AFFIDAVIT OF EVIDENCE ON BEHALF OF THE OPPOSITE PARTY

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SOUTH 24 PARGANAS

AT BARUIPUR, KOLKATA – 700144

 

C. C. NO. 141 OF 2024

 

In the matter of;

Sri Rakhal Chandra Nath

...Complainant

-Versus-

 

M/S ABHIRAJ VILLA
Represented by its Partners, namely;

1.   Debabrata Sharma

2.   Anish Chowdhury

...Opposite Party

 

AFFIDAVIT OF EVIDENCE

ON BEHALF OF THE OPPOSITE PARTY

 

I, Debabrata Sharma, Son of Sri Badal Chandra Sharma, aged about ____ years, by faith Hindu, by occupation business, being one of the partners and authorised representative of M/s Abhiraj Villa, having its office at 6A, Heramba Das Lane, P.O. & P.S. Amherst Street, Kolkata – 700009, do hereby solemnly affirm and state as follows;

 

1.   That I am one of the partners of the Opposite Party, M/s Abhiraj Villa, and am well acquainted with the facts and circumstances of the instant case and the transactions between the Complainant and the Opposite Party. I am competent and duly authorised to swear this affidavit and depose on behalf of the Opposite Party.

 

2.   That the present affidavit is being filed as the Evidence-on-Affidavit of the Opposite Party in opposition to the complaint filed by the Complainant in the instant Consumer proceeding.

 

3.   That save and except those statements, averments and allegations which are specifically admitted herein, all allegations, statements, submissions and claims made by the Complainant in the complaint are denied and disputed, and the Complainant is put to strict proof thereof.

 

4.   That the complaint, as framed and filed, does not disclose any deficiency in service, negligence, unfair trade practice or other actionable conduct on the part of the Opposite Party. The allegations made by the Complainant have been made by suppressing material facts concerning the development agreement, supplementary agreement, additional works, payments, alterations made by the Complainant and the outstanding financial obligations of the Complainant.

 

5.   That before dealing with the allegations made by the Complainant paragraph-wise, the Opposite Party considers it necessary to place before this Hon'ble Commission the material chronology of the transactions and events which have a direct bearing upon the adjudication of the present complaint. The present dispute cannot be properly appreciated by considering the allegations contained in the complaint in isolation. The relationship between the parties originated from a development arrangement, which was subsequently modified and replaced by a fresh Development Agreement, followed by a supplementary arrangement, execution of a fresh Power of Attorney, payment and acknowledgment of various sums, execution of additional works according to the requirements of the Complainant, subsequent correspondence between the parties, and finally institution of civil proceedings concerning the reciprocal rights and obligations of the parties.

 

6.   That the following List of Dates and Events is being placed on record by the Opposite Party to demonstrate the true and correct sequence of material events and to enable this Hon'ble Commission to appreciate the complaint in its proper factual and contractual context;

Sl. No.	Date / Period	Particulars of Material Event
1.	22.01.2016	The Complainant initially entered into a registered Development Agreement, being Deed No.566/2016, with the developer in respect of the scheduled property for construction of a multi-storied building. Pursuant thereto, the Complainant also executed a registered Development Power of Attorney, being No.490/2016, in favour of Opposite Party No.1, Debabrata Sharma. The Written Version records the said transaction as the original development arrangement between the parties.
2.	22.01.2016	On the same date, according to the subsequent Supplementary Agreement relied upon by the Opposite Party, the Complainant received Rs.1,00,000/- in cash from the developer. The said payment forms part of the total amount of Rs.2,00,000/- subsequently acknowledged by the Complainant.
3.	08.05.2017	The building sanction plan, being No.18/CB/19/48, was obtained from the local authority. The Complaint itself refers to the said sanctioned plan and states that the developer was required to complete construction within 36 months from the date of obtaining the sanction plan.
4.	2017	The earlier Development Agreement, being Deed No.566/2016, was subsequently cancelled by Cancellation Deed No.5330/2017, and the Power of Attorney No.490/2016 was also cancelled by Cancellation Deed No.4409/2017. Thus, the earlier contractual arrangement ceased to govern the subsequent relationship between the parties.
5.	12.08.2017	The parties thereafter entered into a fresh Development Agreement, being Deed No.6614/2017, in respect of the development of the property. The Complainant also executed a fresh Power of Attorney, being No.6017/2017, in favour of the Opposite Parties.
6.	12.08.2017	On the very same date, the parties also executed a Supplementary Agreement for development of the land along with Power of Attorney, which was duly executed before the Notary. The said document records, inter alia, the acknowledgment by the Complainant of receipt of a total sum of Rs.2,00,000/-, comprising Rs.1,00,000/- in cash received on 22.01.2016 and another Rs.1,00,000/- received by cheque No.649370 drawn on Axis Bank on the date of execution of the Power of Attorney.
7.	12.08.2017 onwards	Under the fresh development arrangement, the Complainant became entitled to his specified owner's allocation in the developed building. The Complaint itself describes the owner's allocation as including the third-floor residential accommodation together with a garage space on the ground floor.
8.	22.10.2022	The Complainant received Rs.35,000/- from the Opposite Party towards further works in the owner's allocation according to his requirements, comprising Rs.15,000/- by Cheque No.000277 towards aluminium channel and Rs.20,000/- in cash towards repairing of the wall. The Complainant acknowledged receipt of the said amount by issuing a money receipt dated 22.10.2022. The said document is relied upon by the Opposite Party as Annexure-II to the Written Version.
9.	Subsequent to the completion of the building / prior to the present complaint	The owner's allocation as well as the building had been completed. According to the Opposite Party, the Complainant thereafter made and/or required alterations and changes in his owner's allocation according to his own choice and requirements, for which revised sanction and additional expenditure were required. The Opposite Party's case is that such additional requirements cannot subsequently be treated as deficiency in service on the part of the developer.
10.	Prior to institution of civil proceedings	The Complainant also occupied one garage on the ground floor and kept the same under lock and key. The Opposite Party specifically pleads that this material fact was not disclosed by the Complainant in the consumer complaint and constitutes a material circumstance for determining the allegation that the Complainant was wholly deprived of possession/enjoyment of his allocation.
11.	09.03.2023	The Complainant issued correspondence through his Advocate raising allegations concerning possession, alleged unfinished works and other matters. The said correspondence constituted part of the pre-litigation dispute between the parties.
12.	24.03.2023	The Opposite Parties, through their Advocate, gave a detailed reply to the Complainant's communication dated 09.03.2023, controverting the allegations and setting out the stand of the Opposite Parties concerning the contractual and monetary obligations between the parties.
13.	12.04.2023	The Complainant thereafter issued a further reply through his Advocate, thereby continuing the existing contractual and monetary dispute between the parties.
14.	2023	As the disputes concerning the development arrangement, additional works, payments, charges and reciprocal obligations could not be resolved, the Opposite Parties instituted Money Suit No.121 of 2023 and Title Suit No.297 of 2023 before the competent Civil Court. Both proceedings are stated in the Written Version to be pending adjudication.
15.	2023 onwards	The Opposite Party continued to maintain that it had never refused to issue the possession letter to the Complainant. According to the Written Version, the Opposite Parties remained ready and willing to issue the possession letter subject to the Complainant complying with the outstanding reciprocal obligations, including refund/adjustment of Rs.2,00,000/-, meter and mother-meter charges and charges relating to extra works.
16.	23.07.2024	The present Consumer Complaint, being C.C. No.141 of 2024, was filed/received before the District Consumer Disputes Redressal Commission, South 24 Parganas, Baruipur, seeking, inter alia, possession letter, completion of alleged unfinished works, completion certificate, compensation and litigation costs.

 

7.   That the above chronology is not merely a statement of dates but forms an integral part of the evidence of the Opposite Party, inasmuch as each material event is supported by contemporaneous documentary evidence and demonstrates the conduct of the parties over a considerable period of time. The chronology establishes that (i) the original Development Agreement was subsequently cancelled; (ii) a fresh Development Agreement and Power of Attorney were executed on 12.08.2017; (iii) a Supplementary Agreement was simultaneously executed recording the receipt of Rs.2,00,000/- by the Complainant; (iv) the Opposite Party undertook additional works according to the requirements of the Complainant and paid Rs.35,000/- on 22.10.2022 towards further works; (v) the Complainant had possession/enjoyment of the ground-floor garage; (vi) disputes subsequently arose regarding additional works, alterations, meter and mother-meter charges and the refundable amount; (vii) the parties exchanged Advocates' correspondence in March-April 2023; (viii) the Opposite Party instituted Money Suit No.121 of 2023 and Title Suit No.297 of 2023; and (ix) notwithstanding the aforesaid disputes, the Opposite Party has consistently maintained that it was ready and willing to issue the possession letter subject to settlement of the legitimate reciprocal obligations of the Complainant. The said sequence of events, taken cumulatively, demonstrates that the present complaint cannot be adjudicated fairly by treating the dispute as a unilateral and unexplained failure on the part of the Opposite Party.

 

8.   That the Opposite Party respectfully submits that the contemporaneous documents must prevail over subsequent unilateral assertions, particularly where the Complainant seeks to rely upon an incomplete narration of the contractual relationship while omitting material events and documents which have a direct bearing upon the alleged cause of action. The Opposite Party therefore relies upon the aforesaid chronology as part of its substantive evidence and submits that the same establishes the bona fide nature of the conduct of the Opposite Party and negatives the allegation of deliberate deficiency in service.

 

9.   That the Complainant had initially entered into a registered Development Agreement being Deed No. 566/2016 with the developer and had also executed a registered Development Power of Attorney being No. 490/2016 in favour of the Partner No.1 of the Opposite Party.

 

10.               That subsequently, the aforesaid Development Agreement was cancelled by a registered Cancellation Deed being Deed No. 5330/2017, and the aforesaid Power of Attorney was also cancelled by Cancellation Deed No. 4409/2017.

 

11.               That thereafter, the parties voluntarily entered into a fresh Development Agreement dated 12.08.2017, being Deed No. 6614/2017, and the Complainant executed a fresh Power of Attorney being No. 6017/2017 in favour of the Opposite Party/its partners.

 

12.               That the aforesaid subsequent Development Agreement dated 12.08.2017 governs the rights and obligations of the parties in relation to the development of the property and the owner's allocation.

 

13.               That on the same date, i.e. on 12.08.2017, a supplementary agreement concerning development of the property was also executed between the parties before the Notary, Government of India.

 

14.               That under the said supplementary arrangement, the Complainant expressly acknowledged receipt of a total sum of Rs.2,00,000/-, comprising Rs.1,00,000/- paid in cash on 22.01.2016 and a further sum of Rs.1,00,000/- paid by cheque bearing No.649370 drawn on Axis Bank on the date of execution of the Power of Attorney.

 

15.               That the said amount of Rs.2,00,000/- was refundable/adjustable in terms of the arrangement between the parties and was required to be refunded by the Complainant to the developer at the relevant stage when possession of the owner's allocation was to be provided.

 

16.               That despite the aforesaid arrangement and despite having obtained/retained possession of the owner's allocation, the Complainant failed and neglected to refund/adjust the said amount of Rs.2,00,000/- to the Opposite Party.

 

17.               That the Complainant has deliberately failed to disclose the aforesaid material transaction and arrangement in the complaint and has thereby sought to present an incomplete and misleading picture before this Hon'ble Commission.

 

18.               That the Complainant has alleged that the Opposite Party failed to complete the construction and failed to make the owner's allocation habitable. The said allegation is false, incorrect and misleading.

 

19.               That the owner's allocation as well as the building had substantially been completed by the Opposite Party. However, the Complainant, according to his own requirements and choice, caused and/or required several changes, alterations, additions and extra works to be undertaken in his owner's allocation.

 

20.               That such additional works were not ordinary works contemplated under the original Development Agreement and involved additional expenditure on the part of the Opposite Party.

 

21.               That the Complainant himself requested further works in his owner's allocation, and pursuant to such request the Opposite Party incurred additional expenditure.

 

22.               That on 22.10.2022, the Complainant received a further sum of Rs.35,000/- from the Opposite Party towards further works in his owner's allocation, comprising Rs.15,000/- by Cheque No.000277 towards aluminium channel and Rs.20,000/- in cash towards repairing of the wall.

 

23.               That the Complainant duly acknowledged receipt of the said sum of Rs.35,000/- and issued a money receipt dated 22.10.2022.

 

24.               That the said acknowledgment constitutes an important contemporaneous document demonstrating that additional works were in fact undertaken at the instance and for the benefit of the Complainant and that the Complainant was fully aware of the additional works and the expenditure associated therewith.

 

25.               That the allegation of the Complainant that the Opposite Party has arbitrarily or falsely claimed amounts towards extra works is therefore specifically denied.

 

26.               That any work carried out by the Complainant himself, independently and beyond the scope of the consent, sanctioned plan and/or Development Agreement, cannot be fastened upon the Opposite Party, nor can the Opposite Party be held responsible for expenditure incurred by the Complainant voluntarily for his own additional requirements.

 

27.               That the Complainant has also suppressed the fact that he occupied one garage situated on the ground floor of the building and kept the same under lock and key.

 

28.               That such material fact was not fairly disclosed by the Complainant in his complaint and is relevant for determination of the actual status of possession and enjoyment of the property.

 

29.               That the allegation of the Complainant that the Opposite Party has deliberately withheld possession is therefore false and contrary to the actual facts and circumstances.

 

30.               That the Opposite Party has never refused to issue the possession letter to the Complainant.

 

31.               That the Opposite Party has at all material times been ready and willing to issue the possession letter in favour of the Complainant, subject to settlement of the legitimate outstanding amounts and obligations payable by the Complainant, including the refundable amount of Rs.2,00,000/-, applicable meter and mother-meter charges and charges relating to additional works.

 

32.               That the allegation of the Complainant that the Opposite Party is deliberately withholding the possession letter with an intention to harass him is therefore wholly misconceived and denied.

 

33.               That the Complainant has also alleged that the Opposite Party demanded an exorbitant and arbitrary amount towards extra works. The said allegation is specifically denied.

 

34.               That the amount claimed by the Opposite Party is based upon the additional works, alterations, installations and other expenses incurred and/or required to be incurred in relation to the owner's allocation and the building.

 

35.               That the Complainant himself made changes and alterations in his owner's allocation according to his own requirements and choice.

 

36.               That because of such changes and alterations, a revised sanctioned plan was also required, along with corresponding expenditure.

 

37.               That the Complainant has failed to discharge his corresponding financial obligations towards such additional works and related charges.

 

38.               That the Complainant has also failed to pay the charges relating to the electric meter, mother meter and other applicable charges, although the same are required to be borne/adjusted in accordance with the actual arrangement between the parties.

 

39.               That the Complainant has attempted to attribute all such outstanding liabilities to the Opposite Party while simultaneously seeking relief before this Hon'ble Commission without disclosing his own defaults and outstanding obligations.

 

40.               That the Complainant has alleged that he himself incurred expenditure for certain works in the flat and has sought to use such expenditure as a basis for alleging deficiency against the Opposite Party.

 

41.               That such allegations are misconceived. Any work undertaken by the Complainant at his own instance, beyond the agreed scope of work, cannot create any liability against the Opposite Party.

 

42.               That the allegation that the Opposite Party has failed to perform all contractual obligations is therefore denied.

 

43.               That the Complainant's allegation that the Opposite Party has committed deficiency in service by not issuing the possession letter is also denied, since the Opposite Party has always been ready and willing to issue the same subject to settlement of the legitimate outstanding dues and completion of the obligations attributable to the Complainant.

 

44.               That the Complainant has also relied upon his letter dated 09.03.2023 allegedly requesting possession and other documents.

 

45.               That the said correspondence was duly replied to on behalf of the Opposite Party through its Advocate, and the allegations raised therein were duly controverted.

 

46.               That thereafter, the Complainant sent a further reply dated 12.04.2023, through his Advocate, in which the Complainant disputed the allegations of the Opposite Party.

 

47.               That the exchange of correspondence between the parties itself establishes that there existed serious disputes concerning the respective contractual and monetary obligations of the parties and that the matter was not a simple case of alleged deficiency in service as falsely portrayed in the complaint.

 

48.               That the Complainant has sought to rely upon the fact that the Opposite Party has not issued the completion certificate. The said allegation, however, cannot be considered in isolation from the fact that the Complainant himself caused and/or required alterations in the owner's allocation, thereby necessitating consideration of the revised sanctioned plan and associated expenses.

 

49.               That the Opposite Party submits that no liability can be imposed upon it for circumstances arising out of the Complainant's own alterations, additional requirements, outstanding charges and failure to discharge his corresponding obligations.

 

50.               That the Complainant has also failed to disclose that the dispute between the parties has already resulted in the institution of civil proceedings.

 

51.               That the Opposite Party was constrained to institute Money Suit No.121 of 2023 before the learned Civil Judge, Senior Division, and Title Suit No.297 of 2023, both of which are pending adjudication.

 

52.               That the aforesaid suits concern the disputes and monetary/contractual issues arising between the parties and are material facts which ought to have been candidly disclosed by the Complainant.

 

53.               That the pendency of the aforesaid proceedings demonstrates that the dispute between the parties involves substantial questions relating to contractual obligations, accounts, payments, additional works and reciprocal liabilities.

 

54.               That the Complainant has approached this Hon'ble Commission without making a complete and candid disclosure of the aforesaid facts and circumstances.

 

55.               That the complaint has been filed in an attempt to obtain an order against the Opposite Party while avoiding and/or postponing the Complainant's own outstanding obligations.

 

56.               That the allegation of deficiency in service is therefore specifically denied. There has been no negligence, fault, shortcoming or deficiency in service on the part of the Opposite Party in the manner alleged by the Complainant.

 

57.               That the allegation of unfair trade practice is also denied. The Opposite Party has acted bona fide and in accordance with the contractual arrangement between the parties.

 

58.               That the Opposite Party has never represented to the Complainant that any amount lawfully payable by him towards additional works, meter charges, mother-meter charges or other legitimate expenses would be waived.

 

59.               That the Complainant is not entitled to claim reimbursement of amounts allegedly spent by him on works undertaken at his own instance and beyond the contractual scope.

 

60.               That the Complainant has claimed compensation of Rs.1,00,000/- on account of alleged mental agony and deficiency in service. The said claim is wholly misconceived, excessive and unsupported by any legally sustainable basis.

 

61.               That no act or omission attributable to the Opposite Party has caused the alleged mental agony, harassment or loss claimed by the Complainant.

 

62.               That the Complainant has also sought litigation cost of Rs.50,000/-. The said claim is equally untenable, as the complaint itself is based upon suppression and misrepresentation of material facts and the Opposite Party has been compelled to contest the same in order to protect its legitimate contractual and legal rights.

 

63.               That the prayer of the Complainant seeking a direction for issuance of possession letter is misconceived, particularly when the Opposite Party has never refused issuance of the same and has expressed its readiness to issue the possession letter subject to settlement of the legitimate outstanding amounts and obligations.

 

64.               That the prayer seeking a direction for completion of all alleged incomplete works is also liable to be rejected insofar as the alleged works include changes, alterations and additional works arising from the Complainant's own requirements and choices.

 

65.               That the Complainant cannot be permitted to take advantage of his own acts and omissions and simultaneously seek compensation and other reliefs from the Opposite Party.

 

66.               That the Complainant has failed to establish any actual deficiency in service, negligence, unfair trade practice or loss attributable to the Opposite Party.

 

67.               That the complaint is therefore liable to be dismissed.

 

68.               That in answer to the allegation that the Opposite Party failed to complete the building within the stipulated period, I state that the building was substantially completed and the owner's allocation was also completed, but the Complainant subsequently required and/or carried out alterations and additional works according to his own choice, for which corresponding consequences, including revision of sanction and additional expenditure, arose.

 

69.               That in answer to the allegation that the Opposite Party deliberately avoided handing over possession, I state that the same is false and denied. The Opposite Party was and remains ready to issue the possession letter subject to settlement of the legitimate dues and obligations.

 

70.               That in answer to the allegation that the Opposite Party demanded an arbitrary amount for extra work, I state that the amount claimed relates to legitimate expenditure and additional works and is not an arbitrary demand.

 

71.               That in answer to the allegation that the Complainant had himself completed several works at his own expense, I state that such expenditure, if any, cannot automatically be imposed upon the Opposite Party, particularly where the work was undertaken by the Complainant beyond the agreed scope or according to his personal choice.

 

72.               That in answer to the allegation regarding the alleged non-issuance of completion certificate, I state that the issue has to be considered in the background of the alterations made/required by the Complainant and the requirement of revised sanction and associated compliance, and the Opposite Party cannot be held liable for consequences arising from the Complainant's own alterations and outstanding obligations.

 

73.               That in answer to the allegation that the Opposite Party has committed unfair trade practice, I state that there has been no unfair trade practice whatsoever. The Opposite Party has merely sought enforcement/settlement of the reciprocal obligations arising between the parties.

 

74.               That in answer to the allegation that the Complainant has suffered mental agony and harassment due to the Opposite Party, I state that the same is wholly denied and the Complainant is put to strict proof thereof.

 

75.               That in answer to the reliefs claimed in the complaint, I state that none of the reliefs are legally or factually sustainable and the Complainant is not entitled to any of the reliefs claimed.

 

76.               That the Opposite Party relies upon the following documents in support of its case;

(a) Copy of the earlier Development Agreement being Deed No.566/2016;

(b) Copy of the registered Power of Attorney being No.490/2016;

(c) Copy of Cancellation Deed No.5330/2017 relating to the earlier Development Agreement;

(d) Copy of Cancellation Deed No.4409/2017 relating to the earlier Power of Attorney;

(e) Copy of the fresh Development Agreement dated 12.08.2017 being Deed No.6614/2017;

(f) Copy of the fresh Power of Attorney being No.6017/2017;

(g) Copy of the Supplementary Agreement dated 12.08.2017;

(h) Copy of the receipt/acknowledgment relating to payment of Rs.2,00,000/-;

(i) Copy of the money receipt dated 22.10.2022 acknowledging receipt of Rs.35,000/- towards further works;

(j) Relevant documents relating to the meter/mother-meter charges and additional expenditure;

(k) Copy of the statement/record arising out of intervention by the local club;

(l) Copies of the pleadings/orders/documents relating to Money Suit No.121 of 2023 and Title Suit No.297 of 2023;

(m) Such other documents as may be necessary and permissible to be relied upon at the time of hearing.

The Written Version itself identifies the supplementary agreement as Annexure-I, the money receipt for the further works as Annexure-II, the mother-meter receipt as Annexure-III and the local-club intervention statement as Annexure-IV. Therefore praying to exhibit these annexure.

 

77.               That from the facts stated hereinabove, it is evident that the complaint has been filed without full and fair disclosure of the material facts. The Complainant has suppressed the existence and effect of the subsequent Development Agreement and supplementary arrangement, the receipt of Rs.2,00,000/-, the additional works and payments, his own alterations in the owner's allocation, occupation of the garage, outstanding charges and the pendency of the civil suits. The Written Version specifically states that the Opposite Party never denied issuance of the possession letter and was ready to issue the same subject to refund/payment of the specified amounts and charges.

 

78.               That the complaint is thus devoid of merit and does not disclose any deficiency in service or unfair trade practice on the part of the Opposite Party.

 

79.               That the allegations made by the Complainant are false, frivolous, misconceived and contrary to the contemporaneous documents and conduct of the parties.

 

80.               That the Complainant is therefore not entitled to any of the reliefs claimed in the complaint.

 

81.               That the complaint is liable to be dismissed with exemplary costs.

 

In view of the facts and circumstances stated hereinabove, the Opposite Party most respectfully prays that this Hon'ble Commission may graciously be pleased to;

 

a) dismiss the complaint filed by the Complainant;

b) hold that there is no deficiency in service or unfair trade practice on the part of the Opposite Party;

c) reject the claim of compensation, litigation costs and other monetary reliefs made by the Complainant;

d) take into consideration the suppression of material facts by the Complainant;

e) take into consideration the pending civil proceedings between the parties concerning the disputes arising out of the transaction;

f) award exemplary costs in favour of the Opposite Party; and

g) pass such further and/or other order or orders as this Hon'ble Commission may deem fit and proper.

And for this act of kindness, the Opposite Party, as in duty bound, shall ever pray.

 

 

VERIFICATION

 

I, Debabrata Sharma, the deponent above-named, do hereby verify that the statements contained in paragraphs 1 to 77 hereinabove are true and correct to my knowledge and belief, based on the records of the Opposite Party and the facts known to me, and that I have not suppressed any material fact therefrom.

 

Verified at Kolkata on this ___ day of  August, 2026.

 

 

 

 

 

 

DEPONENT

Identified by me,

 

 

Advocate