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/166/2020
In the matter of:
Ramprasad Sapkota, Son of Hiralal Sakota, residing at present at premises no. 66/N,
Kailash Ghosh Road, Police Station – Haridevpur, Kolkata 700008, District –
South 24 Parganas.
....Complainant
-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 Complainant,
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 2nd day of May’ 2015
has been entered between the parties, i.e. the complainant 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 complainant, herein, cause such agreement in respect of ALL THAT one Self contained leaving flat no. “A2”
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 2nd day of May’
2015 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. 1,50,000/- (rupees
one lacs fifty 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. 2,50,000/-
(rupees Two Lac and fifty 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 plinth level time.
iii)
Paid Rs. 50,000/-
(rupees fifty thousand) only shall be paid within 1st roof casting.
iv)
Paid Rs. 50,000/-
(rupees fifty thousand) only shall be paid within a 2nd roof
casting.
v)
Paid Rs. 50,000/-
(rupees fifty thousand) only shall be paid within a brick Work Time.
vi)
Paid Rs.
50,000/- ( Rupees Fifty Thousand ) only, shall be paid 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 24 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 complainant had paid Rs. 50,000/- (Rupees fifty thousands) only, on the
date of execution of the said Agreement for Sale dated 2nd day of
May’ 2015 and earlier he had paid a sum of Rs. 50,000/- ( Rupees Fifty Thousand
) only, and subsequently he paid as of Rs. 6,000/- ( Rupees Six Thousand )
only, on 27-02-2016, thereafter Rs. 25,000/- ( Rupees Twenty Five Thousand )
only, on 25-12-2016, thereafter Rs. 19,000/- ( Rupees Nineteen Thousand ) only,
on 03-02-2016, thereafter Rs. 50,000/- ( Rupees Fifty Thousand ) only, on
18-05-2015, and subsequently through bank finance as of Rs. 5,00,000/- (Rupees Five
Lakhs) only, and therefore paid in total as of Rs. 7,00,000/- (Rupees Seven
Lacs) only. It is pertinently states that no money has ever been paid by the
Complainant in terms as agreed in the Agreement for Sale dated 2nd
day of May’ 2015. The bank financed money has only been receipt from the bank
to the opposite party and the Complainant 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. 1,50,000/- ( Rupees One Lakh and
Fifty Thousand ) only, from the Complainant with interest being 12% interest
per annum on such balance money as of Rs. 1,50,000/- ( Rupees One Lakh and
Fifty Thousand ) only, and thereafter on receipt of such balance money and the
interest thereon in terms of the agreement dated 2nd day of May’
2015, 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 Complainant at the Complainant’s Cost and expenses.
The Complainant is a defaulter in making payment in terms of the agreement for
sale dated 2nd day of May’ 2015, and therefore at the complainant’s
behest this opposite party suffering a lot for such tenure till date. This is
the complainant who denied the performance in terms of the agreement for Sale
dated 2nd day of May’ 2015. The Complainant resort the present
consumer proceeding to take benefit of his 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 complainant
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
complainant herein as alleged by them in their petition of complaint.
9. That I beg to say
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.
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 complainant 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 complainant.
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 complainant against this opposite
party, therefore there is no consumer disputes with this opposite party
14.
That
I beg to say that the Complainant did not perform the agreement between the
parties and deliberately failed to adopt the contents of the said Agreement for
Sale dated 2nd day of May’ 2015. The complainant had paid Rs. 50,000/-
(Rupees fifty thousands) only, on the date of execution of the said Agreement
for Sale dated 2nd day of May’ 2015 and earlier he had paid a sum of
Rs. 50,000/- ( Rupees Fifty Thousand ) only, and subsequently he paid as of Rs.
6,000/- ( Rupees Six Thousand ) only, on 27-02-2016, thereafter Rs. 25,000/- (
Rupees Twenty Five Thousand ) only, on 25-12-2016, thereafter Rs. 19,000/- (
Rupees Nineteen Thousand ) only, on 03-02-2016, thereafter Rs. 50,000/- (
Rupees Fifty Thousand ) only, on 18-05-2015, and subsequently through bank
finance as of Rs. 5,00,000/- (Rupees Five Lakhs) only, and therefore paid in
total as of Rs. 7,00,000/- (Rupees Seven Lacs) only. It is pertinently states
that no money has ever been paid by the Complainant in terms as agreed in the Agreement
for Sale dated 2nd day of May’ 2015. The bank financed money has
only been receipt from the bank to the opposite party and the Complainant
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. 1,50,000/- ( Rupees One Lakh and Fifty Thousand ) only, from the
Complainant with interest being 12% interest per annum on such balance money as
of Rs. 1,50,000/- ( Rupees One Lakh and Fifty Thousand ) only, and thereafter
on receipt of such balance money and the interest thereon in terms of the
agreement dated 2nd day of May’ 2015, 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 Complainant
at the Complainant’s Cost and expenses. The Complainant is a defaulter in
making payment in terms of the agreement for sale dated 2nd day of
May’ 2015, and therefore at the complainant’s behest this opposite party
suffering a lot for such tenure till date. This is the complainant who denied
the performance in terms of the agreement for Sale dated 2nd day of
May’ 2015. The Complainant resort the present consumer proceeding to take
benefit of his 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 complainant herein.
16.
That
I beg to say that the Complainant is a defaulter in making payment in terms of
the agreement for sale dated 2nd day of May’ 2015, and therefore at
the complainant’s behest this opposite party suffering a lot for such tenure
till date. This is the complainant who denied the performance in terms of the
agreement for Sale dated 2nd day of May’ 2015. The Complainant
resort the present consumer proceeding to take benefit of his own wrong, which
is contrary to the established prescribed provisions of the Consumer Protection
Act’ 2019. The Complainant is not entitle to get any relief as prayed by him in
the present consumer proceeding.
17.
That
I beg to say that the present petition of complaint is not bonafide against
this opposite party, and the complainant is not entitled to get any relief in
terms of his prayer made therein from this opposite party in terms of the
provision of the Consumer Protection Act’ 2019.
18.
That
I beg to say that in the facts and in the laws, it is totally evident from the
application itself that the complainant made his purported endeavor to put the
Hon’ble Forum into motion to get his wrongful gains by procuring orders in
terms of his prayer before the Hon’ble Commission.
19.
That
I beg to say that in the facts and in the laws, it is totally evident from the
application itself that the complainant is trying to miss utilizing the
jurisdiction of this Hon’ble Commission.
20.
That
I beg to say that in the above circumstances, there is no cause of action for
the present proceedings by the Petitioner, against the Opposite Party, the
Opposite Party, accordingly pray that the Complaint be dismissed with costs.
21.
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 complainant.
22.
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 complainant, against this opposite party, before the Hon’ble Commission.
23.
That
I beg to say that the Petitioner neither has any cause of action nor the basis
for filling the present complaint and the Petitioner’s complaint is entirely
baseless and misconceived and deserve to be dismissed on this ground alone.
24.
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.
25.
That
I beg to say that the Petitioner, is not entitled to any relief as prayed in
the Complaint, and the same is liable to be dismissed.
26.
That
I beg to say that in the aforesaid circumstances, the Opposite Party is seeking
the dismissal of the Complaint filed by the Petitioner, with exemplary cost.
27.
That
the statements made in paragraphs 1 to 16 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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