

 

                             Identified by me ,

 

 

                                      Advocate

Prepared in my Chamber,

 

 

Advocate.

Dated :__________2022.

Place : Kolkata.