Tuesday, April 4, 2023

Evidence on Affidavit by the Opposite Party in Consumer Case / Consumer Case / The Consumer Protection Act 2019

 

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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