Before the Hon’ble
State Consumer Disputes Redressal Commission, West Bengal, at Bhawani Bhawan,
31, Belvedeare Road, Alipore, Kolkata – 700 027.
.
Memo of
Appeal no……….…of 2012.
In the
matter of :-
Appeal under
Section 15 of the Consumer Protection Act’ 1986, from the Order and Judgment
passed by the Learned District Consumer Disputes Redressal Forum at Barasat,
North 24-Parganas;
A N D
In the matter of :-
The impugned Order
& Judgment dated 20-07-2012, passed by the Learned District Consumer
Disputes Redressal Forum at Alipore, South 24-Parganas, in Case number C.C. no.
253 of 2011, filed on 28-11-2011;
A N D
In the matter of :-
Smt. Asru Sanyal,
Wife of Late Pradip Kumar Sanyal, residing at premises being no. 47L, Selimpur
Road, Police Station – Kasba, Kolkata – 700 031.
………..Appellant /
Respondent no. 2, / O.P. no. 2.
-
Versus
–
1 : Shri Debasish
Chakraborty, Son of Shri Rabindra Nath Chakraborty, residing at premises being
no. 47L, Selimpur Road, Kolkata – 700 031, Police Station - Kasba.
……………Respondent
/ Petitioner / Complainant.
2 : M/s. S.B.
Construction, a proprietorship firm, having it’s registered office at premises
being no. 13/1, K.P. Roy Lane, Police Station – Kasba, Kolkata – 700 031,
represented by it’s Proprietor Shri Bidyut Chatterjee, residing at B/1, K.P.
Roy Lane, Police Station – Kasba, Kolkata – 700 031.
……………Respondent
/ Respondent no.1, / Opposite Party no.1.
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 and Judgment
being dated 20-07-2012, passed by the Learned District Consumer Disputes
Redressal Forum at Alipore, District – South 24-Parganas, in Case number C.C.
no. 253 of 2011.
2 : That the Appellant /
Respondent no. 2, / Opposite Party no.
2, did not get any opportunity to file her Evidence on Affidavit, since on
15-06-2012, her Ld. Advocate placed one petition praying for time to file
Written Version, and whereas the same was granted by the Hon’ble District
Consumer Disputes Redressal Forum, at Alipore, South 24 – Parganas, and whereas
the next date has been given as on 02-07-2012, though the said date has been
wrongly posted by the Learned Advocate, as on 20-07-2012, in his dairy.
3 : That the Appellant /
Respondent no. 2, / Opposite Party no.
2, appeared before the Hon’ble District Consumer Disputes Redressal Forum, at
Alipore, South 24-Parganas, on 20-07-2012, with her Learned Advocate and to
place her Written Version before the Hon’ble Forum, and whereas the Learned
Advocate of the Appellant / Respondent no. 2, / Opposite Party no. 2, astonished
to know that the said case being C.C. no. 253 of 2011, has been fixed up for
Judgment, and whereas the Learned Advocate of the Appellant / Respondent no. 2,
/ Opposite Party no. 2, submitted one application stating inter alia the facts
of misposting of date as 20-07-2012, in stead of 02-07-2012, for filling of
Written Version, and whereas accordingly the Written Version submitted, before
the Hon’ble Forum, and the said mistake of date was of bonafide mistake free
from any intention on the part of the Learned Advocate and or on part of the
Appellant / Respondent no. 2, / Opposite Party no. 2, though the said petition
rejected by the Order no. 09, dated 20-07-2012, and the Written Version has not
taken into consideration for passing final order and or judgment dated
20-07-2012.
4 : That the Appellant /
Respondent no. 2, / Opposite Party no.
2, and the Respondent no. 1, / Opposite Party no. 1, did not get any proper
opportunity to contest the said Case matter being no. C.C. no. 253 of 2011, before
the Hon’ble District Consumer Disputes Redressal Forum, at Alipore, South 24
Parganas, and whereas resulting which no proper adjudication has ever been
derived from the said purported Judgment dated 20-07-2012, passed by the
Hon’ble District Consumer Disputes Redressal Forum, at Alipore, South 24
Parganas, in C.C. no. 253 of 2011.
5 : That the Appellant /
Respondent no. 2, / Opposite Party no.
2, states and submits that the following orders has been given on
02-07-2012 and 13-07-2012, which give and raise more suspicion about proceeding
in C.C. no. 253 of 2011.
Order no. 7, dated
02-07-2011 – “ Complainant is present, O.P. takes no steps. None appears on
behalf of O.P. even on repeated call ………. 11.35 a.m.
Fix
13-07-2012, for Exp. Evidence, & Argument, B.N.A.”
Order no. 8, dated
13-07-2012 – “ Complainant is present and files B.N.A. Hd. Argument exparte –
to 20-07-2012 for delivery of judgment”
In these order clearly reflects
that no Evidence on Affidavit has ever been filed by the Respondent /
Complainant, in the said case being C.C. no. 253 of 2011.
6 : That the Appellant / Respondent no. 2, / Opposite Party no. 2, states and submits
that the Hon’ble District Consumer Disputes Redressal Forum, at Alipore, South
24 Parganas, contravene the provisions as enumerated in Section 13 of the Consumer
Protection Act’ 1986, and whereas without taking any Evidence on Affidavit of
the Respondent / Complainant, passed the final order, are the abusive process
of Law to enrich adjudication in the case matter.
7 : That the Appellant /
Respondent no. 2, / Opposite Party no.
2, states and submits that Hon’ble District Consumer Disputes Redressal Forum,
at Alipore, South 24 Parganas, contravene the provisions as enumerated in
Section 13 of the Consumer Protection Act’ 1986, and whereas without taking any
Evidence on Affidavit of the Appellant / Respondent no.2, / Opposite Party no.
2, passed the final order, are the abusive process of Law to enrich
adjudication in the case matter.
8 : That the Appellant /
Respondent no. 2, / Opposite Party no. 2,
states and submits that Hon’ble District Consumer Disputes Redressal Forum, at
Alipore, South 24 Parganas, contravene the provisions as enumerated in Section
13 of the Consumer Protection Act’ 1986, and whereas without giving and or
providing any opportunity to the Appellant / Respondent no.2, / Opposite Party
no. 2, to contest the case matter in accordance with the Law, passed the final
order, are the abusive process of Law to enrich adjudication in the case
matter.
9 : That the Appellant /
Respondent no. 2, / Opposite Party no.
2, states and submits the following facts that
a)
the development agreement was
executed though the date of execution as being given by the Complainant therein
is not proper.
b)
the power of attorney was executed
and registered, but the date as given by the complainant is false, since it did
not execute before the execution of the development agreement.
c)
the Complainant has not paid full
consideration money.
d)
there is no deficiency in service on
part of the Appellant / respondent.
10 : That the Appellant /
Respondent no.2, / Opposite Party no.2, state and submits that the Respondent / Petitioner / Complainant,
did not visit for registration of Deed of Conveyance in respect of such flat,
and did not make any payment towards balance consideration money, whatsoever,
so, the questions of causing services by the appellant / respondent no.2, /
opposite party no.2, does not arise.
11 : That Being aggrieved by
and dissatisfied with the Order and Judgment being dated 20-07-2012, passed by
the Learned District Consumer Disputes Redressal Forum at Alipore, District – South
24-Parganas, in Case number C.C. no. 253 of 2011, on the following, amongst
other :-
GROUND
i)
FOR
THAT the impugned order & Judgment being dated 20-07-2012, is unjustified
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 Learned Forum did not provide any opportunity or proper opportunity to
the appellant to contest the Case matter and to defend herself.
v)
FOR
THAT the Appellant / Respondent no. 2, /
Opposite Party no. 2, and the Respondent no. 1, / Opposite Party no. 1, did not
get any proper opportunity to contest the said Case matter being no. C.C. no.
253 of 2011, before the Hon’ble District Consumer Disputes Redressal Forum, at
Alipore, South 24 Parganas, and whereas resulting which no proper adjudication
has ever been derived from the said purported Judgment dated 20-07-2012, passed
by the Hon’ble District Consumer Disputes Redressal Forum, at Alipore, South 24
Parganas, in C.C. no. 253 of 2011.
vi)
FOR
THAT the following orders has been given
on 02-07-2012 and 13-07-2012, which give and raise more suspicion about
proceeding in C.C. no. 253 of 2011.
Order no. 7, dated
02-07-2011 – “ Complainant is present, O.P. takes no steps. None appears on
behalf of O.P. even on repeated call ………. 11.35 a.m.
Fix
13-07-2012, for Exp. Evidence, & Argument, B.N.A.”
Order no. 8, dated
13-07-2012 – “ Complainant is present and files B.N.A. Hd. Argument exparte –
to 20-07-2012 for delivery of judgment”
In these order
clearly reflects that no Evidence on Affidavit has ever been filed by the
Respondent / Complainant, in the said case being C.C. no. 253 of 2011.
vii)
FOR THAT
the Hon’ble District Consumer Disputes Redressal Forum, at Alipore,
South 24 Parganas, contravene the provisions as enumerated in Section 13 of the
Consumer Protection Act’ 1986, and whereas without taking any Evidence on
Affidavit of the Respondent / Complainant, passed the final order, are the
abusive process of Law to enrich adjudication in the case matter.
viii) FOR THAT Hon’ble District
Consumer Disputes Redressal Forum, at Alipore, South 24 Parganas, contravene
the provisions as enumerated in Section 13 of the Consumer Protection Act’
1986, and whereas without taking any Evidence on Affidavit of the Appellant /
Respondent no.2, / Opposite Party no. 2, passed the final order, are the
abusive process of Law to enrich adjudication in the case matter.
ix)
FOR
THAT Hon’ble District Consumer Disputes Redressal Forum, at Alipore, South 24
Parganas, contravene the provisions as enumerated in Section 13 of the Consumer
Protection Act’ 1986, and whereas without giving and or providing any
opportunity to the Appellant / Respondent no.2, / Opposite Party no. 2, to
contest the case matter in accordance with the Law, passed the final order, are
the abusive process of Law to enrich adjudication in the case matter.
x)
FOR
THAT the following facts that
a)
the development agreement was
executed though the date of execution as being given by the Complainant therein
is not proper.
b)
the power of attorney was executed
and registered, but the date as given by the complainant is false, since it did
not execute before the execution of the development agreement.
c)
the Complainant has not paid full
consideration money.
d) there is no deficiency in service
on part of the Appellant / respondent.
xi)
FOR
THAT the Respondent / Petitioner / Complainant, did not visit for registration
of Deed of Conveyance in respect of such flat, and did not make any payment
towards balance consideration money, whatsoever, so, the questions of causing
services by the appellant / respondent no.2, / opposite party no.2, does not arise.
xii)
FOR
THAT the Respondent / Petitioner / Complainant, can not succeed with their such
frivolus Complaint before the Learned Forum and they can not get the relief as
prayed for in their Complaint, since there was NO DEFICIENCY IN SERVICES on
part of the Appellant / Respondent no.2 / Opposite Party no.2, has ever been
made.
xiii) For that the Ld. Lower Forum
failed to adjudicate the matter in accordance with the Consumer Protection Act’
1986.
12 : That the other ground /
grounds will be agitate at the time of hearing of this appeal.
13 : That unless this
14: That the appellant
enclosing herewith the Original Certified Copy of the Order being nos. 1 to 9
and Judgment dated 20-07-2012, passed in C.C. no. 253 of 2011, by the Learned
District Consumer Disputes Redressal Forum at Alipore, District – South
24-Parganas, and the Petition of Complaint being no. C.C. no. 253 of 2011,
filed on 28-11-2011, and Wriiten Version filed in C.C. no. 253 of 2011.
15 : That this memo of
appeal / application / petition, is made bona-fide and for the interest of
justice.
Under the
circumstances, the Petitioner, of this instant application / petition, prays
before your Honours, 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 and
Judgment being dated 20-07-2012, passed by the Learned District Consumer Disputes
Redressal Forum at Alipore, District – South 24-Parganas, in Case number C.C.
no. 253 of 2011, and to dismiss the application being no. C.C. no. 253 of 2011,
and / or to pass such other necessary order or orders as your Honours 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 merits
and
So, I undertake to argue this case for
the
appellant at the time of hearing.
Advocate
for the Appellant.
Enclosing
herewith the following documents
:-
1 : The Original Certified copy
of Order being nos. 1 to 9, and Judgment being dated 20-07-2012, passed by the
Learned District Consumer Disputes Redressal Forum at Alipore, District – South
24-Parganas, in Case number C.C. no. 253 of 2011.
2 : The Copy of the Petition of
Complaint in C.C. no. 253 of 2011.
3 : The Copy of the Written
Version in C.C. no. 253 of 2011.
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