BEFORE
THE LEARNED DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLKATA UNIT-III
Consumer
Complaint
Case No.226 of 2024
Smt. Kakali Sen & ors
…….Complainants
-Versus-
M/s. S.S. Construction & ors
……Opposite Parties
EVIDENCE
ON BEHALF OF I
AND THE COMPLAINANT NO 2
I, Kakali Sen wife of Sri Abhinandan Ghosh, aged
about_years, by faith - Hindu, by occupation - Service, permanent resident of Banshbari, P.O. Banshbari, P.S. - English Bazar, District- Malda,’ PIN-732201 and presently residing at D/82, Bapuji Nagar, P.O. Regent Estate,
P.S. -
Jadavpur, Kolkata-700092, do hereby solemnly affirm and say as follows :-
1.
That I am the complainant No 1/petitioner No. 1 above named and I am duly empowered and authorized by
complainant No.
2 to make
and affirm this affidavit for me as well on behalf of complainant No. 2 and as such I am well acquainted with the facts
and circumstances of the case.
2.
. I and the complainant No 2 are law abiding and
peace-loving citizens of
India
permanently and at
present
residing at A/61/2, Bapuji Nagar, P.O. – Regent Estate, P.S.- Jadavpur, Kolkata-700092 (hereinafter
referred to as the 'said premises').
3.
I state that One Addya Prasad Dutta, since deceased, was the owner and
occupier in respect of land measuring an area of about 4 Cottahs, a little more or less lying and situates at D/82, Bapuji Nagar, P.O. – Regent Estate, P.S. - Jadavpur, Kolkata-700092.
4.
I state
that the said
Addya
Prasad Dutta
died on 17.1.1975 intestate leaving behind his wife Smt. Kiran Bala Dutta, who also died intestate, leaving her following legal heirs/ heiresses and successors:
(1) Sri Amrita Lal Dutta, son
(2) Sri Dhananjoy Dutta, son
(3) Sri Ajoy Dutta, son
(4) Sri Digbijoy Dutta, son
(5) Smt. Gopa Dutta, daughter
(6) Smt.
Malina Dutta, daughter.
5.
I
state
that the said heirs/heiresses of said Addiya Prasad Dutta and Smt. Kiran Bala Dutta, both said deceased, entered into a registered Development Agreement
with the opposite party
Nos. 1 and 2 (proprietor of opposite party no. 1) herein in respect of the said premises. The said development agreement was registered on 21st December, 2012 before the DSR-I, Alipore, registered in Book No. I, CD Volume No. 20, Pages 216 to 240, Being No. 04460 for the
year 2012.
6.
I state that along with the said development
agreement, the owners thereof have made and executed a registered Power of Attorney in favour of the opposite party No. 2 herein (Sri Sujit Saha) for executing all
necessary works for development of the said premises, which was also registered on the
self-same date, i.e. 21.12.2012, before the DSR- I, Alipore and recorded in Book
No. I, CD Volume No. 20,
Pages 241
to 256, Being No. 04461 for the year 2012.
7.
I
state
that as empowered by
the said
Power of
Attorney
mentioned in the preceding paragraph, the said opposite party no. 2
obtained a sanctioned building plan from
Kolkata Municipal Corporation for construction of a G+3 storied building on the said premises vide B.P. No.
2013100235 dated 03.01.2014 and started construction thereon.
8.
I
and
the
complainant No 2 herein have approached the opposite party no. 2 with an intention to purchase a flat along with a covered car parking space from the developer's allocation being Flat No. 2B on the southern
side of first floor measuring
an area of about 750 sq. ft. a little more or less super built up area consisting of 2 (two) bed rooms, one (one) kitchen, one drawing-cum-dining, 1 (one) toilet, 1 (one) WC, 1 (one) balcony and a covered car parking space
measuring about 125 sq. ft. on the ground floor of the proposed G+3 storied building to be
constructed by
the
opposite party no. 2 in
the said
premises.
9.
I
state
that subsequently thereafter I and the complainant No 2 herein entered into a registered agreement for sale which was registered on 5th January, 2016
before the office of the DSR-I, Alipore, registered in Book No. I, Volume No. 1601/2016,
Pages 1160
to 1210, Being No. 060100025 for the
year 2016.
10.
I and the complainant No 2 herein also tendered an amount of Rs.6,80,000/- in favour of the respondent No. 1 which was duly received by the
proprietor of the opposite party No.1 being the opposite party no. 2 herein. The said transaction also
forms
part of
the said registered agreement for sale and morefully mentioned in the Memo of
Consideration of
the said
registered Agreement for Sale.
11.
I state that after entering into the registered Agreement for Sale dated 5th January, 2016, more-fully mentioned in paragraph 8 hereof,
I and the
complainant
No 2 herein also tendered two demand drafts being nos. 095491 and 095492 both
dated 25.06.2016 amounting Rs. 85,000/- (rupees Eighty-Five Thousand only) and Rs. 75,000/- (rupees Seventy-Five Thousand only)
respectively.
12.
I
state
that it was agreed by and between the parties that the sale consideration would be Rs.42 Lakhs (Rupees Forty Two Lakhs only) and accordingly I and the complainant No 2 herein
procured a
loan to
the tune
of
Rs.33,60,000/-(Rupees Thirty Three Lakh Sixty Thousand only) from the HDFC Bank for making payment
towards the purchase of the said residential flat being Flat No. 2B on the southern side of first
floor measuring an area of about 750 sq. ft. a little more or less super built up area along with a covered car parking space on the
ground floor
of the G+3 storied building proposed to be
constructed at
the
premises No. D/82, Bapuji Nagar, P.O. Regent
Estate, P.S. Jadavpur,
Kolkata- 700092.
13.
I do hereby state that the said flat, as agreed upon
by and between the parties, that the said flat with all amenities, fixtures and
fittings, to be
handed
over to I
and the
complainant No
2 herein
within 2
years
from the date of execution of the said agreement for sale, i.e. 5th January, 2016.
14.
I state that after completion of
the basic construction of the said G+3 storied building in the said premises, I and the complainant No 2 were given possession of the said
flat by
the
opposite party no. 2
measuring
an area of about 750 sq. ft. super built up area along with the car parking
space measuring about 125 sq. ft. in the ground floor of the said
premises.
15.
I state that despite having agreed
to Rs.42,00,000/-
(Rupees
Forty Two
Lakhs)
towards full
consideration
price for sale of the said flat along with covered car parking space from I and the complainant No 2, the opposite party No. 2 neither facilitate I and the complainant No 2 an operating lift nor completed the construction of
the covered car parking space, as agreed upon by and between the parties. It is pertinent to mention that the
staircase leading to the first floor where I and the complainant No 2 reside is also under construction and all necessary fittings which were supposed to be given by
the opposite party no. 2
were not
provided with to I
and the
complainant No
2 yet.
16.
I state on or about September, 22 Int No. 2 requested the opposite party No.
2 to complete the constructions of the covered garage space as I and the complainant No 2 were facing difficulties to
park their vehicle inside the garage for which the opposite party No. 2 asked I and the complainant No 2 herein to pay an extra amount to the tune of Rs.50,000/-. Accordingly, without going into further controversy, I and the complainant No 2 herein with good faith handed over an extra sum of Rs.50,000/- to the opposite party
No.
2.
17.
I state in spite of receiving such amount, the opposite party No. 2 did not till date pay any
heed for completion
of such
works within the said garage.
18.
I state since taking over possession of the said allocated flat
being Flat
No. 2B on the southern side of first floor of the said Premises
No. D/82, Bapuji Nagar, P.O. Regent Estate, P.S.
Jadavpur, Kolkata- 700092 where I and the complainant No 2 are residing along with the incomplete/ under constructed garage space, I and the complainant No 2 herein repeatedly requested the
opposite party No.
2
to
execute the necessary
deed of
conveyance in
favour of I and the complainant No 2. However, despite such repeated
requests and assurance given by the opposite party No. 2, the opposite party No. 2 has not only failed and neglected
to execute the necessary deed of conveyance in favour of I and the complainant No 2 but also denied to complete the
construction work in
the said
premises.
19.
I and the complainant No 2 submits that such inaction of the respondents to
register the necessary deed of conveyance is not only prejudicing I and the complainant No 2 but also creating
unnecessary delay in
getting
the clear title in
respect
of the said property, inasmuch as the opposite parties have not any defense in
the instant complaint.
20.
I state that having no other alternative, I and the complainant No 2 sent a notice dated 07.2.2024 through his learned advocate requesting the
opposite party no. 2 to make and execute the registered deed of conveyance in respect of the said flat measuring about 750 sq. ft. and covered car parking space
(measuring 125 sq. ft.) lying and situates a D/82, Bapuji Nagar, P.O. Regent Estate, P.S. - Jadavpur, Kolkata-700092.
21.
I state
that the said notice was
duly
received by the opposite party Nos. 1 and 2 on 09.02.2024. Despite receipt of the said notice neither the
opposite party No. 2
responded
to such letter nor given any
assurance
in
respect
of the execution of the said deed of conveyance in favour of I and the complainant No 2 herein.
22.
I and the complainant No 2 state that apart from the above, the opposite parties having
received in
excess
of the entire consideration price for the said flat and the covered car parking space as per the registered agreement for sale
dated 5th January, 2016, has failed and neglected to make and
execute
the
necessary deed of conveyance in favour of I and the complainant No 2 herein and
thus till date no title has been created in favour of I and the complainant No 2 and they
are mere trespassers in respect of the said flat and the car parking space involved in this instant lis.
23.
I
state that although the entire consideration price has
been paid between 08.9.2015 to 27.12.2022 and also an excess payment has been made
to the
tune of
Rs.50,000/-,
but by reason of non-execution of the necessary deed of conveyance, valuation of
the property has been increased to a great extent as of today vis-Ã -vis the year 2016 which will result to in incurring of excess stamp duties and registration
expenses, which should be borne by the opposite parties.
24.
I
submit
that the acts and actions of the opposite parties as complained of hereinabove is a clear and complete violation of the
contract (registered agreement for sale dated 05.1.2016 by and between the parties).
25.
I
submit
that the acts and actions of the opposite parties as complained of hereinabove is a glaring example of gross negligence and deficiency in
service towards I
and the
complainant No 2 and for the acts, as aforesaid, I and the complainant No 2 have suffered tremendous
mental agony, pain, anxiety and unnecessary harassment and as such, I and the
complainant no
2 are
entitled to the reliefs, as prayed for herein, with adequate
compensation.
26.
I
and the
complainant no 2
submit
that the acts and actions of the opposite parties as complained of hereinabove, are arbitrary to the
core, malafide, erroneous and gross violation of my and the complainant No 2 legal rights of, which amounts to unfair trade
practice.
27.
I further submits that I and the complainant No 2 have a very good case and there is a fair chance of success in the instant case and the balance of convenience and inconvenience is absolutely in favour of me and the complainant No 2 herein.
28.
I
state
that upon due execution of the necessary deed of conveyance from the concerned
registering office where the sale deed would be executed, the opposite parties be also directed to complete the construction of the building
along with to facilitate the lift as per the terms of the said development
agreement within such time as this Learned Commission may deem fit and
proper.
29.
I state that the cause of action in the instant case has arisen on 08.9.2015 to 27.12.2022 when the
entire consideration has been paid by I and the complainant No 2 to the
opposite parties and
the same
has been continuing from
day to
day basis and the registered office of the opposite party No. 1 and the residential address of
the opposite party No. 2
is
situated within the jurisdiction of this Learned Commission and as such Learned
Commission has
got
pecuniary as
well
territorial jurisdiction to entertain our case of .
30.
I state that no part of the cause of action of the
complaint is barred by the Law of Limitation.
31.
I
and the
complainant no
2 pray
for reliefs as per the prayer mentioned in the complaint unless orders are passed, as prayed for herein, otherwise I and the complainant No 2 will suffer irreparable loss and
injury.
32.
I and the complainant No 2 do hereby take this opportunity to deny and
dispute the statements made in the Written Version in the manner indicated hereunder :-
A.
It is
denied that the said Power of Attorney empowered the attorney to enter into any
Agreement for Sale and to execute Deed of Conveyance in respect of the said
property to any intending Purchasers.
B.
It is
denied that the Consumer Complainants have taken money back on 24/01/2016 by Cheque No. 184751 dated 24/01/2016, for a sum of Rs. 3,00,000/- (Rupees Three Lakhs) only, and
subsequently taken a
sum
of Rs. 75,000/- (Rupees Seventy Five Thousand)
only, in
cash from this Opposite Party. It is further denied that the Complainants have paid total sum of money as Rs. 38,75,000/- (Rupees Thirty Eight Lakhs and Seventy Five Thousand) only, towards the consideration value of the said subjected flat. It is denied that the Opposite Party
is to get the balance sum of money as of Rs. 3,25,000/- (Rupees Three Lakhs and
Twenty Five Thousand)
only, from
the Complainants. It is denied that the Complainants are not due diligent in making payment of the
consideration value of the subjected flat in terms of the agreement for sale dated 5th day of January 2016, even after handing
over the Physical Possession of the said subjected flat by the Opposite
Parties.
C.
It is
denied that the said flat, as agreed upon by and between the parties, that the
said flat with
all
amenities, fixtures and fittings to be handed over to the complaints herein within 2 years from the date of execution of the said
agreement for sale, i.e. 5th January 2016.
D.
It is
denied that after completion of the basic construction of the said G+3 storied building in the said premises,
the complainants were given possession of the said flat by the opposite
party no. 2 measuring an area of about 750
sq.ft. super built
up
area
along with the car parking space measuring about 125 sq. ft. in the ground floor of the
said premises.
E. It is
denied that after the Complainants enjoyed without any hindrances, so far.
It is denied that the complainants did not arrange themselves for the
registration of Deed of Conveyance in terms of the said Agreement for Sale
dated 5th day of
January
2016 or did not pay their balance sum of money of the consideration value of the said
subjected flat which comes as a sum of Rs. 3,25,000/- (Rupees Three Lakhs and Twenty Five Thousand)
only.
F. It is
denied that the Opposite Party is all along ready and willing to register the deed
of conveyance in terms of the said Agreement for Sale dated 5th day of January' 2016.
G. It is
denied that the complainants are not a Consumer as per provision of Section 2 (7) of the Consumer Protection
Act' 2019.
H.
It is denied
that
there is no Consumer disputes to be adjudicated between the parties,
before the Hon'ble Commission, between the parties herein.
I.
It is
denied that the present claim of the Complainants is barred by the Limitation as
enshrined under the
provision
of Section 69 of the Consumer
Protection Act' 2019.
J.
It is
denied
that the Opposite Party, have no iota of knowledge about the alleged story of the
complainant herein.
K.
It
is denied
that the Opposite party,
have no relationship with the
complainant.
L.
It is
denied that the opposite party, have no disputes.
M.
It is
denied that
the
present Consumer disputes, is not maintainable in the facts and in the law against the opposite party, in the terms of the Consumer Protection Act' 2019.
N. It is denied that the allegations as contended by the complainants
herein are all
fake and frivolous one, as those are not substantiated with any single piece of papers or evidentiary value papers, against
this opposite party.
O.
It is denied
that the present complaint has been made before the Hon'ble Commission, motivated and with an intention for the wrongful gain and acquire of wrongful claim thereby the complainants herein.
P.
It is
denied that the Opposite Party, herein did not cause any deficiency in services, and or unfair trade
practices, in terms of the provisions of the Consumer Protection Act' 2019, and rules made
thereof.
Q.
It is
denied that there is
no cause of
action has
ever been
described and
or more
particularly raised against this opposite party, by the complainant.
33.
I
am filing the following documents along with my evidence in order to substantiate my case and I shall hand over the said original documents
to the
Learned court as and when directed, copies of same annexed to complaint.
a. A
photocopy of the said registered agreement for sale registered on 5th January, 2016 before the office of the DSR-I, Alipore, registered in Book No. I, Volume No. 1601/2016, Pages 1160 to 1210, Being No. 060100025 for the year 2016.
b. A photocopy of the Money receipt issued by the opposite party no. 2 on behalf of the opposite party no. 1 dated 25.06.2016
c. A copy of the loan sanction letter along with the bank
loan statement of complainant no. 2
d. Some
photographs of
the said
under construction building
e.
A receipt
showing payment of
Rs.
50,000/-
(Rupees Fifty
Thousand only) towards the opposite party no. 1 along with photograph of the garage showing the present
situation
f. A track consignment showing the
receipt of the said notice dated 07.2.2024 along with the notice dated
07.2.2024 sent by I and the complainant No 2' advocate
34.
That the
statements made in
the
foregoing paragraphs of this affidavit of evidence is all true to the best of my knowledge and belief .
DEPONENT
Identified
by me
Advocate
Prepared in my office
Advocate
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