BEFORE THE
HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLKATA UNIT-III
Tramline
Building ( 1st Floor )
18, Judges
Court Road, Alipore, Kolkata - 700027
Consumer Case
no. CC/06/2021
In
the matter of :
Sri ParamarthaChoudhury,
__________Complainant
- Versus –
Smt. Mina Basu, and another.
_______Opposite
parties
Evidence
on Affidavit
of
the
Opposite Party No. 1
Smt.
Mina Basu.
A
F F I D A V I T
I Smt. Mina
Basu, wife of Late Amiya Kumar Basu, aged about ______years, by faith Hindu, by
Occupation House Wife. Residing at premises being no. 6, Shib Temple Lane,
Kolkata – 700078, do hereby solemnly affirm and declare as follows :
1.
That I being the Opposite Party no. 1,
in the instant case being filed by the Complainant herein, and I am well
conversant with the facts and circumstances of the said consumer case.
This is true to
my knowledge.
2.
That I beg to say that one Title Suit
has been instituted by Sri Utpal Roy, Son of Late Ramesh Chandra Roy, Sri Tapan
Nag, Son of Late RamaniKanta Nag, and Smt. Sutapa Roy, Wife of Utpal Roy, being
Partners of M/s. Skylark Construction, having its office at premises no. 28A, Raja
S.C. Mullick Road, Police Station – Jadavpur, Kolkata – 700 032, against Smt.
Mina Basu, widow of Late Amiya Kumar Basu, residing at premises no. 6, Shiba
Temple Lane, Police Station – Kasba, Kolkata – 700 078, viz. Title Suit no. 14
of 2008. The case of the plaintiffs in a nutshell is that the defendant is the
owner of the suit property. Plaintiff with an intention to develop the said
suit premises by way of construction of multi storied building consisting of
several flats, car parking space etc. Entered into an agreement on 17-08-2001,
with M/s. Skylark Construction a partnership firm represented by it’s partners.
The Plaintiff decided to take the project for construction of partly G + 3 and
partly three storied building on the suit plot in accordance with the sanction
plan of K.M.C. It was settled between the parties that one flat on first floor
front side south west and another one on the second floor front side south west
and one car parking space of the proposed building will be given to the owners.
Also Rs. 3,75,000/- will be given in addition. Plaintiff already paid Rs.
2,00,000/- to the defendant by way of cheque dated 17-08-2001, drawn on Bank of
Baroda, Moore Avenue Branch. It was settled that balance amount will be payable
at the time of delivery of possession of flats. It was further agreed that the
defendant will execute a general power of attorney in favour of the plaintiff
in order to facilitate the construction work. In terms of the agreement dated
17-08-2001, plaintiff submitted draft plan of proposed building before K.M.C.
There was a clause in that agreement that the proposed construction of the
building shall be completed within 24 months but if there is any delay due to
non compliance of the terms of agreement by defendant the construction period
shall be extended. Defendant delivered all relevant title deeds save and except
mutation certificate from B.L. & L.R.O. defendant assured that she will
deliver the mutation certificate from B.L. & L.R.O. but did not do the same
for which there was delay in getting sanction from K.M.C. However the plaintiff
started construction and completed sixty per cent of the work. Defendant also
did not execute any Power of Attorney, as agreed upon. Thereafter on
05-01-2008, defendant issued a notice through her advocate Sri Malay Sengupta
on the plaintiff stating that the agreement dated 17-08-2001, stand cancelled.
In that letter defendant also demanded to take back the original documents.
According to the plaintiff defendant has got no right to cancel the agreement
unilaterally without any reason. Due to such acts of defendants, plaintiff
suffered enormous loss, therefore the suit being Title Suit no. 14 of 2008, has
been filed by the plaintiff against the defendant before the Learned 5th
Court of Civil Judge ( Senior Division ) at Alipoire, South 24 Parganas.
3.
That I beg to says that in the said
Title Suit no. 14 of 2008, before the Learned 5th Court of Civil
Judge ( Senior Division ) at Alipoire, South 24 Parganas, Smt. Mina Basu, widow
of Late Amiya Kumar Basu, residing at premises no. 6, Shiba Temple Lane, Police
Station – Kasba, Kolkata – 700 078, being the defendant therein in the said
Suit before the Learned Court, contested the said Suit by filling her written
statement. Defendant stated that the suit is not maintainable. Defendant denied
all the allegation made against her by the plaintiff. The defendant case is
that it was agreed between the parties that the construction will be completed
within a period of 24 months after getting the sanction plan but plaintiff
neglected to complete the same. Defendant denied that due to non supply of
mutation certificate plaintiff failed to obtain sanction plan from K.M.C. The
plan was sanctioned on 24-03-2004, and it was valid upto 23-03-2007. But even
after lapses of 24 months plaintiff failed to complete construction and even
they did not handover the owner’s allocation to the defendant. Due to non
performance of plaintiff the agreement dated 17-08-2001, already stood
cancelled, and thereafter defendant gave a letter to plaintiff asking them to
return the original documents, but till date the plaintiff did not do so. It is
also stated that the plaintiff did not insist defendant to execute any general
power of attorney, on all these grounds defendant prays for dismissal of the
suit.
4.
That I beg to says that to prove said
Suit, before the Learned Court, the Plaintiff no. 1, ShriUtpal Roy, deposed as
P.W. 1, the documents filed by the plaintiff are marked as Exbt. 1, Agreement
for development dated 17-08-2001, marked as Exbt. 2, Sanctioned plan no.
797/03, marked as Exbt. 3. Letter dated 18-02-2008, addressed to the plaintiffs
firm along with envelop, marked as Exbt. 4. (Series ) copy of letter dated
28-02-2008, along with postal receipt and A.D. card marked as Exbt. 5. Letter
addressed to Utpal Roy, marked as Exbt. 6, A/D card marked as Exbt. 7, Letter
dated 12-06-2009.
5.
That I beg to say that in the said
Suit, before the Learned Court, it is admitted by both the parties that
defendant who is the owner of the suit premises entered into an agreement with
the plaintiff, which is a partnership firm for development of the suit property
by raising multistoried building. It was also agreed that the construction will
be completed within 24 months after receiving the sanctioned plan from K.M.C.
The plaintiff alleged that though defendant handed over the title deed but did
not handover the mutation certificate from B.L. & L.R.O. for which
obtaining sanctioned plan from K.M.C. got delayed. It is further alleged that
even defendant did not execute any power of attorney in favour of the plaintiff
for undertaking the construction work. However, the plaintiff constructed sixty
percent of the proposed building, and thereafter requested defendant again to
execute the power of attorney. But without doing so defendant by a letter dated
05-01-2008, cancelled the agreement. On the other hand, defendant denied all such
allegations and stated that though the plaintiff obtained sanctioned plan on
24-03-2004, but failed to raise construction within the stipulated period.
6.
That I beg to say that in the said Suit, PW 1,
in his affidavit in chief corroborated his plaint case. In cross examination he
admitted that though exbt.1, is dated 17-08-2001, but on the notorised page the
date of execution is mentioned as 28-08-2001. He stated that he does not have
any documents to show that they have sent the draft copy of power of attorney
to the defendant. He also stated that it is not mentioned in exbt. 1, that
without any mutation certificate they will not be able to obtain any sanction
plan. From his evidence it also appears that he has got no documents to show
that he is authorized by other partners to depose in the case nor his
partnership business / partnership firm is registered under societies act.
7.
That I beg to say that in the said
Suit, PW 1, also stated that he did not assign any reason to defendant
specifying any reason for delay in completion of the said project. He also did
not give any letter to the defendant asking her to execute any power of
attorney in his favour. Corporation did not give him any letter informing him
that without mutation of B.L. & L.R.O. no plan could be sanctioned. He did
not file any report of chartered engineer and it is his own assumption that he
has completed ninety five percent of the construction work. He admitted that
exbt. 1, does not bear signature of owner. He also admitted that the defendant
did not take any consideration money. He also admitted that there is no initial
of defendant in page – 2 of exbt 1, where there is a handwritten portion.
Though his learned lawyer Sri Prasanta Mukherjee drafted the agreement but
nowhere it has been written that he drafted the same. He also admitted that
sanction plan was valid upto 23-03-2009, and he did not get any completion
certificate from K.M.C. upto 23-03-2009. He also admitted that stipulated time
expired long ago. He also stated that though her original documents of
defendant are lying with him but he will not return those documents.
8.
That I beg to say that on the other
hand defendant deposed as DW1 and she is in her affidavit in chief corroborated
her case. At the time of cross examination DW1 only tendered exbts. 5, 6, and
7, and no other question was put to her.
9.
That I beg to say that thereafter the
said Title Suit no. 14 of 2008, { SriUtpal Roy and Others – Versus – Smt. Mina
Basu } has get it finality in terms of the Judgment delivered on Friday the 20th
day of August’ 2010, by the Learned 5th Court of Civil Judge (
Senior Division ), at Alipore, South 24 Parganas, which ordered as “that the
Suit be and the same is dismissed on contest but without cost”.
10.
That I beg to say that thereafter on defeating
the said Suit, the plaintiff preferred an appeal from the Original Decree being
the Judgment delivered on Friday the 20th day of August’ 2010, by
the Learned 5th Court of Civil Judge ( Senior Division ), at
Alipore, South 24 Parganas, which ordered as “that the Suit be and the same is
dismissed on contest but without cost”, before the Hon’ble High Court at
Calcutta, viz. FA / 46 / 2011, which consequentially dismissed by the Order
dated February’ 14, 2011.
11.
That I beg to say that in view of the facts
of the Judgment delivered on Friday the 20th day of August’ 2010, by
the Learned 5th Court of Civil Judge ( Senior Division ), at
Alipore, South 24 Parganas, which ordered as “that the Suit be and the same is
dismissed on contest but without cost”, there is no agreement and or contract
between Smt. Mina Basu, and M/s. Skylark Construction, Sri Utpal Roy, Sri Tapan
Nag, and Smt. Sutapa Roy, in any manner, whatsoever.
12.
That I beg to say that this opposite
party, have no iota of any knowledge of the present complainant, and his false
story, so far, and therefore this opposite party, is in now related to the
complainant and his false story, as stated by him in his petition of complaint,
in any form, whatsoever.
13.
That I beg to say that the said Title
Suit no. 14 of 2008 { Sri Utpal Roy and Others – Versus – Smt. Mina Basu }, has
been filed and instituted as on 29-01-2008, by Sri Utpal Roy, Son of Late
Ramesh Chandra Roy, Sri Tapan Nag, Son of Late RamaniKanta Nag, and Smt. Sutapa
Roy, Wife of Utpal Roy, being Partners of M/s. Skylark Construction, having its
office at premises no. 28A, Raja S.C. Mullick Road, Police Station – Jadavpur,
Kolkata – 700 032, against Smt. Mina Basu, widow of Late Amiya Kumar Basu,
residing at premises no. 6, Shiba Temple Lane, Police Station – Kasba, Kolkata
– 700 078, before the Learned 5th Court of Civil Judge ( Senior
Division ), at Alipore, South 24 Parganas, which has get it finality in terms
of the Judgment delivered on Friday the 20th day of August’ 2010, by
the Learned 5th Court of Civil Judge ( Senior Division ), at
Alipore, South 24 Parganas, which ordered as “that the Suit be and the same is
dismissed on contest but without cost”.
14.
That I beg to say that there is no
privity of contract between the parties.
15.
That I beg to say that the complainant
is not a Consumer as per provision of Section 2 (7) of the Consumer Protection
Act’ 2019.
16.
That I beg to say that there is no
Consumer disputes to be adjudicated between the parties, before the Hon’bleCommission,
between the parties herein.
17.
That I beg to say that the present
claim of the Complainants if any, is barred by the Limitation as enshrined
under the provision of Section 69 of the Consumer Protection Act’ 2019.
18.
That I beg to say that there is no
agreement and or contract by and between the complainant and this opposite
party, herein, in any manner, whatsoever.
19.
That I beg to say that the Opposite
Party, herein have no iota of knowledge about the alleged story of the
complainant herein, against the other opposite parties, and the receipt shown
therewith.
20.
That I beg to say that the Opposite
party, herein have no relationship with the complainant herein as alleged by him,
in his petition of complaint.
21.
That I beg to say that the opposite
party, herein have no disputes as alleged by the complainant herein, in his
petition of complaint.
22.
That I beg to say that the opposite
party, is not a necessary party to the story of the complainant herein as
alleged by him in his petition of complaint.
23.
That I beg to say that the Complaint herein
as alleged by him did not seeks any specific relief in his petition of
complaint, against the opposite party, herein.
24.
That I beg to say that the Opposite
Party, is not a service provider and or developer, and or promoter to the
complainant herein in the facts and in the law.
25.
That I beg to say that there is no
relationship of this opposite party with the O.P. no. 2,3,4, &5, and the
Complainant, in terms of the Indian Contract Act’ 1872.
26.
That I beg to say that there is no
relationship as of Consumer and the Service provider by and between the
opposite party, and the complainant herein, in terms of the Indian Contract
Act’ 1872.
27.
That I beg to say that the present
Consumer disputes as alleged by the complainant herein, is not maintainable in
the facts and in the law against the opposite party, in the terms of the
Consumer Protection Act’ 1872.
28.
That I beg to say that the allegations
as contended by the complainant herein are all fake and frivolous one, as those
are not substantiated with any single piece of papers or evidentiary value
papers.
29.
That I beg to say that the present
complaint has been made before the Hon’bleCommission, motivated and with an
intention for the wrongful gain and acquire of wrongful claim thereby the
complainants herein.
30.
That I beg to say 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.
31.
That I beg to say that the
Complainants did not have any piece of paper and or document to show that there
is any agreement and or contract in respect of the flat, with the opposite
party, herein, in any manner, whatsoever.
32.
That I beg to say that the opposite
party, herein being the law abiding and peace loving citizen of the country
bound by the bonafide moral and legal duty to act in the prescribed proposition
of the established Law of Land, and therefore in absence of any contract and or
agreement with the complainant herein, She cannot act upon and deed, in any
perverted manner, whatsoever.
33.
That I beg to say that the Complaint
is not a Consumer, in terms of the provision of Section 2(7) of the Consumer
Protection Act’ 2019, as the Complainant did not take any services and or
goods, in any manner, whatsoever, from this opposite party.
34.
That I beg to say that the Complainant
did not have any contacts and or relationship in any terms whatsoever, with
this opposite party.
35.
That I beg to say that there is no
cause of action has ever been described and or more particularly raised against
this opposite party, by the complainant.
36.
That I beg to say that there is no
specific allegation and or relief has ever been described and prayed for by the
complainant against this opposite party.
37.
That I beg to say that there is no
consumer dispute has ever been raised and or given in the petition of complaint
by the complainant against this opposite party, therefore there is no consumer
disputes with this opposite party.
38.
That I beg to say that the Application
is not maintainable either in facts or in its present form and the petitioner
has no cause of action for bringing this suit against the Opposite Party as the
said application is speculative, harassing, motivated, concocted and baseless
as is barred by the Principles of Law and hence same is liable to be rejected
at once.
39.
That I beg to say that the statement
about the Power of Attorney dated 11-10-2007, by the complainant in his Agreement
at page no. 1, therein, are manufactured documents since no such power of attorney has ever been
executed by this opposite party Smt. Mina Basu, and thus this opposite party,
denied such alleged purported document, which has been relied on by the
complainant and consequently reserve her right to lodge Criminal Complaint
against the Complainant and the O.P. no. 2, 3, 4, and 5, before the Learned
Competent Criminal Court of Law, for the punishment, in terms of the Indian
Penal Code’ 1860.
40.
That I beg to states that the present
petition of complaint is not bonafide against this opposite party, and the
complainant is not entitled to get any relief in terms of her prayer made
therein from this opposite party in terms of the provision of the Consumer
Protection Act’ 2019.
41.
That I beg to say that in the facts
and in the laws, it is totally evident from the application itself that the
complainant made his endeavor to put the Hon’bleCommission into motion to get his
wrongful gains by procuring orders in terms of his prayer before the Hon’bleCommission.
42.
That I beg to say that in the facts and
in the laws, it is totally evident from the application itself that the
complainant is trying to miss utilizing the jurisdiction of this Hon’bleCommission.
43.
That I beg to say that in the above
circumstances, there is no cause of action for the present proceedings by the
Petitioner, against the Opposite Party, the Opposite Party, accordingly pray
that the Complaint be dismissed with costs.
44.
That I beg to say that in the above
circumstances, there is no deficiency in service, and or unfair trade practices,
on the part of the Opposite Party, rather the Opposite Party is victim of the
concocted story and wrongful demand of the complainant.
45.
That I beg to say that in view of the
facts that the Opposite Party is victim of the purported alleged allegations
and wrongful demand, the Opposite Party thereby seeking compensation as of Rs.
1,00,000/- ( Rupees One Lakh ) only, for harassment and mental anxiety, arising
from the institution of the present proceeding by the complainant, against this
opposite party, before the Hon’bleCommission.
46.
That I beg to say that the Petitioner
neither has any cause of action nor the basis for filling the present complaint
and the Petitioner’s complaint is entirely baseless and misconceived and
deserve to be dismissed on this ground alone.
47.
That I beg to say that the Complaint
is false, frivolus and vexatious and has been filed with the mala fide
intention, and as such deserves to be dismissed with special costs.
48.
That I beg to say that the Petitioner,
is not entitled to any relief as prayed in the Complaint, and the same is
liable to be dismissed.
49.
That I beg to say that in the
aforesaid circumstances, the Opposite Party is seeking the dismissal of the
Complaint filed by the Petitioner, with exemplary cost.
50.
That I beg to say that I am relied on
the document enclosedbeingxerox of the Certified copy of Title Suit no. 14 of
2008, { Sri Utpal Roy and Others – Versus – Smt. Mina Basu } which has get it
finality in terms of the Judgment delivered on Friday the 20th day
of August’ 2010, by the Learned 5th Court of Civil Judge ( Senior
Division ), at Alipore, South 24 Parganas, which ordered as “that the Suit be
and the same is dismissed on contest but without cost”. With written version,
before the Hon’ble Commission.
51.
That I beg to say that the present
complaint should be dismissed at once in terms of the provisions of the
Consumer Protection Act’ 2019, as the same is found frivolous and vexatious
one, against this opposite party.
52.
That I
beg to pray that the Hon’ble District Consumer Disputes Redressal Commission,
Kolkata Unit – III, Alipore, Kolkata - 700027, would graciously be pleased to
allow this Written Version of the Opposite Party, and to dismiss and or reject
at once the petition of complaint filed by the Petitioner, against this
opposite party herein, with costs, in terms of the provisions of the Consumer
Protection Act’ 2019, and rules made therein, in the interest of administration
of justice, and or to pass such other necessary order or orders or further
order or orders as the Hon’ble Commission, may deem, fit, and proper for the
end of justice.
53.
That the statements made in foregoing
paragraphs are true to the best of my knowledge and belief.
D E P O N E N T
Identified by me
Advocate.
Prepared in my
Chamber,
Advocate.
Date : ___________2023.
Place
:Alipore, Kolkata.
N O T A R Y
No comments:
Post a Comment