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First Appeal no.
A/23/2024
In the matter
of :
Sri Ashok Kumar Gupta, Son of Late
Girija Prasad Gupta, having office at Premises being no. 2, Dharmadas Row,
Kolkata – 700026, and also residing at Premises being no. 15, Mullick Para
Lane, Post Office – Bangur, Police Station – Dum Dum, Kolkata – 700055,
District – North 24 Parganas.
______Appellant
-
Versus
–
Sri Gour Mitra, Son of Late
Sital Prasad Mitra, residing at Premises being no. 140A, Peary Mohan Roy Road,
Post Office – Alipore, Police Station – Chetla, Kolkata – 700027, District –
South 24 Parganas.
__________Respondent
BRIEF NOTES OF
ARGUMENT
ON BEHALF OF
THE APPELLANT
1. That the
present First Appeal is preferring in challenging the proprietary &
entirety of the impugned Order dated 01/12/2023, passed in Consumer Complaint
being CC/361/2021, by the Learned Consumer Disputes Redressal Commission
Kolkata Unit – III (South). The relevant portion of the said order
dated 01/12/2023, is reproduce in the followings;
“What we find from our discussion as made above that the OP took
the plea that he already sold the scheduled flat to other intending purchaser
and he claimed this through e-mail dt. 2/8/2021 which is during the stipulated
period or in other words, before the stipulated period of 18 months
expired. So, OPs are found to have unilaterally deviated from the terms
of the said agreement or in other words, putting an end to the said agreement
by claiming that he had sold out the scheduled flat booked by the complainant
before expiry of the said stipulated period though he failed to establish the
same during hearing as discussed hearing above. Therefore, if the
complainant had waited for the said stipulated period of 18 months to expire
and then came to this commission for relief, the plea of the OP would not have
been otherwise than the one taken in this case. The acts of the OP
created so much grave a situation for the complainant, where waiting for the
remaining period to expire for getting redressal from this commission, became
absolutely meaningless. It is found to be the sheer anxiety of the
complainant who is found to be a consumer that drove him to approach this
commission for redressal”.
“That the instant complaint is allowed on contest with
cost.OP is directed to hand over the possession of the `B’ schedule flat to the
complainant and also execute and register a deed of conveyance in respect of
the flat in favour of the complainant on receiving the balance consideration
from him in accordance with the agreement for sale dt. 6/11/2020 made between
the parties.OP is also directed to pay compensation of Rs.30,000/- and
Rs.8,000/- towards cost of litigation to the complainant. OP is directed
to comply with this order within 60 days from the date of this order, failing
which, the complainant shall be at liberty to proceed in accordance with law”.
2. That the subjected Schedule
property being the flat has been sold by the appellant based on conversation of
the respondent herein, which has not been considered by the Learned District
Commission.
3. For that while the subjected
flat has already been sold out and not in occupation of the appellant, the
impugned Order dated 01-12-2023, passed in CC/361/2021, by the Learned District
Commission is not executable.
4. That the appellant participated
in the said Consumer Complaint, and completed his all pleadings, wherein the
appellant categorically stated that the subjected flat has been sold out and
the appellant was agreed to refund the money given by the respondent herein,
with prevailing banking rate of interest, thereon. The appellant further stated
that the said Consumer Complaint was premature and not maintainable as the
events and transaction has been assailed between the parties towards investment
of money by the respondent herein, and the agreement is merely a security
document for the said money.
5. That the Order dated 1st
day of December’ 2023, passed in Consumer Complaint no. CC/361/2021, by the
Learned Consumer Disputes Redressal Commission Kolkata Unit – III (South), is
not establishing any correct proposition of Law, and thus the same would not be
a precedent which cause prejudice highly, so far;
LIST OF DATES;
|
Sl. No. |
Date |
Particulars’ |
|
01 |
06/11/2020 |
Agreement
for Sale / Payment of Rs. 10,00,000/- |
|
02 |
08/12/2020 |
Payment
of Rs. 5,00,000/- |
|
03 |
06/02/2021 |
Payment
of Rs. 5,00,000/- |
|
04 |
28/07/2021 |
Email
by the Complainant |
|
04 |
02/08/2021 |
Email
to the Complainant “as
advised by you I have sold your Ground Floor Flat at 65/2, Jainuddin Mistry
Lane, Kolkata – 700027. The intending purchaser will make the payment by
second week of August, 2021, after which I will return the advance amount
that you have paid me at the time of booking the Flat. I hope to pay you by
25th August, 2021” |
|
05 |
05/08/2021 |
Email
by the Complainant |
|
06 |
06/05/2022 |
Agreement
for Sale Valid till date |
|
07 |
18/08/2021 |
The
Present Consumer case was filled |
Facts;
a)
That
the Agreement for Sale dated 6th of November 2020, has been entered
between the parties being an indenture of Security of investment made by the
Respondent to the Appellant, herein. The money being sum of Rs. 20,00,000/- (
Rupees Twenty Lakhs ) only, has been paid on different dates by the respondent
to the appellant herein and thereby entitle to get such money with appropriate
banking rate of interest thereon. Thus the said Agreement for Sale dated 6th
day of November’ 2020, is a symbolic one as a Security documents of investment
made by the respondent herein.
b)
That
the investment of the Respondent and return thereof with appropriate banking
rate of interest thereon is a commercial activities between the parties herein
and the same has lost the jurisdiction of the Hon’ble Consumer Disputes
Redressal Commission.
c)
That
in the event, considering the said Agreement for Sale dated 6th day
of November’ 2020, it is pertinently states that the Respondent failed to
comply with the payment schedule or the manner of payment in the given time
frame in the said agreement for sale.
d)
That
the Respondent placed his financial difficulties to pay any further to the
Appellant herein and approached the appellant as to sale out the subjected flat
to other intending purchaser and refund his money on such sale.
e)
That
in pursuance of asking of the respondent, appellant proceeded and sold out the
subject flat of the said Agreement for Sale dated 6th day of
November’ 2020, to other intending purchaser, and arranged himself to pay back
money of the respondent with appropriate banking rate of interest but this is
the respondent who in greed to get more money presumably changed his color and
with such motivation initiated the consumer proceeding against the appellant.
f)
That
the Appellant is all along ready and willing to refund the money paid by the
respondent with appropriate banking rate of interest.
g)
That
the said Agreement for Sale dated 6th day of November’ 2020, clearly
contended that the appellant has agreed to hand over the proposed flat to the
purchaser within 18 months from the date of the agreement, subject to the
respondent complying to the terms of payment mentioned in schedule – E and
standard force majure conditions, therefore the eighteen months come on 6th
day of April’ 2022, thus the consumer proceeding is premature one initiated by
the respondent only on 18/08/2021.
Conclusion;
The
Order dated 1st day of December’ 2023, passed in Consumer Complaint
no. CC/361/2021, by the Learned Consumer Disputes Redressal Commission Kolkata
Unit – III (South), would be modified with a direction for refund of money with
appropriate banking rate of interest in lieu of the extent of delivery of
possession to the respondent herein.
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