Before the
Hon’ble District Consumer Disputes Redressal Commission Kolkata – III ( Kolkata
South ), at Alipore, Kolkata 700027
Consumer
Complaint no. CC/109/
2021
In
the matter of :
1. Archana Bose,
Wife of Late Sanjoy Kumar Bose, Daughter of Late Sukumar Ghosh, residing at
premises being no. P-62, Parnashree Pally, Post Office – Parnashree Pally,
Police Station – Parnashree, Kolkata – 700060.
2. Abhinanda
Bose, Daughter of Late Sanjoy Kumar Bose, being minor, represented by her
mother Smt. Archana Bose, residing at premises being no. P-62, Parnashree
Pally, Post Office – Parnashree Pally, Police Station – Parnashree, Kolkata –
700060.
___Complainants
- Versus –
Reply
on Affidavit
By
the Complainants;
1. M/s. T.G.
Enterprise, a partnership Firm, having its Registered Office at Premises No.
210, M.I.D. Road, Police Station – Behala, Kolkata – 700060.
2. Tapas Ghosh,
Son of Sri Gopal Chandra Ghosh, presently residing at Premises no. P-62,
Parnasree Pally, Flat No. D at 2nd Floor, Post Office & Police
Station – Parnasree, Kolkata - 700060.
3. Sukomal
Bhattacharjee, Son of Late Paritosh Bhattacharjee, residing at premises no.
412, Upen Banerjee Road, Police Station – Behala, Kolkata – 700060.
____Respondents
4. Saibal Kumar
Bose, Son of Late Sarat Kumar Bose, residing at Premises No. P-62, Pranashree
Pally, Kolkata – 700060.
______Pro-forma
Respondents
Reply on
Affidavit by the Complainants;
AFFIDAVIT
Affidavit
of Smt. Archana Bose,
Wife of Late Sanjoy Kumar Bose, Daughter of Late Sukumar Ghosh, aged about
_____years, by faith Hindu, by Occupation House Wife, residing at premises
being no. P-62, Parnashree Pally, Post Office – Parnashree Pally, Police
Station – Parnashree, Kolkata – 700060;
I,
the above deponents do hereby solemnly affirm and declare as under :-
1.
That I am the Complainant, and
thoroughly conversant with the facts and circumstances of the present case and
am competent to swear this affidavit. The Petitioner no.2, is my minor
daughter, therefore I am representing her.
2.
That
I am replying the Questions put forward by the Learned Advocate for the
Opposite Party no. 1, & 2, in the present Consumer proceeding;
a) Answer of
Question no. 1 Irrelevant question
therefore I do not put any comment on that.
b) Answer of
Question no. 2 Irrelevant question
therefore I do not put any comment on that.
c) Answer of
Question no. 3 Yes, this is true that
Sanjay Kumar Bose, died on 14/09/2019. The Death Certificate issued under Form
6, on 15/09/2019, has been enclosed with my petition of consumer complaint,
which appears at page no. 38, being annexure “C”, thereof.
d) Answer of
Question no. 4 Yes, this is true that I
and my Daughter are only Legal heirs of Sanjay Kumar Bose.
e) Answer of
Question no. 5 My deceased husband did
not give any will, therefore the question of obtaining any probate or letter of
administration does not arise at all.
f) Answer of
Question no. 6 Succession Certificate
from Competent Court of Law only require about movable property. Thus the Succession
Certificate from Competent Court of Law in respect of Immovable Property does
not require in the Law, therefore obtaining such Succession Certificate in
respect of immovable property does not require.
g) Answer of
Question no. 7 well described in the
contents and purports of my petition of consumer complaint lodged before the
Hon’ble District Commission.
h) Answer of
Question no. 8 The Development
Agreement was made on 23rd day of June’ 2011, which notorized on 24th
June’ 2011.
i) Answer of
Question no. 9 No, I did not put my
Signature therein as a Witness.
j) Answer of
Question no. 10 No, I did not present at
the time of execution of the said development agreement made between my husband
now deceased and his co-sharer and you.
k) Answer of
Question no. 11 Yes, I knew the
transactions, terms and conditions made between landowners and the developer,
as its clearly appeared in the said development agreement.
l) Answer of
Question no. 12 your question appear to
be academic one, However for your good concern take that any contract made
between the parties for a lawful purpose recognized under the Law.
m) Answer of
Question no. 13 I am relying on the
Development Agreement entered by you. Wherein you have agreed to perform
certain terms and conditions.
n) Answer of
Question no. 14 Yes, this is true state
of Affair, at your behest.
o) Answer of
Question no. 15 Exact date is not
remember to me.
p) Answer of
Question no. 16 Yes, this is true state
of affair, the Developer did not provide such necessary documents.
q) Answer of
Question no. 17 Refer to complainant’s Letter dated
05-09-2020, and Letter dated 09-10-2020.
r) Answer of
Question no. 18 yes, it is true state of affair, happened at
your behest.
s) Answer of
Question no. 19 it is untrue that the
subjected flat has ever mutated in the year 2012.
t) Answer of
Question no. 20 the basis and contention
has well described in my petition of consumer complaint as well as in my
evidence on affidavit.
u) Answer of
Question no. 21 the notice sent on you has
been annexed with my petition of consumer complaint. The said notices duly
served on you.
v) Answer of
Question no. 22 no such possession letter
has ever been issued or given by the developer. Such possession letter if any
is a manufactured document of the developer.
w) Answer of
Question no. 23 the power of attorney if any in your favour on
the death of my husband the same stand cancelled.
x) Answer of
Question no. 24 the Completion
Certificate on completion of the building is required to be obtained from the
Kolkata Municipal Corporation, and while the building was completed the said
power of attorney was alive in its true content and purport, therefore if you
did not apply for completion certificate in respect of newly constructed
building as per sanctioned building plan, the same is a cause of your unfair
trade practices, as well as deficiency in services. And further more in absence
of the Completion Certificate, you are not able to sell any flat to the
intending buyers, or possession letter to the Land Owners.
y) Answer of
Question no. 25 I have no knowledge about
such deed.
z) Answer of
Question no. 26 I have no knowledge about
any Declaration dated 25-07-2013. My Husband now deceased used to signed in
English only, clearly; But the content and purports are appeared in Bengali, as
well as Signature of his appeared in Bengali, with prefix Shri, which I can
submit that such Declaration is a manufactured document and the same is not
acceptable to me. My deceased husband signature in English appeared everywhere
on each and all documents.
aa) Answer of
Question no. 27 I have put my legal
enforceable monetary claim with Completion Certificate, and Possession Letter
in respect of the subjected Flat.
bb)
Answer
of Question no. 28 I have given all
necessary documents which are available to me, on demise of my husband.
cc) Answer of
Question no. 29 I am a Consumer as meant
for in the Consumer Protection Act 2019.
dd)
Answer
of Question no. 30 Regarding issues
of your Time Barred allegation, you have filed on petition on maintainability
of the present consumer complaint lodged by me, the same has been heard by the
Hon’ble District Commission and passed the necessary order on 9th
day of June’ 2022, the operative portion of the said order dated 09-06-2022, is
reproduced as “Coming to the contention of the Op
that the Case is barred by limitation, it may be pertinent to point out that
non issuance of occupancy certificate or the completion certificate is a
continuing cause of action. In this regard the decision of the Honourable Apex
Court in case of Samruddhi co-operative housing society limited versus Mumbai
Mahalaxmi Construction Pvt. Ltd; may be referred where in the Honourable Apex
Court held that the failure to obtain occupancy certificate is a deficiency for
which the builder is liable. It is also observed by the Honourable Apex Court
that continuous failure to obtain occupancy certificate is a breach of the
obligations imposed on the respondent under the MOFA and amounts to a
continuing wrong. So the applicant is entitled to damages arising out of this
continuing wrong and their Complaint is not barred by limitation. So
in view of the legal proposition in the above mentioned case law, since non
supply of completion certificate is a continuing cause of action, the
contention of the Op that the complaint is barred by law of
limitation, cannot be accepted. So far as the decision cited by the Op in case of Mohak Carpets
Pvt. Ltd. Versus New India Assurance Co. Ltd. and others. On perusal of the
same it appears that the same is not applicable in the given facts and
situation of this case. The said case relates to an insurance policy. The
Complaint in the said case was filed beyond the period of two years from the
date of repudiation of the claim. Since this case is for a continuing cause of action, the petition
filed by the Op no. 2 challenging the maintainability of the Complaint is
considered and rejected.”
ee) Answer of
Question no. 31 I am entitle to get
relief in terms of my prayer.
3.
That I beg to say that I am in
need to have the Possession Letter in respect of my two flats, with the
Building Completion Certificate issued by the KMC in respect of the new
building premises, and the copy of the building sanctioned plan, and further I
am in dire need to get my consideration being balance money as of Rs.
4,50,000/- ( Rupees Four Lakhs and Fifty Thousand ) only, with appropriate rate
of banking interest thereon.
4.
That the facts contained in my consumer
application, as well as my evidence on affidavit, 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 …………….2023, at the Alipore, South 24 Parganas.
DEPONENT
Identified
by me,
Advocate.
Prepared
in my Chamber,
Advocate.
Dated
:……………………………2023.
Place
: Alipore, South 24 Parganas.
N O T A R Y
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