Written Notes of Argument in Consumer Case

 

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.

 

Written Notes of Argument

 

That all the opposite parties are in receipt of the Notice served by the Hon’ble Forum, though they did not cause appearance in the above referred case matter, before the Forum, and subsequently, the Hon’ble Forum pleased to take up the matter as Ex-parte against all the opposite parties / respondents.

That the applicant, being constituted attorney of his mother Smt. Jayaraman Visalakshi, entered into an Agreement for Sale dated 30^th day of April’ 2008, 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, wherein 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 1^st 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, and whereas the applicant 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, vide letter dated 27-11-2007, and letter dated 30-04-2008.

 

 

on 03.09.2008, the Opposite Party no.4, intimated 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 favour of the applicant by a deed of conveyance at an earliest as per suitable date, though failed to comply therewith, and thus the agreement for sale dated 30^th day of April’ 2009, is binding upon the parties of the agreement.

 

 

The applicant 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.

 

 

The applicant collected the Development Agreement dated 28^th 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 the applicant to enter into the agreement for sale, on different assurances and insisted thereto, and procured money from the applicant, for their wrongful gains and others.

 

 

The applicant lodge this facts with the concerned Police Station at Lake, vide Written Complaint dated 23^rd 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 the applicant prevailed from getting justice. And for such in-action and or non – action of the Police into the matter, the applicant 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 17^th 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 the applicant thereafter prefer an application under Section 399 and 397 of Cr.P.C. before the Hon’ble Session Court, challenging the Order dated 17^th 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 3^rd Court of Additional District Session Judge, at Alipore, South 24-Parganas, and held that the order dated 17^th day of July’ 2010, is as correct, which has been passed by the Hon’ble Chief Judicial Magistrate, at Alipore, South 24-Parganas, and whereas 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 the application, and whereas the Legal heirs and successors are the Opposite Parties nos 1, 2, and 3, herein, only.

 

 

 

 

The applicant is 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.

 

 

The applicant 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 30^th 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 the applicant.

 

 

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 30^th day of April’ 2008.

 

 

 

The applicant is entitled to get the physical possession of the said Flat at the said premises, as enumerated in the Agreement for Sale dated 30^th day of April’ 2008, and the registration of Deed of Conveyance by the Respondents / Opposite Parties in favour of his mother Smt. Jayaraman Visalakshi, to prevail his moral aspects to provide a shelter to his old aged mother.

 

 

The respondent shall also pay the compensation  to the applicant, 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. The applicant assesses such loss and damages at Rs. 3,00,000/- ( Rupees Three lakhs ) only.

 

 

Through __________________

 

 

Advocate for the applicant.

Dated : ____________2012.

Place : Alipore, Kolkata.