District : South 24 Parganas.
Before
the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, 11A,
Mirza Ghalib Street, Kolkata – 700087.
Complaint
Case no. _____of 2015.
In the
matter of :
An
application for Condonation of delay under Section 24A of the Consumer
Protection Act’ 1986, and rules made there under;
A N D
In the matter of :
1) Shri
Tushar Chatterjee, Son of Late Shri Kanailal Chatterjee, residing at premises
being no. 2/45, Arabinda Nagar, 3rd Floor, ( Nr. Golf Green ), Post
Office – Regent Park, Kolkata – 700 040.
2) Shri Rebati Chatterjee, Son of
Kanai Lal Chatterjee, residing at premises being no. 430, Motilal Gupta Road,
Police Station Haridevpur, Kolkata – 700008, District South 24 Parganas.
3) M/s.
Chatterjee Engineering, a partnership firm, presently having office at premises
no. 301, Crystal Fins, 19-Kirti Kunj Society, Nr. Jeevan Bharati School,
Karellbaug, Vadodra – 390018, Gujarat.
_____Petitioners
/ Complainants.
-
Versus
–
1. Sri Debashis Barat, Son of Shri
Prasanta Kumar Barat, residing at premises being no. 9A, Narishinga Dutta Road,
Barisha, Police Station – Haridevpur, Kolkata – 700008, District South 24
Parganas.
2. M/s. Barat Constructions
Private Limited, having it’s registered office at premises being no. 9A,
Narishinga Dutta Road, Barisha, Police Station – Haridevpur, Kolkata – 700008,
District South 24 Parganas.
3. Barisha Taruchhaya Welfare
Association having it’s office at premises being no. 9, James Long Sarani,
Police Station Thakurpukur, Kolkata – 700008, District South 24 Parganas.
________
Respondents / Opposite Parties.
The humble petition
of the above named petitioner / Complainant, most
respectfully;
Sheweth
as under :
1.
That
the present complaint is filed after the prescribed period as enumerated under
the provision of section 24A of the Consumer Protection Act’ 1986.
2.
That
the Complainants herein being desired of acquiring one self contained
residential flat on ownership basis have approached the respondent nos. 1 and 2
herein and the respondents has accepted the said offer of the complainant
herein and agreed to sell one self contained residential flat measuring super
built up area of 960 Sq. ft. more or less on the Ground Floor, being Flat no.1,
in Block – A, of the multi storied building complex named as “TARUCHAYA”
together with proportionate undivided impartible share or interest in the said
land at premises being no. 9, James Long Sarani, Kolkata – 700008, together
with undivided proportionate share or interest of common spaces situated and
lying within the limits of the Kolkata Municipal Corporation in Ward no. 123,
Borough No. XII, at the Consideration of a sum of Rs. 24,00,000/- ( Rupees
Twenty Four Lakhs ) only.
3.
That
the Complainants paid the said Consideration money as on 16-04-2012, Rs.
4,00,000/- ( Rupees Four Lakhs ) only, vide RTGS of UBI, Nizampur Branch, being
no. 722310, and further of Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, vide
Cheque being no. 720988, drawn on ICICI Bank Limited, Badodra Branch, dated 25th
day of April’ 2012, to the Respondent nos. 1, and 2, herein, developer.
4.
That
on the receipts of such consideration money of Rs. 24,00,000/- ( Rupees Twenty
Four Lakhs ) only, the Developer herein made DEED OF CONVEYANCE as on 25th
day of April’ 2012, in respect of one self contained residential flat measuring
super built up area of 960 Sq. ft. more or less on the Ground Floor, being Flat
no.1, in Block – A, of the multi storied building complex named as “TARUCHAYA”
together with proportionate undivided impartible share or interest in the said
land at premises being no. 9, James Long Sarani, Kolkata – 700008, together
with undivided proportionate share or interest of common spaces situated and
lying within the limits of the Kolkata Municipal Corporation in Ward no. 123,
Borough No. XII, Police Station Haridevpur, District South 24 Parganas, in
favour of the Complainant, vide Deed being no. 4694 for the year 2012, dated 30th
April’ 2012, but did not deliver the physical possession of the said flat.
5.
That
the Complainants visited the office of the Respondent no.2, herein and the
residence of the Respondent no.1, herein and requested for delivery of physical
possession of the said Flat, and the Respondent nos. 1, and 2, on all and every
occasion assured to deliver the physical possession of the said flat but did
not do so, and said that some proceeding is going on with the KMC for
regularization of the building plan and as soon as the said proceeding finally
decided the respondents will deliver the physical possession of the said flat
to the complainant. It is pertinent to state that the Developer being the
Respondent nos. 1, & 2, did not even provide Possession letter of the said
flat to the Complainant.
6.
That
thereafter in the month of May’ 2014, the Respondent nos. 1, and 2, provide a
copy Order of KMC passed by Shri Nomit Mutsuddi, Special Officer ( Building ),
K.M.C. in Demolition Case No. 19-D/XIII/2013-14, Br. XIII ( K.M.C. Versus Mr.
Debashis Barat ), proceeding under Section 400(1) & 416 of Kolkata
Municipal Corporation Act’ 1980, in respect of premises being no. 9, James Long
Sarani, passed the final order as on 12-04-2014, and assured to regularize in
accordance with the said order and deliver the physical possession of the said
flat to the complainant.
7.
That Shri Nomit Mutsuddi, Special Officer (
Building ), K.M.C. in Demolition Case No. 19-D/XIII/2013-14, Br. XIII ( K.M.C.
Versus Mr. Debashis Barat ), proceeding under Section 400(1) & 416 of
Kolkata Municipal Corporation Act’ 1980, in respect of premises being no. 9,
James Long Sarani, passed the final order as on 12-04-2014, as “ a) The P.R. is
directed to demolish the unauthorized toilet and asbestos shed constructed in
the drive way as shown in the précis as well as demolition sketch plan by red
colour, within 30 days from the date of the communication of the order, in
default, the KMC authority is at liberty to demolish the same at the cost and
at the risk of the P.R. b) The P.R. is directed to restore the portion of the
Car Parking space at the ground floor in Block – A, in the captioned premises
in its original position after demolishing the structure standing there on
within 30 days from the date of the communication of this order, in default,
KMC authority shall stop such unauthorized change of use applying the provision
of Section 416(10) of KMC Act’ 1980. C) that no order for demolition is hereby
passed in respect of remaining unauthorized constructions subject to complying
the following preconditions, within 30 days from the date of the communication
of this order. Those conditions are (1) P.R. must produce a certificate from
KMC paneled structural Engineer certifying that the structural stability and
the foundation of the impugned constructions are safe and sound and the
materials used as well as workmanship are as per the latest edition of N.B.C.
of India, (2) he must furnish an affidavit declaring on oath that he will not
make any construction whatsoever in the impugned premises without prior
sanction from the KMC authority and (3) he must pay the necessary retention
charges of the KMC as calculated by the department in a separate
sheet of paper attached and supplied with this final order. On non compliance
of either of the conditions within the above stated specified period the KMC
authority shall demolish the same at the cost and at the risk of the P.R.
8.
That
on and after expiry of substantial period of time, the complainants in believe
that the respondent nos. 1, and 2, are not at all wishes to deliver the
physical possession of the said flat. It is pertinent to state that the said
flat and constructions thereof are still there and there are no demolitions has
ever been occurred till date, in accordance with the said order of the KMC.
9.
That
the Respondent nos. 1, and 2, did not communicate anything thereafter about the
compliance of the Order of the KMC and others information related thereof, therefore the complainants are not
in knowledge about such compliance in accordance with the Order of the KMC.
10.
That
the Respondent no.3, and its members are claiming that the subjected flat is an
unauthorized construction and made in violation of the sanctioned building
plan, and therefore they resisted and obstructed to enter into the said
constructed flat at ground floor of Block A of the said premises being no. 9,
James Long Sarani, Police Station – Thakurpukur, Kolkata – 700008, District
South 24 Parganas.
11.
That
the respondent no.3, herein institute one proceeding under Section 144(2) of
Cr.P.C. before the Learned 2nd Court of Executive Magistrate, at
Alipore, South 24 Parganas vide M.P. no. 469 of 2015, praying inter alia the
obstruction of entrances of the complainants at the premises being no. 9, James
Long Sarani, Police Station – Thakurpukur, Kolkata – 700008, District South 24
Parganas.
12.
That
the Complainants solely seeks to get the delivery of physical possession of the
said flat measuring super built up area of 960 Sq. ft. more or less on the
Ground Floor, being Flat no.1, in Block – A, of the multi storied building
complex named as “TARUCHAYA” together with proportionate undivided impartible
share or interest in the said land at premises being no. 9, James Long Sarani,
Kolkata – 700008, together with undivided proportionate share or interest of
common spaces situated and lying within the limits of the Kolkata Municipal
Corporation in Ward no. 123, Borough No. XII, Police Station Haridevpur,
District South 24 Parganas, from the developer vendor being the respondent nos.
1, and 2 herein, in terms of Deed of Sale dated 25th day of April’
2012, for the residential purposes only.
13.
That
the purported activities of the Respondents / Opposite Parties from the
beginning of the Deed of Conveyance with them, they motivated, and
intentionally cause the breach since the date of entrustment to them, as such
they are not cause any delivery of the subjected flat, to your petitioners till
date.
14.
That
the present complaint is being filed after the period as prescribed under
section 24 A, of the Consumer Protection Act.
As per Section 24 A of the Consumer Protection Act’ 1986, a complaint
should be filed within two years from the date of cause of action. The cause of
action of the instant application arose as on 25-04-2012, and therefore the
complainants ought to have been filed within 24-04-2014. The complainant could
not come before the Hon’ble Commission within such period as prescribed under
the Provisions of Section 24 A of the Consumer Protection Act’ 1986, as on the
day as on 12-04-2014, while the KMC authority passed order in the matter of
demolition proceeding and thereafter on the failure of carrying out the
compliance of such order dated 12-04-2014, and thereafter the institution of
proceeding under Section 144(2) of Cr.P.C. before the Learned 2nd
Court of Executive Magistrate, at Alipore, South 24 Parganas, vide M.P. no. 469
of 2015, dated 03-02-2015, and thereafter due to non – delivery of physical
possession of the said flat as enumerated and in terms of the Deed of
Conveyance dated 25th day of April’ 2012, and as the respondent nos.
1 and 2, always assured and keep in hope to deliver the physical possession of
the said flat, to the Complainants and as also the complainants since busy with
their activities for their livelihood at out station could not appropriately
accommodated themselves and therefore for such reasons alone 420 four hundred
twenty days delay occurred in filling the present application before the
Hon’ble Commission. The Complainants seeks the condonation of such unwillfull
delay in the interest of administration of justice.
15.
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.
16.
That
the present complaint being made bona-fide and in the interest of
administration of justice.
17.
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
issue notice upon the respondents and on causing necessary hearing thereof
Hon’ble Commission may pleased to condone the delay of 420 four hundred twenty
days delay in filling of the present application by the applicants, at any
cost, terms and conditions in the interest of administration of justice;
b)
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, Shri Subrata Chatterjee, being the constituted attorney of
the Petitioners, herein, 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.
Shri Subrata
Chatterjee
Identified
by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated : ____________2015.
Place : Kolkata.
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 :-
Shri Tushar Chatterjee, and Others,
……Applicants / Petitioners.
-
Versus
–
Sri Debashis Barat and others,
………Respondents
/ Opposite Parties.
AFFIDAVIT
Affidavit
of Shri Subrata
Chatterjee, Son of Late Brindaban Chatterjee, aged about 45 years, by
occupation Business, residing at premises being no. 862A/1, Motilal Gupta Road,
Near Shitala Temple, Barisha, Kolkata – 700008, District South 24 Parganas.
I,
the above deponent do hereby solemnly affirm and declare as under :-
1
: That I am being the Constituted attorney of the petitioners, in the above
case, thoroughly conversant with the facts and circumstances of the present
case and am competent and authorized to swear this affidavit.
2
: 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
: Kolkata.
N O T A R Y
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