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Consumer
Complaint no. 34 of 2023
In the matter
of :
Sri
Himansu Bikas Majumdar,
________Complainant
-
Versus
–
M/s. Vastu
Realtors, & Others
_________Respondents
WRITTEN
VERSION OF RESPONDENT NO. 2,
SMT. DIPALI
SETH,
The humble
petition on behalf of the above named respondent no.2, Smt. Dipali Seth, 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 Consumer 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 Petition is a counter blast of the Suit lodged by the Respondent no. 1,
wherein the Respondent number 2, is a Proforma respondent, and the Consumer
Complainant is a Consumer Complainant, therein. The said Suit is for Specific
Performance of Development Agreement dated 11-09-2019, and Injunction, before
the Learned Civil Judge (Senior Division), 3rd Court at Alipore,
South 24 Parganas, which is still pending, before the Learned Civil Court.
8.
That
in a Misc. Appeal no. 44 of 2023, which arising out the said Title Suit no. 118
of 2023, has been preferred by the respondent number 1, before the Learned
District Judge, at Alipore, South 24 Parganas, wherein by Order No. 01, dated
09-02-2023, the Learned District Judge, Alipore, South 24 Parganas, was pleased
to pass necessary order with a direction of allowing for ad-interim injunction
as “the appellant/ plaintiff and the respondent/ defendant are both directed to
maintain status quo in respect of the nature and character and possession of
the schedule property till 09-03-2023”, subsequently the said ad-interim
injunction has been extended time and again, and still continued.
9.
That
the Consumer Complainant appeared on 09-03-2023, in the said Misc. Appeal no.
44 of 2023, which arising out the said Title Suit no. 118 of 2023, has been
preferred by the respondent number 1, before the Learned District Judge, at
Alipore, South 24 Parganas, and praying to submit his reply. The said Misc.
Appeal is still pending.
10.
That
the suit for specific performance is pending between the parties thus the
present consumer complaint lost its jurisdiction to try any further.
11.
That
the present consumer complaint has been lodged by the complainant suppressing the material
facts that a Title Suit no. 118 of 2023, is pending before the Learned Court of
Civil Judge ( Senior Division), 3rd Court, Alipore South 24
Parganas, and a Misc. Appeal no. 44 of 2023, before the Learned District Judge,
at Alipore, South 24 Pasrganas, are still pending for adjudication, for
Specific Performance of Development Agreement dated 11-09-2019, and injunction
in respect of the Owners allocation, specifically described for the Consumer
Complainant.
12.
That
the Opposite Party, do not admit all the allegations made in the application of
the Petitioners / Complainants, to be true and save and except those that are
specifically admitted he put the Petitioner, to the strict proof of the rest.
13.
That
the contents of the Complaint is 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.
14.
That
the Opposite Party states that the present Complaint has been instituted by the
Complainant against this Opposite Party to cause several hassle and harassments
to this Opposite Party.
15.
That
the complainant is not a Consumer as per provision of Section 2 (7) of the
Consumer Protection Act’ 2019, and therefore deserve to be dismissed with cost
thereof in terms of the provisions of the Consumer Protection Act’ 2019.
16.
That
the present complaint has not been placed in terms of the provision of Section
35 of the Consumer Protection Act’ 2019, and therefore deserve to be dismissed
with cost thereof in terms of the provisions of the Consumer Protection Act’
2019.
17.
That
the present complaint is barred to place for any nature of adjudication before
the Hon’ble Commission, in terms of the provision of Section 35 of the Consumer
Protection Act’ 2019.
18.
That
the present Complaint did not disclose any cause of action to be accrued ever
to place the present consumer application, more particularly against this
opposite party.
19.
That
the present complaint has no cause of action to place before the Hon’ble
Commission, in any terms of the provisions of the Consumer Protection Act’
2019, and therefore deserve to be dismissed with cost thereof in terms of the
provisions of the Consumer Protection Act’ 2019.
20.
That
the present complaint has no accrual of any cause of action to place before the
Hon’ble Commission, in any terms of the provisions of the Consumer Protection
Act’ 2019, and therefore deserve to be dismissed with cost thereof in terms of
the provisions of the Consumer Protection Act’ 2019.
21.
That
the story of the complainants does not constitute the consumer disputes in
terms of the provisions of the Consumer Protection Act’ 2019, and therefore
deserve to be dismissed with cost thereof in terms of the provisions of the
Consumer Protection Act’ 2019.
22.
That
the present Consumer application has not been valued appropriately for the
purpose of pecuniary jurisdiction of the Hon’ble Commission, and therefore
deserve to be dismissed with cost thereof in terms of the provisions of the
Consumer Protection Act’ 2019.
23.
That
the present application of the complainant is an endavour of him to cooked up a
false story with him, and manufactured documents shown to be relied on by him,
before the Hon’ble Commission, for his wrongful gains and others, and therefore
deserve to be dismissed with cost thereof in terms of the provisions of the
Consumer Protection Act’ 2019.
24.
That
the present complaint is false, vague, and frivolous one, and thus entitle the
rejection with cost on the complainant, in terms of the provisions of the
Consumer Protection Act’ 2019.
25.
That
there is no Consumer disputes to be adjudicated before the Hon’ble Commission,
between the parties herein, and therefore deserve to be dismissed with cost
thereof in terms of the provisions of the Consumer Protection Act’ 2019.
26.
That
the Opposite Party states and submits that the Complainant’s disputes, is not a
Consumer dispute and the Complainants are not a consumer, as defined and
enumerated in the relevant provisions of the Consumer Protection Act’ 2019.
27.
That
before dealing with the statements made in the petition under objection
paragraph wise, this Opposite Party states the following facts for Your
Honour’s kind perusal :
(i)
That the Respondent number 1, is a
Partnership Firm, having its Registered Office at “ANANYA”, M-173, Garia
Garden, Post Office – Garia, Police Station – Narendrapur, Kolkata – 700084,
District – South 24 Parganas, being represented by its Partners namely (i) Sri
Pawan Kumar Agarwal, Son of Late Roshanlal Agarwal, residing at WINDSOR GARDEN,
957, Mahamaya Mandir Road, Post Office – Garia, Police Station – Narendrapur,
Kolkata – 700084, District – South 24 Parganas, and (ii) Sri Uma Shankar Naik,
Son of Late Dukhan Sah, residing at “ANANYA, Flat – 1B, M-173, Garia Garden,
Post Office – Garia, Police Station – Narendrapur, Kolkata – 700084, District –
South 24 Parganas. The Respondent number 1, is carrying its business in
construction and development of Land and Building. The Respondent number 1, is
a reputed firm in construction and development of Land and Building, in the
District South 24 Parganas, as well as in the City of Kolkata.
(ii)
That the Consumer Complainant and the
Proforma Respondent are the joint Land Owners in respect of ALL THAT piece and
parcel of homestead land measuring more or less 4 (four) Cottahas together with
an old dilapidated one storied building measuring more or less 200 Sq. ft.
standing thereon situated and lying at Mouza – Kamdahari, J.L. No. 49,
comprising in C.S. Plot (Dag) No. 1032 (P), L.O.P. No. 1607, within the limits
of the Kolkata Municipal Corporation, Ward no. 111, Premises No. 41, Atabagan,
having its Postal Premises No. B-89, Atabagan, Post Office – Laskarpur, Police
Station formerly Regent Park, presently Bansdroni Police Station, Kolkata –
700153, District South 24 Parganas, which Butted and Bounded as On the North :
L.O.P. No. 1606, On the South : L.O.P. No. 1610, On the East : L.O.P. No. 1608,
On the West : 24’-6’ wide Road.
(iii)
That the Consumer Complainant and the
Proforma Respondent are acquired the property in the following fact;
(a) In
pursuance of the decision of the Hon’ble Governor of the State of West Bengal, by
a Registered Deed of Gift dated 0n 04/09/1990, gave, granted, and transferred
absolutely in favour of Sukhendu Bikash Mazumdar alias Sukhendu Bikash
Majumdar, which has been recorded in Book No. I, Volume No. 10, Pages 481 to
484, Being no. 1321 for the year 1990.
(b) The
said Sukendu Bikash Mazumdar alias Sukhendu Bikash Majumdar, after receiving
the aforesaid property recorded his name in the record of Kolkata Municipal
Corporation, Ward no. 111, Premises No. 41, Atabagan, Kolkata – 700153,
District – South 24 Parganas, and became the sole and absolute owner of the
aforesaid 4 (four) Cottahas of land and thereby enjoying the said property.
(c) The
said Sukendu Bikash Mazumdar alias Sukhendu Bikash Majumdar, transferred a
portion of land measuring more or less 2 (two) Cottahas together with structure
standing thereon unto and in favour of his mother namely Smt. Sabita Mazumdar,
Wife of Late Harish Chandra Mazumdar by a Deed of Gift, which registered on
26/09/2000, in Book No. I, Volume No. 32, Pages from 395 to 402, Being No. 1263
for the year 2000, registered in the office of the District Sub Registrar – I,
Alipore, South 24 Parganas.
(d) Thereafter,
the said Sukendu Bikash Mazumdar alias Sukhendu Bikash Majumdar, also
transferred the remaining land measuring more or less 2 (two) Cottahas together
with structure standing thereon unto and in favour of his elder sister namely
Smt. Dipali Seth (Proforma Respondent, herein), wife of Sri Amiya Kumar Seth,
and Daughter of Late Harish Chandra Mazumdar, by a Deed of Gift, which
registered on 26/09/2000, in Book No. I, Volume No. 32, Pages from 403 to 410,
Being No. 1264 for the Year 2000, registered in the office of the District Sub
Registrar – I, Alipore, South 24 Parganas.
(e) By
virtue of the aforesaid Deed of Gift said Smt. Dipali Seth, became the sole and
absolute owner of the aforesaid area of land measuring more or less 2 (two)
Cottahas together with structure standing thereon comprised in C.S. Plot (Dag)
No. 1032 (P), L.O.P. No. 1607 of Mouza – Kamdahari, J.L. No. 49, Police Station
formerly Regent Park, presently Bansdroni, who mutated her name in the record
of the Kolkata Municipal Corporation, Ward no. 111, Premises No. 41/1,
Atabagan, Kolkata – 700153, District South 24 Parganas.
(f)
By virtue of the aforesaid Deed of
Gift said Smt. Sabita Mazumdar, became the sole and absolute owner of the
aforesaid area of land measuring more or less 2 (two) Cottahas together with
structure standing thereon comprised in C.S. Plot (Dag) No. 1032 (P), L.O.P.
No. 1607 of Mouza – Kamdahari, J.L. No. 49, Police Station formerly Regent
Park, presently Bansdroni, who mutated her name in the record of the Kolkata
Municipal Corporation, Ward no. 111, Premises No. 41, Atabagan, Kolkata –
700153, District South 24 Parganas.
(g) The
said Smt. Sabita Mazumdar transferred her acquired property to her Son Sri
Himansu Bikas Majumdar, by way of Deed of Gift on 21/02/2005, which registered
on 15/02/2006, in Book No. I, Pages from 1 to 18, Being No. 01993 for the year
2006, registered in the office of the A.R.A. – I, Kolkata.
(h) By
virtue of the aforesaid Deed of Gift said Sri Himansu Bikas Majumdar, (Consumer
Complainant), became the sole and absolute owner of the aforesaid area of land
measuring more or less 2 (two) Cottahas together with structure standing
thereon comprised in C.S. Plot (Dag) No. 1032 (P), L.O.P. No. 1607 of Mouza –
Kamdahari, J.L. No. 49, Police Station formerly Regent Park, presently
Bansdroni, who mutated her name in the record of the Kolkata Municipal
Corporation, Ward no. 111, Premises No. 41, Atabagan, Kolkata – 700153,
District South 24 Parganas.
(i)
The Consumer Complainant Sri Himansu
Bikas Majumdar, and the Proforma Respondent, while had been enjoying their
afore said property, separately, they executed and registered a Deed of
Exchange cum Amalgamation, which registered on 23/02/2018, in Book No. I,
Volume No. 1605 – 2018, Pages from 43229 to 43258, Being no. 160501099 for the
year 2018, registered in the office of the A.D.S.R. Alipore, South 24 Parganas.
(j)
After exchange cum amalgamation of the
property the Consumer Complainant and the proforma respondent became the
absolute joint owners of the said property being Land measuring more or less 4
(four) Cottahas together with structure standing thereon lying and situate at
Mouza – Kamdahari, J.L. No. 49, comprised in C.S. Plot (Dag) No. 1032 (P),
L.O.P. No. 1607, and the said Sri Himansu Bikas Majumdar and Smt. Dipali Seth,
being the Joint Owners, mutated their names in the record of the Kolkata
Municipal Corporation, Ward no. 111, which assigned as an Assessee No.
311110100417, Premises No. 41, Atabagan, having its Postal Premises no. B-89,
Atabagan, Post Office – Lashkarpur, Police Station formerly Regent Park,
presently Bansdroni, Kolkata – 700153, District South 24 Parganas.
(iv)
That the Consumer Complainant and
proforma respondent approached the Respondent number 1, for development and
construction of their joint land by construction of new building structure in
terms of sanctioned building plan of the concerned Kolkata Municipal
Corporation, against the consideration of the developer’s allocation in the
newly constructed building premises at their joint ownership’s land, under the
jurisdiction of the Bansdroni Police Station, District South 24 Parganas.
(v)
That the Respondent number 1, and the
Consumer Complainant and Proforma Respondent entered into a Development
Agreement on 11-09-2019. The said Development Agreement duly executed and
registered in Book no. I, Volume no. 1601-2019, Page from 137670 to 137724,
Being no. 160102814 for the year 2019, in the office of the District Sub
Registrar – I, South 24 Parganas. The Consumer Complainant who is one of the
two owners of the Suit plot of Land which is under the said Development
Agreement dated 11-09-2019. The said Development Agreement contained the
descriptions of the Owners’ allocation as ALL THAT after completion of the said
proposed building, the Owners namely Mr. Himansu Bikas Majumdar and Smt. Dipali
Seth shall allotted Entire Second floor Flat, one 2 BHK & one 1BHK Flat on
the Third Floor, one 2BHK Flat on the Fourth Floor and 2 (two) Car Parking
spaces on the Ground Floor along with a forefieted amount of Rs. 3,00,000/- (
Rupees Three Lakh) only, will pay at the time of signing this agreement unto
and in favour of the said Himansu Bikas Majumdar and Smt. Dipali Seth by the
Developer and the said Developer also provide a shifting charges of Rs. 7,000/-
(Rupees Seven Thousand) only per month to the Owners until hand over the
possession of their aforestated owners’ allocated portion.
(vi)
That the said Development Agreement
dated 11-09-2019, contained the Developer Indemnity in Article – VIII, which
are as follows;
(a) The
Developer hereby undertake to keep the Owners indemnified against all Third
Party claims and actions arising out of any sort of act or commission of the
Developer in or relative to the construction of the said new building.
(b) The
Developer shall on completion of the new building put the Owners in undisputed
possession together with all rights therein including proportionate rights in
common to the common portion.
(vii)
That the said Development Agreement
dated 11-09-2019, contained the Owners’ Indemnity in Article – VII, which are
as follows;
(a) Owners
hereby undertakes that the Developer shall be entitled to the said construction
and shall enjoy its allocated space without any interference.
(b) The
Owners shall be liable to meet up all previous outstanding and liabilities and
Documentation including Corporation Taxes in respect of the entire holding if
any. But during construction work of the Venture all the liabilities in
connection with the construction work if any labour or mason or any man
connected with the said venture dies due to accident Owners shall not be held
responsible and liable to pay any compensation for the same.
(c) The
Owners hereby agree and covenant with the Developer not to cause any
interference or hindrance in the construction of the said new building at the
said property by the developer.
(d) The
Owners hereby agree and covenant with the Developer not to do any act, deed or
thing whereby the Developer may be prevented from selling, assigning and /or
disposing of any of the Developer allocated portion in the building after
completion of the new building.
(viii)
That the said Development Agreement
dated 11-09-2019, contained the Procedure in Article – IV, which are as
follows;
(a) Developer
will get the said Property measured and surveyed on behalf of the Owners and
will pay all the necessary expenses.
(b) The
Owners’ shall deliver the entire holding after sanctioned the building plan of
the proposed building at the said premises to the Developer who shall erect the
proposed building in the said holding/ premises.
(c) The
said premises have been mutated in the name of the Owners under the Kolkata
Municipal Corporation and the Owners have paid the necessary taxes to the
authority concerned.
(d) Some
taxes may be dues for the said Property to the Kolkata Municipal Corporation
and /or other concerned authorities. These amount of due taxes will be paid by
the Owners.
(e) The
Developer shall take the sanction the building plan in connection with the said
property as described in the First Schedule hereunder written.
(f)
After execution of this agreement the
Developer shall take proper steps for the sanctioning the building plan, in
respect of the proposed project.
(g) Developer
will prepare all necessary documents, architectural Plan, structural design etc.
and will submit the plan in the name of the Owners before the Kolkata Municipal
Corporation and for the same the Owners shall give full co-operation to the
Developer without raising any objection.
(h) After
getting sanction of the building plan on proposed land area from the Kolkasta
Municipal Corporation the Developer shall erect, construct and complete the
said building within 24 (Twenty Four) months to be calculated from the date of
obtaining sanctioned plan from the appropriate authority. Time is the essence
of this agreement.
(i)
At the time of construction of the new
building the Developer can enter into an Agreement for sell or any kind of
transfer or in any way deal with Developer’s allocation with any third party or
parties as absolute ownership thereof, the owners shall not interfere.
(j)
As soon as the new building shall be
completed including the Developer’s allocation the Owners shall execute the
deed of conveyances, in respect of the Developer’s allocation together with the
undivided proportionate share of land and other common facilities in favour of
the Developer and /or its nominees.
(k) From
the date of taking over possession of the Owners’ allocation, the Owners shall
pay the proportionate share of maintenance and taxes on their allocation as
mentioned in the Second Schedule Part – I below.
(ix)
That the said Development Agreement
dated 11-09-2019, contained the Consideration in Article – VI, the relevant
contents reproduced which are as follows;
(a) As
soon as the new building shall be completed the Developer shall give written
notice to the Owner for taking the vacant possession of the Owners allocation
in the new building as within mentioned and the Owners shall then take the
possession in the said allocation of the owners and since the date of receiving
the such notice the owners shall pay the proportionate taxes and maintenance
cost of their allocation.
(x)
That the said Development Agreement
dated 11-09-2019, contained the contents of Developer’s allocation which are as
follows;
“Save and except the Owners’
allocation mentioned herein above remaining constructed area i.e. entire First
Floor, one 2 BHK on the Third Floor, one 2 BHK & 1 BHK on the Fourth Floor
along with remaining car parking space on the Ground Floor together with
proportionate impartible undivided share in the land underneath together with
proportionate share and/ or interest in the land and the common areas and
facilities in accordance Third Schedule hereunder written will be in the
exclusive share of the Developer and the Developer will be entitled to deal
with its allocation as they likes of which the owners shall have no right title
interest or claim in any way whatsoever. The entire building shall be erected
at the cost of the Developer as per maximum permissible law of the Kolkata
Municipal Corporation.”
(xi)
That in terms of the said Development
Agreement dated 11-09-2019, the Consumer Complainant being one of the two
Owners is entitled to get two numbers of Residential Flats being no. 2C &
2D, Entire 2nd Floor, South –East- North- Western side no. 3 &
4, and Two Car Parking Spaces North- East- Western side, in the premises being
no. 41, Atabagan, having its Postal Premises No. B-89, Atabagan, Post Office –
Laskarpur, Police Station – Bansdroni, Kolkata – 700153, District South 24 Parganas.
The Other Owners namely Smt. Dipali Seth, has already taken possession of the
completed flat and other facilities from the Respondent number 1,, against the
necessary Govt. Charges (i.e. GST).
(xii)
That the Respondent number 1, on
repeated occasion, has been intimated that his flats and garage spaces are
completed and to take possession of the same against payment of Rs. 2,24,751/-
(Rupees Two Lakhs and Twenty Four Thousand and Seven Hundred Fifty One ) only, on
account of GST, maintenance charges as of Rs. 21,972/- (Rupees Twenty One
Thousand and Nine Hundred Seventy Two ) only, and electrical charges being
installation of Main Electric Meter and connection thereof as sum of Rs.
1,37,325/- ( Rupees One Lakh and Thirty Seven Thousand and Three Hundred Twenty
Five ) only. The GST Charges and maintenance charges calculated up-till
November’ 2022.
(xiii)
It is pertinent to mention that the
joint Development agreement is a contract between a landowner and real estate
developer to build a new project on the land of owner. The real estate builder,
construct the building and other things. On the contrary, the owner of the land
will provide land to construct the building. Moreover, there are two kinds of
Joint Development Agreement and they are (a) Area Sharing Joint Development
Agreement, (b) Revenue Sharing Joint Development Agreement. Under this Joint Development Agreement the landowner
has to transfer its development right to the developer. In return, the
landowner gets a continuous supply of construction service from the developer
over a period of time. Moreover, the GST is applicable at the time of supplying
such construction services. If the landowner gives his land to the developer and
after a while in return gets a constructed property, then in such a case the
landowner will be liable to pay GST on landowners share. At the point when a
developer comes into contract with the landowner using Joint Development
Agreement, GST will be payable by the owner of the land at the time when the
developer transfers back the rights or possession to the landowner by signing a
possession letter.
(xiv)
That
the statutory payment being GST is payable in the following ( as calculated on
08-11-2021 ) ;
(a) GST of Flat
no. 2C – 1% of Rs. 25,06,300 being Govt. Market Value - which come as Rs. 25,063/-
(b) GST of Flat
no. 2D – 5% of Rs. 39,93,750/- being Govt. Market Value – which come as Rs.
1,99,688/-
(c) The payment of
GST in total come as Rs. 2,24,751/- ( Rupees Two Lakhs and Twenty Four Thousand
and Seven Hundred Fifty One ) only.
(d) GST may varied
on calculation of present market valuation, which raises day by day.
(xv)
That
the Proportionate sum of money for installation of Main Electric Meter for 2nd
Floor S.B.A. 1831 Sq. Ft. @ Rs. 75/- per sq. ft. which come as of Rs. 1,37,325/-
( Rupees One Lakh and Thirty Seven Thousand and Three Hundred Twenty Five )
only.
(xvi)
That
the maintenance Charges @ Re. 1/- ( Rupee One ) only, per Square Ft., on and
from December’ 2021, uptill November’ 2022, for 1831 Sq. Ft. in the following;
a) December’ 2021 – Rs. 1,831/-
b) January’ 2022 -
Rs. 1,831/-
c) February’ 2022 -
Rs. 1,831/-
d) March’ 2022 - Rs. 1,831/-
e) April’ 2022 - Rs. 1,831/-
f) May’ 2022 - Rs. 1,831/-
g) June’ 2022 - Rs. 1,831/-
h) July’ 2022 - Rs. 1,831/-
i) August’ 2022 -
Rs. 1,831/-
j) September’ 2022 -Rs. 1,831/-
k) October’ 2022 -Rs. 1,831/-
l) November’ 2022 -Rs.
1,831/-
m)Total - Rs. 21,972/-
The maintenance Charges @ Re. 1/- (
Rupee One ) only, per Square Ft., on and from December’ 2021, uptill November’
2022, for 1831 Sq. Ft. calculated in total as Rs. 21,972/- ( Rupees Twenty One
Thousand and Nine Hundred Seventy Two ) only. Further, the same will be
calculated till date of realization.
(xvii)
That the Respondent number 1, served
its contention by way of Letter dated 08-11-2021, and consequently several
communication made between the Respondent number 1, and the Consumer
Complainant by way of letter dated 04-12-2021, 24-01-2022, 17-02-2022,
25-02-2022, 03-03-2022, and 24-11-2022, as well as several meeting has been
held by and between the Respondent number 1, and the Consumer Complainant; But
yield no result.
(xviii)
That the Respondent number 1, has also
been served with a legal notice 28th November’ 2022, sent by the
Learned Advocate of the Respondent number 1, but the Consumer Complainant did
not make the payment of the said amount, even did not answer on the said notice
of the Respondent number 1,.
(xix)
On 15th January’ 2023, at
about 11:30 am, the Consumer Complainant with his associates, men and agents,
came to the said flat no. 2C and 2 D at “VASTU PEARL” at Premises No. 41,
Atabagan, having Postal Premises no. B-89, Atabagan, Post Office – Laskarpur,
Police Station Bansdroni, Kolkata – 700153, District South 24 Parganas, and
tried to break open the pad lock to take forceful physical possession of the
said flats, which is totally, illegal.
(xx)
On being come into knowledge, the
Respondent number 1, reached there and tried to stop him in doing such illegal
acquisitions of the said flats by him. The intervention of local people come
forward in the issues and thus he stopped in taking the said flats; But by the
time he and his associates, men, and agents, used most filthy languages, and
trying to assault the Respondent number 1,. He threatened the Respondent number
1, that he will take possession of the flats, very soon, without paying his
dues, demanded by the Respondent number 1,.
(xxi)
That the Respondent number 1, visited
the Bansdroni Police Station to inform such fact. The Police suggested to give the
complaint in written form to register the case and to take action against the
said Land Owner.
(xxii)
That the Consumer Complainant took a
mischievous posture while he tried to take forceful possession of the said
flats, by braking padlock. The incident has been informed to the local police
station, vide written complaint posted on 16th day of January’ 2023.
(xxiii)
That in the terms of the law of the
land the Respondent number 1, is entitled to enforce the said Development
agreement and is further entitled to his relief under Section 34 of the
Specific Relief Act’ 1963.
(xxiv)
That the Consumer
Complainant has created unnecessary criminal trespass, house lurking &
breaking, pursuing criminal breach of trust and misappropriation of money due
to the Government as well as to the Respondent number 1.
(xxv)
That
the Respondent number 1, has preferred a Suit for Specific Performance of
Development Agreement dated 11-09-2019, and Injunction, against the Consumer
Complainant, herein. The said Suit is for Specific Performance of Development
Agreement dated 11-09-2019, and Injunction, before the Learned Civil Judge
(Senior Division), 3rd Court at Alipore, South 24 Parganas, which is
still pending, before the Learned Civil Court.
(xxvi)
That
in a Misc. Appeal no. 44 of 2023, which arising out the said Title Suit no. 118
of 2023, has been preferred by the respondent number 1, before the Learned
District Judge, at Alipore, South 24 Parganas, wherein by Order No. 01, dated
09-02-2023, the Learned District Judge, Alipore, South 24 Parganas, was pleased
to pass necessary order with a direction of allowing for ad-interim injunction
as “the appellant/ plaintiff and the respondent/ defendant are both directed to
maintain status quo in respect of the nature and character and possession of
the schedule property till 09-03-2023”, subsequently the said ad-interim
injunction has been extended time and again, and still continued.
(xxvii) That the
Consumer Complainant appeared on 09-03-2023, in the said Misc. Appeal no. 44 of
2023, which arising out the said Title Suit no. 118 of 2023, has been preferred
by the respondent number 1, before the Learned District Judge, at Alipore,
South 24 Parganas, and praying to submit his reply. The said Misc. Appeal is
still pending.
(xxviii)
That
the suit for specific performance is pending between the parties and the
owner’s allocation means for the consumer complainant is in status quo as
granted by the Learned District Judge, at Alipore, South 24 Parganas, in Misc.
Appeal no. 44 of 2023, thus the present consumer complaint lost its
jurisdiction to try any further.
(xxix)
That
the present consumer complaint has been lodged by the complainant suppressing the material
facts that a Title Suit no. 118 of 2023, is pending before the Learned Court of
Civil Judge ( Senior Division), 3rd Court, Alipore South 24
Parganas, and a Misc. Appeal no. 44 of 2023, before the Learned District Judge,
at Alipore, South 24 Pasrganas, are still pending for adjudication, for
Specific Performance of Development Agreement dated 11-09-2019, and injunction
in respect of the Owners allocation, specifically described for the Consumer
Complainant.
(xxx)
That
the complainant is not a Consumer as per provision of Section 2 (7) of the
Consumer Protection Act’ 2019.
(xxxi)
That
there is no Consumer disputes to be adjudicated between the parties, before the
Hon’ble Commission, between the parties herein.
(xxxii) That the present
claim of the Complainants if any, is barred by the Limitation as enshrined
under the provision of Section 69 of the Consumer Protection Act’ 2019.
(xxxiii)
That
the Opposite Party, have no iota of knowledge about the alleged story of the
complainant herein.
(xxxiv)
That
the Opposite party, herein have no relationship with the complainant herein as
alleged by him, in his petition of consumer complaint.
(xxxv) That the opposite
party, herein have no disputes as alleged by the complainant herein, in the
petition of consumer complaint.
(xxxvi)
That
the present Consumer disputes as alleged by the complainants herein, is not
maintainable in the facts and in the law against the opposite party, in the
terms of the Consumer Protection Act’ 1872.
(xxxvii)
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.
(xxxviii)
That
the present complaint has been made before the Hon’ble Commission, motivated
and with an intention for the wrongful gain and acquire of wrongful claim
thereby the complainants herein.
(xxxix)
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.
(xl)
That
the Complaints are not a Consumer, in terms of the provision of Section 2(7) of
the Consumer Protection Act’ 2019.
(xli)
That
there is no cause of action has ever been described and or more particularly
raised against this opposite party, by the complainant.
28.
That
without waiving any of the aforesaid Objections and Facts and fully relying
thereupon and without prejudice to the same. This Opposite Party now deals with
the specific paragraphs of the said Application in seriatim as hereunder.
29.
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.
30.
Save
and except the statements made in the said application which are matter of
record, the Opposite Parties denies each and every allegations contained in the
said application and calls upon the petitioner to strict proof of the said
allegations.
31.
That
with references to the statements made in paragraph nos. 1, 2, 3, 4, 5, 6, 7,
8, 9, 10, and 11, 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 repeats and
reiterates the statements made in paragraph no.27, herein above. The Opposite
Party states that present consumer complaint is not maintainable either in the
facts or in terms of the Law. The Opposite Party had already paid the GST to
the Respondent number 1, herein which is the subject matter of the Law. The
Opposite Party obliged to pay the contribution in installation of Electric
connection at the premises in the form of Transformer, etc. the Opposite Party
further obliged to the maintenance charges due and payable to the Respondent
number. 1, herein. The Opposite Party do not support the consumer case of the
present consumer complainant. The Opposite Party is stand with the facts and
the legitimate payments due and payable to the Respondent number 1, herein.
32.
That
with references to the statements made in paragraph nos. 12, 13, 14, and 15, of
the application, being the petition of the complaint made by the complainant,
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. 27, herein above. The
Respondent number 1, served its contention by way of Letter dated 08-11-2021,
and consequently several communication made between the Respondent number 1,
and the Consumer Complainant by way of letter dated 04-12-2021, 24-01-2022,
17-02-2022, 25-02-2022, 03-03-2022, and 24-11-2022, as well as several meeting
has been held by and between the Respondent number 1, and the Consumer
Complainant; But yield no result. The Respondent number 1, has also been served
with a legal notice 28th November’ 2022, sent by the Learned
Advocate of the Respondent number 1, but the Consumer Complainant did not make
the payment of the said amount, even did not answer on the said notice of the
Respondent number 1,.
On 15th January’ 2023, at
about 11:30 am, the Consumer Complainant with his associates, men and agents,
came to the said flat no. 2C and 2 D at “VASTU PEARL” at Premises No. 41,
Atabagan, having Postal Premises no. B-89, Atabagan, Post Office – Laskarpur,
Police Station Bansdroni, Kolkata – 700153, District South 24 Parganas, and
tried to break open the pad lock to take forceful physical possession of the
said flats, which is totally, illegal.
On being come into knowledge, the
Respondent number 1, reached there and tried to stop him in doing such illegal
acquisitions of the said flats by him. The intervention of local people come
forward in the issues and thus he stopped in taking the said flats; But by the
time he and his associates, men, and agents, used most filthy languages, and
trying to assault the Respondent number 1,. He threatened the Respondent number
1, that he will take possession of the flats, very soon, without paying his
dues, demanded by the Respondent number 1,.
The Respondent number 1, visited the
Bansdroni Police Station to inform such fact. The Police suggested to give the
complaint in written form to register the case and to take action against the
said Land Owner.
The Consumer Complainant took a
mischievous posture while he tried to take forceful possession of the said
flats, by braking padlock. The incident has been informed to the local police
station, vide written complaint posted on 16th day of January’ 2023.
In the terms of the law of the land
the Respondent number 1, is entitled to enforce the said Development agreement
and is further entitled to his relief under Section 34 of the Specific Relief
Act’ 1963.
The Consumer Complainant
has created unnecessary criminal trespass,
house lurking & breaking, pursuing criminal breach of trust and
misappropriation of money due to the Government as well as to the Respondent
number 1.
The Respondent number 1, has preferred
a Suit for Specific Performance of Development Agreement dated 11-09-2019, and
Injunction, against the Consumer Complainant, herein. The said Suit is for
Specific Performance of Development Agreement dated 11-09-2019, and Injunction,
before the Learned Civil Judge (Senior Division), 3rd Court at
Alipore, South 24 Parganas, which is still pending, before the Learned Civil
Court.
In a Misc.
Appeal no. 44 of 2023, which arising out the said Title Suit no. 118 of 2023,
has been preferred by the respondent number 1, before the Learned District
Judge, at Alipore, South 24 Parganas, wherein by Order No. 01, dated
09-02-2023, the Learned District Judge, Alipore, South 24 Parganas, was pleased
to pass necessary order with a direction of allowing for ad-interim injunction
as “the appellant/ plaintiff and the respondent/ defendant are both directed to
maintain status quo in respect of the nature and character and possession of
the schedule property till 09-03-2023”, subsequently the said ad-interim injunction
has been extended time and again, and still continued.
The Consumer
Complainant appeared on 09-03-2023, in the said Misc. Appeal no. 44 of 2023,
which arising out the said Title Suit no. 118 of 2023, has been preferred by
the respondent number 1, before the Learned District Judge, at Alipore, South
24 Parganas, and praying to submit his reply. The said Misc. Appeal is still
pending.
The suit for
specific performance is pending between the parties and the owner’s allocation
means for the consumer complainant is in status quo as granted by the Learned
District Judge, at Alipore, South 24 Parganas, in Misc. Appeal no. 44 of 2023,
thus the present consumer complaint lost its jurisdiction to try any further.
33.
That
with references to the statements made in paragraph nos. 16, and 17, 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. 27, herein above. This Opposite Party put forward his
comments in the followings;
The present
consumer complaint has been lodged by
the complainant suppressing the material facts that a Title Suit no. 118
of 2023, is pending before the Learned Court of Civil Judge ( Senior Division),
3rd Court, Alipore South 24 Parganas, and a Misc. Appeal no. 44 of
2023, before the Learned District Judge, at Alipore, South 24 Pasrganas, are
still pending for adjudication, for Specific Performance of Development
Agreement dated 11-09-2019, and injunction in respect of the Owners allocation,
specifically described for the Consumer Complainant.
The complainant is
not a Consumer as per provision of Section 2 (7) of the Consumer Protection
Act’ 2019.
There is no Consumer
disputes to be adjudicated between the parties, before the Hon’ble Commission,
between the parties herein.
The present claim of
the Complainants if any, is barred by the Limitation as enshrined under the
provision of Section 69 of the Consumer Protection Act’ 2019.
The Opposite Party,
have no iota of knowledge about the alleged story of the complainant herein.
The Opposite party,
herein have no relationship with the complainant herein as alleged by him, in
his petition of consumer complaint.
The opposite party,
herein have no disputes as alleged by the complainant herein, in the petition
of consumer complaint.
The present Consumer
disputes as alleged by the complainants herein, is not maintainable in the
facts and in the law against the opposite party, in the terms of the Consumer
Protection Act’ 1872.
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.
The present complaint
has been made before the Hon’ble Commission, motivated and with an intention
for the wrongful gain and acquire of wrongful claim thereby the complainants
herein.
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.
There is no cause of
action has ever been described and or more particularly raised against this
opposite party, by the complainant.
The
Complainant is not entitled to get any relief in terms of his/ her prayer more
particularly any relief as prayed to acquire from this opposite party. The
allegations of the complainant are baseless, false and frivolous one, thus the
prayer of the complainant is not tenable to give on the direction of this
opposite party.
This opposite
party is not a cup of tea for the complainant’s relief, as the same has been
consumed by the complainant on full satisfaction.
The present
consumer complaint is not tenable either in the facts or in the law, thus
liable to be dismissed inlimnie with cost on the complainant.
The entire
facts are Commercial in nature which well observed in Title Suit no. 118 of
2023, by the Learned Civil Judge (Senior Division) 3rd Court,
Alipore, South 24 Parganas, therefore the present consumer complaint should be
dismissed inlimnie.
The instant
matter comes within the purview of Commercial dispute, which is within the
ambit of the Commercial Courts Act, 2015, in pursuing the Order no. 01, dated
09-02-2023, passed in Misc. Appeal no. 44 of 2023, by the Learned District
Judge, Alipore, South 24 Parganas, therefore the present Consumer Complaint
should be dismissed at once.
The Petition
of Consumer Complaint is not in terms of the Provisions of Section 35 of the
Consumer Protection Act, 2019.
34.
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 her prayer made therein from this opposite party in
terms of the provision of the Consumer Protection Act’ 2019.
35.
That
in the facts and in the laws, it is totally evident from the application itself
that the complainant made his endeavor to put the Hon’ble Commission into
motion to get their wrongful gains by procuring orders in terms of their prayer
before the Hon’ble Commission.
36.
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.
37.
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 Consumer Complaint be dismissed with costs.
38.
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.
39.
That
the entire facts are Commercial in nature which well observed in Title Suit no.
118 of 2023, by the Learned Civil Judge (Senior Division) 3rd Court,
Alipore, South 24 Parganas, therefore the present consumer complaint should be
dismissed inlimnie.
40.
That
the instant matter comes within the purview of Commercial dispute, which is
within the ambit of the Commercial Courts Act, 2015, in pursuing the Order no.
01, dated 09-02-2023, passed in Misc. Appeal no. 44 of 2023, by the Learned
District Judge, Alipore, South 24 Parganas, therefore the present Consumer
Complaint should be dismissed at once.
41.
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.
42.
That
the Petitioner, neither has any cause of action nor the basis for filling the
present consumer complaint and the Petitioners’ consumer complaint is entirely
baseless and misconceived and deserve to be dismissed on this ground alone.
43.
That
the Consumer Complaint is false, frivolous and vexatious and has been filed
with the mala fide intention, and as such deserves to be dismissed with special
costs.
44.
That
the Petitioners, are not entitled to any relief as prayed in the Consumer
Complaint, and the same is liable to be dismissed inlimnie.
45.
That
in the aforesaid circumstances, the Opposite Party is seeking the dismissal of
the Complaint filed by the Petitioners, with exemplary cost.
46.
That
the Opposite Party crave leave to produce any 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.
47.
That
the present consumer complaint should be dismissed at once in terms of the
provisions of the Consumer Protection Act’ 2019, as the same is found frivolous
and vexatious one, against this opposite party.
It is therefore prayed that the
Hon’ble Consumer Disputes Redressal Commission, would graciously be pleased to
allow this Written Version of the Opposite Party, and to dismiss and or reject
at once the petition of consumer complaint filed by the Petitioners, 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, Smt.
Dipali Seth, Wife of Mr. Amiya Kumar Seth, aged about _____years, by faith
Hindu, by Occupation _______________, residing at Premises being number B/89,
Atabagan, Post Office Laskarpur, Police Station – Bansdroni, Kolkata – 700153,
District – South 24 Parganas, acquainted and conversant with the material
facts. I verify, & sign the written version on ______May’ 2023, at the
Court Premises.
AFFIDAVIT
I,
Smt. Dipali Seth,
Wife of Mr. Amiya Kumar Seth, aged about _____years, by faith Hindu, by
Occupation _______________, residing at Premises being number B/89, Atabagan,
Post Office Laskarpur, Police Station – Bansdroni, Kolkata – 700153, District –
South 24 Parganas, do hereby solemnly affirm and say as
follows;
1.
I am one of the Co-sharer in the Land
and the Proforma Respondent being the respondent number 2, in the present
Consumer Complaint.
2.
I am acquainted and conversant with
the material facts stated in the Written Version and are Competent to Swear
this affidavit.
This
is true to our knowledge.
3.
That the statements made in paragraph
number 1 to 27 of the Written Version are true to my knowledge and the rests
are my humble submissions before the Learned Court.
The
above statements are true to our knowledge and belief.
DEPONENT
Identified
by me,
Advocate
Prepared
in my Chamber,
Advocate
Date
: _______May’ 2023
Place
: Alipore Judges’ Court
N
O T A R Y
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