Before the
Hon’ble District Consumer Disputes Redressal Forum Kolkata Unit – III, (Kolkata
South)
Alipore, Kolkata – 700 027, West Bengal
CC / 70 / 2018
In
the matter of ;
Dr.
Biswajit Paul,
__________Complainant
-
Versus
–
Smt. Mina
Basu, and another.
_______Opposite parties.
BRIEF NOTES OF ARGUMENT ON BEHALF OF
OPPOSITE PARTY NO. 1 – SMT. MINA BASU;
Synopsis
The present Consumer Complaint is
wholly misconceived and not maintainable against Opposite Party No. 1, Smt.
Mina Basu, as the Complainant, Dr. Biswajit Paul, is an absolute stranger to
her and there exists no privity of contract, transaction, or consideration
between them. The basis of the Complaint, an alleged Agreement for Sale dated
09-09-2008, is fraudulent and unenforceable because the Development Agreement
dated 17-08-2001 between O.P. No. 1 and the Developer (O.P. No. 2), M/s.
Skylark Construction, had already been cancelled on 05-01-2008, and this
cancellation was upheld in Title Suit No. 14 of 2008 (Utpal Roy & Ors. vs.
Mina Basu), which was finally decided by the Learned 5th Court of Civil Judge
(Senior Division), Alipore, through a Judgment dated 20-08-2010 dismissing the
suit on contest, thereby confirming that the Development Agreement ceased to
exist. Consequently, O.P. No. 2 and its partners (O.P. Nos. 3 to 5) had no
authority to enter into any Agreement for Sale or to convey any flat or create
third-party interest in the property of O.P. No. 1. Any transaction,
possession, or document claimed by the Complainant during pendency of the Civil
Suit is hit by Section 52 of the Transfer of Property Act 1882, the Doctrine of Lis Pendens, and is incapable
of conferring legal rights upon the Complainant. Moreover, the Complainant’s
unexplained silence from 2010 to 2013 and again till 2017 shows there was no
continuous cause of action and the Complaint is hopelessly barred by
limitation. As there is no contract and no element of service between the
Complainant and O.P. No. 1, the Complainant does not qualify as a “Consumer”
vis-à-vis O.P. No. 1 under Section 2(7) of the Consumer Protection Act, 2019.
Thus, the Complaint is liable to be dismissed with costs against Opposite Party
No. 1.
LIST OF DATES
|
Sl.
No. |
Date |
Events
/ Particulars |
|
1 |
17-08-2001 |
A Development Agreement was
entered into between O.P. No. 1 – Smt. Mina Basu (Land Owner) and O.P.
No. 2 – M/s. Skylark Construction (Developer) represented by its partners
O.P. Nos. 3, 4 & 5. |
|
2 |
05-01-2008 |
The said Development Agreement was
revoked/cancelled by the Land Owner, Smt. Mina Basu. |
|
3 |
29-01-2008 |
Title Suit No. 14 of 2008 (Sri
Utpal Roy & Ors. vs. Smt. Mina Basu)
was filed before the Ld. 5th Court of Civil Judge (Senior Division), Alipore,
South 24 Parganas by the developer and its partners. |
|
4 |
09-09-2008 |
Alleged Agreement for Sale said to
be executed between the Complainant and the “Owner & Developer” for Flat
No. 6 measuring 1300 sq. ft. & Car Parking 130 sq. ft. at Premises No.
112, Kalitala Road, Kolkata – during pendency of Title Suit and after
cancellation of Development Agreement. |
|
5 |
10-08-2010 |
Alleged handing over of possession
of the said flat by the Developer to the Complainant. (The Land Owner had
no knowledge or consent.) |
|
6 |
20-08-2010 |
Judgment delivered in Title Suit
No. 14 of 2008, finally dismissing the suit on
contest; confirming that the Development Agreement dated 17-08-2001 stood
cancelled and unenforceable. |
|
7 |
08-06-2013 |
After almost 3 years, the
Complainant wrote to the Developer requesting execution and registration of
the Deed of Conveyance. (No copy to Land Owner/O.P. No. 1 acknowledged.) |
|
8 |
22-06-2017 |
Letter issued by the Complainant’s
Advocate to the Developer again requesting execution and registration of
Deed. |
|
9 |
24-07-2017 |
O.P. No. 1 – Smt. Mina Basu replied informing the Complainant regarding the
Court’s judgment confirming cancellation of the Development Agreement
executed with the Developer. |
|
10 |
22-09-2017 |
Complainant’s Advocate wrote to
the Developer and its partners seeking details of the Court case. |
|
11 |
22-11-2017 |
Developer replied stating that the
Development Agreement was “not cancelled” but Power of Attorney had been
revoked, and therefore they were unable to execute the Sale Deed. |
|
12 |
17-11-2017 (claimed) |
Complainant states that cause of
action arose on this date. (Opposite Party No. 1 disputes the alleged
cause of action as the Complainant was never in privity of contract with her
and the Agreement for Sale was executed during pendency of suit and after
cancellation of the Development Agreement.) |
|
13 |
15-02-2018 |
Consumer Complaint filed by Dr.
Biswajit Paul, a complete stranger to O.P. No. 1, who never dealt
with him and never executed any agreement with him. |
ARGUMENT
- Dr. Biswajit Paul, the present Complainant, is
absolutely a stranger to Opposite Party No. 1, Smt. Mina Basu.
There has never been any privity of contract, transaction or
correspondence between the Complainant and Opposite Party No. 1 at any
point of time.
- The records clearly demonstrate that Opposite
Party No. 2, M/s. Skylark Construction, was once a Promoter/Developer in
respect of Premises No. 112, Kalitala Road, under a Development Agreement
dated 17-08-2001.
Opposite Parties No. 3 – Sri Utpal Roy, No. 4 – Sri Tapan Nag, and No. 5 –
Smt. Sutapa Roy were the alleged partners of the said Partnership Firm.
- Opposite Parties No. 3, 4 & 5, as partners
of M/s. Skylark Construction, instituted Title Suit No. 14 of 2008 (Sri
Utpal Roy & Ors. vs. Smt. Mina Basu) before the Learned
5th Court of Civil Judge (Senior Division), Alipore. The suit culminated
in a Judgment dated 20-08-2010,
whereby the suit was dismissed on
contest but without cost, thereby confirming cancellation and non-existence of the
Development Agreement dated 17-08-2001.
- Thus, on and from 20-08-2010, there remained no
Development Agreement in existence and no contractual / legal relationship
whatsoever between Opposite Party No. 1 and Opposite Party No. 2 or its
partners (OP No. 3–5). The Developer lost all rights,
authority and agency, and stood divested of any entitlement to create
third-party rights in the subject property.
- The
Complainant alleges execution of an Agreement for Sale dated 09-09-2008
with the owner and developer,
and claims to have purchased Flat
No. 6 measuring 1300 sq. ft. (S/E/W) with car parking space of 130 sq. ft.,
for a consideration of ₹19,00,000/-.
The Complainant further alleges that signature of the owner was affixed “by the pen of Utpal Roy, the Attorney
of the Owner”.
- This allegation is demonstrably false and
legally untenable. Opposite Party No. 1 never executed any Power of
Attorney in favour of the Developer or its partners at any point of time.
This has been categorically established in Title Suit No. 14 of 2008. In
the said suit, the Developer itself pleaded that the POA was yet to be
given, and during trial expressly admitted that no POA was ever executed by Opposite Party No.
1.
- The
alleged unregistered General Power of Attorney dated 11-10-2007, shown in
the purported Agreement for Sale, is a manufactured document, contrary to record and contrary to judicial
finding. Once the Developer admitted in the civil suit that no POA
was ever executed, the alleged signing “by the pen of Utpal Roy” cannot
have any legal effect.
- The alleged Agreement for Sale dated 09-09-2008
was executed during pendency of the civil suit
and behind the back of the Learned Civil Court. Even assuming such a
document exists, it is hit by the Doctrine of Lis Pendens under
Section 52 of the Transfer of Property Act. A developer with no subsisting authority and no POA
could not have lawfully entered into a third-party transaction, and no
rights could pass to the Complainant.
- The
Complainant remained silent from
2008 till 2013 and again till 2017, which itself exposes the
falsity and afterthought nature of the alleged agreement. The first letter
was issued only on 08-06-2013 and then after further long delay on
22-06-2017. Such conduct is
inconsistent with a genuine homebuyer–promoter relationship.
- Upon
receipt of Advocate’s letter dated 22-06-2017, Opposite Party No. 1 immediately informed the Complainant on
24-07-2017 about cancellation of the Development Agreement under
the Court Judgment. The Complainant was thus fully aware that the
Developer had no authority to execute a conveyance.
- The Developer itself, by letter dated
22-11-2017, admitted inability to execute conveyance on the ground that
the Power of Attorney was revoked. This admission conclusively
establishes that the Developer had
no authority and consequently no privity of contract exists between the Complainant and Opposite
Party No. 1.
- In
the present Consumer Case, no
cause of action ever arose against Opposite Party No. 1. There is
no consumer–service provider relationship, no contractual obligation, no
receipt of consideration from the Complainant, and no promise or
representation from Opposite Party No. 1.
- The entire Complaint is founded on manufactured
documents and false narrative, devised to extract wrongful
enrichment from Opposite Party No. 1 despite judicial cancellation of the
Development Agreement and despite admitted absence of Power of Attorney.
- In view
of the authoritative pronouncements of the Hon’ble Supreme Court and the
Hon’ble National Commission, the instant complaint, being devoid of
privity of contract, founded on documents unsupported by authority and
executed pendente lite, is wholly non-maintainable and deserves dismissal
with exemplary costs.
In
view of the above factual matrix;
(a) the Complaint discloses no cause of
action against Opposite Party No. 1;
(b) there is no privity of contract
between the Complainant and Opposite Party No. 1;
(c) the alleged Agreement for Sale is void,
unenforceable and contrary to the judicial finding in Title Suit No. 14
of 2008; and
(d) the Complainant is guilty of suppression/non-disclosure
of material facts and filing a frivolous
and malicious complaint.
=============================XXX=========================
Filed
by;
Advocate
for the Opposite Party No. 1 – Smt. Mina Basu
Date
: 2nd day of December’ 2025
Place
: Alipore Judges’ Court.
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