Before
the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at
Premises being no. 11 A, Mirza Ghalib Street, Kolkata-700087.
Memo of Appeal no.
______________of 2016.
In the
matter of :-
Appeal under
Section 15 of the Consumer Protection Act’ 1986, from the Order dated
14-08-2015, passed by the Learned District Consumer Disputes Redressal Forum at
Alipore, South 24 Parganas, in C.C. Case no. 159 of 2015;
A N D
In the matter of :-
The impugned Order
dated 14th day of August’ 2015, passed by the Learned District
Consumer Disputes Redressal Forum at Alipore, South 24-Parganas, in Case number
C.C. Case no. 159 of 2015;
A N D
In the matter of :-
1.
Smt. Bulu Dhar, Wife of Late Siba
Prasad Dhar, residing at premises being no. 2/46A, Azadgarh, Post Office Regent
Park, Kolkata – 700 040.
2.
Shri Sishir Dhar, Son of Late Siba
Prasad Dhar, residing at premises being no. 2/46A, Azadgarh, Post Office Regent
Park, Kolkata – 700 040.
3.
Shri Raju Dhar, Son of Late Siba Prasad
Dhar, residing at premises being no. 2/46A, Azadgarh, Post Office Regent Park,
Kolkata – 700 040.
4.
Smt. Soma Dhar ( Mazumder ), Daughter
of Late Siba Prasad Dhar, also residing at premises being no. 2/46A, Azadgarh,
Post Office Regent Park, Kolkata – 700 040.
5.
Smt. Mita Dhar ( Dey ), Daughter of
Late Siba Prasad Dhar, also residing at premises being no. 2/46A, Azadgarh,
Post Office Regent Park, Kolkata – 700 040.
________Appellants
-
Versus –
Smt. Madhabi Rana,
Daughter of Late S.N. Rana, of Village and Post Office Dasagram, District
Paschim Medinipur, Pin – 721467, and also at premises being no. 2/46A,
Azadgarh, Post Office Regent Park, Kolkata – 700 040.
________Respondent
To,
The Hon’ble President and his
companion Members of the State Commission.
The memorandum of Appeal of the
appellants above named most respectfully Sheweth as under :
1.
This is an appeal under Section 15 of
the Consumer Protection Act’ 1986, against the order being dated 14-08-2015,
passed by the Learned District Consumer Disputes Redressal Forum at Alipore,
District – South 24-Parganas, in Case number C.C. Case no. 159 of 2015.
2.
That the Appellants did not get any
opportunity to appear before the Hon’ble Forum and to contest the case under
Section 12 of the Consumer Protection Act’ 1986, instituted by the respondent
herein.
3.
That
the Appellants were not in the knowledge of the case under
Section 12 of the Consumer Protection Act’ 1986, instituted by the respondent
herein.
4.
That
the appellants state and submits that the appellants are the legal heirs of
Late Siba Prasad Dhar, who was the Original Owner of the property being
premises no. 2/46A, Azadgarh, Post Office Regent Park, Kolkata
– 700 040, and after his demise, the appellants herein success the said property
by way of inheritance.
5.
That
the appellants state and submits that the appellants are not the developer in
respect of the premises being no. 2/46A, Azadgarh, Post
Office Regent Park, Kolkata – 700 040.
6.
That
the appellants state and submits that the appellants herein are not in any
proper knowledge of any such purported alleged transaction of their predecessor
with the respondent herein.
7.
That
the appellants state and submits that there was and is no agreement and or
contract between the respondent and the appellants herein, in respect of any
flat, whatsoever.
8.
That
the appellants state and submits that the respondent is a licensee in respect
of the said flat.
9.
That
the appellants state and submits that the respondent took the possession of the
said flat in the year 2004, and she enjoyed the possession of the said flat
since the year 2004, without any hindrance and disturbance thereof, and she
took Electric connection separately in her name, and mutated her name with the
concerned department of the Kolkata Municipal Corporation, and paying taxes
thereof in respect of her occupied said flat as liable to pay taxes, thereof.
10.
That
the appellants state and submits that the respondent being Licensee in respect
of the said flat at the premises being no. 2/46A, Azadgarh, Post
Office Regent Park, Kolkata – 700 040, cannot put her any claim for the
registration of Deed of Conveyance in her favour at any terms, whatsoever.
11.
That the appellants state and submits that
the respondent herein did not make any communication, whatsoever, in any form
or in any nature to the appellants herein, on any occasions whatsoever.
12.
That
the appellants state and submits that the proceeding before the Hon’ble Forum
is not maintainable as the respondent herein is not a consumer in terms of
Section 2(d) of the Consumer Protection Act’ 1986.
13.
That
the appellants state and submits that the Appellants are not Developer and not
a Service Provider at any terms as per provisions of the Consumer Protection
Act’ 1986.
14.
That
the appellants state and submits that there is no privities of contract between
the parties as of between the appellants and the respondent herein.
15.
That
the appellants state and submits that there is no contract and or Agreement in
terms of the provisions of the Indian Contract Act, between the parties herein.
16.
That
the appellants state and submits that there is no consumer disputes between the
parties in terms of the provisions of the Consumer Protection Act’ 1986.
17.
That
the appellants state and submits that the respondent herein is not entitled to
get any relief in terms of her prayer as made out in her petition of complaint
at any terms of provision of the Consumer Protection Act’ 1986.
18.
That
the appellants state and submits that the petition of complaint made by the
respondent herein should be dismissed and or set aside at the terms of the
provision of Section 26 of the Consumer Protection Act’ 1986.
19.
That
the appellants state and submits that the allegation leveled against them, are
frivolous, as such the respondent / complainant failed to produce any single
piece of paper, as to substantiate her such allegation against the appellants /
opposite parties, before the Hon’ble Forum.
20.
That
the appellants state and submits that the Respondent / Complainant case is not
the case of deficiency in services, in any manner, whatsoever.
21.
That
the appellants state and submits that there is no cause of action for the
proceedings, before the Hon’ble Forum.
22.
That the appellant states and submits
that the Order & Judgment dated 14th day of August’ 2015, passed
by the Learned Forum, in C.C. Case no. 159 of 2015, suffered with gross errors
and highly prejudice.
23.
That Being aggrieved by and
dissatisfied with the Order being dated 14th day of August’ 2015,
passed by the Learned District Consumer Disputes Redressal Forum at Alipore,
District – South 24-Parganas, in Case number C.C. Case no. 159 of 2015, on the
following, amongst other :-
GROUNDS
i)
FOR
THAT the impugned order being dated 14-08-2015, is unjustified, improper, and liable to be set aside;
ii)
FOR
THAT the Learned District Consumer Disputes Redressal Forum at Alipore,
District – South 24-Parganas, did not apply their judicial mind to pass the
impugned order;
iii)
FOR
THAT the order of the Forum below is
otherwise erroneous on facts and in law;
iv)
FOR
THAT the parties of the proceedings have no contract and or agreement between
them;
v)
FOR
THAT the appellants are not a Developer and or Service provider, and the
respondent herein is mere a licensee in respect of the alleged flat;
vi)
FOR
THAT the allegations leveled against them, are frivolous, as such the
respondent / complainant failed to produce any single piece of paper, as to
substantiate her such allegation against the appellants / opposite parties, before
the Hon’ble Forum;
vii)
FOR
THAT the respondent took the possession of the said flat in the year 2004, and
she enjoyed the possession of the said flat since the year 2004, without any
hindrance and disturbance thereof, and she took Electric connection separately
in her name, and mutated her name with the concerned department of the Kolkata
Municipal Corporation, and paying taxes thereof in respect of her occupied said
flat as liable to pay taxes, thereof;
viii)
FOR
THAT the respondent on expiry of ELEVEN Years approached the Hon’ble Forum;
ix)
FOR THAT
there is no privy of contract between the parties, whatsoever, as in the facts
and in the Law;
x)
FOR
THAT the respondent being Licensee in respect of the said flat at the premises
being no. 2/46A, Azadgarh, Post Office Regent Park, Kolkata
– 700 040, cannot put her any claim for the registration of Deed of Conveyance
in her favour at any terms, whatsoever;
xi)
FOR
THAT the respondent herein did not make any communication, whatsoever, in any
form or in any nature to the appellants herein, on any occasions whatsoever;
xii)
FOR
THAT the proceeding before the Hon’ble Forum is not maintainable as the
respondent herein is not a consumer in terms of Section 2(d) of the Consumer
Protection Act’ 1986;
xiii)
FOR
THAT the Appellants are not Developer and not a Service Provider at any terms
as per provisions of the Consumer Protection Act’ 1986;
xiv)
FOR
THAT there is no privities of contract between the parties as of between the
appellants and the respondent herein;
xv)
FOR
THAT there is no contract and or Agreement in terms of the provisions of the
Indian Contract Act, between the parties herein;
xvi)
FOR
THAT there is no consumer disputes between the parties in terms of the
provisions of the Consumer Protection Act’ 1986;
xvii)
FOR
THAT the respondent herein is not entitled to get any relief in terms of her
prayer as made out in her petition of complaint at any terms of provision of
the Consumer Protection Act’ 1986;
xviii)
FOR
THAT the petition of complaint made by the respondent herein should be
dismissed and or set aside at the terms of the provision of Section 26 of the
Consumer Protection Act’ 1986;
xix)
FOR
THAT there is no cause of action for the proceedings, before the Hon’ble Forum.
xx)
FOR
THAT the Order dated 14th day of August’ 2015, passed by the Learned
Forum, in C.C. Case no. 159 of 2015, suffered with gross errors and highly
prejudice;
xxi) FOR THAT the Ld. Lower Forum failed to
adjudicate the matter in accordance with the Consumer Protection Act’ 1986.
24.
That
the other ground / grounds will be agitate at the time of hearing of this
appeal.
25.
That unless this Hon’ble Commission interferes
in the present appeal, grave injustice would be caused to the Appellants / Opposite
Parties.
26.
That the appellants enclosing herewith
the Original Certified Copy of the Order being dated 14th day of
August’ 2015, passed in C.C. Case no. 159 of 2015, by the Learned District
Consumer Disputes Redressal Forum at Alipore, District – South 24-Parganas.
27.
That the appellants enclosing herewith
the copy of the followings :
i)
All orders;
ii)
Petition of Complaint being no. C.C.
no. 159 of 2015, along with all annexures thereof;
iii)
Examination in chief on affidavit of
the complainant;
28.
That this memo of appeal /
application / petition, is made bona-fide and for the interest of justice.
Under the
circumstances, the Petitioners, of this instant application / petition, prays
before your Lordship, would be graciously pleased to admit this instant
application / petition, issue notice upon the opposite party, call for the
L.C.R. from the Ld. Lower Forum, and after conducting the appropriate hearing
of this instant application / petition, set aside the impugned Order &
Judgment being dated 14th day of August’ 2015, passed by the Learned
District Consumer Disputes Redressal Forum at Alipore, District – South
24-Parganas, in Case number C.C. no. 159 of 2015, and / or to pass such other
or further necessary order or orders as your Lordship may deem, fit, and proper,
for the end of justice.
And for this act of kindness,
your Petitioner, as in duty bound shall ever pray.
Certificate
I, certify that I have perused
the records
of this case, and I certify
that there is merits
and So, I undertake to argue
this case for
the appellants at the time of
hearing.
Advocate for the Appellants.
Enclosing
herewith the following documents
:-
1.
The Original Certified copy of Order &
Judgment being dated 14th day of August’ 2015, passed by the Learned
District Consumer Disputes Redressal Forum at Alipore, District – South
24-Parganas, in Case number C.C. no. 159 of 2015;
2.
All orders in C.C. Case no. 159 of
2015;
3.
Petition of Complaint being no. C.C.
no. 159 of 2015;
4.
Examination in chief on affidavit
filed by the complainant.
Before
the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at
Premises being no. 11 A, Mirza Ghalib Street, Kolkata-700087.
Memo of Appeal no.
_______of 2016.
In
the matter of :
Smt. Bulu Dhar, and
Others,
_________Appellants Versus –
Smt. Madhabi Rana
_______
Respondent
AFFIDAVIT
Affidavit of ________________________________________,
Son of / Daughter of / Wife of
_______________________________________________, aged about _______years, by
faith Hindu, by Occupation __________________, residing at premises being no.
2/46A, Azadgarh, Post Office Regent Park, Kolkata – 700 040.
I, the above deponent do hereby
solemnly affirm and declare as under :
1. That I am the Appellant being
no. _____ in the above appeal case, thoroughly conversant with the facts and
circumstances of the present case.
2. That I am authorize by the
other appellants herein to swear on their behalf, and am competent to swear this affidavit.
3. That the facts contained in my memo of appeal,
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.
4. That the above statements of my
declarations are true 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
…………….2016, at the Alipore, Kolkata.
DEPONENT
Identified
by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated : _______________________
2016.
Place : Alipore Judges Court,
Kolkata.
N O T A R Y
VAKALATNAMA
Before the Hon’ble State Consumer
Disputes Redressal Commission, West Bengal, at Premises being no. 11 A, Mirza
Ghalib Street, Kolkata-700087.
Memo of Appeal no.
…………..…of 2016.
Smt. Bulu Dhar and Others, ___________Appellants
-
Versus
–
Smt. Madhabi Rana, ______________Respondent
KNOW ALL MEN by these presents that I
/ We 1) Smt. Bulu
Dhar, Wife of Late Siba Prasad Dhar, residing at premises being no. 2/46A,
Azadgarh, Post Office Regent Park, Kolkata – 700 040. 2) Shri Sishir Dhar, Son
of Late Siba Prasad Dhar, residing at premises being no. 2/46A, Azadgarh, Post
Office Regent Park, Kolkata – 700 040. 3) Shri Raju Dhar, Son of Late Siba
Prasad Dhar, residing at premises being no. 2/46A, Azadgarh, Post Office Regent
Park, Kolkata – 700 040. 4) Smt. Soma Dhar ( Mazumder ), Daughter of Late Siba
Prasad Dhar, also residing at premises being no. 2/46A, Azadgarh, Post Office
Regent Park, Kolkata – 700 040. And 5) Smt. Mita Dhar ( Dey ), Daughter of Late
Siba Prasad Dhar, also residing at premises being no. 2/46A, Azadgarh, Post
Office Regent Park, Kolkata – 700 040,
do hereby constitute and appoint the
under mentioned Advocate, Pleader, Vakils, jointly and each of them severally
to be pleader of take such steps and proceedings as may be necessary on my /
our behalf and for that purpose to make sign, verify and present all necessary
petitions, plaints, written statements and other documents and do nominate and
appoint or retain senior counsels, vakil, advocates and other persons, lodge
and deposits moneys and documents and other papers in the Ld. Court and the
same again withdraw and to take out of Court and to obtain or grant as the case
may be effectual receipts and discharge for the same and for all moneys which
may be payable to me / us in the premises. To enter into compromise with my /
our approval and withdraw, all moneys from the court AND GENERALLY to act in the premises and proceedings
arising there out whether by way of execution, review, appeal, or otherwise or
in any manner contested there with as effectually and to all intents and
purpose as I / We could act if personally present and such substitution and as
pleasure to revoke I / We hereby ratifying and agreeing to confirm whatever may
be lawfully done by virtue hereof.
In witness whereof this Vakalatnama
has been executed by me / us.
This the …………………day of ………………2016.
Sri
Ashok Kumar Singh, Advocate, High Court Bar Association Room No. 15, High Court
at Calcutta, Mobile no. 9883070666 / 9836829666, E-mail : aksinghadvocate@rediffmail.com Enrollment number :
Sri
Biswajit Mondal, Advocate. Alipore Judges’ Court, Alipore, Kolkata – 700 027.
Mobile Number : 9830242277.
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