District : 24-Parganas South.
BEFORE THE HON”BLE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT
ALIPORE, 18, JUDGES COURT ROAD, KOLKATA – 700 027.
C.C.
no. 378 of 2012.
In the matter of :
Shri Rajiv Kumar Singh, and anr.
______Complainants / Applicants /
Petitioners.
-
Versus –
M/s. THE NEST, and Others.
__________Respondents / Opposite Parties.
Objection petition against the petition of Recall of witnesses, by the
Opposite Parties being nos. 1,2,&3.
The
humble petition of the above named Complainants / applicants, most
respectfully;
Sheweth as under :
1.
That in the present proceeding of the above
referred case matter, the Brief Notes of Argument has been filed by the Learned
Advocate of the Complainants, as the same was directed by the Learned Forum, on
the earlier occasions, as such the Written Versions and Evidence, as well as
questionnaire and reply by all the parties of the proceedings has been
submitted and completed in all respects, and whereas on the previous occasions
at the time of hearing of Argument by the Learned Forum, the Opposite Parties
nos. 1,2,and 3, placed one application as for Recall of the witness ( i.e.
Complainant ), which is objected herein in the following manners, by the
Complainants.
2.
That the said application of the opposite
parties for recall, is baseless, and vague, thus not maintainable in the eye of
Law.
3.
That your petitioners states that there is no
such provisions under the Consumer Protection Act’ 1986, as to recall of
witnesses at the Argument Stage of the Case proceedings before the Hon’ble
Forum.
4.
That your petitioners states that very
surprisingly the present opposite parties were came into the knowledge from the
Opposite Party being no.6, about the transfer of the flat, on 23-08-2013, as
stated in para no.2, in the said petition, though the Opposite Party did not
put any questions relates to that and further more the Opposite Parties being
nos. 4,5,and 6, are residing at the said newly constructed building, and they
are the co-shares of the property, and the neighbor of your petitioner, and
whereas the opposite parties no.1,2, and 3, failed to provide any documentary
proof of such purported knowledge, as claimed by them.
5.
That your petitioners states that the suggested
questions as put forward by the opposite parties in their petition, in para
no.3, is not require at all for the purpose of fair adjudication of the present
proceedings, as such the disputes referred in the present proceedings is not
relates to the flat of your petitioner, but exclusively relates to the Garage /
Car parking spaces, and related agreements thereto.
6.
That
your petitioners the Opposite party no. 4, 5, 6, 7, and 8, are the Land Owners, in respect of the
piece or parcel of Land containing an area of 7 ( Seven ) Cottahas, 6 ( Six )
Chittaks and 44 ( fourty four ) Square Feet, more or less along with one partly
Ground plus three and partly straight three storied building named Radha
Krishna Lokenath Apartment, having premises being no. 127, Kalipada Mukherjee
Road, Barisha, Kolkata – 700 008, Police Station – Thakurpukur, District –
South 24 Parganas, who entered into a development Agreement dated 15th
day of July’ 2005, with the Opposite Party no. 1, 2, and 3, and granted and
executed General Power of Attorney in favour of Shri Ashis Modak. Son of Late
Jogesh Chandra Modak, residing at premises being no. 44B, Hari Ghosh Street,
Police Station – Bartala, Kolkata – 700 006, and Shri Sugata Sarkar, Son of
Rabi Gopal Sarkar, residing at premises being no. 43 / 10B, R.N. Tagore Road,
Police Station – Thakurpukur, Kolkata – 700 063, District – South 24 -
Parganas, being the Opposite Parties nos. 2, and 3, herein.
7.
That your petitioners states that the
Petitioners entered into an Agreement for Sale Dated 4th day of
April’ 2007, with all the Opposite Parties nos. 1, 2, 3, and 4 to 8,
represented by their constituted attorney being the opposite parties nos. 2,
and 3, herein, the said agreement for sale is in respect of complete Flat
situated in North – Western Side front portion on the First Floor measuring 760
Square Feet Super Built up area consisting of 2 Bedrooms, 1 dining, 1 drawing
space, 1 toilet, 1 W.C. 1 balcony, 1 kitchen within the Partly Ground plus
Three storied portion of the Partly Ground plus Three storied and partly
Straight Three storied building together with all fitting and fixtures thereto
along with the undivided impartible undemarcated proportionate share and
interest on the ultimate roof and terrace consisting of total 12 ( twelve )
flats and / or units of different sizes or dimensions and in the Land at the
premises, together with the proportionate shares in the Land containing an area
of 7 ( Seven ) Cottahas, 6 ( Six ) Chittaks and 44 ( fourty four ) Square Feet,
more or less, having premises being no. 127, Kalipada Mukherjee Road, Barisha,
Kolkata – 700 008, Police Station – Thakurpukur, District – South 24 Parganas,
for a price of Rs. 7,70,000/- ( Rupees Seven Lakhs and Seventy Thousand ) only,
on the terms and conditions mentioned therein.
8.
That your petitioners states that though in the
said Agreement for Sale / Memorandum of Agreement dated 4th day of
April’ 2007, the price of said self contained flat with one open car parking
space for keeping one Maruti 800 Car has been written as Rs. 7,70,000/- (
Rupees Seven Lakhs and Seventy Thousand ) only, but in fact and in reality, the
price of said open car parking space is separately fixed at Rs. 50,000/- (
Rupees Fifty Thousand ) only, which the Petitioners agreed to pay separately,
in terms of the supplementary Agreement for Sale dated 4th day of
April’ 2007, in respect of the open car parking spaces for Maruti 800 Car
spaces, and accordingly Rs. 50,000/- ( Rupees Fifty Thousand ) only, paid vide
Cheque being no. 275940, dated 4th day of April’ 2007, drawn on
Allahabad Bank, Barisha Branch, Kolkata, in favour of M/s. THE NEST.
9.
That your petitioners states that one Consumer
Case has been initiated by the Petitioner, being C.C. Case no. 128 of 2008,
before the Hon’ble District Consumer Disputes Redressal Forum, at Alipore,
South 24 Parganas, for deliverey of possession of Flat and registration of Deed
of Conveyance of the said Flat, in term of the Agreement for Sale dated 4th
day of April’ 2007, against the Opposite Parties herein, and whereas the Hon’ble
Forum passed necessary order dated 14-03-2011, with a direction upon the
Opposite Parties for delivery of possession of Flat and the registration of
Deed of Conveyance in respect of Flat, in favour of the Petitioners herein,
which they did not comply and an Execution Application being no. 34 of 2011,
was filed against them, and whereas during the pendency of such Execution
Application, the Opposite Parties moved an Appeal before the Hon’ble State
Commission, and whereas the Hon’ble State Commission, affirmed the Order dated
14-03-2011, passed by the Hon’ble Forum, in C.C. case no. 128 of 2008, and
thereafter subsequently the opposite parties appeared in such Execution Case
pending before the Hon’ble Forum, and Complied with the Order dated 14-03-2011,
passed by the Hon’ble Forum, in C.C. case no. 128 of 2011, and ultimately the
said Execution Application Dropped upon satisfaction in the month of December’
2012.
10.
That your petitioners states that your
petitioners did not seek relief in terms of supplementary agreement for sale
dated 4th day of April’ 2007, in respect of open car parking spaces,
in their application under section 12 of the Consumer Protection Act’ 1986,
though the Opposite Parties filed such agreement and stating such facts, but
since it was not prayed for by the petitioners, the Hon’ble Forum did not
entertain such context of the car parking spaces.
11.
That for the said reasons and others your
petitioners are placing this instant application under Section 12 of the
Consumer Protection Act’ 1986, against the Opposite Parties, to get the Car
Parking space, in terms of the Supplementary Agreement for Sale dated 4th
day of April’ 2007.
12.
That your Petitioners states that your
petitioners issued the Cheque being number 275940, dated 4th day of
April’ 2007, drawn on Allahabad Bank, Barisha Branch, Kolkata, in favour of THE
NEST, amounting to Rs. 50,000/- ( Rupees Fifty Thousand ) Only, against the due
receipts thereof in Memo of Consideration in the said supplementary Agreement
for Sale dated 4th day of April’ 2007, though the said cheque was
not encased and presented by the Opposite Parties, your Petitioners are willing
to make such payments in any mode including Cash.
13.
That your Petitioners states that your
petitioners, on several occasions visited the office of the Opposite Party no.
1, and meet with the Opposite Parties no. 2 to 8, for compliance of the
supplementary agreement for sale dated 4th day of April’ 2007, in
respect of the delivery of possession, and registration of Deed of Conveyance,
upon payments of consideration money, but on all and every occasions the
Opposite Parties taking time on several and different pretext, though did not
comply with such agreement in respect of the Car parking space.
14.
That it is pertinent to state that the said
Cheque being number 275940, dated 4th day of April’ 2007, drawn on
Allahabad Bank, Barisha Branch, Kolkata, in favour of THE NEST, amounting to
Rs. 50,000/- ( Rupees Fifty Thousand ) Only, was not dishonoured, as such was
never presented by the Opposite Parties, and thus the said Agreement for Sale
shall be in full force and continued to be complied with.
15.
That your petitioners states 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 Car Parking Space, they motivated, and intentionally cause the breach since
the date of entrustment to them, as such they are not cause any delivery and
executing the registration of the said Car parking space to your petitioners
till date.
16.
That your petitioners states that the purported
activities of the Opposite Parties, 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 4th day of April’ 2007.
17.
That your petitioners states that the
Petitioners solely seeks to get the delivery of possession and registration of
Deed of Conveyance by the Respondents / Opposite Parties in favour of your
petitioner, in respect of the Car parking space.
18.
That the application to recall and cross
examination of witnesses in the present case does not disclose any instances or
facts which has not been correctly stated or has appeared to be false in view
of documents already filed on record. This provisions can not be invoked as a
matter of right by the opposite parties.
19.
That your petitioners states and submits that
the facts of the case and the disputes referred thereto by your petitioner is
not related to flat but to the garage / car parking space and agreement related
thereto, and thus prayer for recall and cross examination of the witnesses by
the opposite parties nos. 1,2, and 3, at the suggested questions are not
related to in any manner, and more particularly not a necessary questions as to
adjudicate the case matter by the Hon’ble Forum.
20.
That your petitioners states that in the facts
and circumstances of the case matter, the opposite parties will never be
prejudice, and more particularly, in the event of dismissal of their such
prayer of recall and cross examination of witnesses, and others.
21.
That your petitioners states that The Opposite
Parties adopted such a practice to cause justice delayed and therefore your
petitioner will be highly prejudice and suffer with irreparable loss and
injury.
22.
That your petitioners seeks dismissal of the
purported petition as to recall and cross examination of witnesses at the stage
of Argument of the case matter, with an exemplary costs and others, as the
Hon’ble Forum, may determine in the interest of fair administration of justice.
23.
That this application is made bonafide in the
interest of administration of justice.
It is therefore prayed that your Honour would
be graciously pleased to allow this application and to dismiss the prayer of
recall and cross examination of witnesses, at the stage of Argument, by the
Opposite Parties nos. 1,2,and 3, with an exemplary costs and others, and your
Honour may determine in the interest of administration of justice, and / or to
pass such other necessary order or orders as your Honour may deem, fit, and
proper for the end of justice.
And for this act of kindness, the Petitioners,
as in duty bound shall ever pray.
AFFIDAVIT
Affidavit of Shri
Rajiv Kumar Singh, Son of Shri Amar Kumar Singh, aged about ________years, by
faith Hindu, by Occupation – Business, residing at premises being no. 52, Biren
Roy Road ( East ), Police Station – Thakurpukur, Kolkata – 700 008, and also at
premises no. 127, Kalipada Mukherjee Road, Ward no. 122, Police Station –
Thakurpukur, Kolkata – 700 008, District – South 24 Parganas.
I, the above deponent
do hereby solemnly affirm and declare as under :-
1 : That I am the
petitioner being no. 1, in the above case, thoroughly conversant with the facts
and circumstances of the present case and am competent to swear this affidavit.
I am duly authorized by the Petitioner no.2, my wife, to swear this affidavit
on her behalf also.
2 : That the facts contained in my objection
petition / 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 …………….2013, at the Alipore, South 24-Parganas.
DEPONENT
Identified
by me,
Advocate.
Prepared in my
Chamber,
Advocate.
Dated
:………………………2013.
Place : Alipore,
South 24-Parganas. N
O T A R Y
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