District
: South 24-Parganas.
Before
the Hon’ble District Consumer Disputes Redressal Forum, at Alipore, Kolkata –
700 027, South 24-Parganas.
Complaint
Case no. 178 of 2012.
In
the matter of :-
Shri
Jayaraman Ramesh, ______Complainant / Applicant /
Petitioner.
-
Versus –
Sri
Shyamalendu Roy, and others.
__________Respondents /
Opposite Parties.
Evidence
on Affidavit by the Complainant / Applicant / Petitioner Shri Jayaraman Ramesh.
Affidavit
Affidavit
of Sri Jayaraman Ramesh, Son of Late S. Jayaraman, aged about 42 years, by
faith Hindu, by occupation Service, residing at premises no. 29, Naresh Mitra
Sarani, ( Beltola Road ), Flat no. 5, Kolkata – 700 025.
I,
the above deponent do hereby solemnly affirm and declare as under :-
1
: That I am the constituted attorney of my mother Smt. Jayaraman Visalakshi,
and the petitioner in the above case, thoroughly conversant with the facts and
circumstances of the present case and am competent and authorized to swear this
affidavit.
“A” {
Xerox copy of the Registered Power of Attorney, being Deed no. 2311 of 1997, is
enclosing herewith and marked as Annexure – “A” }.
2
: That I am a representative and constituted attorney of my mother Smt.
Jayaraman Visalakshi, and whereas I look after all the affairs of my mother,
since my mother is an old aged lady and not able to look after all her affairs,
particularly the matters related to the immovable property.
3
: That I entered into an Agreement for Sale Dated 30th day of April’
2008, with all the Opposite Parties nos. 1,2, and 4, including Sri Amalendu
Roy, Son of Late Sarada Prasanna Roy, and Smt. Prativa Rani Roy, wife of Late
Sudhendu Ranjan Roy, both of premises being no. 58/29, Prince Anwar Shah Road,
Police Station – Lake, Kolkata – 700 045, whereas the opposite party no.4, put
his signature as a constituted attorney of the opposite party no. 1, 2 and Sri
Amalendu Roy, Son of Late Sarada Prasanna Roy, and Smt. Prativa Rani Roy, wife
of Late Sudhendu Ranjan Roy, both of premises being no. 58/29, Prince Anwar
Shah Road, Police Station – Lake, Kolkata – 700 045, the said agreement for
sale is in respect of complete Flat in the entire Fourth floor measuring about
1100 Sq. ft. super built up area be the same more or less in the said building along
with undivided proportionate share of Premises No. 58 / 29, Prince Anwar Shah
Road, Police Station – Lake, Kolkata – 700 045, District : South 24-Parganas,
including one covered car parking space on the ground floor measuring about 104
Sq. ft. aggregating at the consideration money of Rs. 15,00,000.00 ( Rupees
Fifteen Lakhs ) only.
“B” {
Xerox copy of the Agreement for
4
: That according to the said Agreement for Sale dated 30th day of
April’2008, the Vendors and the Developer, being the Respondents / Opposite
Parties herein, contended that if they able to produce the relevant Title of
the Flat located on the entire 1st Floor along with one covered car
parking space on the ground floor within two months from the date of execution
of these presents then the complainant / purchaser will forgo his right in the
Fourth floor flat and a separate agreement for sale will be executed by the
developer opposite party in favour of the purchaser complainant in respect of
entire first floor, and in the event the developer fails to provide the
necessary title in respect of the said First Floor Flat the said agreement
shall be binding upon both the parties.
5
: That I, paid Rs. 12,00,000/- ( Rupees Twelve Lakhs ) only through Cheque
being no. 000637 dated 27/11/2007, drawn on ICICI Bank, Chowringhee Road
Branch, Kolkata, for an amount of Rs. 2,00,000/- ( Rupees Two Lakhs ) only, and
through another cheque being no. 976933 dated 30.04.2008, drawn on Indian Bank
Southern Avenue Branch, Kolkata, for an amount of Rs. 10,00,000/- ( Rupees Ten
Lakhs ) only, to the Opposite Party no.4, herein, who represent the other
Respondents, as a constituted attorney of them. The Opposite Party no.4, duly
provide the receipt of the said money amounting to Rs. 12,00,000/- ( Rupees
Twelve Lakhs ) only.
“ C ” {
Xerox copy of the acknowledgment of payment vide letter dated 27-11-2007, and
letter dated 30-04-2008, are enclosing herewith and marked as Annexure – “C” }
6
: That I entered into the said Agreement
for Sale dated 30th day of April’ 2008, and made payments of Rs.
12,00,000/- ( Rupees Twelve Lakhs ) only, out of the total consideration money
for the scheduled Flat of Rs. 15,00,000/- ( Rupees Fifteen Lakhs ) only, upon assurance, representation and belief,
promoted by the Opposite Party no.4, developer herein. The Opposite Party no.4,
insisted me on several occasions, prior to the execution of the said agreement
for sale dated 30th day of April’ 2008, to enter into the said
agreement in respect of the flat at 1st floor at the said building
premises, though he made the agreement for the 4th Floor at the said
building premises with an option to provide the first floor flat at the owner’s
allocation on completion of purchase from the respective owners.
7
: That on 03.09.2008, the Opposite Party no.4, being the developer in the said
agreement for sale dated 30th day of April’ 2009, intimated me
through a letter dated 03.09.2008, his assurance that within the month of
September’ 2008, he will complete his purchase of the first floor flat from the
owner and within a few days thereafter he shall produce the valid title in
respect of the first floor flat and furthermore he undertake thereby to transfer
the said flat unto and in my favour by a deed of conveyance at an earliest as
per suitable date and also provide a copy of sale agreement dated 28th
day of May’ 2008, with one Smt. Nilima Roy, the Opposite Party no.2, herein.
“ D ” {
Xerox copy of the Letter dated 03-09-2008, is enclosing herewith and marked as
Annexure – “ D” }
8
: That thereafter the Opposite Party no.4, day after day, committed to perform
in accordance with agreed terms and conditions as contended in the said
agreement for sale dated 30th day of April’ 2008, and failed
thereof, the Opposite Party no.4, did not complete the schedule flat either at
first floor or at fourth floor at the said building premises, and also did not
comply with the agreement dated 30th day of April’ 2008, and did not
cause any endavour to handover the physical possession of the schedule flat nor
expressed his inability to provide the first floor on any occasions and in such
fashionable manner he enjoyed the money procured from me.
9
: That I communicated on some of the occasions as on 31.05.2009, to the
developer, the Opposite Party no.4, herein, but of no result nothing has been
communicated by him to me by any letter rather some of the verbal vague
communication has been made by him to me, which also did not bread any result
so far, and whereas lastly on 29th day of April’ 2009, I lost my
hope to get first floor at the said premises and asked for the fourth floor
flat in accordance with the said agreement for sale dated 30th day
of April’ 2008, though awaiting till date, on hearing several excuses of the
Opposite Party no.4.
“ E ” {
Xerox copy of the Letter dated 31-05-2009, and Letter dated 29-04-2009, are
enclosing herewith and marked as Annexure – “ E ” }
10
: That thereafter since I lost my all hope, I contacted the Opposite Party
no.1, herein, and came to the knowledge that one Smt. Indira Goon, is also one
of the co-owners of the said premises being no. 58 / 29, Prince Anwar Shah
Road, Police Station – Lake, Kolkata – 700 045, District : South 24-Parganas,
and who residing at premises being no.
60 / 134, Haripada Dutta Lane, “B” Road, next to old better high school,
Kolkata – 700 033, under the jurisdiction of the Jadavpur Police Station,
District – South 24-Parganas, did not made as a party in the Development
Agreement, and she intervening into the matter of development of the said
premises being no. 58 / 29, Prince Anwar Shah Road, Police Station – Lake,
Kolkata – 700 045, District : South 24-Parganas, and for the reasons nothing
could be proceeded.
11
: That I collected the Development Agreement dated 28th day of May’
2006, and found that there is no whisper about said Smt. Indira Goon, and thus
on suppression of the material facts about one of the said co-owners, the Land
Owners / Respondents no. 1,2, and Sri Amalendu Roy, Son of Late Sarada Prasanna
Roy, and Smt. Prativa Rani Roy, wife of Late Sudhendu Ranjan Roy, both of
premises being no. 58/29, Prince Anwar Shah Road, Police Station – Lake,
Kolkata – 700 045, entered into the agreement for sale rather they provoked me
to enter into the agreement for sale, on different assurances and insisted
thereto, and procured money from me, for their wrongful gains and others.
“ F ” {
Xerox copy of the Development Agreement dated 28th day of May’ 2006,
is enclosing herewith and marked as Annexure – “ F” }
12
: That the purported activities of the Respondents / Opposite Parties from the
beginning of the agreement with them and on and after providing money towards
consideration of the Flats, they motivated, and intentionally cause the
misappropriation of money and breach of trust since the date of entrustment to
them, as such they are not delivering the possession of Flat to me till date.
13
: That I lodge this facts with the concerned Police Station at Lake, vide
Written Complaint dated 23rd February’ 2010, though no result has
been yield, due to non compliance of the Police personnel of the said Station
House at Lake, Kolkata, and I prevailed from getting justice.
“ G ” {
Xerox copy of the Written Complaint dated
23rd February’ 2010, is enclosing herewith and marked as
Annexure – “G” }
14
: That for such in-action and or non – action of the Police into the matter, I
preferred an application under Section 156 (3) of Cr.P.C. for the offences
committed to be punishable under Section 406, 420, 468, 471 and 34 of the
Indian Penal Code’ 1860, by the Respondents, before the Hon’ble Chief Judicial
Magistrate, at Alipore, South 24-Parganas, vide Complaint Case being no.
4984(A) of 2010, on 17th day of July’ 2010, which has been dismissed
by the Hon’ble Magistrate, with an observation that the allegations are in
civil in nature and suggested to prefer CIVIL suit, and whereas I thereafter
prefer an application under Section 399 and 397 of Cr.P.C. before the Hon’ble
Session Court, challenging the Order dated 17th day of July’ 2010,
passed by the Hon’ble Magistrate, vide Criminal Motion no. 570 of 2010, which
is disposed off by the Hon’ble 3rd Court of Additional District
Session Judge, at Alipore, South 24-Parganas, and held that the order dated 17th
day of July’ 2010, is as correct, which has been passed by the Hon’ble Chief
Judicial Magistrate, at Alipore, South 24-Parganas.
“ H ” {
Xerox copy of the petition under Section 156 (3) being C – 4984 ( A ) of 2010,
Order dated 17-07-2010, passed by the Hon’ble Chief Judicial Magistrate, at
Alipore, South 24 Parganas, in C – 4984 (A) of 2010, and Criminal Motion no.
570 of 2010, are enclosing herewith and marked as Annexure “H” }
15
: That during service of notices by the Hon’ble Session Court upon the
Respondents, it is found that Sri
Amalendu Roy, Son of Late Sarada Prasanna Roy, and Smt. Prativa Rani Roy, wife
of Late Sudhendu Ranjan Roy, both of premises being no. 58/29, Prince Anwar
Shah Road, Police Station – Lake, Kolkata – 700 045, has been died and the
death certificate has been produced by Police. And for the reasons they are not
made as a party to this application, and whereas the Legal heirs and successors
are the Opposite Parties nos 1, 2, and 3, herein, only.
“ I ” {
Xerox copy of the Death Certificate of Amalendu Roy, and Prativa Rani Roy, are
enclosing herewith and marked as Annexure – “ I” }
16
: That I state and submits that the following works are still pending in
respect of the said flat :
a) Main Door,
b) Doors of Two Bed Rooms,
c) Painting of Building (
External ),
d) Sewerage Connection,
e) Levelling of Ground Floor,
f) Outside boundary walls,
g) Completion Certificate from
Kolkata Corporation,
h) etc.
which
shows and established their deficiency in services in providing and entering
into the agreement for sale 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 sale dated 30th
day of April’ 2008.
17
: That I state and submits that I am willing to make payment of balance
consideration amount of Rs. 3,00,000/- ( Rupees Three Lakhs ) only, in
accordance with the Agreement for Sale dated 30th day of April’ 2008,
as Last and final payment at the time of handing over possession of the said
Flat, by the Respondents, Opposite parties herein, to me.
18
: That I state and submits that I solely seeks to get the possession of the
said Flat at the said premises, and the registration of Deed of Conveyance by
the Respondents / Opposite Parties in favour of my mother Smt. Jayaraman
Visalakshi, to prevail my moral aspects to provide a shelter to my old aged
mother.
19
: That I state and submits that the my mother Smt. Jayaraman Visalakshi, got
much disappointed and harassed mentally, at the age of having peaceful
life.
20
: That I state and submits that I am a victim of the purported acts and
deficiency in services and deficiency in the said flat 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.
21
: That I state and submits that the
respondent shall also pay the compensation
to me, 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. I assesses such loss and damages at Rs. 3,00,000/-
( Rupees Three lakhs ) only.
22
: That I states and submits that the
purported activities of the respondents established deficiency in services,
which is contrary to the Law.
23
: That I States and submits 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.
24
: The Cause of action for the present
proceeding arose on 30th day of April’ 2008, due to non delivery of
physical possession and non registration of the flat, and thereafter adverse
date and the same is continuing at 58 / 29, Prince Anwar Shah Road, Police
Station – Lake, Kolkata – 700 045, within the Ward no. 93, of the Kolkata
Municipal Corporation, District – South 24-Parganas, and the respondents /
opposite parties are residing as given in the cause title of my application
under Section 12 of the Consumer Protection Act’ 1986, which is within the
jurisdiction of the Hon’ble Forum.
25
: That my instant application / Petition,
is within the jurisdiction of this Hon’ble District Consumer Disputes Redressal
Forum, at Alipore, South 24-Parganas.
26
: That my present complaint is being
filed within the period as prescribed under section 24 A, of the Consumer
Protection Act.
28
: That I present complaint being made bona-fide
and in the interest of justice.
29
: That I therefore prayed for :
a)
to direct the respondents / opposite
parties to deliver the physical possession of the Flat in the entire fourth floor measuring about
1100 Sq. ft. super built up area be the same more or less in the said building
along with undivided proportionate share of premises being no. 58 / 29, Prince
Anwar Shah Road, Police Station Lake, Kolkata – 700 045, District – South
24-Pargasnas, consisting of two bed rooms, two toilets, one kitchen, one
drawing cum dinning room, and balcony, and one covered Car Parking Space in the
Ground Floor measuring 104 Sq. ft. built up area in the said building premises
at 58 / 29, Prince Anwar Shah Road, Police Station – Lake, Kolkata – 700 045,
together with the undivided proportionate share of Land, within the Ward no.
93, of the Kolkata Municipal Corporation, District – South
24-Parganas.(including common services, and common areas and civic amenities as
to be provided in the said building premises ), as enumerated in the Agreement
for Sale dated 30th day of April’ 2008, to your petitioner;
b)
to direct the respondents / opposite
parties should not transfer and handed
over the physical possession of the Flat
in the entire fourth floor measuring about 1100 Sq. ft. super built up
area be the same more or less in the said building along with undivided
proportionate share of premises being no. 58 / 29, Prince Anwar Shah Road,
Police Station Lake, Kolkata – 700 045, District – South 24-Pargasnas,
consisting of two bed rooms, two toilets, one kitchen, one drawing cum dinning
room, and balcony, and one covered Car Parking Space in the Ground Floor
measuring 104 Sq. ft. built up area in the said building premises at 58 / 29,
Prince Anwar Shah Road, Police Station – Lake, Kolkata – 700 045, together with
the undivided proportionate share of Land, within the Ward no. 93, of the
Kolkata Municipal Corporation, District – South 24-Parganas.(including common
services, and common areas and civic amenities as to be provided in the said
building premises ), as enumerated in the Agreement for Sale dated 30th
day of April’ 2008, to any other Person or Persons or Association of Person or
Firm, or Company incorporated or not, other than the petitioner, till the
Compliance of Agreement dated 30th
day of April’ 2008;
c)
to direct the respondents / opposite
parties for injunction and restraining
them and their men and agents transferring the Flat in the entire fourth floor measuring about
1100 Sq. ft. super built up area be the same more or less in the said building
along with undivided proportionate share of premises being no. 58 / 29, Prince
Anwar Shah Road, Police Station Lake, Kolkata – 700 045, District – South
24-Pargasnas, consisting of two bed rooms, two toilets, one kitchen, one
drawing cum dinning room, and balcony, and one covered Car Parking Space in the
Ground Floor measuring 104 Sq. ft. built up area in the said building premises
at 58 / 29, Prince Anwar Shah Road, Police Station – Lake, Kolkata – 700 045,
together with the undivided proportionate share of Land, within the Ward no.
93, of the Kolkata Municipal Corporation, District – South
24-Parganas.(including common services, and common areas and civic amenities as
to be provided in the said building premises ), as enumerated in the Agreement
for Sale dated 30th day of April’ 2008, to any other person or persons, association
of persons, firm, company incorporated or not, other than the petitioner, and the Respondents / Opposite Parties and
their men and agents are further required to be restrained from entering into
any other agreement with any other persons or persons, association of persons,
firm, or company incorporated or not, in respect of the said flat;
d)
Temporary injunction;
e)
To direct the opposite parties / respondents
to register the Deed of Conveyance in favour of your petitioner in respect of
Flat in the entire fourth floor measuring about 1100 Sq. ft. super built up
area be the same more or less in the said building along with undivided
proportionate share of premises being no. 58 / 29, Prince Anwar Shah Road,
Police Station Lake, Kolkata – 700 045, District – South 24-Pargasnas,
consisting of two bed rooms, two toilets, one kitchen, one drawing cum dinning
room, and balcony, and one covered Car Parking Space in the Ground Floor
measuring 104 Sq. ft. built up area in the said building premises at 58 / 29,
Prince Anwar Shah Road, Police Station – Lake, Kolkata – 700 045, together with
the undivided proportionate share of Land, within the Ward no. 93, of the Kolkata
Municipal Corporation, District – South 24-Parganas.(including common services,
and common areas and civic amenities as to be provided in the said building
premises ), as enumerated in the Agreement for Sale dated 30th day
of April’ 2008;
f)
To direct the opposite parties to pay
compensation, as for the harassment, troubles, loss of business, physical
inconvenience and mental agony, suffered by the petitioner from the purported
activities and others by the opposite parties as assessed as Rs. 3,00,000/- (
Rupees Three Lakhs ) only to your petitioner;
g)
To grant the cost of the proceedings ;
h) To
grant any other relief or alternate relief to the applicant / petitioner as
found out by your Honour, in the facts and circumstances of the Complaint.
i)
And to pass such other necessary order
or orders as your Honour , may deem fit and proper for the ends of justice.
30
: That the facts contained in my 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 …………….2012, at the Alipore, Kolkata.
DEPONENT
Identified
by me,
Advocate.
Prepared
in my Chamber,
Advocate.
Dated
:……………2012.
Place
: Alipore, Kolkata.
N
O T A R Y
INDEX
LIST OF DOCUMENTS RELIED
UPON
|
Sl.
No. |
Documents
/ Papers |
Annexure |
Pages |
|
1 |
General
Power of Attorney in favour of Sri Jayaraman Ramesh. |
A |
|
|
2 |
Agreement
for |
B |
|
|
3 |
Letter
dated 27-11-2007, and Letter dated 30-04-2008. |
C |
|
|
4 |
Letter
dated 03-09-2008. |
D |
|
|
5 |
Letter
dated 31-05-2009, and Letter dated 29-04-2009 |
E |
|
|
6 |
Development
Agreement dated 28th day of May’ 2006. |
F |
|
|
7 |
Written
Complaint dated 23rd
February’ 2010. |
G |
|
|
8 |
Petition
of Complaint vide C-4984(A) of 2010, Order dated 17-07-2010, passed by the
Hon’ble Chief Judicial Magistrate, at Alipore, South 24 Parganas, in C – 4984
(A) of 2010, and Criminal Motion no. 570 of 2010. |
H |
|
|
9 |
Death
certificate of Amalendu Roy, and Prativa Rani Roy, |
I |
|
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