Before the Hon’ble
District Consumer Disputes Redressal Commission Kolkata Unit – III, ( Kolkata
South ), at Alipore, Kolkata – 700 027, West Bengal.
CC
/ 70 / 2018
In
the matter of :
Dr.
Biswajit Paul,
__________Complainant
-
Versus –
Smt.
Mina Basu, and another.
_______Opposite
parties.
Reply on affidavit of
the Opposite Party No. 1
Smt. Mina Basu.
A
F F I D A V I T
I Smt. Mina Basu, wife of Late Amiya
Kumar Basu, aged about ______years, by faith Hindu, by Occupation House Wife.
Residing at premises being no. 6, Shib Temple Lane, Kolkata – 700078, do hereby
solemnly affirm and declare as follows :
- That
I being the Opposite Party no. 1, in the instant case being filed by the
Complainant herein, and I am well conversant with the facts and
circumstances of the said consumer case. This is
true to my knowledge.
- That
I beg to reply the questionnaire put forward by the complainant, in the
following;
a)
Answer of Question no. 1 – M/s. Skylark
Construction, a partnership firm, represented by its partners namely (1) Sri
Utpal Roy, Son of Late Ramesh Chandra Roy, (2) Sri Tapan Nag, Son of Late
Ramani Kanta Nag, and (3) Smt. Sutapa Roy, Wife of Utpal Roy, entered into a
Development Agreement dated 17-08-2001, with this Opposite Party. The said
Development Agreement dated 17-08-2001, has been cancelled through the Letter
of this Opposite Party, viz. Letter dated 05-01-2008. The said development
agreement dated 17-08-2001, contained the terms that the proposed construction
of the building shall be completed within 24 months, and the same may be
extended. This opposite party did not execute any power of attorney, in favour
of the said Developer M/s. Skylark Construction. While the said Developer
received the Letter dated 05-01-2008, given by this Opposite Party through her
Learned Advocate Sri Malay Sengupta, the said Developer M/s. Skylark
Construction lodged a Suit no. 14 of 2008, before the Learned 5th
Court of Civil Judge (Senior Division) at Alipore, South 24 Parganas.
b)
Answer of Question no. 2 - This is irrelevant question, as it was
agreed between the parties that the construction will be completed within a
period of 24 months after getting the sanctioned plan but the developer
neglected to complete the same. The plan was sanctioned on 24-03-2004, and it
was valid up-to 23-03-2007. But even after lapses of 24 months the said
developer failed to complete construction and even the said developer did not
handover the owner’s allocation to this opposite party. Due to non-performance
of the said developer, the development agreement dated 17-08-2001, stood
cancelled and the same has been duly communicated through the Letter dated
05-01-2008, to the said Developer.
c)
Answer of Question no. 3 - This is irrelevant question, as the
Developer obtained the Sanctioned Building Plan on 24-03-2004, but failed to
raise construction within the stipulated period. Thus the said development
agreement cancelled through the letter dated 05-01-2008.
d)
Answer of Question no. 4 - already replied.
e)
Answer of Question no. 5 - No, as the said Title Suit no. 14 of 2008 {
Sri Utpal Roy and Others – Versus – Smt. Mina Basu } has get it finality in
terms of the Judgment delivered on Frieday the 20th day of August’
2010, by the Learned 5th Court of Civil Judge (Senior Division), at
Alipore, South 24 Parganas, favouring this opposite party, and thus
cancellation of the said development agreement confirmed.
f)
Answer of Question no. 6 - already replied.
g)
Answer of Question no. 7 - already replied.
h)
Answer of Question no. 8 - already replied. The said Development
agreement stood cancelled, as the said Title Suit no. 14 of 2008 { Sri Utpal
Roy and Others – Versus – Smt. Mina Basu } has get it finality in terms of the
Judgment delivered on Friday the 20th day of August’ 2010, by the
Learned 5th Court of Civil Judge (Senior Division), at Alipore,
South 24 Parganas, favouring this opposite party, and thus cancellation of the
said development agreement confirmed.
i)
Answer of Question no. 9 -
There is no Construction has ever been carried out by the said Developer
(O.P. no. 2), at the premises, such fact has been enumerated in deposition of
the Developer in the said Title Suit no. 14 of 2008 { Sri Utpal Roy and Others
– Versus – Smt. Mina Basu }.
j)
Answer of Question no. 10 - No, I
did not given any Power of Attorney favouring the said Developer. The said fact
has been enumerated in deposition of the Developer in the said Title Suit no.
14 of 2008 { Sri Utpal Roy and Others – Versus – Smt. Mina Basu }.
k)
Answer of Question no. 11 - already replied. Due to non-performance of
the said developer, the development agreement dated 17-08-2001, stood cancelled
and the same has been duly communicated through the Letter dated 05-01-2008, to
the said Developer.
l)
Answer of Question no. 12 - the Complainant herein, is completely a
stranger person to this opposite party, who cannot ask for execute and register
the Deed of Conveyance in his favour. This opposite party have no iota or
knowledge about the complainant.
m) Answer
of Question no. 13 - This Opposite Party sufficiently replied
to the alleged complainant, enumerated the fact of the Suit and its result,
informing thereby the said developer did not have any right to enter into any
agreement on behalf of this opposite party.
n)
Answer of Question no. 14 - your
letter sufficiently replied.
o)
Answer of Question no. 15 - your letter sufficiently replied.
p)
Answer of Question no. 16 - No,
Due to non-performance of the said developer, the development agreement dated
17-08-2001, stood cancelled and the same has been duly communicated through the
Letter dated 05-01-2008, to the said Developer. The said Development agreement
stood cancelled, as the said Title Suit no. 14 of 2008 { Sri Utpal Roy and
Others – Versus – Smt. Mina Basu } has get it finality in terms of the Judgment
delivered on Friday the 20th day of August’ 2010, by the Learned 5th Court of
Civil Judge (Senior Division), at Alipore, South 24 Parganas, favouring this
opposite party, and thus cancellation of the said development agreement
confirmed.
q)
Answer of Question no. 17 - Due to non-performance of the said
developer, the development agreement dated 17-08-2001, stood cancelled and the
same has been duly communicated through the Letter dated 05-01-2008, to the
said Developer. The said Development agreement stood cancelled, as the said
Title Suit no. 14 of 2008 { Sri Utpal Roy and Others – Versus – Smt. Mina Basu
} has get it finality in terms of the Judgment delivered on Friday the 20th day
of August’ 2010, by the Learned 5th Court of Civil Judge (Senior Division), at
Alipore, South 24 Parganas, favouring this opposite party, and thus
cancellation of the said development agreement confirmed.
r)
Answer of Question no. 18 - this question does not arise, as Due to
non-performance of the said developer, the development agreement dated
17-08-2001, stood cancelled and the same has been duly communicated through the
Letter dated 05-01-2008, to the said Developer. The said Development agreement
stood cancelled, as the said Title Suit no. 14 of 2008 { Sri Utpal Roy and
Others – Versus – Smt. Mina Basu } has get it finality in terms of the Judgment
delivered on Friday the 20th day of August’ 2010, by the Learned 5th Court of
Civil Judge (Senior Division), at Alipore, South 24 Parganas, favouring this
opposite party, and thus cancellation of the said development agreement
confirmed.
s)
Answer of Question no. 19 - you in connivance with the Developer (O.P.
no. 2) lodged this consumer complaint for your wrongful gain. Due to
non-performance of the said developer, the development agreement dated
17-08-2001, stood cancelled and the same has been duly communicated through the
Letter dated 05-01-2008, to the said Developer. The said Development agreement
stood cancelled, as the said Title Suit no. 14 of 2008 { Sri Utpal Roy and
Others – Versus – Smt. Mina Basu } has get it finality in terms of the Judgment
delivered on Friday the 20th day of August’ 2010, by the Learned 5th Court of Civil
Judge (Senior Division), at Alipore, South 24 Parganas, favouring this opposite
party, and thus cancellation of the said development agreement confirmed. I did
not take any money from the complainant. I did not enter into any agreement
with the complainant. I did not authorize anyone to enter into an agreement
with the complainant. Thus this is the complainant who in connivance with the
said Developer (O.P. no. 2), lodged this consumer complaint on the basis their
manufactured document, for their wrongful gain and other, in between them.
- That
I states the following necessary facts for necessary perusal :
A)
That one Title Suit has been instituted
by Sri Utpal Roy, Son of Late Ramesh Chandra Roy, Sri Tapan Nag, Son of Late
Ramani Kanta Nag, and Smt. Sutapa Roy, Wife of Utpal Roy, being Partners of
M/s. Skylark Construction, having its office at premises no. 28A, Raja S.C.
Mullick Road, Police Station – Jadavpur, Kolkata – 700 032, against Smt. Mina
Basu, widow of Late Amiya Kumar Basu, residing at premises no. 6, Shiba Temple
Lane, Police Station – Kasba, Kolkata – 700 078, viz. Title Suit no. 14 of
2008. The case of the plaintiffs in a nutshell is that the defendant is the
owner of the suit property. Plaintiff with an intention to develop the said suit
premises by way of construction of multi storied building consisting of several
flats, car parking space etc. Entered into an agreement on 17-08-2001, with
M/s. Skylark Construction a partnership firm represented by it’s partners. The
Plaintiff decided to take the project for construction of partly G + 3 and
partly three storied building on the suit plot in accordance with the sanction
plan of K.M.C. It was settled between the parties that one flat on first floor
front side south west and another one on the second floor front side south west
and one car parking space of the proposed building will be given to the owners.
Also Rs. 3,75,000/- will be given in addition. Plaintiff already paid Rs.
2,00,000/- to the defendant by way of cheque dated 17-08-2001, drawn on Bank of
Baroda, Moore Avenue Branch. It was settled that balance amount will be payable
at the time of delivery of possession of flats. It was further agreed that the
defendant will execute a general power of attorney in favour of the plaintiff in
order to facilitate the construction work. In terms of the agreement dated
17-08-2001, plaintiff submitted draft plan of proposed building before K.M.C.
There was a clause in that agreement that the proposed construction of the
building shall be completed within 24 months but if there is any delay due to
non compliance of the terms of agreement by defendant the construction period
shall be extended. Defendant delivered all relevant title deeds save and except
mutation certificate from B.L. & L.R.O. defendant assured that she will
deliver the mutation certificate from B.L. & L.R.O. but did not do the same
for which there was delay in getting sanction from K.M.C. However the plaintiff
started construction and completed sixty per cent of the work. Defendant also
did not execute any Power of Attorney, as agreed upon. Thereafter on
05-01-2008, defendant issued a notice through her advocate Sri Malay Sengupta
on the plaintiff stating that the agreement dated 17-08-2001, stand cancelled.
In that letter defendant also demanded to take back the original documents.
According to the plaintiff defendant has got no right to cancel the agreement
unilaterally without any reason. Due to such acts of defendants, plaintiff
suffered enormous loss, therefore the suit being Title Suit no. 14 of 2008, has
been filed by the plaintiff against the defendant before the Learned 5th
Court of Civil Judge ( Senior Division ) at Alipoire, South 24 Parganas.
B)
That in the said Title Suit no. 14 of
2008, before the Learned 5th Court of Civil Judge ( Senior Division
) at Alipoire, South 24 Parganas, Smt. Mina Basu, widow of Late Amiya Kumar
Basu, residing at premises no. 6, Shiba Temple Lane, Police Station – Kasba,
Kolkata – 700 078, being the defendant therein in the said Suit before the
Learned Court, contested the said Suit by filling her written statement.
Defendant stated that the suit is not maintainable. Defendant denied all the
allegation made against her by the plaintiff. The defendant case is that it was
agreed between the parties that the construction will be completed within a
period of 24 months after getting the sanction plan but plaintiff neglected to
complete the same. Defendant denied that due to non supply of mutation
certificate plaintiff failed to obtain sanction plan from K.M.C. The plan was
sanctioned on 24-03-2004, and it was valid upto 23-03-2007. But even after
lapses of 24 months plaintiff failed to complete construction and even they did
not handover the owner’s allocation to the defendant. Due to non performance of
plaintiff the agreement dated 17-08-2001, already stood cancelled, and
thereafter defendant gave a letter to plaintiff asking them to return the
original documents, but till date the plaintiff did not do so. It is also
stated that the plaintiff did not insist defendant to execute any general power
of attorney, on all these grounds defendant prays for dismissal of the suit.
C)
That to prove said Suit, before the
Learned Court, the Plaintiff no. 1, Shri Utpal Roy, deposed as P.W. 1, the
documents filed by the plaintiff are marked as Exbt. 1, Agreement for
development dated 17-08-2001, marked as Exbt. 2, Sanctioned plan no. 797/03,
marked as Exbt. 3. Letter dated 18-02-2008, addressed to the plaintiffs firm
along with envelop, marked as Exbt. 4. (Series ) copy of letter dated
28-02-2008, along with postal receipt and A.D. card marked as Exbt. 5. Letter
addressed to Utpal Roy, marked as Exbt. 6, A/D card marked as Exbt. 7, Letter
dated 12-06-2009.
D) That
in the said Suit, before the Learned Court, it is admitted by both the parties
that defendant who is the owqner of the suit premises entered into an agreement
with the plaintiff, which is a partnership firm for development of the suit
property by raising multistoried building. It was also agreed that the
construction will be completed within 24 months after receiving the sanctioned
plan from K.M.C. The plaintiff alleged that though defendant handed over the
title deed but did not handover the mutation certificate from B.L. & L.R.O.
for which obtaining sanctioned plan from K.M.C. got delayed. It is further
alleged that even defendant did not execute any power of attorney in favour of
the plaintiff for undertaking the construction work. However, the plaintiff
constructed sixty percent of the proposed building, and thereafter requested
defendant again to execute the power of attorney. But without doing so
defendant by a letter dated 05-01-2008, cancelled the agreement. On the other
hand, defendant denied all such allegations and stated that though the plaintiff
obtained sanctioned plan on 24-03-2004, but failed to raise construction within
the stipulated period.
E)
That PW 1, in his affidavit in chief
corroborated his plaint case. In cross examination he admitted that though
exbt.1, is dated 17-08-2001, but on the notorised page the date of execution is
mentioned as 28-08-2001. He stated that he does not have any documents to show
that they have sent the draft copy of power of attorney to the defendant. He
also stated that it is not mentioned in exbt. 1, that without any mutation
certificate they will not be able to obtain any sanction plan. From his
evidence it also appears that he has got no documents to show that he is
authorized by other partners to depose in the case nor his partnership business
/ partnership firm is registered under societies act.
F)
That PW 1, also stated that he did not
assign any reason to defendant specifying any reason for delay in completion of
the said project. He also did not give any letter to the defendant asking her
to execute any power of attorney in his favour. Corporation did not give him
any letter informing him that without mutation of B.L. & L.R.O. no plan
could be sanctioned. He did not file any report of chartered engineer and it is
his own assumption that he has completed ninety five percent of the
construction work. He admitted that exbt. 1, does not bear signature of owner.
He also admitted that the defendant did not take any consideration money. He
also admitted that there is no initial of defendant in page – 2 of exbt 1, where
there is a handwritten portion. Though his learned lawyer Sri Prasanta
Mukherjee drafted the agreement but nowhere it has been written that he drafted
the same. He also admitted that sanction plan was valid upto 23-03-2009, and he
did not get any completion certificate from K.M.C. upto 23-03-2009. He also
admitted that stipulated time expired long ago. He also stated that though her
original documents of defendant are lying with him but he will not return those
documents.
G) On the other hand defendant deposed as DW1 and
she is in her affidavit in chief corroborated her case. At the time of cross
examination DW1 only tendered exbts. 5, 6, and 7, and no other question was put
to her.
H) That
thereafter the said Title Suit no. 14 of 2008, { Sri Utpal Roy and Others –
Versus – Smt. Mina Basu } has get it finality in terms of the Judgment
delivered on Friday the 20th day of August’ 2010, by the Learned 5th
Court of Civil Judge ( Senior Division ), at Alipore, South 24 Parganas, which
ordered as “that the Suit be and the same is dismissed on contest but without
cost”.
I)
That thereafter on defeating the said
Suit, the plaintiff preferred an appeal from the Original Decree being the
Judgment delivered on Friday the 20th day of August’ 2010, by the
Learned 5th Court of Civil Judge ( Senior Division ), at Alipore,
South 24 Parganas, which ordered as “that the Suit be and the same is dismissed
on contest but without cost”, before the Hon’ble High Court at Calcutta, viz.
FA / 46 / 2011, which consequentially dismissed by the Order dated February’
14, 2011.
J)
That in view of the facts of the
Judgment delivered on Friday the 20th day of August’ 2010, by the
Learned 5th Court of Civil Judge ( Senior Division ), at Alipore,
South 24 Parganas, which ordered as “that the Suit be and the same is dismissed
on contest but without cost”, there is no agreement and or contract between
Smt. Mina Basu, and M/s. Skylark Construction, Sri Utpal Roy, Sri Tapan Nag,
and Smt. Sutapa Roy, in any manner, whatsoever.
K)
That this opposite party, have no iota
of any knowledge of the present complainant, and his false story, so far, and
therefore this opposite party, is in now related to the complainant and his
false story, as stated by him in his petition of complaint, in any form,
whatsoever.
L)
That the said Title Suit no. 14 of 2008
{ Sri Utpal Roy and Others – Versus – Smt. Mina Basu }, has been filed and
instituted as on 29-01-2008, by Sri Utpal Roy, Son of Late Ramesh Chandra Roy,
Sri Tapan Nag, Son of Late Ramani Kanta Nag, and Smt. Sutapa Roy, Wife of Utpal
Roy, being Partners of M/s. Skylark Construction, having its office at premises
no. 28A, Raja S.C. Mullick Road, Police Station – Jadavpur, Kolkata – 700 032,
against Smt. Mina Basu, widow of Late Amiya Kumar Basu, residing at premises
no. 6, Shiba Temple Lane, Police Station – Kasba, Kolkata – 700 078, before the
Learned 5th Court of Civil Judge ( Senior Division ), at Alipore,
South 24 Parganas, which has get it finality in terms of the Judgment delivered
on Friday the 20th day of August’ 2010, by the Learned 5th
Court of Civil Judge ( Senior Division ), at Alipore, South 24 Parganas, which
ordered as “that the Suit be and the same is dismissed on contest but without
cost”.
M) That
there is no privity of contract between the parties.
N)
That the complainant is not a Consumer
as per provision of the Consumer Protection Act’ 2019.
O) That
there is no Consumer disputes to be adjudicated between the parties, before the
Hon’ble Commission, between the parties herein.
P)
That the present claim of the Complainants
if any, is barred by the Limitation as enshrined under the provision of the
Consumer Protection Act’ 2019.
Q) That
there is no agreement and or contract by and between the complainant and this
opposite party, herein, in any manner, whatsoever.
R)
That the Opposite Party, herein have no
iota of knowledge about the alleged story of the complainant herein, against
the other opposite parties, and the receipt shown therewith.
S)
That the Opposite party, herein have no
relationship with the complainant herein as alleged by him, in his petition of
complaint.
T)
That the opposite party, herein have no
disputes as alleged by the complainant herein, in his petition of complaint.
U) That
the opposite party, is not a necessary party to the story of the complainant
herein as alleged by him in his petition of complaint.
V)
That the Complaint herein as alleged by
him did not seeks any specific relief in his petition of complaint, against the
opposite party, herein.
W) That
the Opposite Party, is not a service provider and or developer, and or promoter
to the complainant herein in the facts and in the law.
X)
That there is no relationship of this
opposite party with the O.P. no. 2, and the Complainant, in terms of the Indian
Contract Act’ 1872.
Y)
That there is no relationship as of Consumer
and the Service provider by and between the opposite party, and the complainant
herein, in terms of the Indian Contract Act’ 1872.
Z)
That the present Consumer disputes as
alleged by the complainant herein, is not maintainable in the facts and in the law
against the opposite party, in the terms of the Consumer Protection Act’ 2019.
AA)
That the allegations as contended by
the complainant herein are all fake and frivolous one, as those are not
substantiated with any single piece of papers or evidentiary value papers.
BB)
That the present complaint has been
made before the Hon’ble Commission, motivated and with a intention for the
wrongful gain and acquire of wrongful claim thereby the complainants herein.
CC)
That the Opposite Party, herein did not
cause any deficiency in services, and or unfair trade practices, in terms of
the provisions of the Consumer Protection Act’ 2019, and rules made thereof.
DD)
That the Complainants did not have any
piece of paper and or document to show that there is any agreement and or contract
in respect of the flat, with the opposite party, herein, in any manner,
whatsoever.
EE)
That the opposite party, herein being
the law abiding and peace loving citizen of the country bound by the bonafide
moral and legal duty to act in the prescribed proposition of the established
Law of Land, and therefore in absence of any contract and or agreement with the
complainant herein, She cannot act upon and deed, in any perverted manner,
whatsoever.
- That
I beg to say that the facts contained in my written version, 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 Judges’ Court, Kolkata
DEPONENT
Identified
by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated :……………………2023.
Place : Alipore Judges’ Court.
N O T A R Y
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