Saturday, March 25, 2023

Brief Notes of Argument in Consumer Case by the Consumer/ Complainant / The Consumer Protection Act 2019

 

Before the Hon’ble District Consumer Disputes Redressal Commission, South 24 Parganas, Baruipur, Kolkata – 700144

 

                                                Consumer Complaint no. CC/107/2019

 

                                                          In the matter of :

                                                          Shri Bikash Musib,

                                                                             _________Complainant

-      Versus –

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

                   __________Respondents

 

Brief notes of Argument on behalf of the Complainant

 

 

Facts :

 

1.   That in the year 2011, an advertisement was circulated in a network site namely Magic Bricks and in the said advertisement the respondents publicized a scheme to sell huge chunk of land by dividing it into numbers of plots, subsequently in the year 2012, a property fair was also held at the Science City, Kolkata, which was organized by CREDAI Bengal, and in the said Fair the Respondent Company publicized the said scheme to sell huge chunk of land by dividing it into numbers of plot. The respondent company promoted a project namely GREEN CITY SONARPUR and invited applications from the intending purchasers to purchase plots of land under the said project by making payments to the respondents in number of installments within a stipulated period of time mentioned in their advertisement brochure.

 

2.   That the Complainant paid Rs. 5,000/-  and Rs. 45,000/- being 20% valuation of the plot to the respondent company. The respondent company vide letter dated 03-03-2012, intimated tro the complainant about the allotment of a plot being number 2B137, in the township project GREEN CITY SONARPUR. Thereafter the respondents entered into an agreement for sale dated 19th day of July’ 2012 , with the complainant, wherein the value of the said plot of land with all amenities thereby given as of Rs. 2,50,000/- . the said Plot of Land described as measuring about 2 (Two) Cottah being Scheme Plot no. 2B138, lying and situasted at Mouza – Sangur, J.L. no. 108, Dag no. 1623, Khatian no. 544, Police Station & Sub Registry Office – Sonarpur, Kolkata – 700150, District South 24 Parganas, which comprise with right to take electric, tap water, telephone, etc. connection through over and under the 20ft wide common passage adjacent to the said plot of land together with all easement rights and appurtenance thereto.

 

3.   That the Complainant subsequently booked one another plot of land with all amenities with the respondents, as the respondents convinced the complainant to take two plot of land as to construct house thereon for accommodation of the complainant’s large numbers of family members.

 

4.   That the Respondents made another agreement for Sale dated 13th day of March’ 2013, with the complainant in respect of another further schedule of plot of land measuring 2 (two) Cottahas being Scheme no. 2B164 lying and situated at Mouza Sangur, J.L. no. 108, Dag no. 1978, Khatian No. 1094 & 1095, Police Station & Sub Registry Office – Sonarpur, Kolkatas – 700150, together with right to take Electric, Tap Water, etc., connection through over and under the 20 ft wide common passage adjacent to the said plot of land together with all easement rights and appurtenance thereto, for a total consideration of Rs. 2,50,000/-

 

5.   That therefore in totaling the calue of the plot of land in two agreement for sale which come as of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, and whereas the Complainant paid in total as of Rs. 4,90,007/- ( Rupees Four Lakhs and Ninety Thousand and Seven ) only, to the Respondents, therefore only a sum of Rs. 10,000/- ( Rupees Ten Thousand ) only, remained to be paid to the respondents by the complainant. The complainant made his last payment on 3rd day of June’ 2014.

 

6.   That in the month of July’ 2014, the respondents came with another proposal as of that they have decided to modify their project as “PLOT with BUNGLOW” and asking for further payments towards additional costs. The Complainant decline to take such offer of the respondents, and thus asked for refund of his money with banking rate of interest thereon along with appropriate compensation thereon.

 

7.   That the Complainant continuously ventilate his grievance to the respondents through CREDAI Bengal and whereas finally on 22-06-2015, the respondents given a cheque of Rs. 6,38,666/-  to the complainant, being refund of money with interest and compensation, thereof. The said cheque has been presented on 13th day of July’ 2015, by the complainant to his banker for collection of the values of the said cheque into his account, but the said cheque has been dishonored with the remarks “Funds Insufficient”, and the same has been intimated by the banker to the complainant on 13th day of July’ 2015.

 

8.   That in the Agreement for Sale dated 19th day of July’ 2012, and 13th day of March’ 2013, 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.

 

RELIED ON THE FOLLOWING DOCUMENTS :

 

a)    Letter of Allotment dated 3rd day of March’ 2012;

b)   Agreement for Sale dated 19th day of July’ 2012;

c)    Letter of Allotment dated 20th day of November’ 2012;

d)   Agreement for Sale dated 13th day of March’ 2013;

e)    Money Receipts;

f)     Ledger provided by the Respondent;

g)    Email Communications;

h)   Cheque no. 000090, and return memo;

 

PRAYER :

 

a)    to direct the respondents / opposite parties to pay Rs. 6,38,666/- ( Rupees Six Lakhs Thirty Eight Thousand and Six Hundred Sixty Six ) 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)   and or alternatively direct the respondents / opposite parties to pay Rs. 4,90,007/- ( Four Lakhs and Ninety Thousand and seven ) only, with appropriate Banking rate of interest to the Complainant herein, in the interest of administration of justice;

 

c)    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;

 

d)   To grant the cost of the proceedings ;

 

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

 

WRITTEN VERSION BY THE RESPONDENT NO. 2(b) BISWANATH MONDAL AND RESPONDENT NO. 3(b) MRS. IRA MONDAL ;

 

1.   That the respondent no. 2b Mr. Biswanath Mondal was the director of M/s. Green Haven Realty having 60% share therein and Sri Sudipto Kumar Ghosh and Smt. Paroma Pathak jointly had 40% share.

 

2.   That the respondent no. 3b Mrs. Ira Mondal is the wife of Sri Biswanath Mondal and became director of the said Company in pursuant to fleeing/ resigning of the other two directors Sri Sudipto Kumar Ghosh and Smt. Paroma Pathak share in the company.

 

3.   That the present complainant first has approached Mr. Biswanath Mondal for settlement of his disputes before approaching the consumer forum, the said Mr. Mondal has also paid a sum of Rs. 20,000/- in 2018 by RTGS mode from Central Bank, Jadavpur Branch as part payment honouring the said settlement.

 

4.   That with respect to the averments made in paragraph no. 15, the respondents denies each and every allegations made therein. These respondents states that the allegation of deficiency of service for non execution of sale deed is a false and frivolouse story as the complainant never sought specific performance to possess the said land and never asked for execution and registration deed of sale in their favour. These respondents are ready and willing to execute and register deed of conveyance as of today if the complainant so desire.

 

 

 

 

SUBMISSIONS ;

 

In the given facts and circumstances, the respondents could not keep their commitment and as such agreed to refund the amount and ultimately by a cheque, they refunded the amount of Rs.6,38,666/-.  The evidence on record goes to show that on the requests of the respondent company, the complainant did not deposit the cheque immediately but ultimately on 13-07-2015, the cheque in question was presented by the complainant to his banker, and the said cheque was dishonoured with the remark 'funds insufficient'.

The entire episode clearly depicts the gross negligence and deficiency in the services on the part of service provider towards a 'consumer' as defined in  the Act.  The complainant had to suffer much due to harassment and mental agony and as such it is also justified in imposing compensation.  The acts and conducts of the respondents compelled the complainant to lodge the complaint and, therefore, the complainant is entitled to get relief/s in terms of his prayer before the Hon’ble District Commission.

 

JUDICIAL REFERENCES ;

First Appeal No. A/365/2015  (Arisen out of Order Dated 16/02/2015 in Case No. CC/605/2014 of District South 24 Parganas), { Greenhaven Realty Pvt Limited and Others – Versus – Sri Prithwish Sarkar and Other } Judgment dated 15th day of May’ 2017, decided by the Hon’ble State Consumer Disputes Redressal Commission, West Bengal;

 

 

Through …………………

 

Advocate

Date : 22nd day of June’ 2022

Place : Baruipur, South 24 Parganas

 

No comments:

Post a Comment