District : South
24-Parganas.
Before the Hon’ble District Consumer Disputes Redressal Forum, at
Alipore Judges Court, Alipore, South 24 – Parganas.
C.C. no. 69 of 2012.
In
the matter of :
Sri Himadri
Sekhar Das Roy, and others.
_________Complainant.
-
Versus –
Golam Zahid
and others.
________Opposite Parties.
Brief
Notes of Argument
On behalf
of the Opposite Party
Golam
Zahid
Brief
Case of the Complainants :
1.
That the Complainants and their father Late Rabindra Chandra Das Roy,
entered into an Agreement for Development Vide Agreement dated 23-02-2003, and
whereas the Complainant in consideration agreed for to get 2 ( two ) self
contained flats, one on top floor back portion and other one on first floor
back portion together with non-refundable of Rs. 1,50,000/- ( Rupees One Lakh
and fifty Thousand ) only, as per terms as enumerated in the Owner’s Allocation
in the said Agreement with the Opposite Party.
2.
The Opposite Party paid only a sum of Rs. 42,500/- ( Rupees Forty Two
Thousand and Five Hundred ) only to the Complainant no. 3, as per agreed terms
and delivered possession of one incomplete Flat no. being 1 B, i.e. the back
portion flat on the first floor of the building. The Complainant made repeated
requests to the Opposite Party to complete and deliver the other flat and to
pay the said residual sum of Rs. 1,07,500/- ( Rupees One Lakh and Seven
Thousand and Five Hundred ) only, out of the total amount of Rs. 1,50,000/- (
Rupees One Lakh and Fifty Thousand ) only.
3.
That the Complainants seeks to get immediate possession Certificate in
respect of the Flat no. 1B, i.e. the back portion flat on the First Floor of
the building pus an estimated cost of Rs. 2,00,000/- ( Rupees Two Lakhs ) only,
being expenses required for completing the incomplete flat and further
immediate physical possession of the another completed flat admeasuring not
less than 1,000 Sq. ft. on the top floor back portion of the said building
approximate value of which is Rs. 15,00,000/- together with possession
certificate, and also to get residual principal amount of Rs. 1,07, 500/- along
with interest @ 18% p.a. from the year 2005, till the date of full payment.
4.
That the Complainant also seeks to get compensation as of Rs. 75,000/-
( Rupees Seventy Five Thousand ) only, for their mental agony, and emotional
sufferings caused.
Brief
Facts :
1.
That on and after expiry of Rabindra Chandra Das Roy, the Complainant
herein entered into a subsequent agreement on 3rd day of August’
2007, wherein it has been clearly stated that Shri Himadri Sekhar Das Roy, got
his absolute possession in the schedule as stated in the previous agreement
dated 23rd day of February’ 2003, and Rs. 1,07,500/- should be paid
to Mrs. Gargi Mitra, on the day of registration of another remaining flats, in
the building, it is also clearly stated therein that the Opposite Party herein
also handed over the key of the Ground Floor Flat to Sri Bhaskar Das Roy, on
the date of execution of such agreement on the 3rd day of August’
2007, and whereas the said Shri Bhaskar Das Roy, expressed his intention that
he will cause necessary arrangement for registration of the other flat in
favour of the intending purchasers, and Smt. Gargi Mitra also consented to
that.
2.
That Shri Bhaskar Das Roy, after having the key of the Ground Floor
Flat, causing illegal acts and deeds to change the nature and character of the
flat at Ground floor, without the permission of the Kolkata Municipal
Corporation, and whereas he converted the said Ground Floor Flat into a shop room,
and thus the opposite party / developer became unable to cause any work
thereto.
3.
That the Opposite Party / Developer, performed in accordance with the
agreement made and entered with the Land Owners time to time, and thus there is
no deficiency in services on the part of the Developer / Opposite Party.
Facts during proceedings before the Hon’ble
Forum :
1.
That the Opposite Party, Golam Zahid appeared in the Case matter,
before the Hon’ble Forum, Alipore, South 24 Parganas, and filed his Written
Version, wherein denying the contents of the petition of Complaint filed by the
Complainant / applicant and stated the true facts of the Agreement and the
performance in accordance with the said Agreements.
2.
That the Opposite Party, Golam Zahid applied for the inspection by the
Advocate Commissioner, before the Hon’ble Forum, Alipore, South 24 Parganas,
which has been allowed on contest, and whereas the Advocate Commissioner
appointed by the Hon’ble District Forum, who cause inspection, and found the
truth of the versions of the Opposite Party Golam Zahid, that at the top floor
Flat has been occupied and resided by the said Shri Himadri Sekhar Das Roy, and
the Ground Floor Flat has been Changed into a Shop Room, and there is a Shop at
the Ground Floor, which has been taken by the said Shri Bhaskar Das Roy, and
whereas it is also stated that the First Floor Flat of the Back Portion has
been occupied by the said Shri Bhaskar Das Roy.
3.
That the Opposite Party Golam Zahid established the facts through his
Evidence on Affidavit and whereas the further Evidence on Affidavit by the
Golam Zahid and one another witnesses of the subsequent Agreement for the year
2007, has not been cross examined by the complainant herein.
4.
That Smt. Saswati Banerjee, the Proforma Opposite Party, herein has
already instituted one Consumer Case being C.C. no. 330 of 2010, for her two
flats at First Floor, and whereas the Final Order & Judgment has been
pronounced by the Hon’ble Forum, Alipore, South 24 Parganas, wherein it has
been directed to the Land Owners to deliver the physical possession of the Flat
being Flat no. 1 A, and 1 B, at the First Floor of the said building, and cause
registration of the Deed of Conveyance of those flats in favour of the
purchaser.
5.
Hence, more particularly, in respect of the Flat being Flat no. 1B, has
already been adjudicated by the Hon’ble Forum, Alipore, South 24 Parganas, in
C.C. no. 330 of 2010, in the premises of Facts and in the Law, in favour of the
Purchaser Smt. Saswati Banerjee.
6.
Therefore the concocted story for demanding the First Floor Flat by the
Land Owners are not in accordance with the Law, and their claim in their
petition of complaint are based on manufactured and frivolous one.
7.
That very cleverly the Land Owners suppressed the material facts of the
subsequent agreement dated 3rd day of August’ 2007, and also
suppressed the material facts of changing in the Owners allocation made by the
Owners themselves with the Opposite Party / Golam Zahid, and though this facts
has been enumerated by them in their Plaint in a Civil Suit which has been
instituted by them against the Developer / Golam Zahid and Smt. Saswati
Banerjee, before the Learned 1st Court of Civil Judge ( Junior
Division ) Alipore, South 24 Parganas, vide Title Suit no. T.S. no. 379 of
2012.
8.
That in the facts and in the Law, the Opposite Party Golam Zahid did
not cause any acts and deeds, which may cause the deficiency in services, and
on the other hand the complainants made out a frivolous story, suppressing the
material facts of the acts and deeds and to inclinch issues in their favour,
for their wrongful gains and others.
Submission
before the Hon’ble Forum :
1.
That the Opposite Party Golam
Zahid established the facts through his Evidence on Affidavit and whereas the
further Evidence on Affidavit by the Golam Zahid and one another witnesses of
the subsequent Agreement for the year 2007, has not been cross examined by the
complainant herein.
2.
That Smt. Saswati Banerjee, the Proforma Opposite Party, herein has
already instituted one Consumer Case being C.C. no. 330 of 2010, for her two
flats at First Floor, and whereas the Final Order & Judgment has been
pronounced by the Hon’ble Forum, Alipore, South 24 Parganas, wherein it has
been directed to the Land Owners to deliver the physical possession of the Flat
being Flat no. 1 A, and 1 B, at the First Floor of the said building, and cause
registration of the Deed of Conveyance of those flats in favour of the
purchaser.
3.
Hence, more particularly, in respect of the Flat being Flat no. 1B, has
already been adjudicated by the Hon’ble Forum, Alipore, South 24 Parganas, in
C.C. no. 330 of 2010, in the premises of Facts and in the Law, in favour of the
Purchaser Smt. Saswati Banerjee.
4.
Therefore the concocted story for demanding the First Floor Flat by the
Land Owners are not in accordance with the Law, and their claim in their
petition of complaint are based on manufactured and frivolous one.
5.
That very cleverly the Land Owners suppressed the material facts of the
subsequent agreement dated 3rd day of August’ 2007, and also suppressed
the material facts of changing in the Owners allocation made by the Owners
themselves with the Opposite Party / Golam Zahid, and though this facts has
been enumerated by them in their Plaint in a Civil Suit which has been
instituted by them against the Developer / Golam Zahid and Smt. Saswati
Banerjee, before the Learned 1st Court of Civil Judge ( Junior
Division ) Alipore, South 24 Parganas, vide Title Suit no. T.S. no. 379 of
2012.
6.
That in the facts and in the Law, the Opposite Party Golam Zahid did
not cause any acts and deeds, which may cause the deficiency in services, and
on the other hand the complainants made out a frivolous story, suppressing the
material facts of the acts and deeds and to inclinch issues in their favour,
for their wrongful gains and others. Thus the Complainants are not
entitled to get any relief as prayed for
by them before the Hon’ble District Forum and liable to be dismissed with
exemplary Cost and etc.
Through_________________
Advocate
for the Opposite Party.
Dated : 4th day of June’ 2013.
Place : Alipore Judges Court.
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