BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
KOLKATA UNIT-III
Tramline Building ( 1st Floor )
18, Judges Court Road, Alipore, Kolkata - 700027
MA no. _____________of 2021
In
Consumer Case no. CC/197/2020
In the matter of:
Mr. Kisore Dixit, Son of Late Gaya Dhar Dixit,
residing at premises being no. 40F, Chetla Road, Police Station – Chetla,
Kolkata - 700027.
....Complainant
-versus-
1.
M/s. AG
Construction, a proprietorship firm having its office at 90, Santosh Roy Road,
Police Station – Haridevpur, Kolkata – 700008, represented by its
Proprietor Sri Soumen Chakraborty, Son
of Ashoke Chakraborty residing at 4/4B, Motilal Gupta Road, Post Office –
Barisha, Police Station – Haridevpur, Kolkata – 700008.
2.
Smt. Rekha
Nariwal, daughter of Ramprasad Nariwal, residing at premises being no. 27E/12,
Babu Ram Ghosh Road, Police Station – Regent Park, Kolkata - 700040.
...
Opposite Parties
MAINTAINABILITY APPLICATION
The humble petition on behalf of the Opposite Party no.1 Sri Soumen
Chakraborty:
Most Respectfully Sheweth as under:
1. That the
Petitioner has been served with the purported copy of petition, made by the
Complainant. The Petitioner have gone through the contents of the purported
petition and made replies to the same, and submitted his written version, in
the present consumer proceeding.
2. That the
Opposite Party no. 1, M/s. A.G. Construction, a Proprietorship Firm, having its
office at premises being no. 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 one
agreement for sale Dated 15th day of July’ 2016 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. Rekha Nariwal
daughter of Sri Ramprasad Nariwal, 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 flat consisting of two bed
room, one toilet, one kitchen cum – dinning having an area of 600 Square feet
super built up area including super built charge more or less lying or situate
on the Ground 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. 124/2, 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. 12,50,000/- ( Rupees Twelve Lakhs and Fifty
Thousand ) only.
4.
That the complainant
had paid Rs. 1,00,000/- (Rupees one lac) only, on the date of execution of the
said Agreement for Sale dated 15th day of July’ 2016 and thereafter Rs.
10,00,000/- ( Rupees One Lac and fifty thousand) only, has been made by the
complainant herein through his banker United Bank of India, M.L. Gupta Road
Branch, in the month of October’ 2017, thus total sum of Rs. 11,00,000/- (
Rupees Eleven Lakhs ) only, has been paid by the Complainant herein, and thereafter
consequently 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 )
only, and thereafter on receipt of such balance money and the interest thereon
in terms of the agreement dated 15th day of July’ 2016, 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 15th day
of July’ 2016, 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 15th day of July’
2016. 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.
5. That it is
pertinent to mention that the complainant assessed his petition of complaint
being valued as of Rs. 20,15,000/- in paragraph number 16 at page no. 9, and
the fees inadequetly has been paid thereon by the complainant, which is not
correct, the valuation of his application is not correct in terms of the
provision of Section 34(1) of the Consumer Protection Act' 2019, which
reproduced as follows :
“34. (1) Subject to
the other provisions of this Act, the District Commission shall have jurisdiction
to entertain complaints where the value of the goods or services paid as consideration
does not exceed one crore rupees:
Provided that where the
Central Government deems it necessary so to do, it may prescribe such other value,
as it deems fit.”
Thus in view of the terms
of the provision of Section 34(1) of the Consumer Protection Act’ 2019, the
petition of Complaint of the applicant / petitioner / complainant should be as
of Rs. 12,50,000/- ( Rupees Twelve Lakhs and Fifty Thousand ) only, being
calculated as Rs. 12,50,000/- ( Rupees Twelve Lakhs and Fifty Thousand ) only,
being the value of the goods or services paid as consideration.
Therefore the
fees paid thereon is also inadequate in terms of provision of Rule 7 (1) of the
Consumer Protection ( Consumer Disputes Redressal Commissions Rules ) 2020.
6. That in view
of the fact as stated in foregoing paragraph herein, this opposite party seeks
the dismissal of the present petition of complaint at once with exemplary cost
on the complainant in the interest of administration of justice.
7. That unless
the Hon’ble Commission take into consideration about the value of goods or
services paid as consideration in term of the provision of Section 34(1) of the
Consumer Protection Act’ 2019, and dismissed or reject the application of the
complainant with exemplary cost thereon, this opposite party will highly
prejudice and suffer with irreparable loss and injury thereof.
8. That the
balance of convenience and inconvenience are in favour of the this opposite
party.
9. That this
application is made bonafide and in the interest of administration of justice.
It is
therefore prayed that your Honour would graciously be pleased to allow this
application and to dismissed or rejected the petition of complaint of the
complainant which has registered as CC/ 197 / 2020, in the interest of
administration of justice, and or to pass such other necessary order or orders
as your Honouir may deem, fit, and proper for the end of justice.
And for this act of kindness, the
petitioner as in duty bound shall ever pray.
Verification
I, Sri Soumen Chakraborty, being the
Opposite Party, in the instant Complaint matter, states that I am well
conversant with all the material facts and circumstances as stated in the
foregoing paragraphs of the application and I am well acquainted thereto. And I
verify and sign this instant Written Version, as on _______________2021, at
Alipore, Kolkata - 700027.
The Opposite
Party
Identified by
me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated : _______________________2021.
Place : Alipore, Kolkata.
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 at 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.
This is true to
my knowledge.
2. That the
statements made in paragraphs 1 to __________of my application 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 : ____________2021.
Place : Alipore, Kolkata.
N O T A R Y
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