District : South 24 Parganas
In the Court of the Learned 5th
Civil Judge ( Senior Division ) at Alipore, South 24 Parganas.
Title
Suit no. 1250 of 2019
{
SL. 279 / 19 }
In
the matter of :
Smt.
Sima Poddar, wife of Sri Biman Poddar, residing at 1/11, Sanghati Colony,
Police Station – Netaji Nagar, Kolkata – 700 092, District – South 24 Parganas.
_________Plaintiff.
-
Versus –
Sri
Sushil Kumar Das, Son of Late Nakul Chandra Das, residing at 3/95, Sanghati
Colony, Police Station – Netaji Nagar, Kolkata – 700 047, District – South 24 –
Parganas.
_______Defendant.
Written
OBJECTION of the Defendant Sri Sushil Kumar Das
against the petition under
Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure
The
Defendants above named states as follows :
- The
petition
under objection is not maintainable either in
facts or in its present form.
- The
Plaintiff has no cause of action
for the petition under objection.
- That
the petition under objection is
speculative, harassing, motivated and barred by the Principles of law and hence it is liable to be
rejected.
- The
present petition under objection is
barred by the principles of estoppel, waiver, and acquiescence.
- That save and except those are admitted herein
below all other statements made in the petition under objection are not correct and denied and the applicant is
put to strict proof thereof.
- Save
and except what are the matters of record and what are specifically
admitted by the defendants, all other statements and / or allegations made
in the said petition under objection,
shall be deemed to have been denied by the defendants.
- At
the outset the Defendant, herein states the following facts for proper
& fair adjudication in the instant suit proceedings :
(i)
That the Plaintiff Smt. Sima Poddar,
entered into an Agreement for Sale, dated 28th day of April’ 2010,
with the defendant Shri Sushil Kumar Das, in respect of one Flat on the Ground
Floor ( Back Side ) measuring about 850 ( Eight Hundred Fifty ) Sq. Ft. more or
less super built up area consisting of 2 ( Two ) Bed Rooms, 1 ( one ) Living –
cum – dinning, 2 ( Two ) Toilets, 1 ( one ) Verandah, 1 ( one ) Kitchen, in Two
Storied Building alongwith unpartitioned proportionate share of Land of
Municipal Premises No. 54/106, Raipur Road, being Postal Premises No. 3/95,
Sanghati Colony, Ward no. 99, Police Station – Jadavpur, Kolkata – 700 047,
District – 24 Parganas South, for a Total Consideration money as of Rs. 8,50,000/-
( Rupees Eight Lakhs and Fifty Thousand ) only, which has been registered in
Book no. I, CD Volume no. 9, Pages from 2607 to 2638, Being No. 01378 for the
year 2010, in the Office of the District Sub Registrar – I, South 24 Parganas,
West Bengal.
(ii)
That at the execution of the said
Agreement for Sale dated 28th day of April’ 2010, the Plaintiff made
payment as of Rs. 2,00,000/- ( Rupees Two Lakhs ) only, out of the total
Consideration money as of Rs. 8,50,000/- ( Rupees Eight Lakhs and Fifty Thousand
) only, to the defendant, herein, by two numbers of cheques, the details of
which has been duly enumerated in the Memo of Consideration of the said
Agreement for Sale dated 28th day of April’ 2010.
(iii)
That the said Agreement for Sale dated
28th day of April’ 2010, contended the following terms between the
parties therein, i.e. the plaintiff and the defendant to perform being contract
between them :
(a) At
page number 10 – ARTICLE – II – paragraph number – 2 – That the Owner / Vendor
shall execute and register Deed of Conveyance in favour of the Purchaser or her
nominated person in respect of the said Flat as mentioned in the Second
Schedule below alongwith proportionate share of land within a period of 15 (
fifteen ) months from the date of this Agreement.
(b) At
page number 11 – paragraph number – 5 – That the Owner / Vendor has almost
completed construction of said Straight Two Storied Building and shall complete
the balance construction of the said Flat within 6 ( Six ) months from the date
of this execution, subject to the Purchaser strictly follow the payment
schedule as per progress of construction of the Flat as stipulated between the
parties.
(c) At
page number 12 – paragraph number – 8 – That if the Purchaser fails to pay the
balance amount to the Owner / Vendor, as per Payment Schedule mentioned below
in that event the Owner / Vendor will be entitled to cancel this Agreement and
sell the said Flat to other Purchaser and to refund the earnest money to the
Purchaser after deducting 10% of the earnest money.
(d) At
page number 12 – paragraph number – 9 – The refund will be made by the Vendor
as soon as the Vendor will re-enter into Agreement for Sale with the other
Purchaser in respect of the aforesaid Flat.
(e) At
page number 14 – paragraph number – 4 – If the Owner / Vendor fails and / or
neglects to complete thew Flat within the stipulated period i.e. by 6 (Six )
months from the date of this Agreement or otherwise to carry out any one or
more of the obligations on his part as hereunder provided or otherwise required
by law, in spite of full payment made by the Purchaser as per payment schedule
which described in the Fifth Schedule hereunder, the Purchaserr will be a
liberty to enforce specific performance of agreement by institution of legal
proceedings or at her option may sue the owner / vendor for recovery of the
earnest money with interest, costs and other reliefs and further the intending
purchaser shall be entitled to charge 10% on the advance amount paid by her
till then to the owner / vendor.
(f)
At page number 15 – ARTICLE – IV –
GENERAL – Paragraph number – 1 – Under no circumstances, possession of the Flat
shall be given by the Owner / Vendor to the Purchaser until and unless all
payments required to be made under this Agreement by the Purchaser shall have
been paid in full to the Owner / Vendor unless otherwise agreed by the Owner /
Vendor in writing by way of specific agreement to that effect and if the
Purchaser observed and performed the terms and conditions of this Agreement.
(g) At
page number 21 – FIFTH SCHEDULE ABOVE REFERRED TO ( Payment Schedule ) –
Consideration for undivided land attributable to the said Flat in the Ground
Floor ( Back Side ) alongwith the costs of construction as described in the
Second Schedule hereinabove written is Rs. 8,50,000/- ( Rupees Eight Lakhs and
Fifty Thousand ) only, payable in the manner following :
a.
On the date of execution of this
Agreement : Rs. 2,00,000/-
b.
By 15 (Fifteen) months from the date
of execution of this Agreement and on the date of registration of the Deed of
Sale : Rs. 6,50,000/-
Total : Rs. 8,50,000/-
( Rupees Eight Lakhs and Fifty
Thousand ) only.
(iv)
The Plaintiff did not comply with the
effect of payment schedule and therefore in the effective tenure of the said
Agreement for Sale dated 28th day of April’ 2010, the plaintiff did
not comply with her payment and therefore the defendant herein assailed to
cancel such agreement.
(v)
However, some meeting was held at the
instigation of the Plaintiff, at the local club in the vicinity, and therefore
on such consideration also, the defendant had bear much time and thereafter
lastly on 18th day of June’ 2013, the defendant wrote a letter dated
18-06-2013 to the plaintiff and given Seven days time to perform, but this is
the plaintiff herein who willfully did not make any payment so far and thus the
said agreement for sale determined as terminated between the parties.
(vi)
The defendant on and after expiry of
the seven days from the date of receipt of the letter dated 18-06-2013, by the
plaintiff herein, determined the termination and or cancellation of the
agreement for sale dated 28th day of April’ 2010, between the
parties, thus the plaintiff only entitle to get her earnest money back after
deduction being a sum of Rs. 1,80,000/- ( Rupees One Lakh and Eighty Thousand )
only.
(vii)
The defendant is willing and ready to
refund the money as of Rs. 1,80,000/- ( Rupees One Lakh and Eighty Thousand )
only, to the Plaintiff herein in terms of the Agreement for Sale dated 28th
day of April’ 2010.
(viii)
The said Agreement for Sale dated 28th
day of April’ 2010, is not a Contract between the parties on and after expiry
of the period as enumerated therein to complied therewith by and between the
parties, therein.
(ix)
The plaintiff is not entitled to get
any relief in terms of the facts as well as in terms of the Law, thereof,
before the Learned Court of Law, having jurisdiction.
- That
without waiving any of the aforesaid Objections and Facts and fully
relying thereupon and without prejudice to the same. The Defendants, now
deals with the specific paragraphs of the said petition
under objection in seriatim as hereunder.
- That
the petition under objection is not
maintainable either in facts or in its present form and the plaintiff has
no cause of action for bringing this suit against the defendant as the
said petition under objection 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.
- Save and except the statements made in
the said petition under objection which
are matter of record, the defendant denies each and every allegations
contained in the said petition under objection
and calls upon the plaintiff to strict proof of the said allegations.
- That
with references to the statements made in paragraph nos. 1, 2, and 3, of
the petition under Order XXXIX, Rules 1 and 2 of the Code of Civil
Procedure, are the matter of partly record and facts and therefore the
defendant re-iterate the paragraph no. 7 of this written objection.
- That
with references to the statements made in paragraph nos. 1, 2, and 3, of
the petition under Order XXXIX, Rules 1 and 2 of the Code of Civil
Procedure, are specifically line by line in toto are disputed and denied,
save and except those are the matter of record, the plaintiff is put to
the strict proof for the same before the Learned court, the defendant,
states that the present suit have no cause of action to bring it
adjudication before the Learned court. The defendant re-iterate the
paragraph no. 7 of this written objection. The defendant beg to states
that the Plaintiff did not comply with the effect of payment schedule and
therefore in the effective tenure of the said Agreement for Sale dated 28th
day of April’ 2010, the plaintiff did not comply with her payment and
therefore the defendant herein assailed to cancel such agreement. However,
some meeting was held at the instigation of the Plaintiff, at the local
club in the vicinity, and therefore on such consideration also, the
defendant had bear much time and thereafter lastly on 18th day
of June’ 2013, the defendant wrote a letter dated 18-06-2013 to the
plaintiff and given Seven days time to perform, but this is the plaintiff
herein who willfully did not make any payment so far and thus the said
agreement for sale determined as terminated between the parties. The
defendant on and after expiry of the seven days from the date of receipt
of the letter dated 18-06-2013, by the plaintiff herein, determined the
termination and or cancellation of the agreement for sale dated 28th
day of April’ 2010, between the parties, thus the plaintiff only entitle
to get her earnest money back after deduction being a sum of Rs.
1,80,000/- ( Rupees One Lakh and Eighty Thousand ) only. The defendant is
willing and ready to refund the money as of Rs. 1,80,000/- ( Rupees One
Lakh and Eighty Thousand ) only, to the Plaintiff herein in terms of the
Agreement for Sale dated 28th day of April’ 2010. The said
Agreement for Sale dated 28th day of April’ 2010, is not a
Contract between the parties on and after expiry of the period as
enumerated therein to complied therewith by and between the parties,
therein. The plaintiff is not entitled to get any relief in terms of the
facts as well as in terms of the Law, thereof, before the Learned Court of
Law, having jurisdiction.
13.
That with reference to the statements
made in paragraph nos. 15 and 16 of the petition under Order XXXIX, Rules 1 and
2 of the Code of Civil Procedure , this defendants deny and disputes each and
every allegations made therein, save and except what are the matter of records.
This defendants repeat and reiterate the statements made in paragraph no. 7,
herein above.
14.
The defendant, states that the present
suit have no cause of action to bring it adjudication before the Learned court.
15.
That the defendants state that the plaintiff has not been able to
prove any prima facie case in the instant case, particularly in view of
the fact that he has suppressed important material facts and his pleadings are
false and misleading and he has not come before This Learned Court with a clean
hand.
16.
That the defendants state that as balance of convenience would lie
heavily on the defendants, as
the plaintiff has not made out a prima facie case, the balance of
convenience does not arise.
17.
That the defendants state that the plaintiff has not been
able to prove a prima facie case to preserve the subject-matter of the
litigation in status quo, until the trial on merits and as such the
instant application ought to be rejected with exemplary costs.
18.
That the defendant states that the
plaintiff is not entitled to the relief as prayed in the present suit.
- The
petition
under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure
is vexatious, frivolous, harassing, and is liable to be dismissed with
cost.
- That
the Defendants crave leave to produce the relevant documents as well as
the documents relied upon by the defendants, at the time of hearing.
Verification
I, Shri Sushil Kumar Das, being the
defendant, herein in the present Suit, made this Written Objection. I am
conversant and acquainted with the material facts therein. I verify and Sign
this written objection as on ______day of March’ 2020, at the Alipore Judges’
Court premises.
AFFIDAVIT
Affidavit of Sri Sushil Kumar Das, Son
of Late Nakul Chandra Das, aged about ______years, by faith Hindu, by
Occupation Business, residing at 3/95, Sanghati Colony, Police Station – Netaji
Nagar, Kolkata – 700 047, District – South 24 – Parganas.
I, the above deponent do hereby
solemnly affirm and says as under :-
1.
That I am the defendant, in the above
Suit / case, thoroughly conversant with the material facts and circumstances of
the present suit and am competent to swear this affidavit.
2.
That the statement made in paragraph no.
______to _______, of my written statement, are true to my knowledge and belief,
and the rests are my humble submission before the Learned Court.
3.
That the facts contained in aforesaid
Written Objection, 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 and belief.
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 …………….2020,
at Alipore Judges’ Court.
DEPONENT
Identified
by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated :……………………2020.
Place : Alipore Judges’ Court.
N O T A R Y
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