Before
the Hon’ble District Consumer Dispute Redressal Commission, South 24 Parganas
144, Kulpi Rd,
Beharapara, Baruipur, West Bengal 700144
Consumer Complaint no. CC/57/2021.
In the matter of:
Shri ASHISH KUMAR GHOSH,
__________Petitioner
- Versus –
M/s. Lord Realty Pvt. Limited, and
Another;
_____Respondents
EVIDENCE
ON AFFIDAVIT BY THE COMPLAINANT
AFFIDAVIT
Affidavit
of Shri ASHISH KUMAR
GHOSH, Son of Late Nripendra Nath GHosh, aged about _____years, by faith Hindu,
by Occupation ______________residing at premises being number 20/1, Jugipara
Road, Debalay Apartment, Flast C – 1, First Floor, Police Station Dum Dum,
Kolkata – 700028, District – North 24 Parganas;
I,
the above deponent do hereby solemnly affirm and declare as under :-
1.
That I am Petitioner in the present
Consumer Proceeding, and thoroughly conversant with the facts and circumstances
of the present Consumer case and am competent to swear this affidavit.
2.
That I
beg to say that the Respondent no. 1, M/s. Lord Realty Pvt. Limited, having its Registered Office
at Premises being number 71/9, Topsia Road, Kolkata – 700046, District – South
24 Parganas, and also having establishment at premises number 7B, Ahiripukur Road,
3rd floor, Kolkata – 700019, is carrying development in Real Estate
business, represented by it’s Managing Director, being the Respondent no.2,
herein Mr. Mohammad Anwar Azim, Son of Late Azimul Hassan, Managing Director of
M/s. Lord Realty Pvt. Limited, having its Registered Office at Premises being
number 71/9, Topsia Road, Kolkata – 700046, District – South 24 Parganas. The
Managing Director is responsible for day to day affairs of the Respondent no.
1, Company.
3.
That I
beg to say that the Respondent no.1, herein released Brochure, leaflet, and
advertisement in media, including it’s Website, so far, wherein the Respondent
no.1, and Respondent no.2, placed their attractive schemes and project of
Realty Estates Development and whereas in the year 2012, the Petitioner came
across about the project namely “ LORD CITY SONARPUR ” and therefore obtain the Brochure and
thereafter made the application for a plot of Land with all amenities. The said
Project in two fold consequences whereas at the first the Developer being the
respondents sold the plot of the Land and consequently, they took endavour for
conversion, mutation, etc. with the concerned Govt. Department, and thereafter
Construction of House, Bunglow, one storied, two storied, etc. at the choice of
purchaser.
- That I beg to say that through
Letter dated 3rd April’ 2012, Respondents had allotted Unit No.
C-110 in Zone – 7, measuring 4320 Sq. ft. for Lord City Sonarpur at the
rate of Rs. 1,50,000/- ( Rupees One Lakh and Fifty Thousand ) only per Cottaha.
The Total Consideration of the Unit ( excepting the charges for Amenities
and excluding Registry ) comes to Rs. 9,00,000/- ( Rupees Nine Lakhs )
only, the said allotment Letter has been issued by the respondents only on
receipts of Rs. 1,80,000/- ( Rupees One Lakh and Eighty Thousand ) only,
being application money, and whereas the rests amount has been decided
into 12 (twelve) installments.
5. That I beg to say that I had paid the
total consideration money in the following terms :
1. 26.03.2012 – Money Receipt number
3251 - Rs. 1,80,000/-
2. 23-05-2012 – Money Receipt number
3739 – Rs. 40,000/-
3. 21-04-2012 – Money Receipt Number
3476 – Rs. 40,000/-
4. 22-06-2012 – Money Receipt Number
3976 – Rs. 40,000/-
5. 21-07-2012 – Money Receipt Number
4233 – Rs. 40,000/-
6. 11-09-2012 – Money Receipt Number
4665 – Rs. 40,000/-
7. 26-09-2012 – Money Receipt Number
4786 – Rs. 40,000/-
8. 09-10-2012 – Money Receipt Number
4925 – Rs. 40,000/-
9. 19-11-2012 – Money Receipt Number
5225 – Rs. 40,000/-
10.
26-12-2012
– Money Receipt Number 5561 – Rs. 40,000/-
11.
06-02-2013
– Money Receipt Number 5958 – Rs. 30,000/-
12.
04-02-2013
– Money Receipt Number 5945 – Rs. 10,000/-
13.
22-03-2013
– Money Receipt Number 6928 – Rs. 40,000/-
14.
06-05-2013
– Money Receipt Number 7334 – Rs. 40,000/-
15.
18-05-2013
– Money Receipt Number 7371 – Rs. 40,000/-
16.
06-03-2013
– Money Receipt Number 6805 – Rs. 40,000/-
17.
24-08-2013
– Money Receipt Number 8117 – Rs. 80,000/-
18.
21.09.2013
– Money Receipt number 8408 - Rs. 40,000/-
19.
And
Rs. 40,000/- on the occasion of registration of deed of conveyance, totaling as
of Rs. 9,00,000/- ( Rupees Nine Lakhs ) only.
6. That I beg to say that the
Respondents entered into an Agreement for Sale dated 17th day of
October’ 2012, with the Petitioner, wherein Respondents are a Developer as
described therein and the Petitioner is a Purchaser / Allottee. The said
Agreement for Sale dated 17th day of October’ 2012, contained the
following covenants :
a) At page number 2, paragraph number 1
– The Allottee of each unit who intends to acquire the opwnership shall have
the choice either to make single storied or two storied building in and over
the unit of land according to building plan to be prepared with such
modification or alteration as may be deemed fit and proper by the developer or
as advised by the architect or as may be sanctioned by the competent authority
and the said allottee agrees to be bound thereby. Such construction of building
shall be done only by the developer and the purchaser / allottee shall have no
right for such job nor shall modify and or change the nature and character of
the building in future. In the event of failure to give marketable title to the
purchaser/allottee the developer undertakes to refund any amount that will be
paid upon execution of these presents to the purchaser/allottee.
b) At page number 2, paragraph number 2
– The Unit Allottee besides acquiring the right of ownership of the said unit
and other rights attached thereto subject to registration of the final deed of
conveyance after observation of the aforesaid terms along with other terms and
conditions mentioned hereunder shall be entitled to have construction either
for single storied or two storied building / bunglow.
c) At page number 2, paragraph number 3
– each unit allottee along with the Developer will be entitled to the following
easement rights and similarly be subject to similar easements and rights of the
other unit – allottees as also the Developer.
i)
Right
of access and way in common with the developer and / or other unit-allottees at
all time with the use and enjoyment of common areas and facilities to which
they are entitled to.
ii)
Easements
quasi-easements, appendages and appurtenances belonging to or appurtenant to
units as usually held used and occupied or known as part or parcel thereof or
appertaining thereto provided always that nothing herein contained shall permit
the unit-allottee or any person deriving title under him or his agent and
invitee to obstruct in any way be vehicle, deposit or materials, rubbish or
other wise free passage of other person or persons including the Developer and
other unit-allottees entitled to such was as aforesaid.
iii)
The
right of protection of the unit by and from all parts of the building/zone so
far as they are normally protected.
iv)
The
right of flow in common of electricity, water and waste or soil from and to the
unit through pipes, drains, wires, and conduits lying or being in under through
or over the4 other parts of the zone or unit as appli9cable, so far as may be
reasonably necessary for the beneficial use occupation and enjoyment of each
unit.
v)
The
right with or without workmen and necessary materials to enter from time to
time upon the other unit or any part or parts in the unit of other zones for
the purpose of rebuilding, repairing, replacing or cleaning so far as may be
necessary when the aforesaid job cannot be reasonably carried out without such
entry and materials and in all such cases excepting in emergent situation upon
giving forty eight hours previous notice in writing of his intention so to
enter to the person affected thereby.
d) At page number 7, paragraph number 16 –
Possession –
a) Possession will be offered to the
allottee sending notice in writing and possession will be delivered on the date
mentioned in the notice. If the possession is not taken on that date it will be
deemed to have been delivered on the said date.
b) Outstanding amount if any shall
continue to remain the liability of the allottee.
c) Rates taxes and maintenance charges
of the said unit and appurtenances thereto will be the liability of the
allottee from possession date as stated above.
e) At page number 7, paragraph number 17
– Conveyance – within thirty days after the developer offering the allottee to
take possession of the unit as aforesaid, the allottee shal take steps for
getting the conveyance executed and registered bearing all costs of
registration and stamp duty along with other incidental expenses.
f) At page number 8, paragraph as –
SCHEDULE OF LAND REFERRED TO ABOVE – ALL THAT piece and parcel of land
measuring an area of 6 Cottahas ( 4320 Square feet ) more or less being Unit
No. C – 110, within Zone – 7, comprised in Dag No. 80, J.L, no. 108, within
Mouza Sangur, Police Station – Sonarpur, District – South 24 Parganas.
7. That I beg to say that subsequently,
on being payment of total consideration money by the Petitioner, the
Respondents executed and registered Deed of Conveyance in respect of ALL THAT
piece and parcel of Sali land measuring a total area of 6(Six) Cottahas more or
less ( Zone – 7, Unit C110) comprised 5.5 Cottahas in L.R. Dag no. 1570,
corresponding to R.S. Dag no. 1560 and 0.5 Cottahas in L.R. Dag number 1569
corresponding to R.S. Dag number 1559, L.R. Khatian No. 409, 1177/1, 1059/1,
and 197/1, J.L. No. 108, Touji No. 109, within Mouja Sangur, A.D.S.R. and P.S.
Sonarpur, Pratap Nagar Gram panchayat, District 24 – Parganas South, butted and
bounded as ON THE NORTH : land under R.S. Dag No. 1563, ON THE SOUTH : land
under R.S. Dag No. 1559, ON THE EAST : land under R.S. Dag No. 1559 & 1560,
in favour of my Client Shri ASHISH KUMAR GHOSH, Son of Late Nripendra Nath
Ghosh, residing at premises being number 20/1, Jugipara Road, Debalay Apartment,
Flast C – 1, First Floor, Police Station Dum Dum, Kolkata – 700028, vide Being
number 07077 for the year 2014, registered in Book – I, CD Volume number 40,
Page from 2409 to 2425, registered in District Sub-registrar-IV, South 24
Parganas, wherein acknowledged the total consideration money as of Rs.
9,00,000/- ( Rupees Nine Lakhs ) only, in pursuance of Agreement for Sale dated
17-10-2012.
8. That I beg to say that the
Respondents had given a Letter dated 29th November’ 2013, wherein it
is stated as follows :
“ with great pleasure, I would like
to inform you that the commencement of Lord City Sonarpur Project, is starting
on 29th November’ 2013.
Commencing on 29th
November’ 2013, independent bunglows along with necessary infrastructure will
be constructed in phased manner, starting from phase #1 and will be made
available as per the sale agreement.
Please note, construction of Model
Bunglows of 2,4, and 6 Cottahas at Lord City Sonarpur are already completed and
are open for display.
Relevant details will be intimated to
you shortly.”
9. That I beg to say that the
Respondents had given one Letter dated 12th November’ 2015, wherein
it is stated as follows :
“ Please refer to our letter under
reference wherein we had intimated to you that the commencement of construction
work in our Lord City Sonarpur Project was scheduled to begin therefrom
starting from phase -1, and shall be made available within the period and other
terms morefully mentioned in the Sale Agreement executed between us followed by
the construction payment schedule.
We hereby regretfully inform you
that, although the construction work in our said project has been commenced,
but due to departmental delays and certain inevitable circumstances faced by
the company ( like major delay in receiving mutation, conversion and sanction
documents from the land and other
concerned government department/s, unavailability of skilled labour for better
construction work, etc. ) the completion of the desired phase has not been
completed nevertheless the same is expected within 12 months ( excluding force
majeure delay, if any ) from the date of our instant communication to you and
the construction work is now in a speedy process, your respective unit shall be
made available upon completion of the same.”
10.
That
I beg to say that one Minutes of Meeting dated 18-11-2018, has been provided by
the Respondents, which contained the followings :
a) Lord will show us Loan sanction
documents on or before 05-12-2018, as agreed by both parties;
b) 17th December’ 2018,
Construction will start and by May’ 2019, 100 units will be ready;
c) Those who are interested to cancel or
sell his / her plot Lord Realty Pvt. Limited will pay them from May’ 2019 with
8 % compound interest annually. Any cancellation will be entertained after May’
2019;
d) There will be a high tea party at
Lord Realty Pvt. Limited at project site ( Sonarpur ) on 25-12-2018 for all
buyers or plot owners;
e) Buyers will see the loan sanction
documents by 5th December 2018 and also commencement of works on
17-12-2018 at Sonarpur, failing to above two conditions. Lord realty will pay
immediately to those who are interested to cancel and they will pay with 8%
annual compound interest;
f) Lord will share loan sanction
document after 05-12-2018 by mail and will show the original to buyers, who
will come to lord’s office.
11.
That
I beg to say that the Petitioner had communicated to the Respondents on many
occasions through email and over phone for the mutation of Land as advised by them,
and authorized the respondents for causing necessary endavour for the mutation,
though nothing yield till date. It is pertinent to states that on all and every
occasions, the respondents promised to perform in terms of the Agreement for
Sale though respondents could not made available themselves on different
pretext therefore the respondents did not deliver the physical possession of
the Land and mutation has not been done in favour of the petitioner, till date.
Thus the Petitioner have only possessions of some documents and or papers as
provided by the respondents. But the respondents have money of the petitioner
as taken by the respondents in promises as given by the respondents in terms of
the said Agreement for Sale dated 17-10-2012.
12.
That
I beg to say that the acts & Omissions of the respondents as described
above, are well established as
deficiency in services and unfair trade practices, as meant for in the Consumer
Protection Act’ 2019.
13.
That
I beg to say that the Petitioner Seeks due performance of the respondents in
terms of the Agreement for Sale dated 17-10-2012, by delivering the physical
possession of the property and causing necessary endavour for the mutation with
the concern department, thereof. The Petitioner served one Legal Notice dated 1st
day of December’ 2020, on the respondents, through Speed Post. The Respondents
are well within the knowledge of the contents of such notices, though did not
heed to perform, and even did not answer on such notices of the Petitioner.
14.
That
I beg to states that since a substantial period is elapsed, your petitioner is
genuinely apprehending much about the performances of the respondents in terms
of the agreement for sale dated 17-12-2012, and therefore resort this consumer
proceeding before the Hon’ble District Consumer Disputes Redressal Commission,
Baruipur, South 24 Parganas.
- That I beg to states that the Petitioner’s
dream of his own house in the LORD CITY SONARPUR has been shuttered at the
instances of willful and deliberate unfair trade practices of the
respondents.
- That I beg to states that the Petitioner
paid such amount of valuable consideration as per the respondent’s
advertisement, to the respondents from his hard earned and saved money to
fulfill his dream but all in vain at the instances of unfair trade
practices of the respondents.
- That
I beg to states and submits that the Petitioner is a victim of the purported acts and
deficiency in services at the instances of the respondents and the acts of
the respondents as well as the facts are well constitute the deficiency in
services on the part of the respondents.
- That I beg to say that I solely seeks to get
delivery of physical possession of the schedule property being ALL THAT piece and parcel of
Sali land measuring a total area of 6(Six) Cottahas more or less ( Zone –
7, Unit C110) comprised 5.5 Cottahas in L.R. Dag no. 1570, corresponding
to R.S. Dag no. 1560 and 0.5 Cottahas in L.R. Dag number 1569 corresponding
to R.S. Dag number 1559, L.R. Khatian No. 409, 1177/1, 1059/1, and 197/1,
J.L. No. 108, Touji No. 109, within Mouja Sangur, A.D.S.R. and P.S.
Sonarpur, Pratap Nagar Gram panchayat, District 24 – Parganas South,
butted and bounded as ON THE NORTH : land under R.S. Dag No. 1563, ON THE
SOUTH : land under R.S. Dag No. 1559, ON THE EAST : land under R.S. Dag
No. 1559 & 1560, in terms of the Agreement for Sale dated 17th
day of October’ 2012, with all amenities, and conversion, and mutation
should perused by the respondents.
- That
I beg to states and submits that the respondents shall also pay the
compensation due to the petitioner for the harassment, troubles, physical
inconvenience and mental agony arising directly out of the breach of the
agreement and breach of duty on the part of the respondents. The petitioners
assesses such loss and damages at Rs.
6,00,000/- ( Rupees Six lakhs ) only.
- That
I beg to states and submits that the purported activities of the
respondents established deficiency in services, which is contrary to the
Law.
- That
I beg to States and submits that from all of the statements made above, it
is clear that the respondents are guilty of deficiency in service as meant
for in the Consumer Protection Act’ 2019
- That I beg to say that I am enclosing with my
Petition of Consumer Complaint and praying for Exhibit in my Evidence, the
following documents / Papers :
a)
Letter of
Allotment dated 3rd April 2012;
b)
Schedule
for total payment as provided by the respondents;
c)
Letter
dated 3rd April’ 2012, of the Petitioner;
d)
Money
Receipts;
e)
Agreement
for Sale dated 17th day of October’ 2012;
f)
Letter
dated 29th November’ 2013;
g)
Deed of
Conveyance dated 10th September’ 2014;
h)
Letter
dated 12th November’ 2015;
i)
Minutes
of Meeting dated 18-11-2018;
j)
All
communication and authorization for mutation;
k)
Legal
Notice dated 1st day of December’ 2020;
- That
I beg to say that the Cause of action for the present proceeding arose on 3rd day of April’ 2012, while the
respondent company accepted the application form of the petitioners and
the money as of Rs. 1,80,000/- ( Rupees One Lakh and Eighty Thousand )
only, while the respondent company acknowledge the allotment of plot of
land for 4320 Sq. ft. being Unit Number C – 110 in Zone - 7,
and thereafter while the respondents entered into agreement for sale dated
17-12-2012, and thereafter on each and every date while the respondents
received money being installments paid by the petitioner, herein, and on 10-09-2014,
while the Deed of Conveyance has been registered by the respondents and on
all and every occasions whilt the communication has been made by and
between the respondents and the petitioner, herein, and thereafter on all
and every date on which the respondent company took payments from the
petitioners and issued money receipt thereof, and thereafter on several
occasions as per communication between the parties, and thereafter adverse
date and the same is continuing and the project being “LORD CITY SONARPUR”,
which is within the jurisdiction of the Hon’ble Commission.
- That
I therefore prayed for the following relief/s :
a)
to direct the respondents to deliver
the physical possession of the schedule property ALL THAT piece and parcel of Sali land measuring a
total area of 6(Six) Cottahas more or less ( Zone – 7, Unit C110) comprised 5.5
Cottahas in L.R. Dag no. 1570, corresponding to R.S. Dag no. 1560 and 0.5
Cottahas in L.R. Dag number 1569 corresponding to R.S. Dag number 1559, L.R. Khatian
No. 409, 1177/1, 1059/1, and 197/1, J.L. No. 108, Touji No. 109, within Mouja
Sangur, A.D.S.R. and P.S. Sonarpur, Pratap Nagar Gram panchayat, District 24 –
Parganas South, butted and bounded as ON THE NORTH : land under R.S. Dag No.
1563, ON THE SOUTH : land under R.S. Dag No. 1559, ON THE EAST : land under
R.S. Dag No. 1559 & 1560n with all amenities as contended in terms of the
Agreement for Sale dated 17-12-2012, to the Petitioner, in the interest of administration of justice;
b)
To direct the respondents to cause
necessary endavour for conversion and mutation of the name of the Petitioner in
respect of the schedule property, with the concern department of the
Government, in the interest of administration of justice;
c)
And or alternatively, direct the respondents
to refund the money being consideration value as of Rs. 9,00,000/- ( Rupees
Nine Lakhs ) only, with appropriate banking interest thereon till realization,
thereof to the Petitioner in the interest of administration of justice;
d)
To direct the respondents to pay
compensation, as for the harassment, troubles, loss of business, physical
inconvenience and mental agony, suffered by the petitioners from the purported
activities and others by the respondents as assessed as ₹
6,00,000/- ( Rupees Six Lakhs ) only to your petitioners;
e)
To grant the cost of the proceedings ;
f)
To grant any other relief or alternate
relief to the applicants / petitioners as found out by your Honour, in the
facts and circumstances of the Complaint.
25.
That I beg to say that the followings
are the particulars of the property, referred in my petition of consumer
complaint; SCHEDULE OF THE PROPERTY
ABOVE REFERRED TO ALL
THAT piece and parcel of Sali land measuring a total area of 6(Six) Cottahas
more or less ( Zone – 7, Unit C110) comprised 5.5 Cottahas in L.R. Dag no.
1570, corresponding to R.S. Dag no. 1560 and 0.5 Cottahas in L.R. Dag number
1569 corresponding to R.S. Dag number 1559, L.R. Khatian No. 409, 1177/1,
1059/1, and 197/1, J.L. No. 108, Touji No. 109, within Mouja Sangur, A.D.S.R.
and P.S. Sonarpur, Pratap Nagar Gram panchayat, District 24 – Parganas South,
butted and bounded as ON THE NORTH : land under R.S. Dag No. 1563, ON THE SOUTH
: land under R.S. Dag No. 1559, ON THE EAST : land under R.S. Dag No. 1559
& 1560, in terms of the Agreement for Sale dated 17th day of
October’ 2012, with all amenities, and conversion, and mutation should perused
by the respondents.
26.
That I beg to say that the facts
contained in my application, the contents of which have not been repeated
herein for the sake of brevity may be read as an integral part of this
affidavit and are true and correct to my knowledge.
DEPONENT
Verification
I,
the above named deponent do hereby solemnly verify that the contents of my
above affidavit are true and correct to my knowledge, and no part of it is
false and nothing material has been concealed therein.
Verified
this ………….the day of …………….2022, at the Baruipur, South 24 Parganas.
DEPONENT
Identified by me,
Advocate.
Prepared
in my Chamber,
Advocate.
Dated
:……………2022.
Place
: Baruipur, South 24 Parganas.
N
O T A R Y
very useful
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