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/196/2020
In the matter of:
Smt. Lakhi Shaw, Wife of Ganesh Shaw, residing at
premises no. 9/B, 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
WRITTEN VERSION OF THE OPPOSITE PARTY NO. 1, M/s. AG CONSTRUCTION
REPRESENTED BY ITS PROPERITOR SHRI SOUMEN CHAKRABORTY.
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, are as follows.
2. That the
Complaint is not maintainable in its present form, either in term of the facts
or in term of the Law.
3. That the
Petition is speculative, harassing, motivated and barred by the Principles of
Law and hence it is liable to be rejected at once.
4. That the
petition is suffering from misjoinder and non joinder of necessary party in the
proceeding, and therefore liable to be dismissed at once with exemplary costs.
5. That the petition
is suffering from suppression of material facts and necessary party, and
therefore liable to be dismissed at once with exemplary costs.
6. That the
petition is suffering from any legal demand and thereby cause of action, the
present petition is motivated and without any jurisdiction.
7. That the
Opposite Parties do not admit all the allegations made in the application of
the Petitioner / Complainant, to be true and save and except those that are
specifically admitted he put the Petitioner, to the strict proof of the rest.
8. That the
contents of the Complaints are vague and based on after thought concocted
story, made out by the Complainant to in-clinch issues in his favour, and thus
no part of the contents of the Complaint has ever been admitted by the Opposite
Party, except those are the matter of records.
9. That the
Opposite Party states that the present Complaint has been instituted by the
Complainant against the Opposite Party to cause several hassle and harassments
to the Opposite Party.
10.
That
the complainant is not a Consumer as per provision of Section 2 (7) of the
Consumer Protection Act’ 2019.
11.
That
there is no Consumer disputes to be adjudicated before the Hon’ble Commission,
between the parties herein.
12.
That
the Opposite Party states and submits that the Complainant’s disputes, is not a
Consumer dispute and the Complainant is not a consumer, as defined and
enumerated in the relevant provisions of the Consumer Protection Act’ 2019.
13.
That
before dealing with the statements made in the petition under objection para
wise, this Opposite Party states the following facts for Your Honour’s kind
perusal :
a. 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.
b.
That
one agreement for sale Dated 20th 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 500 Square feet
super built up area including super built charge more or less lying or situate
on the 2nd 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. 10,50,000/- ( Rupees Ten Lakhs
and Fifty Thousand ) only.
c.
That
the said agreement for sale dated 20th day of July’ 2016 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. 1,00,000/- (rupees
one lacs) only towards advance/ earnest money and/or part payment out of total
consideration money of Rs. 10,50,000/- (rupees Ten 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. 1,00,000/-
(rupees One Lac and fifty Thousands) only as advance money Booking money this
day i.e. Execution of the Agreement.
ii)
Paid Rs.5,00,000/-
(rupees five lacs) only shall be paid within plinth level time.
iii)
Paid Rs. 2,00,000/-
(rupees two lacs) only shall be paid within 1st roof casting.
iv)
Paid Rs. 1,50,000/-
(rupees one lac fifty thousand) only shall be paid within brick work time.
v)
Paid Rs.
1,00,000/- (rupees one lac) only shall be paid at the time of delivery of
possession and / or before the Registration.
ii.
At page no. 10,
paragraph no. 13 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. 10,
paragraph no. 14 the transaction of sale and purchase in between the parties
hereto relating to the said property will be completed within 18 months from
the date of this agreement subject to making payment of the balance
consideration amount and also delivery of possession as aforesaid.
d.
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 20th day of July’ 2016 and earlier the
complainant pais as of Rs. 1,00,000/- (Rupees One Lac) only, on 23-02-2016, and
thereafter Rs. 1,500,000/- ( Rupees One Lac and fifty thousand) only, on 13-09-2017,
thus total payment as of Rs. 3,50,000/- ( Rupees Three Lakhs and Fifty Thousand
) only has been made 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. 7,00,000/- ( Rupees Seven Lakhs ) only, from the Complainant with
interest being 12% interest per annum on such balance money as of Rs. 7,00,000/-
( Rupees Seven Lakhs ) only, and thereafter on receipt of such balance money
and the interest thereon in terms of the agreement dated 20th 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 20th 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 20th 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.
e.
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.
f. That the
opposite party, herein have no disputes as alleged by the complainant herein,
in their petition of complaint.
g. 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.
h. 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.
i. 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 complainant herein.
j. 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.
k. That there is
no cause of action has ever been described and or more particularly raised
against this opposite party, by the complainant.
l. 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
without waiving any of the aforesaid Objections and Facts and fully relying
thereupon and without prejudice to the same. The Opposite Party, now deals with
the specific paragraphs of the said Application in seriatim as hereunder.
15.
That
the Application is not maintainable either in facts or in its present form and
the petitioner has no cause of action for bringing this suit against the
Opposite Party as the said application is speculative, harassing, motivated,
concocted and baseless as is barred by the Principles of Law and hence same is
liable to be rejected at once.
16.
Save
and except the statements made in the said application which are matter of
record, the Opposite Party denies each and every allegations contained in the
said application and calls upon the petitioner to strict proof of the said
allegations.
17.
That
with references to the statements made in paragraph nos. 1, & 2, of the
application, this Opposite Party make no comment since those are the matters of
record. The Opposite Party repeat and reiterate the statements made in
paragraph no.13, herein above.
18.
That
with references to the statements made in paragraph nos. 3, 4, 5, 6, 7, 8, and
9, of the application, this Opposite Parties deny and disputes each and every
allegations made therein save and except what are the matters of record and not
related to this opposite party. The Opposite Party repeat and reiterate the
statements made in paragraph no.13, herein above. The Complainant did not perform
the agreement between the parties and deliberately failed to adopt the contents
of the said Agreement for Sale dated 20th day of July’ 2016. the complainant had paid Rs. 1,00,000/- (Rupees
one lac) only, on the date of execution of the said Agreement for Sale dated 20th
day of July’ 2016 and earlier the complainant pais as of Rs. 1,00,000/- (Rupees
One Lac) only, on 23-02-2016, and thereafter Rs. 1,500,000/- ( Rupees One Lac
and fifty thousand) only, on 13-09-2017, thus total payment as of Rs.
3,50,000/- ( Rupees Three Lakhs and Fifty Thousand ) only has been made 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.
7,00,000/- ( Rupees Seven Lakhs ) only, from the Complainant with interest
being 12% interest per annum on such balance money as of Rs. 7,00,000/- (
Rupees Seven Lakhs ) only, and thereafter on receipt of such balance money and
the interest thereon in terms of the agreement dated 20th 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 20th 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 20th 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. This is the complainant who denied the performance in terms of the
agreement for Sale dated 20th 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.
19.
That
with references to the statements made in paragraph nos. 10, 11, and 12, of the
application, this Opposite Parties deny and disputes each and every allegations
made therein save and except what are the matters of record and not related to
this opposite party. The Opposite Party repeat and reiterate the statements
made in paragraph no.13, herein above. 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.
20.
That
with references to the statements made in paragraph nos. 13, 14, 15, 16, 17,
and 18, of the application, this Opposite Parties deny and disputes each and
every allegations made therein save and except what are the matters of record
and not related to this opposite party. The Opposite Party repeat and reiterate
the statements made in paragraph no.13, herein above. 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. The
Complainant is a defaulter in making payment in terms of the agreement for sale
dated 20th 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 20th 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. The
Complainant is not entitle to get any relief as prayed by him in the present
consumer proceeding.
21.
That
this opposite party states that the Complainant herein relied on the following
documents, as annexed with his petition of complaint :
a) Agreement for
Sale dated 20th day of July’ 2016;
b) Development
Agreement;
c) Two money
receipts and one page of pass book ;
It is
pertinent to states that there is no other document has ever been either relied
on or annexed with his petition of complaint. The complainant variably failed
to substantiate his allegations against this opposite party. There is no
communication has ever been ventilated by the complainant through any written
note, letter or notice, so far to this opposite party. The complainant failed
to comply with the terms of the agreement for sale dated 20th day of
July’ 2016. Breach of such contract being agreement between the parties of the
agreement for sale dated 20th day of July’ 2016, has been
established and occurred at the behest of the complainant and non – others. The
said Agreement for Sale dated 20th day of July’ 2016, is become in
fractious due to non performance and elapse of time, therefore at present this
opposite party intends to refund the money paid by the complainant after
deduction of Rs. 1,00,000/- ( Rupees One Lakh ) only, being money for harassment
and expenses incurred for defending this present consumer proceeding, etc.
22.
That
this opposite party states 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.
23.
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 Commission
into motion to get his wrongful gains by procuring orders in terms of his prayer
before the Hon’ble Commission.
24.
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.
25.
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.
26.
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.
27.
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.
28.
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.
29.
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.
30.
That
the Petitioner, is not entitled to any relief as prayed in the Complaint, and
the same is liable to be dismissed.
31.
That
in the aforesaid circumstances, the Opposite Party is seeking the dismissal of
the Complaint filed by the Petitioner, with exemplary cost.
32.
That
the documents being annexed with the petition of complaint is relied upon by
the Opposite Party herein in the present proceeding before this Hon’ble Commission.
33.
That
the Opposite Party crave leave to produce any other necessary documents and or
papers, in the proceeding at the time of hearing and or placing the Evidence on
Affidavit, before the Hon’ble Commission, in the interest of Administration of
Justice.
It is
therefore prayed that the Hon’ble District Consumer Disputes Redressal Commission,
Kolkata Unit – III, Alipore, Kolkata - 700027, would graciously be pleased to
allow this Written Version of the Opposite Party, and to dismiss and or reject
at once the petition of complaint filed by the Petitioner, against this
opposite party herein, with costs, in terms of the provisions of the Consumer
Protection Act’ 2019, and rules made therein, in the interest of administration
of justice, and or to pass such other necessary order or orders or further
order or orders as the Hon’ble Commission, 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 written version 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 Written Version 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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