BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
KOLKATA UNIT-III
Tramline Building ( 1st Floor )
18, Judges Court Road, Alipore, Kolkata - 700027
Consumer Case no. CC/240/2020
In the matter of:
1.
Shri Tushar
Kanti Ganguly, Son of Shri Khudiram Ganguly,
2.
Smt.
Sharmistha Ganguly, wife of Tushar Kanti Ganguly,
Both are residing at present at premises being no.
N-59, Kailash Ghosh Road, Police Station – Haridevpur, Kolkata – 700008,
District – South 24 Parganas.
....Complainants
-versus-
1.
Sri Soumen
Chakraborty, Son of Ashoke Chakraborty and Proprietor of M/s. AG Construction,
a proprietorship concern having its office formerly at 4/4B, Motilal Gupta
Road, Post Office – Barisha, Police Station – Haridevpur, Kolkata – 700008, at
present at 90, Santosh Roy Road, James Long Crossing, Kolkata – 700008.
2.
Smt. Rama
Manna, wife of Late Amiya Kumar Manna, of premises being no. 291, Kailash Ghosh
Road, Police Station – Haridevpur, Kolkata – 700008.
...
Opposite Parties
EVIDENCE ON AFFIDAVIT
OF THE OPPOSITE PARTY NO. 1
SHRI SOUMEN CHAKRABORTY.
A F F I D A V I T
I, Sri Soumen Chakraborty, Son of Ashoke Chakraborty, aged about
_____years, by faith Hindu, by Occupation Business, and Proprietor of M/s. AG
Construction, a proprietorship concern having its office formerly at 4/4B,
Motilal Gupta Road, Post Office – Barisha, Police Station – Haridevpur, Kolkata
– 700008, at present at 90, Santosh Roy Road, James Long Crossing, Kolkata –
700008,
do hereby solemnly affirm and declare as follows :
1. That I being
the Opposite Party no. 1, in the instant case being filed by the Complainants,
and I am well conversant with the facts and circumstances of the said case.
2. That I beg to say
that the Opposite Party no. 1, M/s. A.G. Construction, a Proprietorship Firm,
having its office at premises being no. 4/4B, Motilal Gupta Road, Kolkata –
700008, now at 90, Santosh Roy Road, Kolkata – 700008, Police Station –
Haridevpur, District – South 24 Parganas, represented by its Proprietor Shri
Soumen Chakraborty, Son of Shri Ashok Chakraborty.
3.
That
I beg to say that one agreement for sale Dated 3rd day of December’
2014 has been entered between the parties, i.e. the complainants and the
Opposite party no. 1 Sri. Soumen Chakraborty and the Opposite Party no.2,
herein Smt. Rama Manna, Wife of Late Amiya Kumar Manna, being the Land owner of
the scheduled property and the Opposite party no 1 Sri. Soumen Chakraborty is a
developer. The said agreement for sale entered between the parties more
particularly with the complainants, herein, cause such agreement in respect of ALL THAT one Self contained leaving flat no. “A4”
consisting of one bed room, one toilet, one kitchen cum – dinning having an
area of 400 Square feet super built up area including super built charge more
or less lying or situate on the 1st floor of the building together
with proportionate undivided share of the land underneath the building room and
flat along with easement, quasi easement right and other benefits, over the
common passage for common use, occupation and enjoyment in the said building at
Premises No. 291, Kailash Ghosh Road, Police Station – Haridevpur, Kolkata –
700008, ward no. 123 of the Kolkata Municipal Corporation, within the District
of South 24 Parganas, for the consideration value as of Rs. 8,50,000/- ( Rupees
Eight Lakhs and Fifty Thousand ) only.
4.
That
I beg to say that the said agreement for sale dated 3rd day of December’
2014 containing the following covenants:
i.
At page no. 7,
paragraph no. 3, the purchaser hereto with the execution of this agreement
shall pay to the developer/ First party herein a sum of Rs. 1,70,000/- (rupees
one lacs seventy thousands) only towards advance/ earnest money and/or part
payment out of total consideration money of Rs. 8,50,000/- (rupees eight lacs fifty
thousands) only (the receipt of which the vendor/First Party both hereby admit
and acknowledge as per memo hereunder written) and the balance of the total
consideration amount shall be paid by the purchaser to the developer/ First
party before the registration and/or possession of Plot in the following
manner:
i)
Paid Rs. 1,70,000/-
(rupees One Lac and seventy Thousands) only as advance money Booking money this
day i.e. Execution of the Agreement.
ii)
Paid Rs.4,00,000/-
(rupees four lacs) only shall be paid within a 1st roof casting.
iii)
Paid Rs. 1,30,000/-
(rupees one lac and thirty thousand) only shall be paid within a 2nd
roof casting.
iv)
Paid Rs. 1,00,000/-
(rupees one lac) only shall be paid within a brick work time.
v)
Paid Rs. 50,000/-
(rupees fifty thousand) only shall be paid within at the time of delivery of
possession and / or before the Registration.
ii.
At page no. 10,
paragraph no. 14 the purchaser shall be liable to make payment the balance
consideration amount within the stipulated period as mentioned above, failing
which the purchaser will be liable and responsible to bear the interest ever
the due amount 12% per annum for a period of one month from the date of payment.
iii.
At page no.
11, paragraph no. 16 the transaction of sale and purchase in between the
parties hereto relating to the said property will be completed within 15 months
from the date of this agreement subject to making payment of the balance
consideration amount and also delivery of possession as aforesaid.
5.
That I beg to say that
the complainants had paid Rs. 1,70,000/- (Rupees one lac and seventy thousand)
only, on the date of execution of the said Agreement for Sale dated 3rd
day of December’ 2014 and subsequently he paid as of Rs. 3,00,000/- ( Rupees Three
lacs ) only, on 26-04-2016, and therefore paid in total as of Rs. 4,70,000/- (Rupees
Four Lacs and Seventy Thousand) only. It is pertinently states that no money has
ever been paid by the Complainants in terms as agreed in the Agreement for Sale
dated 3rd day of December’ 2014. The Complainants variably failed to
make payment to the opposite party, as agreed upon, and therefore this opposite
party seeks to get the balance consideration money as of Rs. 3,80,000/- (
Rupees Three Lakhs and Eighty Thousand ) only, from the Complainants with
interest being 12% interest per annum on such balance money as of Rs. 3,80,000/-
( Rupees Three Lakhs and Eighty Thousand ) only, and thereafter on receipt of
such balance money and the interest thereon in terms of the agreement dated 3rd
day of December’ 2014, the opposite party will hand over the physical
possession of the subjected flat and cause endeavour of the execution and
registration of Deed of Conveyance in favour of the Complainants at the
Complainants’ Cost and expenses. The Complainants are defaulter in making
payment in terms of the agreement for sale dated 3rd day of
December’ 2014, and therefore at the complainants’ behest this opposite party
suffering a lot for such tenure till date. This are the complainants who denied
the performance in terms of the agreement for Sale dated 3rd day of
December’ 2014. The Complainants resort the present consumer proceeding to take
benefit of their own wrong, which is contrary to the established prescribed
provisions of the Consumer Protection Act’ 2019.
6.
That
I beg to say that the facts in its entirety the disputes, if any, between the
parties are not the consumer dispute as meant for in the Consumer Protection
Act’ 2019.
7. That I beg to say
that the opposite party, herein have no disputes as alleged by the complainants
herein, in their petition of complaint.
8. That I beg to say
that the opposite party, is not a necessary party to the story of the complainants
herein as alleged by them in their petition of complaint.
9. That I beg to say
that the allegations as contended by the complainants herein are all fake and
frivolous one, as those are not substantiated with any single piece of papers
or evidentiary value papers.
10.
That
I beg to say that the present complaint has been made before the Hon’ble Forum,
motivated and with a intention for the wrongful gain and acquire of wrongful
claim thereby the complainants herein.
11.
That
I beg to say 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.
12.
That
I beg to say that there is no cause of action has ever been described and or
more particularly raised against this opposite party, by the complainants.
13.
That
I beg to say that there is no consumer dispute has ever been raised and or
given in the petition of complaint by the complainants against this opposite
party, therefore there is no consumer disputes with this opposite party
14.
That
I beg to say that the Complainants did not perform the agreement between the
parties and deliberately failed to adopt the contents of the said Agreement for
Sale dated 3rd day of December’ 2014. The complainants had paid Rs.
1,70,000/- (Rupees one lac and seventy thousand) only, on the date of execution
of the said Agreement for Sale dated 3rd day of December’ 2014 and
subsequently he paid as of Rs. 3,00,000/- ( Rupees Three lacs ) only, on
26-04-2016, and therefore paid in total as of Rs. 4,70,000/- (Rupees Four Lacs
and Seventy Thousand) only. It is pertinently states that no money has ever
been paid by the Complainants in terms as agreed in the Agreement for Sale
dated 3rd day of December’ 2014. The Complainants variably failed to
make payment to the opposite party, as agreed upon, and therefore this opposite
party seeks to get the balance consideration money as of Rs. 3,80,000/- (
Rupees Three Lakhs and Eighty Thousand ) only, from the Complainants with
interest being 12% interest per annum on such balance money as of Rs.
3,80,000/- ( Rupees Three Lakhs and Eighty Thousand ) only, and thereafter on
receipt of such balance money and the interest thereon in terms of the
agreement dated 3rd day of December’ 2014, the opposite party will
hand over the physical possession of the subjected flat and cause endeavour of
the execution and registration of Deed of Conveyance in favour of the Complainants
at the Complainant’s Cost and expenses. The Complainants are defaulter in
making payment in terms of the agreement for sale dated 3rd day of
December’ 2014, and therefore at the complainants’ behest this opposite party
suffering a lot for such tenure till date. This are the complainants who denied
the performance in terms of the agreement for Sale dated 3rd day of
December’ 2014. The Complainants resort the present consumer proceeding to take
benefit of their own wrong, which is contrary to the established prescribed
provisions of the Consumer Protection Act’ 2019.
15.
That
I beg to say that this opposite party states that no cause of action has ever
been accrued on this opposite party as all the event as described bonafide
lying on the Complainants of the present proceeding and therefore this opposite
party is not even means and or measure of any cause and or event as described
by the complainants herein.
16.
That
I beg to say that this opposite party states that no cause of action has ever
been accrued on this opposite party as all the event as described bonafide
lying on the Complainants of the present proceeding and therefore this opposite
party is not even means and or measure of any cause and or event as described
by the complainants herein. The Complainants are defaulter in making payment in
terms of the agreement for sale dated 3rd day of December’ 2014, and
therefore at the complainants’ behest this opposite party suffering a lot for
such tenure till date. These are the complainants who denied the performance in
terms of the agreement for Sale dated 3rd day of December’ 2014. The
Complainants resort the present consumer proceeding to take benefit of their
own wrong, which is contrary to the established prescribed provisions of the
Consumer Protection Act’ 2019. The Complainants are not entitled to get any
relief as prayed by him in the present consumer proceeding.
17.
That
I beg to say that the contents of paragraph number 12, of the application is a
serious concern, as stated by the complainants, and at the same time, the
genuine suspicions arose as to whether this present consumer proceeding
instituted upon the petition of complaint is also a genuine one or not,
therefore need an enquiry in respect of filling several complaint and the
signatures thereon of the complainants. As it appears from website two
complaint has been earlier instituted by the complainants as (1) CC/140/2020,
and (2) CC/219/2020, and whereas the
consumer complaint being no. CC/140/2020, has been not pressed and therefore
not proceeded, and thereafter the Consumer proceeding being CC/219/2020, has
been proceeded and such consumer proceeding is pending having next date as
23-12-2020, and thereafter the present consumer proceeding has been instituted in
which notice has been served on the opposite party, and therefore the opposite
party cause necessary endavour to place his written version being reply on the
petition of complaint as was placed by the complainants in the present consumer
proceeding, and whereas on being came into knowledge as of several proceedings
more particularly the signatures are not of the complainants as stated in the
paragraph number 12 of the present petition of complaint genuinely and reasonably
raised apprehensions as of the originality of the present petition of complaint
and the signatures as may be appeared thereon of the complainants or not, need
a serious intervention of the Hon’ble District Consumer Disputes Redressal
Commission, Kolkata Unit – III. Therefore this opposite party seeks an enquiry
into such facts as stated in the paragraph number 12, of the petition of
complaint, at the earliest, prior to proceed any further in the present
consumer proceeding, in the interest of administration of justice.
18.
That
I beg to say that the present petition of complaint is not bonafide against
this opposite party, and the complainants are not entitled to get any relief in
terms of their prayer made therein from this opposite party in terms of the
provision of the Consumer Protection Act’ 2019.
19.
That
I beg to say that in the facts and in the laws, it is totally evident from the
application itself that the complainants made their purported endeavor to put
the Hon’ble Forum into motion to get their wrongful gains by procuring orders
in terms of their prayer before the Hon’ble Commission.
20.
That
I beg to say that in the facts and in the laws, it is totally evident from the
application itself that the complainants are trying to miss utilizing the
jurisdiction of this Hon’ble Commission.
21.
That
I beg to say that in the above circumstances, there is no cause of action for
the present proceedings by the Petitioners, against the Opposite Party, the
Opposite Party, accordingly pray that the Complaint be dismissed with costs.
22.
That
I beg to say that in the above circumstances, there is no deficiency in
service, and or unfair trade practices, on the part of the Opposite Party,
rather the Opposite Party is victim of the concocted story and wrongful demand
of the complainants.
23.
That
I beg to say that in view of the facts that the Opposite Party is victim of the
purported alleged allegations and wrongful demand, the Opposite Party thereby
seeking compensation as of Rs. 1,00,000/- ( Rupees One Lakh ) only, for
harassment and mental anxiety, arising from the institution of the present
proceeding by the complainants, against this opposite party, before the Hon’ble
Commission.
24.
That
I beg to say that the Petitioners, neither has any cause of action nor the
basis for filling the present complaint and the Petitioners’ complaint is
entirely baseless and misconceived and deserve to be dismissed on this ground
alone.
25.
That
I beg to say that the Complaint is false, frivolus and vexatious and has been
filed with the mala fide intention, and as such deserves to be dismissed with
special costs.
26.
That
I beg to say that the Petitioners, are not entitled to any relief as prayed in
the Complaint, and the same is liable to be dismissed.
27.
That
I beg to say that in the aforesaid circumstances, the Opposite Party is seeking
the dismissal of the Complaint filed by the Petitioners, with exemplary cost.
28.
That
the statements made in paragraphs 1 to 17 are true to the best of my knowledge
and belief and the rests are my humble submissions before your Honour’s Commission.
D E P O N E N
T
Identified by
me
Advocate.
Prepared in my Chamber,
Advocate.
Date : ____________2023.
Place : Alipore, Kolkata.
N O T A R Y
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