Before the
Hon’ble District Consumer Disputes Redressal Commission, South 24 Parganas
Amantran
Bazar, 3rd Floor, Baruipur,
Kolkata –
700144
DC/304/EA/36/2025
{Arising out
of DC/304/CC/131/2011}
In
the matter of;
Smt. Alaka Roy, Wife of Sri Tapan Kumar Roy, residing
at Premises being no. E-2, Tagore Park, Laskarhat, Post Office – Tiljala,
Police Station – Kasba, Kolkata – 700039.
______Complainant
/ Decree Holder
-
Versus –
1. M/s. Om Tara Maa Construction, a Partnership Fir,
having its Office at Premises being No. Block – E-6, Tagore Park Maine Road,
Police Station – Tiljala, Police Station – Tiljala, Kolkata – 700039.
2. Sri Santanu Kanjilal, Son of Sri Gouranga Kanjilal,
residing at Premises being no. 149/F, Picnic Garden Road, Police Station – Tiljala,
Kolkata – 700039.
3. Sri Sanjib Das, Son of Late Sankar Chandra Das,
residing at Premises being no. E-6, Tagore Park, Police Station – Tiljala,
Kolkata – 700039.
_______Opposite
Parties / Judgment Debtors
Affidavit in
Opposition to the application under Section 72 of the Consumer Protection Act’
2019, by the Judgment Debtors;
The humble petition of the above named Opposite
Parties / Judgment Debtors, most respectfully;
Showeth as
under;
1.
That the
Judgment Debtors are in receipt of the Notice given under Section 223(1) BNSS
2023, referring the above noted Execution application. The said notice stated
that a complaint has been filed against the Judgment Debtor under Section 72 of
the Consumer Protection Act, 2019, regarding failure by the Judgment Debtors
for complying the Final Order of the Hon’ble Commission in Consumer Case No.
CC/131/2011, dated 29/06/2012. The said notice further directed to appear
before the Hon’ble Commission for the purpose of pre-cognizance hearing, on
this day, i.e. 22/12/2025.
Photostat copy of the said Notice given under Section
223(1) BNSS 2023, is annexed herewith and marked as Annexure – “A”
2.
That the
Judgment Debtors astonished while received the said notice under Section 223(1)
BNSS 2023, about an application under Section 72 of the Consumer Protection
Act, 2019. It is pertinent to states that earlier one Execution application
being No. EA/183/2013, arising out of Complaint Case No. CC/11/131, has been
initiated by the Decree Holder / Complainant, under Section 25 & 27 of the
Consumer Protection Act, 1986, wherein in the part of payments has been
complied by the Judgment Debtors, herein. Save and except the Completion
Certificate in respect of the Building premises from the Kolkata Municipal
Corporation, all other directions has been duly performed and complied thereof.
3.
That the
handing over the Completion Certificate of the building premises from the
Kolkata Municipal Corporation, is still awaiting, since the same is beyond the
control of the Judgment Debtors, even after the Judgment Debtors have every
intentions and willingness to comply with the directions of the Hon’ble
Commission in respect of the Completion Certificate of the building premises.
4.
That
the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, by order
dated 12.02.2020, allowed the appeal being A/594/2019, and set aside Order No.
66 dated 22.07.2019 of the District Forum, holding that the issuance of a
warrant of arrest against the judgment-debtors was illegal and procedurally
improper as it was passed without giving them any opportunity of hearing. The Hon’ble
Commission found that the original District Forum order had already been
modified in appeal no. F.A. No. 448 of 2012, on 25.04.2013, and therefore
execution could not proceed on the basis of the unmodified order or for amounts
that had been set aside. It was further held that non-issuance of the
Completion Certificate and mutation was not attributable to the appellants, as
related proceedings were pending before the Municipal Building Tribunal and the
Hon’ble High Court, and substantial compliance with the modified order had
already been made. Accordingly, the District Forum was directed not to pass any
coercive or harsh order against the appellants until disposal of the pending
High Court proceedings.
Photostat copy of the order dated 12.02.2020, passed
in the appeal being A/594/2019, is annexed herewith and marked as Annexure –
“B”
5.
That the operative portion of the said order dated
12.02.2020, passed in the appeal being A/594/2019, is reproduced herein as
follows; “Ld. DCDRF is requested not to pass any harsh order against
the Jdrs./O.Ps. till the disposal of the case being C.O. No.4034 of 2015, pending
before Hon’ble High Court”.
6.
That the same has been placed before the Hon’ble
Commission, and on due pursuance thereof, the Hon’ble Commission has duly
recorded the contents and purports of the said order dated
12.02.2020, passed in the appeal being A/594/2019, by the Hon’ble State
Consumer Disputes Redressal Commission, West Bengal, vide its Order dated
19/02/2020, in the Execution Application No. EA/183/2013, arising out of
Complaint Case No. CC/11/131, and thereafter the dates were fixed for awaiting
the Order from the Hon’ble High Court Calcutta in C.O. no. 4034 of 2015.
Photostat copy of the Order dated 19/02/2020, in the
Execution Application No. EA/183/2013, arising out of Complaint Case No.
CC/11/131, is annexed herewith and marked as Annexure – “C”.
7.
That thereafter all of a sudden the Judgment Debtors
were in receipt of a notice regarding institution of a Writ Petition given by
the Learned Advocate for the Decree Holder Smt. Alaka Roy, in the month of
February’ 2025. The said Writ Petition was instituted as WPA No. 3971 of 2025,
before the Hon’ble High Court Calcutta, wherein the above facts were contended.
The said Writ Petition was heard at first on 25-03-2025, by the Hon’ble Justice
Amrita Sinha, and passed the necessary order on 25-03-2025, which are as
follows;
“1. The petitioner in this writ
petition challenges an order passed by the State Consumer Disputes Redressal
Forum.
2. It appears that the matter
relates to issuance of a completion certificate by the Kolkata Municipal
Corporation.
4.
It is submitted that the completion certificate cannot
be issued allegedly because of pendency of a civil revisional application being
CO No. 4034 of 2015 before this Court.
5.
It will be open for the petitioner to press for hearing
of the said civil revisional application.
6.
The Writ petition is mad returnable on May 14, 2025.
7.
Affidavit of service is taken on record.
8.
All parties are to act on the server copy of this order
duly downloaded from the official website of this court.”
Photostat copy of the notice with
the said Writ Petition being WPA No. 3971 of 2025 with all annexure and the
Order dated 25-03-2025, are collectively annexed herewith and marked as
Annexure – “D”.
8.
That subsequently, the said Writ Petition being WPA No.
3971 of 2025 (Alaka Roy – Versus – The State of West Bengal & Others),
appeared in the list of the Hon’ble Judtice Amrita Sinha, and same has been
taken up for hearing on 19-05-2025, and duly observed that the said Civil
Revision application is still pending before the Hon’ble High Court Calcutta,
therefore the said writ petition has been de-listed for the time being with a
liberty to mention for enlistment on conclusion of the civil revision
application. The said writ petition is still pending before the Hon’ble High
Court Calcutta, which stated that the Civil Revision is still pending.
Photostat copy
of the Order dated 19-05-2025, passed in WPA No. 3971 of 2025, is annexed
herewith and marked as Annexure – “E”.
9.
That therefore, the said Civil Revision being C.O. no. 4034
of 2015, and the Writ Petition being WPA No. 3971 of 2025, are still pending
before the Hon’ble High Court Calcutta. It is pertinently states that the
Decree Holder is party in both the proceedings before the Hon’ble High Court
Calcutta and thus aware about the pendency and observation made therein by and
before the Hon’ble High Court Calcutta.
10.
That
the present proceeding being the above referred Execution application has been
persuaded under Section 72 of the Consumer Protection Act, 2019, against the
Judgment Debtors, by the Decree Holder, suppressing all the material facts, as
stated herein before in the preceding paragraphs. The Judgment dated
29/06/2012, was passed in the Old Consumer Law i.e. The Consumer Protection
Act, 1986, in C. C. Case No. 131 of 2011, by the Hon’ble Commission, and the
same was challenged by the Opposite Parties / Judgment Debtors in the First
Appeal being FA/448/2012, before the Hon’ble State Consumer Disputes Redressal
Commission, West Bengal, wherein the said Judgment dated 29/06/2012, has been
modified and consequently duly performed by the Judgment Debtors, herein.
11.
That
the present application under Section 72 of the Consumer Protection Act, 2019
is wholly misconceived, not maintainable in law, and amounts to an abuse of the
process of this Hon’ble Commission, inasmuch as the original order sought to be
enforced was passed under the Consumer Protection Act, 1986, and the same stood
modified by the Hon’ble State
Commission in First Appeal No. 448 of 2012. It is settled law that penal
provisions cannot be invoked mechanically or retrospectively, particularly when
substantial compliance of the modified decree has already been effected.
12.
That
Section 72 of the Consumer Protection Act, 2019, being a penal provision, can
be invoked only upon a clear, willful, and deliberate disobedience of a
subsisting and executable order. In the present case, there is neither any
willful default nor deliberate non-compliance on the part of the Judgment
Debtors. On the contrary, the Judgment Debtors have acted bona fide and have
complied with the modified directions to the fullest extent possible.
13.
That
the alleged non-compliance relates solely to the issuance of the Completion
Certificate by the Kolkata Municipal Corporation, which is a statutory
authority and not under the direct control of the Judgment Debtors. The delay
or non-issuance of such certificate cannot be attributed to the Judgment
Debtors, more so when the same subject matter is pending adjudication before
competent judicial fora, including the Hon’ble High Court at Calcutta.
14.
That
the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, in
Appeal No. A/594/2019, has categorically recorded a finding that non-issuance
of Completion Certificate and mutation was not attributable to the Judgment Debtors, and further restrained
the District Forum from passing any harsh or coercive order till disposal of
C.O. No. 4034 of 2015 pending before the Hon’ble High Court at Calcutta. The
said finding has attained finality and remains binding on the parties.
15.
That
despite being fully aware of the subsisting restraint order and pendency of the
civil revision and writ proceedings before the Hon’ble High Court at Calcutta,
the Decree Holder has deliberately suppressed these material facts and has
initiated the present proceeding under Section 72 of the Consumer Protection
Act, 2019, with an oblique motive to harass, pressurize, and unlawfully coerce
the Judgment Debtors.
16.
That
the initiation of a penal proceeding during the subsistence of a judicial
restraint order and pendency of related proceedings before the Hon’ble High
Court is ex facie illegal, arbitrary, and unsustainable in law. Such conduct on
the part of the Decree Holder disentitles her from any discretionary relief and
renders the present application liable to be dismissed in limine.
17.
That
no cause of action has arisen for invoking Section 72 of the Consumer
Protection Act, 2019, and issuance of notice under Section 223(1) of the BNSS,
2023, in the facts and circumstances of the present case. The Judgment Debtors
respectfully submit that continuation of the present proceeding would result in
grave miscarriage of justice.
18.
That
the Judgment Debtors crave leave of this Hon’ble Commission to rely upon all
relevant documents, orders, pleadings, and records of the proceedings pending
before the Hon’ble High Court at Calcutta, as and when required.
In the aforesaid
facts and circumstances, the Opposite Parties / Judgment Debtors most
respectfully pray that this Hon’ble Commission may be pleased to;
a)
Dismiss the application filed under Section 72 of
the Consumer Protection Act, 2019, as not maintainable and devoid of
merit;
b)
Drop the penal proceedings initiated pursuant
to notice under Section 223(1) of the BNSS, 2023;
c)
Pass an order in terms of the restraint granted by
the Hon’ble State Commission in Appeal No. A/594/2019, until
disposal of C.O. No. 4034 of 2015 by the Hon’ble High Court at Calcutta;
d)
Pass
any other or further order(s) as this Hon’ble Commission may deem fit and
proper in the interest of justice.
And
for this act of kindness, the Judgment Debtors, as in duty bound, shall ever
pray.
VERIFICATION
We,
Santanu Kanjilal & Sanjib Das, being the Opposite Parties / Judgment
Debtors, do hereby verify that the statements made in paragraphs 1 to 18 above
are true to our knowledge and belief and nothing material has been concealed
therefrom.
Verified
at Baruipur, South 24 Parganas,
On
this 22nd day of December, 2025.
Deponents
AFFIDAVIT
We,
Santanu Kanjilal, Son of Sri Gouranga Kanjilal, aged
about 56 years by faith Hindu, by Occipation Business, residing at Premises
being no. 149/F, Picnic Garden Road, Police Station – Tiljala, Kolkata –
700039, and Sanjib Das, Son of Late Sankar Chandra Das, aged about 51 years, by
faith Hindu, by Occupation Business, residing at Premises being no. E-6, Tagore
Park, Police Station – Tiljala, Kolkata – 700039, do hereby solemnly affirm and
says as follows;
1. That we are the
Judgment Debtors in the present Execution proceeding and are the partners of
the Judgment Debtor No. 1, herein M/s. Om Tara Maa Construction, a Partnership Fir, having its Office at
Premises being No. Block – E-6, Tagore Park Maine Road, Police Station –
Tiljala, Police Station – Tiljala, Kolkata – 70003. We are competent to affirm
this affidavit.
2. That the Judgment Debtors have
received a notice issued under Section 223(1) of the Bharatiya Nagarik Suraksha
Sanhita, 2023, in connection with the present execution proceeding, stating
that an application under Section 72 of the Consumer Protection Act, 2019 has
been filed alleging non-compliance of the final order dated 29.06.2012 passed
in Consumer Complaint No. CC/131/2011.
3. That the Judgment Debtors were
shocked and surprised upon receipt of the said notice, as the Decree Holder had
earlier initiated an execution proceeding being EA/183/2013,
arising out of the same complaint case, under Sections 25 and 27 of the
Consumer Protection Act, 1986, wherein substantial compliance of the
modified order has already been made by the Judgment Debtors.
4. That except for issuance of the
Completion Certificate by the Kolkata Municipal Corporation, all other
directions contained in the modified order have been duly complied with by the
Judgment Debtors. The issuance of the Completion Certificate is entirely within
the domain of the statutory authority and is beyond
the direct control of the Judgment Debtors, despite their bona
fide efforts and readiness.
5. That the Hon’ble State Consumer
Disputes Redressal Commission, West Bengal, by judgment and order dated 12.02.2020, passed in First
Appeal No. A/594/2019, was pleased to allow the appeal and
categorically hold that issuance of warrant of arrest against the Judgment
Debtors was illegal and procedurally improper.
6. That the Hon’ble State
Commission further held that the execution could not proceed on the basis of
the unmodified order, as the original order dated 29.06.2012 stood modified in First Appeal No. 448 of 2012, and substantial compliance
of the modified order had already been effected by the Judgment Debtors.
7. That the Hon’ble State
Commission also recorded a clear finding that non-issuance of the Completion
Certificate and mutation was not attributable to the Judgment
Debtors, as related proceedings were pending before the
Municipal Building Tribunal and the Hon’ble High Court at Calcutta.
8. That the operative portion of
the said order dated 12.02.2020 expressly restrained the District Forum from
passing any harsh or coercive order against the Judgment Debtors till disposal
of C.O. No. 4034 of 2015,
pending before the Hon’ble High Court at Calcutta.
9. That the said order of the
Hon’ble State Commission was duly placed before the Ld. District Commission in
EA/183/2013, and the Ld. Commission, by order dated 19.02.2020, recorded the said restraint and fixed dates
awaiting disposal of the civil revision pending before the Hon’ble High Court.
10.
That
subsequently, the Decree Holder instituted a writ petition being WPA No. 3971 of 2025 before the Hon’ble High Court at
Calcutta. The said writ petition was heard on 25.03.2025 and thereafter on
19.05.2025, when the Hon’ble Court observed that C.O. No. 4034 of 2015 is still pending, and accordingly
de-listed the writ petition with liberty to mention after disposal of the civil
revision.
11.
That
as on date, both C.O. No. 4034 of 2015
and WPA No. 3971 of 2025 are
pending before the Hon’ble High Court at Calcutta, a fact well within the
knowledge of the Decree Holder, who is a party to both proceedings.
12.
That
the present application under Section 72 of the Consumer Protection Act, 2019
has been filed by the Decree Holder by suppressing material facts,
including the subsisting restraint order passed by the Hon’ble State Commission
and the pendency of proceedings before the Hon’ble High Court.
13.
That
Section 72 of the Consumer Protection Act, 2019 being a penal provision, can be
invoked only in cases of willful and deliberate disobedience of a subsisting
executable order. In the present case, there is no
willful default, and on the contrary, the Judgment Debtors have
acted bona fide and complied with the modified decree to the fullest extent
possible.
14.
That
initiation of penal proceedings during the subsistence of a judicial restraint
order and pendency of related proceedings before the Hon’ble High Court is
illegal, arbitrary, and an abuse of the process of law.
15.
That
no cause of action has arisen for invoking Section 72 of the Consumer
Protection Act, 2019, and continuation of the present proceeding would result
in grave miscarriage of justice.
That the statements made herein
are true to my knowledge and belief and nothing material has been concealed
therefrom.
DEPONENTS
Identified by
me,
Advocate
Prepared in my
Chamber;
Advocate
Date : 22nd
day of December’ 2025
Place :
Baruipur, South 24 Parganas
N O T A R Y
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