Before
the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at
Premises being no. 11 A, Mirza Ghalib Street, Kolkata-700087.
Complaint Case no. of 2015.
In the
matter of :
An application
under Section 17 of the Consumer Protection Act’ 1986;
A N D
In the matter of :
1) Smt. Nanda Rani
Mondal, Wife of Late Dulal Chandra Mondal, residing at premises being no. 134,
Santoshpur Avenue, Kolkata – 700 075,
2) Sri Dilip Kumar
Mondal, Son of Late Dulal Chandra Mondal, residing at premises being no. 134,
Santoshpur Avenue, Kolkata – 700 075,
3) Sri Ashok Kumar
Mondal, Son of Late Dulal Chandra Mondal, residing at premises being no. EC –
50, Maya Enclave, Hari Nagar, New Delhi – 110064,
4) Smt. Monarama
Halder, Wife of Gopal Chandra Halder, residing at premises being no. 36/1, Beni
Naskar Lane, Kolkata – 700 065,
5) Smt. Santilata
Chakraborty, wife of Jibon Gopal Chakraborty, residing at Akra Krishnanagar,
District South 24 Parganas,
6) Smt. Kalpana
Das, wife of Subal Kumar Das, residing at Village – Kharberia, Budge Budge,
Police Station – Budge Budge, District – South 24 Parganas.
________Petitioners.
- Versus –
1. M/s. Citizen Construction, a
Proprietorship firm having it’s registered office at premises being no. 27, Santoshpur
East Road, Calcutta – 700 075, Police Station – Kasba, District South 24
Parganas.
2. Smt. Baishali Das, Wife of Sri
Kinkar Kumar Das, residing at premises being no. 2, Kabi Sukanta Lane, Kolkata
– 700 075, Police Station – Kasba, District South 24 Parganas.
_______Respondents
/ Opposite Parties.
The Humble petition
on behalf of the Petitioners most respectfully;
Sheweth as under :
1. That the Petitioners are peace
loving and law abiding Citizen of the Country, residing at the address as given
in the cause title of this petition.
2. That the Petitioners are the
Co-sharer and joint and absolute Owner of the property being piece and parcel
of the Land measuring 3 ( three ) Cottahas be the same a little more or less
comprised in Dag no. 501 & 592, appertaining to Khatian no. 120 & 248,
Mouza – Santoshpur, J.L. no. 22, Police Station – Kasba, being its Kolkata
Municipal Corporation Premises no. 134, Santoshpur Avenue, Kolkata – 700 075,
under the Ward no. 103, of the Kolkata Municipal Corporation, District – South
24 Parganas.
3. That M/s. Citizen Construction,
a proprietorship firm, having it’s registered office at premises being no. 27,
Santoshpur East Road, Kolkata – 700 075, Police Station – Kasba, District South
24 Parganas, represented by its Proprietor Smt. Baishali Das, Wife of Sri
Kinkar Kumar Das, residing at premises being no.2, Kabi Sukanta Lane, Kolkata –
700 075, Police Station – Kasba, District South 24 Parganas, carrying the
business of developing and or promoting of the Land and or immovable properties
and related business activities thereof.
4. That the Petitioners herein
have decided to develop the said scheduled premises by engaging an efficient
developer who has sufficient resources to do so and knowing the same the
Developer being the opposite parties herein have discussed between themselves
regarding the terms and conditions on which the development work can be
undertaken and both the parties herein have accepted the same has been
enumerated in the Development Agreement dated 11th day of January’
1999.
5. That the Opposite Parties
entered into a Development Agreement dated 11th day of January’
1999, in respect of the development as to construction on new building
structure by demolishing the old building structure on the schedule property as
of ALL THAT piece and parcel of the Land measuring 3 ( three ) Cottahas be the
same a little more or less comprised in Dag no. 501 & 592, appertaining to
Khatian no. 120 & 248, Mouza – Santoshpur, J.L. no. 22, Police Station –
Kasba, being its Kolkata Municipal Corporation Premises no. 134, Santoshpur
Avenue, Kolkata – 700 075, under the Ward no. 103, of the Kolkata Municipal
Corporation, District – South 24 Parganas.
6. That the said Development
Agreement dated 11th day of January’ 1999, specified the followings,
in between the petitioners herein and the opposite parties herein :
a) Owners’ Allocation : Owners
allocation shall mean the complete flats ( on first floor and top floor and 50%
of Car Parking Space in the ground floor ), agreed to be allotted.
b) That the Owners shall be entitled
to transfer or dispose of the owners allocation to their nominees situated
thereon with the exclusive right to deal with or to enter into agreement for
sale and transfer the same without any right, claim, demand, interest,
whatsoever or howsoever of the Developer and the Developer or any person or
persons lawfully claiming through shall not in any way interfere with or
disturb the quite and peaceful possession of the owners allocation or any
person or any persons claiming owners allocation or any person or any persons
claiming through or the nominee or nominees of the owners.
c) That the Developer shall be
entitled to transfer or dispose of the developer’s allocation to their nominees
situated thereon with the exclusive right to deal with or to enter into
agreement for sale and transfer the same without any right, claim, demand,
interest, whatsoever or howsoever of the Owners and the Owners or any person or
persons lawfully claiming through shall not in any way interfere with or
disturb the quite and peaceful possession of the developer’s allocation or any
person or any persons claiming developer’s allocation or any person or any
persons claiming through or the nominee or nominees of the developer.
d) As soon as the Building of the
Housing residential complex are completed, the Developer shall at first
handover the possession of the Owner’s allocation before handing over the
possession of the intending purchaser or purchasers of the developer’s
allocation, in the said building and on and from the date of putting the owners
in possession of the owner’s allocation and at all time thereafter the owners
shall be exclusively responsible for payment of all municipal taxes, duties,
dues, and other statutory outgoings and impositions whatsoever payable in
respect of the owners allocation and equally the developer shall exclusively
responsible for payment of all the said Govt. duty in respect of the
developer’s allocation.
e) As soon as the building is
completed the developer shall give written notice to the owners to take
possession of the owner’s allocation in the said building and from the date of
service of such notice, and at all time thereafter the owners shall be
exclusively responsible for payment of all municipal taxes, duties, dues, and
other statutory outgoings and impositions whatsoever payable in respect of the
owners allocation and equally the developer shall exclusively responsible for
payment of all the said Govt. duty in respect of the developer’s allocation.
f) The developer shall complete
the project within 18 months from the date of getting sanction plan of the
building from the Kolkata Municipal Corporation.
7. That the Petitioners beg to
state that the developer being the opposite parties herein causes much
considerable delay in completion of the building, on several pretext and
others.
8. That the Petitioners beg to
state that in the month of November 20th, 2013, the opposite parties
delivered the physical possession of the Flat at the 1st floor and at
the top floor to the petitioners, but the opposite parties did not give any
possession letter to the petitioners.
9. That the Petitioners beg to
state that the petitioners demanded the possession letter from the opposite
parties, but the opposite parties avoided to give on different pretext, and
therefore the petitioners are not in position to mutate their name in the
record of the Kolkata Municipal Corporation.
10.
That
the Petitioners beg to state that the Developer being the Opposite Parties
herein did not deliver the physical possession of the 50% of Car Parking space
at Ground floor, and therefore the Petitioners suffers a lot in parking their
car, at the premises.
11.
That
the Petitioners beg to state that at present the developer being the opposite
parties herein erected illegally one shop room at the ground floor, and
therefore the Petitioner are suffering in using at the ground floor common
facilities and passages thereof.
12.
That
the Petitioners beg to state that the developer being the opposite parties
herein did not give any copy of Sanction Building Plan, Completion Certificate
of Building issued by the KMC, Letter of Possession in respect of Flats at 1st
floor and top floor, Possession of Car Parking Space at Ground floor and letter
of possession of Car Parking Space, and other related necessary documents and
or papers, and therefore the Petitioners are not in receipt of the total Owners
allocation as enumerated in the Development Agreement dated 11th day
of January’ 1999, and suffer in terms of refusal of mutation of their names in
the record of the Kolkata Municipal Corporation and notable for mutation for
such reasons alone of no receipt of the completion certificate of the building,
and the letter of possession of the Owners’ allocation, thereof.
13.
That
the Petitioners beg to state that the Petitioners have no copy of sanctioned
plan of the building as the same has not been ever given by the developer being
the opposite parties herein. The petitioners are also sufferings in getting
delayed possession of the flats being part of the owners’ allocation from the
developer being the opposite parties herein.
14.
That
the Petitioners beg to state that the petitioners are still awaiting to get
their Owners’ allocation in terms of as 50% of car parking space at the ground
floor of the premises, including the letter of possession, completion
certificate, copy of sanctioned building plan of the Kolkata Municipal
Corporation.
15.
That
the Petitioners beg to state and submit that the purported activities of the
developer being the opposite parties herein, in delayed delivering the
possession of the flats only and non delivery of car parking space at ground
floor and non delivery of necessary papers and documents and delaying delivery
of flats, well constitute the deficiency in services and unfair trade practice
as meant in accordance with the provisions of the Consumer Protection Act’
1986.
16.
That
the Petitioners beg to state that the Petitioners as however in believe that
good sense will prevail on the developer being the opposite parties herein,
seeking thereby the delivery of the Car Parking Space at Ground Floor, and the
Letter of Possession in respect of the Flats at 1st floor and top
floor and of the car parking space and the sanction building plan, completion
certificate of building and all other necessary documents and or papers related
to the flats and the car parking space, through the Legal Letter by their
Learned Advocate, vide Legal Letter being ref. no. AKS / Legal / 1940 / 15,
dated 13th day of July’ 2015, which has been posted through Speed
Post as on 31st day of July’ 2015.
17.
That
the Petitioners beg to state that the Track report of the article as downloaded
from the website of India Post, shows due delivery of the article being the
Legal Letter ref. no. AKS / Legal / 1940 / 15, dated 13th day of July’
2015, which has been posted through Speed Post as on 31st day of
July’ 2015. The said article has been duly served by the postal department as
on 03-08-2015, and 05-08-2015, as so appeared from the Track report of the
India Post.
18.
That
the Petitioners beg to state that even after in receipt of the said Legal
Letter ref. no. AKS / Legal / 1940 / 15, dated 13th day of July’
2015, which has been posted through Speed Post as on 31st day of
July’ 2015, by the developer being the opposite parties herein, the opposite
parties did not even communicate and or answer anything to the petitioners till
date.
19.
That your petitioners state that such purported
acts of the opposite parties / developer, are not in accordance with the said
Development Agreement dated 11th day of January’ 1999, is an
established act of deficiency in services, and causes of mental agony and
harrashment, as well as loss of money of your petitioners.
20.
That your petitioners state that However before
taking shelter of Law, your petitioner seeks that the opposite party /
developer should act in accordance with the said Development Agreement dated 11th
day of January’ 1999, and to hand over the physical possession of the Owners
allocation, and for such reasons alone, your petitioners served one Legal
Notice, through their Ld. Advocate, vide Notice being Ref. no. AKS / Legal / 1940 / 15, dated 13-07-2015,
through Speed Post, stating inter alia praying for compliance at an early date,
preferably, within a period of fortnight from the date of receipt of such notice.
21.
That
your petitioners state that the Opposite parties / developer received such
notices, as served upon them by the Learned Advocate of your petitioners, as on
03-08-2015, as it’s appeared from the consignment tracking from the website of
the India Post, though the opposite parties / developer did not reply and or
answer such notices of your petitioners, and did not endavour to comply in
accordance with the Agreement.
22.
That your petitioners state that the Developer
agreed in the said Development Agreement 11th day of January’ 1999,
that the Owner’s allocation to be delivered within 18 months from the day of
Sanction of the building plan from Municipal Corporation, and entire building
should be completed within such period though did not comply therewith.
23.
That your petitioners state that your
petitioners are entitled to get the Owners’ allocation at first, in accordance
with the Development Agreement dated 11th day of January’ 1999, from
the Developer.
24.
That your petitioners state that your
petitioners are victim of the breach caused by the Developer and great looser
as such your petitioners are still suffering since did not get as contained in
terms of the Development Agreement dated 11th day of January’ 1999,
from the Developer / Opposite Parties / Respondents, herein.
25.
That
the purported activities of the Respondents / Opposite Parties from the
beginning of the agreement with them, they motivated, and intentionally cause
the breach since the date of entrustment to them, as such they are not cause
any delivery as of the Owner’s allocation, to your petitioners till date.
26.
That
the purported activities of the Opposite Parties, which shows and established
their deficiency in services in providing and entering into the agreement for
development at some specific terms and conditions though willfully and
deliberately failed to carry out the same and / or failed to provide the
services as enumerated in the agreement for development dated 11th
day of January’ 1999.
27.
That
the Petitioners state and submit that the Petitioners solely seeks to get the
delivery of possession of car parking space and letter of possession,
completion certificate of building by the KMC, and all other necessary
documents, etc., by the Respondents / Opposite Parties in favour of your
petitioners, in accordance with the Development Agreement dated 11th
day of January’ 1999.
28.
That
your petitioners state and submit that your petitioners ascertained and self
assessed the present market values of the owner’s allocation as described in
the Agreement dated 11th day of January’ 1999, are as of Rs.
80,00,000/- ( Rupees Eighty Lakhs ) only.
29.
That
the petitioners state and submit that the petitioners are victim of the
purported acts and deficiency in services
at the instances of the opposite parties and the acts of the opposite
parties as well as the facts are well constitute the deficiency in services on
the part of the opposite parties.
30.
That
the petitioners state and submit that the respondents shall pay the
compensation due to the complainant petitioners 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 / opposite
parties. The complainant / petitioners, assesses such loss and damages at Rs.
6,00,000/- ( Rupees Six lakhs ) only.
31.
That
the Petitioners state and submit that the purported activities of the
respondents established deficiency in services, which is contrary to the Law.
32.
That
the applicant / Petitioners State and submit that from all of the statements
made above, it is clear that the opposite parties are guilty of deficiency in
service as meant in the Consumer Protection Act’ 1986.
33.
That
the Cause of action for the present proceeding arose as on 20th day
of November’ 2013, while the developer being the opposite parties herein
delivered the physical possession of the flats as enumerated in the owners’
allocation, but did not deliver the physical possession of the car parking
space and the letter of possession in respect of the flats and the car parking
spaces, including the completion certificate of the building issued by the
Kolkata Municipal Corporation, and copy of sanctioned building plan as obtained
from the Kolkata Municipal Corporation by the developer being the opposite
parties herein and thereafter adverse date and the same is continuing till
date, and the respondents / opposite parties are residing and having office as
given in the cause title of this application, which is within the jurisdiction
of the Hon’ble Commission.
34.
That the present application / petition,
valued as the Value of Goods and or services as of Rs. 80,00,000/- ( Rupees
Eighty Lakhs ) only for the owner’s allocation as described in the Agreement
dated 11th day of January’ 1999, and Compensation of Rs. 6,00,000/- ( Rupees Six Lakhs ), as
for the harassment, troubles, loss of money, physical inconvenience and mental
agony, suffered by the petitiones from the purported activities and others by
the opposite parties. Thus Rs. 86,00,000/- ( Rupees Eighty Six Lakhs ) only, is
a value of the present application / petition.
35.
That
the instant application / Petition, is within the pecuniary jurisdiction of
this Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at
Premises being no. 11 A, Mirza Ghalib Street, Kolkata-700087.
36.
That
the present complaint is being filed within the period as prescribed under
section 24 A, of the Consumer Protection Act’ 1986.
37.
That
your petitioners enclosing herewith a copy of the Development Agreement dated 11th
day of January’ 1999, marked as Annexure – “A”.
38.
That
your petitioner enclosing herewith a copy of the Letter dated 13th
day of July’ 2015, which has been served upon the opposite parties, through the
Learned Advocate of your petitioners, marked as Annexure – “B”.
39.
That
your petitioners enclosing herewith the postal receipt of the Speed Post and
the Print out copy, as to report of the Consignment tracking obtain from the
Website of the India Post, towards the acknowledgment of services upon the
opposite parties, and collectively marked as Annexure – “C”.
40.
That
your Petitioners crave leave to produce the relevant documents and / or papers
at the time of hearing, of the case matter before the Hon’ble Commission.
41.
That
the present complaint being made bona-fide and in the interest of administration
of justice.
42.
The
Petitioners therefore prayed for :
Under the above facts
and circumstances, It is prayed that your Honour would be graciously pleased to
grant the following prayers / relief :-
a)
To
direct the opposite parties / respondents to deliver the physical possession of
the Owner’s allocation, i.e. Car Parking Space as per terms of the Development
Agreement dated 11th day of January’ 1999, to your petitioners ;
b)
To
direct the opposite parties / respondents to give and or provide the Letter of
Possession in respect of Flats as well as in respect of the Car Parking Spaces
at Ground floor, in terms of the Development Agreement dated 11th
day of January’ 1999, to your petitioners ;
c)
To
direct the opposite parties / respondents to give and or provide the Completion
Certificate of the Building issued by the KMC, and a copy of the Building
Sanctioned Plan issued by the KMC to your Petitioners ;
d)
To
direct the opposite parties to pay compensation, as for the harassment,
troubles, loss of money, physical inconvenience and mental agony, suffered by
the petitioners from the purported activities and others by the opposite
parties as assessed as of Rs. 6,00,000/- ( Rupees Six Lakhs ) only to your
petitioners ;
e)
To grant the cost of the proceedings ;
f)
To grant any other relief to the applicant /
petitioner as found out by your Honour, in the facts and circumstances of the
Complaint.
And to pass such other
necessary order or orders as your Honour , may deem fit and proper for the ends
of justice.
And for this act of kindness, the
Petitioner, as in duty bound shall ever pray.
Verification
I, Sri Dilip Kumar Mondal, being the Petitionerno.2 herein, authorized
by the petitioner nos. 1, 3, 4, 5, and 6, to place this application before the
Hon’ble Commission, and therefore I do hereby declare that the forgoing
paragraphs no________to ________are true to the best of my knowledge and rest
prayers portions are my humble submission before the Hon’ble Commission and I
duly sign and verify this petition on _____________2015, at Kolkata.
Sri Dilip Kumar Mondal
Identified
by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated : ____________2015.
Place : Alipore Judges’ Court.
District : South 24 Parganas.
Before the Hon’ble State Consumer
Disputes Redressal Commission, West Bengal, at Premises being no. 11 A, Mirza
Ghalib Street, Kolkata-700087.
Complaint Case
no………..…of 2015.
In the matter of :-
Smt. Nanda Rani Mondal, and Others.
……..Applicants /
Petitioners.
-
Versus
–
M/s. Citizen Construction. and anr.,
………Respondents
/ Opposite Parties.
AFFIDAVIT
Affidavit
of Sri Dilip Kumar
Mondal, Son of Late Dulal Chandra Mondal, aged about ________years, by faith
Hindu, by Occupation ______________, residing at premises being no. 134,
Santoshpur Avenue, Kolkata – 700 075.
I,
the above deponent do hereby solemnly affirm and declare as under :-
1.
That
I am being the petitioner no.2, in the above case, thoroughly conversant with
the facts and circumstances of the present case and am competent to swear this
affidavit.
2.
That
I am authorized by the Petitioner nos. 1, 3, 4, 5, and 6, herein, to swear this
affidavit.
3.
That
the facts contained in my accompanying complaint / 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 …………….2015, at Kolkata.
DEPONENT
Identified by me,
Advocate.
Prepared
in my Chamber,
Advocate.
Dated
:…………………………2015.
Place
: Alipore Judges’ Court.
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.
Complaint Case no. __________of
2015.
Smt. Nanda Rani Mondal, and others,__________Complainant / Petitioner.
- Versus –
M/s. Citizen Construction and others. ____________Respondents / Opposite Parties.
KNOW ALL MEN by these presents that I / We, 1) Smt. Nanda
Rani Mondal, Wife of Late Dulal Chandra Mondal, residing at premises being no.
134, Santoshpur Avenue, Kolkata – 700 075, 2) Sri Dilip Kumar Mondal, Son of
Late Dulal Chandra Mondal, residing at premises being no. 134, Santoshpur
Avenue, Kolkata – 700 075, 3) Sri Ashok Kumar Mondal, Son of Late Dulal Chandra
Mondal, residing at premises being no. EC – 50, Maya Enclave, Hari Nagar, New
Delhi – 110064, 4) Smt. Monarama Halder, Wife of Gopal Chandra Halder, residing
at premises being no. 36/1, Beni Naskar Lane, Kolkata – 700 065, 5) Smt.
Santilata Chakraborty, wife of Jibon Gopal Chakraborty, residing at Akra
Krishnanagar, District South 24 Parganas, and 6) Smt. Kalpana Das, wife of
Subal Kumar Das, residing at Village – Kharberia, Budge Budge, Police Station –
Budge Budge, District – South 24 Parganas,
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 ………………2015.
Sri Ashok Kumar Singh, Advocate. High Court Bar Association Room No. 15, High Court at Calcutta, Enrollment No. ____________________, Bar Council of West Bengal. Mobile No. 9883070666 / 9836829666, E-mail : aksinghadvocate@rediffmail.com
Sri Manoj Halder, Advocate. Sri
Sandip Roy Chowdhury, Advocate. Sri
Rabindra Nath Das, Advocate. Sri Saheb Halder, Advocate. Miss Jahira Begum,
Advocate. Miss Priyanka Halder, Advocate.
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