AFFIDAVIT-IN-REPLY ON BEHALF OF THE PETITIONER

 

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLKATA UNIT-III

Tramline Building ( 1^st Floor )

18, Judges Court Road, Alipore, Kolkata - 700027

 

Consumer Complaint no.CC/654/2021.

 

                                                          In the matter of :

Sri Haripada Bhowmik, Son of Ganga Charan Bhowmik, residing at premises being no. 107/H/1, Parui Pacca Road, Kolkata – 700061.                                                                 ______Petitioner

-      Versus –

 

1.    M/s. Chakraborty Associates, Sole Proprietorship Firm, having its office at premises no. P-74, State Bank Park, Thakurpukur, Kolkata – 700 063, South 24 Parganas.

 

2.   Sri Utpal Chakroborty, Son of Ullas Kumar Chakroborty, residing at premises no. P-74, State Bank Park, Thakurpukur, Kolkata – 700 063, South 24 Parganas

       ________Respondents

 

AFFIDAVIT-IN-REPLY ON BEHALF OF THE PETITIONER

 

AFFIDAVIT

 

I, Sri Haripada Bhowmik, Son of Late Ganga Charan Bhowmik, aged about ___ years, by faith Hindu, by occupation _____________, residing at Premises No. 107/H/1, Parui Pacca Road, Kolkata – 700061, District South 24 Parganas, do hereby solemnly affirm and declare as follows:

 

1. That I am the Petitioner in the above-mentioned consumer complaint and as such I am well acquainted with the facts and circumstances of the case and competent to swear this affidavit.

 

2. That this affidavit is filed in reply to the statements / questions raised by the Respondents, being Nos. 1 to 17, and save and except what are specifically admitted herein, all allegations made therein are denied.

 

3.   Reply to Question / Statement No. 1: Yes, I am a senior citizen suffering from age-related ailments. The reference to my ailments has been stated to explain my vulnerability, hardship and mental agony suffered due to prolonged non-delivery of my lawful entitlement. The present consumer dispute is not founded on medical negligence, and therefore production of medical documents is not a condition precedent for maintaining the complaint. However, I reserve my right to produce medical records, if so directed by this Hon’ble Commission.

 

4.   Reply to Question / Statement No. 2: The statement is denied as false, frivolous and misleading. I am a victim of the Respondents’ deliberate breach of the Joint Venture Agreement dated 02.08.2014, non-delivery of the Owner’s Allocation, non-payment of agreed consideration and inordinate delay, all of which constitute deficiency in service and unfair trade practice under the Consumer Protection Act, 2019.

 

5.   Reply to Question / Statement No. 3: Yes. The Joint Venture Agreement dated 02.08.2014 itself evidences the representations, assurances and inducement made by the Respondents to develop the property at their own cost and to deliver the Owner’s Allocation within the stipulated time. The conduct of the Respondents in taking possession, obtaining sanctioned plan and selling their allocation further substantiates such inducement.

 

6.   Reply to Question / Statement No. 4: The statement is emphatically denied. The Supplementary Agreement does not extinguish, novate or supersede the Owner’s Allocation stipulated in the Joint Venture Agreement dated 02.08.2014. In absence of any express clause of novation or waiver, the Owner’s Allocation continues to remain binding and enforceable. The Supplementary Agreement, if any, is only ancillary in nature.

 

7.   Reply to Question / Statement No. 5: The statement is denied. The time stipulation contained in the Joint Venture Agreement remains binding. Even otherwise, the Respondents admittedly completed construction by December 2017 but failed to hand over possession of the Owner’s Allocation till date, thereby rendering the question of extended time wholly irrelevant and academic.

 

8.   Reply to Question / Statement No. 6: Yes. I categorically claim the balance non-refundable amount of Rs. 2,65,000/- strictly in terms of Clause relating to consideration under the Supplementary Agreement dated 02.08.2016, which remains unpaid till date.

 

9.   Reply to Question / Statement No. 7: Any such extension was granted in good faith and solely to facilitate completion of construction. The same cannot be construed as waiver of my substantive rights. In any event, the Respondents failed to deliver possession even after expiry of the extended period, and therefore cannot derive any benefit from their own default.

 

10.                Reply to Question / Statement No. 8: The statement is denied. Save and except the admitted payments made by the Respondents, no further amount towards the agreed non-refundable consideration has been paid to me. The Respondents are put to strict proof of any alleged additional payment.

 

11.                Reply to Question / Statement No. 9: I state that I do claim my Owner’s Allocation strictly by virtue of the Joint Venture Agreement dated 02.08.2014. The said agreement unequivocally entitles me to 33% of the total constructed area as Owner’s Allocation. My claim is contractual, lawful and enforceable.

 

12. Reply to Question / Statement No. 10: I state that in my legal notice dated 30.10.2021, I claimed: (a) delivery of possession of my Owner’s Allocation being 33% of the total constructed area, and
    (b) payment of the balance non-refundable amount of Rs. 2,65,000/-, as expressly provided under the Joint Venture Agreement dated 02.08.2014. The said claims are true, specific and in conformity with the agreement.

 

13. Reply to Question / Statement No. 11: I categorically deny that I have suppressed any supplementary agreement dated 02.08.2016 for any ulterior gain. I state that no valid, binding or enforceable supplementary agreement altering or curtailing my Owner’s Allocation was ever executed with my free consent. Even otherwise, any such alleged document was never acted upon and cannot override the principal Joint Venture Agreement dated 02.08.2014.

 

14. Reply to Question / Statement No. 12: I strongly deny that there is no deficiency in service on the part of the Respondents. The Respondents, despite completion of construction and sale of their developer’s allocation, failed to hand over possession of my Owner’s Allocation and failed to pay the agreed balance amount, which clearly amounts to deficiency in service under the Consumer Protection Act, 2019.

 

15. Reply to Question / Statement No. 13: I deny that the Respondents are not engaged in unfair trade practice. The deliberate withholding of my Owner’s Allocation, despite repeated demands and false assurances, constitutes unfair trade practice and deceptive conduct within the meaning of the Consumer Protection Act, 2019.

 

16. Reply to Question / Statement No. 14: I deny that I am not a consumer. I state that as a landowner who engaged the Respondents for construction services in consideration of receiving a defined portion of the constructed area along with monetary payment, I fall squarely within the definition of “Consumer” under Section 2(7) of the Consumer Protection Act, 2019. The Respondents are service providers and the transaction is not a purely commercial venture.

 

17. Reply to Question / Statement No. 15: I deny that I have stated any false or misleading facts. All statements made by me are true, correct and supported by documentary evidence already on record. The allegation is false, vague and mischievous.

 

18. Reply to Question / Statement No. 16: I deny that I have no cause of action. The cause of action arose due to the Respondents’ failure to deliver possession of my Owner’s Allocation and to pay the agreed consideration after completion of construction, and the same is continuous and subsisting till date.

 

19. Reply to Question / Statement No. 17: I deny that I am not entitled to the reliefs claimed. On the contrary, I am legally and equitably entitled to all reliefs prayed for in the complaint due to the Respondents’ breach of contractual and statutory obligations.

 

20. The Petitioner states that the so-called questionnaire filed by the Respondents is not aimed at eliciting any material facts relevant for adjudication, but is a calculated attempt to misdirect the proceedings and to non-suit the Petitioner by raising extraneous, misleading and legally untenable issues, particularly relating to maintainability and consumer status, which are already settled by law and the pleadings on record. The said questions are evasive in nature, do not traverse the real controversy between the parties, and have been framed solely to delay the proceedings and frustrate the Petitioner’s lawful claim.

 

21. That the statements made hereinabove are true to my knowledge and belief and nothing material has been concealed therefrom.

 

 

 

VERIFICATION

 

Verified at Kolkata on this 17^th  day of December, 2025, that the contents of the above affidavit are true and correct to the best of my knowledge and belief.

 

 

 

DEPONENT

Identified by me,

 

 

Advocate

Prepared in my Chamber;

 

 

Advocate

Date : 17^th day of December’ 2025

Place : Alipore Judges’ Court

 

N O T A R Y