BEFORE THE HON’BLE WEST BENGAL STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, KOLKATA
Kreta
Suraksha Bhawan
11A, Mirza Ghalib Street,
Kolkata – 700087
I.A. No. __________ of 2026
IN
CONSUMER COMPLAINT NO. CC/894/2019
NEW CASE NO. SC/19/CC/894/2019
IN THE MATTER OF:
Smt. Molina Dutta
...Complainant
-Versus-
Sri Sujit Saha & Others
...Opposite
Parties
APPLICATION TO AMEND THE WRITTEN VERSION
ON BEHALF OF THE OPPOSITE PARTY NO. 1
MOST RESPECTFULLY SHEWETH;
1.
That
the above-mentioned Consumer Complaint is pending before this Hon’ble
Commission and the answering Opposite Party No. 1, namely Sri Sujit Saha, is contesting the said
proceeding from the very inception.
2.
That
the answering Opposite Party No. 1 had already filed his Written Version
wherein the allegations, averments and claims made by the Complainant were
specifically denied and the maintainability of the complaint, absence of
deficiency in service and the circumstances responsible for the alleged delay
were specifically pleaded.
3.
That
amongst other things, the answering Opposite Party No. 1 had specifically
pleaded in the Written Version that the property in question was a joint
property; that the Complainant along with the other co-sharers had entered into
a Development Agreement with the answering Opposite Party No. 1; that a General
Power of Attorney had also been executed; that the sanctioned plan had been
obtained from the Kolkata Municipal Corporation; that construction was required
to be undertaken subject to the property being free from legal impediments;
that civil litigation concerning the property had intervened; and that there
was no deficiency in service attributable to the answering Opposite Party No.
1.
4.
That
the present application is being filed for the limited purpose of clarifying, elaborating, supplementing and
bringing into proper chronological perspective the material facts already
forming the foundation of the defence of the answering Opposite Party No. 1.
5.
That
the proposed amendment does not seek to introduce a new or inconsistent
defence, does not seek to withdraw any admission and does not alter the
fundamental nature and character of the defence already taken in the Written
Version.
6.
That
the necessity of placing the aforesaid facts and circumstances before this
Hon’ble Commission in greater detail has further arisen in view of the
Questionnaire served by the Complainant upon the answering Opposite Party No.
1. The answering Opposite Party No. 1 had duly prepared and submitted his reply
to the said Questionnaire; however, the same could not be filed within the time
stipulated by this Hon’ble Commission owing to a bona fide and unavoidable
communication gap between the answering Opposite Party No. 1 and his learned
Advocate. The delay was neither intentional nor deliberate, nor was it
occasioned with any object of prolonging the proceeding or causing prejudice to
the Complainant. Nevertheless, as the said reply was submitted at a belated
stage, this Hon’ble Commission was pleased to debar the answering Opposite
Party No. 1 from filing the same, and consequently, the said reply was not
taken on record. The answering Opposite Party No. 1 most respectfully submits
that the relevant facts are material for the proper and effective adjudication
of the real controversy between the parties and are, therefore, being stated in
detail in the present pleading, subject always to the orders of this Hon’ble
Commission.
7. That in the
aforesaid Reply/Affidavit prepared in answer to the Questionnaire served by the
Complainant, the answering Opposite Party No. 1 had truthfully disclosed on
oath all material facts and particulars relating to the transaction forming the
subject matter of the present consumer complaint. Such disclosures, inter alia,
concerned the execution, terms and effect of the Development Agreement entered
into between the parties; the preparation, submission and sanction of the
building plan by the competent municipal or statutory authority; the
institution and pendency of the connected civil litigation; the passing and
operation of the order directing maintenance of status quo; and the consequent legal
and practical restrictions affecting the progress and completion of the
construction work during the relevant period.
8. The answering
Opposite Party No. 1 had further disclosed the subsequent completion of the
construction, the steps taken for making the subject property or allotted
portion ready for delivery, the offer made to the Complainant to take
possession thereof, and the Complainant’s refusal, neglect and/or failure to
accept such possession and complete the necessary formalities. The said facts
are directly relevant to determining whether there was any actual deficiency in
service or unfair trade practice on the part of the answering Opposite Party
No. 1 and whether the alleged delay was attributable to him. The answering
Opposite Party No. 1 submits that the delay, if any, occurred because of
circumstances beyond his control, including the pending civil proceedings and
the subsisting order of status
quo, and not because of any wilful omission, negligence or
deliberate default on his part.
9. It is further
submitted that the aforesaid statements were not invented subsequently or
introduced merely to fill up any alleged lacuna in the defence. They constitute
an integral part of the consistent case of the answering Opposite Party No. 1
and are supported by the relevant agreements, sanctioned plan, judicial orders,
correspondence and other contemporaneous records. Although the Reply/Affidavit
to the Questionnaire was not taken on record on account of the procedural
delay, the material facts stated therein remain necessary for a complete, fair
and effective adjudication of the dispute and for preventing any miscarriage of
justice.
10.
That
the proposed amendment is therefore intended to bring the defence in the
Written Version in conformity with and to properly consolidate the material
facts already disclosed by the answering Opposite Party No. 1 in the present
proceeding.
11.
That
the facts sought to be incorporated through the proposed amendment are
supported by contemporaneous records, including the Development Agreement,
sanctioned building plan, pleadings and orders passed in the connected civil
proceeding, records relating to the progress and completion of construction,
communications offering possession and other relevant documents. The proposed
amendment is, therefore, founded upon existing and verifiable records and does
not introduce any fabricated, speculative or inconsistent defence.
12.
That
the proposed amendment does not change the fundamental nature and character of
the defence already disclosed in the Written Version. The consistent defence of
the answering Opposite Party No. 1 has always been that he did not commit any
wilful default or deficiency in service; that the progress of construction was
affected by legal proceedings and the order of status quo; that the construction was subsequently
completed; and that possession was offered but was not accepted by the
Complainant. The amendment merely provides the necessary particulars and a more
comprehensive explanation of the facts;
(a) That the Complainant,
along with the other co-sharers/landowners, had entered into a Development Agreement dated 21.12.2012
with the answering Opposite Party No. 1 for development and construction of the
building at premises being D/82, Bapuji
Nagar, P.O. Regent Estate, Police Station – Jadavpur, Kolkata – 700092,
under Ward No. 96 of the Kolkata Municipal Corporation, District South 24
Parganas.
(b) That the said
Development Agreement was duly registered in the Office of the learned District
Sub-Registrar-I, Alipore, South 24 Parganas, in Book No. I, being Registration No. 4460 for the year 2012.
(c) That on the same
date, namely 21.12.2012, the
Complainant and the other co-sharers executed a General Power of Attorney in
favour of the answering Opposite Party No. 1 for taking necessary steps in
connection with the development and construction of the subject property.
(d) That, significantly,
Point/Clause No. 8 of the said General Power of Attorney authorized the
attorney to appoint solicitors, advocates, pleaders and other legal
representatives and to execute necessary Vakalatnamas, warrants, applications
and other documents.
(e) That Point/Clause No.
9 of the said General Power of Attorney further authorized the answering
Opposite Party No. 1 to commence, prosecute, defend and conduct suits, actions,
applications, references and other proceedings before Courts and competent
authorities and to sign, verify and affirm pleadings, applications and other
documents as may be necessary.
(f)
That
the aforesaid authority was conferred upon the answering Opposite Party No. 1
in order to enable him to deal with legal and procedural impediments which
might arise in the course of the development and construction of the property
and to facilitate smooth completion of the project.
(g) That the answering
Opposite Party No. 1 obtained the sanctioned building plan from the Kolkata Municipal Corporation in June 2013,
and construction was contemplated to be completed within a period of 18
(eighteen) months, subject to the property remaining free from legal
impediments and encumbrances and subject to the terms of the Development
Agreement.
(h) That thereafter a
civil dispute concerning the subject property arose and Title Suit No. 391 of 2014 was instituted before the learned Civil
Judge (Junior Division), 1st Court at Alipore, South 24 Parganas, concerning
premises D/82, Bapuji Nagar Colony, Police Station – Jadavpur, Kolkata –
700092.
(i)
That
in the said Title Suit, an order of status
quo was passed on 01.09.2014 by the learned Civil Judge (Junior
Division), 1st Court at Alipore.
(j)
That
subsequently, by Order No. 09 dated
03.12.2014, the landowners/co-sharers, including the Complainant and the
answering Opposite Party No. 1, were added as defendants in the said Title
Suit.
(k) That the said civil
proceedings and the order of status quo constituted a substantial legal
impediment to the development and construction of the property.
(l)
That
the answering Opposite Party No. 1 could not lawfully proceed with construction
in disregard of an order of status quo passed by a competent Civil Court.
(m)
That
the Complainant was herself fully aware of the aforesaid litigation and was a
party to the proceedings and, therefore, cannot now contend that the period
consumed by the said litigation was attributable to any wilful or deliberate
default on the part of the answering Opposite Party No. 1.
(n) That the other
co-sharers/landowners were also concerned with and affected by the said civil
litigation and the answering Opposite Party No. 1 had no control over the time
consumed in adjudication of the said dispute.
(o) That the said civil
litigation ultimately came to an end and upon removal of the legal impediment,
the answering Opposite Party No. 1 proceeded with the construction work.
(p) That the construction
of the building was ultimately completed and the respective portions/share of
the owners were made available to the respective co-sharers/landowners.
(q) That the other
co-sharers/landowners, including Amritalal
Dutta, Dhananjoy Dutta, Ajay Dutta, Digbijay Dutta and Smt. Gopa Dutta,
accepted possession of their respective portions.
(r) That the answering
Opposite Party No. 1 also offered possession of the respective owner's
allocation to the Complainant.
(s) That a Letter of
Possession was sent to the Complainant through post and the same was duly
received by her.
(t)
That
notwithstanding the completion of construction and offer of possession, the
Complainant refused and/or failed to accept possession of her respective
allocation and instead continued with the present Consumer Complaint alleging
delay and deficiency in service.
13.
That
the aforesaid facts are material and necessary for determining whether the
alleged delay, if any, was attributable to the answering Opposite Party No. 1
or whether such delay was occasioned by circumstances beyond his control.
14.
That
the aforesaid facts are also necessary for determining whether, after
completion of construction and offer of possession, any continuing deficiency
in service can legally be attributed to the answering Opposite Party No. 1
merely because the Complainant did not accept possession.
15.
That
in the aforesaid circumstances, the answering Opposite Party No. 1 seeks leave
to incorporate the following paragraphs in the Written Version after the
existing pleadings relating to the Development Agreement and the circumstances
causing delay, the following;
SCHEDULE FOR
AMENDMENT
After paragraph 19;
19(a) “That the Complainant, along with the other co-sharers/landowners,
had entered into a duly registered Development Agreement dated 21.12.2012 with
the answering Opposite Party No. 1 for development and construction of the
premises being D/82, Bapuji Nagar, P.O. Regent Estate, Police Station –
Jadavpur, Kolkata – 700092, under Ward No. 96 of the Kolkata Municipal
Corporation.”
19(b) “That on the same date, namely 21.12.2012, the Complainant and the
other co-sharers executed a General Power of Attorney in favour of the
answering Opposite Party No. 1 authorising him, inter alia, to take necessary
legal and procedural steps and to conduct proceedings before Courts and
competent authorities in connection with the development and construction of
the property.”
19(c) “That the answering Opposite Party No. 1 obtained the sanctioned
building plan from the Kolkata Municipal Corporation in June 2013 and the
construction was contemplated to be completed within a period of 18 months,
subject to the property remaining free from legal impediments and
encumbrances.”
19(d) “That thereafter Title Suit No. 391 of 2014 was instituted
concerning the subject property and an order of status quo was passed on
01.09.2014 by the learned Civil Judge (Junior Division), 1st Court at Alipore. Subsequently,
by Order No. 09 dated 03.12.2014, the landowners/co-sharers including the
Complainant and the answering Opposite Party No. 1 were added as defendants in
the said suit.”
19(e) “That the aforesaid civil litigation and order of status quo
constituted a legal impediment to the construction and development work and the
answering Opposite Party No. 1 could not lawfully proceed with construction in
violation of the order of the competent Civil Court.”
19(f) “That the Complainant herself was fully aware of and was a party to
the aforesaid litigation and the answering Opposite Party No. 1 had no control
whatsoever over the period consumed in the adjudication of the said civil
dispute.”
19(g) “That after the civil litigation came to an end and the legal
impediment was removed, the answering Opposite Party No. 1 proceeded with the
construction and ultimately completed the building.”
19(h) “That the respective portions of the owners were thereafter made
available and handed over to the respective co-sharers/landowners, including
the other co-sharers, who accepted possession of their respective portions.”
19(i) “That the answering Opposite Party No. 1 also offered possession of
the respective owner's allocation to the Complainant and sent a Letter of
Possession to her through post, which was duly received by the Complainant.”
19(j) “That despite completion of construction and offer of possession,
the Complainant refused and/or failed to accept possession and has continued
the present Consumer Complaint alleging delay and deficiency in service.”
19(k) “That in the aforesaid facts and circumstances, no deficiency in
service can be attributed to the answering Opposite Party No. 1 and the period
consumed by the civil litigation and order of status quo cannot be treated as
wilful or deliberate delay on the part of the answering Opposite Party No. 1.”
19(l) “That the answering Opposite Party No. 1 craves leave to rely upon
the Development Agreement dated 21.12.2012, General Power of Attorney dated
21.12.2012, sanctioned building plan, plaint and orders passed in Title Suit
No. 391 of 2014, Letter of Possession, postal receipt, postal tracking report
and other documents already on record.”
19(m) “Photostat
copy of the said Letter of Possession along with Postal receipt and the Postal
Track Report, are annexed herewith and marked as Annexure – “A”.”
19(n) “Photostat copy
of the Orders and Plaint of the Title Suit no. 391 of 2014, are annexed
herewith and marked as Annexure – “B”.”
19(o) “The
O.P. no. 1, agreed to compensate while any delay occurred at his behest; But
case in hand apparently shows the cause of delay if any has been duly occurred
at the behest of the consumer complainant and her other co-sharers, by way of Litigation
being Title Suit no. 391 of 2014, therefore the O.P. no. 1, is well supposed to
get such compensation from the consumer complainant.
|
Sl. No. |
Date |
Particulars’ |
|
01 |
21-12-2012 |
Development
Agreement; |
|
02 |
June’ 2013 |
Sanctioned
Building Plan; |
|
03 |
December’
2014 |
Period of 18
months; |
|
04 |
01-09-2014 |
Title Suit
no. 391 of 2014 instituted and status quo granted over the property; |
|
05 |
June’ 2017 |
Title Suit
no. 391 of 2014 disposed off; |
|
06 |
June’ 2017 |
Period of 18
months encumbered by a period of another 2 years 7 months, up-till June’
2017; |
|
07 |
October’
2017 |
Building
Completed and Possession handed over to the Owners; save and except the
present Consumer Complainant, as she refused to take the Letter of
Possession. |
16.
That
the present Consumer Complaint was instituted under the Consumer Protection Act, 1986, and the answering Opposite Party
No. 1 respectfully submits that the present application is being made in
furtherance of the principles of natural justice and the procedural discretion
of this Hon’ble Commission to ensure complete and effective adjudication of the
consumer dispute.
17.
That
Section 13(4) of the Consumer
Protection Act, 1986 conferred upon the Consumer Forum, for the purposes
of adjudicating a consumer dispute, certain powers analogous to those exercised
by a Civil Court, including receiving evidence and requiring production of
documents, subject to the statutory framework.
18.
That
the proposed amendment is necessary for determining the real controversy between
the parties, namely whether there was deficiency in service or delay
attributable to the answering Opposite Party No. 1.
19.
That
the proposed amendment also does not seek to withdraw any admission made by the
answering Opposite Party No. 1.
20.
That
the proposed amendment does not change the fundamental nature of the defence
that there was no deficiency in service attributable to the answering Opposite
Party No. 1.
21.
That
the proposed amendment merely provides the necessary factual particulars and
chronological sequence explaining the circumstances already pleaded in the
Written Version.
22.
That
the answering Opposite Party No. 1 is conscious that the present proceeding has
reached the stage of final hearing/final argument and has, therefore,
approached this Hon’ble Commission with utmost bona fides.
23.
That
the answering Opposite Party No. 1 respectfully submits that the present
application is not intended to reopen
the evidence already concluded.
24.
That
the answering Opposite Party No. 1 is not seeking to introduce a new factual
foundation which would require commencement of a fresh trial.
25.
That
the amendment merely sets out the material particulars necessary to enable this
Hon’ble Commission to properly appreciate the aforesaid defence.
26.
That
the Complainant was herself a co-sharer/landowner and was aware of the civil
litigation concerning the subject property and therefore cannot claim surprise
in respect of the facts concerning Title Suit No. 391 of 2014.
27.
That
no irreparable prejudice shall be caused to the Complainant by permitting the
amendment.
28.
That
without prejudice, if this Hon’ble Commission considers it necessary to grant
the Complainant an opportunity to respond to the amended portions, the
answering Opposite Party No. 1 has no objection to the same.
29.
That
in K.K. Constructions v. Mohammad Yakub
Khan, 2025 SCC OnLine NCDRC 443, the Hon’ble National Consumer Disputes
Redressal Commission considered a belated amendment at the stage of final
hearing and recognized that the advanced stage of the proceeding is not by
itself an absolute prohibition against amendment where the amendment is
relevant to adjudication and appropriate safeguards can be adopted to protect
the other side.
30.
That
the present case stands on a stronger footing because the proposed amendment is
directly connected with the existing defence and the material facts have
already been disclosed by the answering Opposite Party No. 1 in the present
proceedings.
31.
That
the amendment is therefore necessary to enable this Hon’ble Commission to
determine the real controversy upon consideration of the complete factual
background.
32.
That
the present application has been made bona fide and in the interest of justice.
In the premises
aforesaid, the Opposite Party No. 1 most respectfully prays that Your Lordship/Lordships
may graciously be pleased to;
a)
Allow the present application;
b)
Grant leave to the Opposite Party No. 1 to amend, the Written Version already
filed in the present Consumer Complaint in terms of the proposed Schedule for amendments
stated herein;
c)
Direct that the amended Written Version shall be treated as part and parcel of
the Written Version already on record;
d)
Pass such further and/or other order or orders as this Hon’ble Commission may
deem fit and proper in the facts and circumstances of the case.
And
for this act of kindness, the Opposite Party No. 1 as in duty bound shall ever
pray.
SCHEDULE FOR
AMENDMENT
After paragraph 19;
19(a) “That the Complainant, along with the other co-sharers/landowners,
had entered into a duly registered Development Agreement dated 21.12.2012 with
the answering Opposite Party No. 1 for development and construction of the premises
being D/82, Bapuji Nagar, P.O. Regent Estate, Police Station – Jadavpur,
Kolkata – 700092, under Ward No. 96 of the Kolkata Municipal Corporation.”
19(b) “That on the same date, namely 21.12.2012, the Complainant and the
other co-sharers executed a General Power of Attorney in favour of the
answering Opposite Party No. 1 authorising him, inter alia, to take necessary
legal and procedural steps and to conduct proceedings before Courts and
competent authorities in connection with the development and construction of
the property.”
19(c) “That the answering Opposite Party No. 1 obtained the sanctioned
building plan from the Kolkata Municipal Corporation in June 2013 and the
construction was contemplated to be completed within a period of 18 months, subject
to the property remaining free from legal impediments and encumbrances.”
19(d) “That thereafter Title Suit No. 391 of 2014 was instituted
concerning the subject property and an order of status quo was passed on
01.09.2014 by the learned Civil Judge (Junior Division), 1st Court at Alipore. Subsequently,
by Order No. 09 dated 03.12.2014, the landowners/co-sharers including the
Complainant and the answering Opposite Party No. 1 were added as defendants in
the said suit.”
19(e) “That the aforesaid civil litigation and order of status quo
constituted a legal impediment to the construction and development work and the
answering Opposite Party No. 1 could not lawfully proceed with construction in
violation of the order of the competent Civil Court.”
19(f) “That the Complainant herself was fully aware of and was a party to
the aforesaid litigation and the answering Opposite Party No. 1 had no control
whatsoever over the period consumed in the adjudication of the said civil
dispute.”
19(g) “That after the civil litigation came to an end and the legal
impediment was removed, the answering Opposite Party No. 1 proceeded with the
construction and ultimately completed the building.”
19(h) “That the respective portions of the owners were thereafter made
available and handed over to the respective co-sharers/landowners, including
the other co-sharers, who accepted possession of their respective portions.”
19(i) “That the answering Opposite Party No. 1 also offered possession of
the respective owner's allocation to the Complainant and sent a Letter of
Possession to her through post, which was duly received by the Complainant.”
19(j) “That despite completion of construction and offer of possession,
the Complainant refused and/or failed to accept possession and has continued
the present Consumer Complaint alleging delay and deficiency in service.”
19(k) “That in the aforesaid facts and circumstances, no deficiency in
service can be attributed to the answering Opposite Party No. 1 and the period
consumed by the civil litigation and order of status quo cannot be treated as
wilful or deliberate delay on the part of the answering Opposite Party No. 1.”
19(l) “That the answering Opposite Party No. 1 craves leave to rely upon
the Development Agreement dated 21.12.2012, General Power of Attorney dated
21.12.2012, sanctioned building plan, plaint and orders passed in Title Suit
No. 391 of 2014, Letter of Possession, postal receipt, postal tracking report
and other documents already on record.”
19(m) “Photostat
copy of the said Letter of Possession along with Postal receipt and the Postal
Track Report, are annexed herewith and marked as Annexure – “A”.”
19(n) “Photostat copy
of the Orders and Plaint of the Title Suit no. 391 of 2014, are annexed
herewith and marked as Annexure – “B”.”
19(o) “The
O.P. no. 1, agreed to compensate while any delay occurred at his behest; But
case in hand apparently shows the cause of delay if any has been duly occurred
at the behest of the consumer complainant and her other co-sharers, by way of
Litigation being Title Suit no. 391 of 2014, therefore the O.P. no. 1, is well
supposed to get such compensation from the consumer complainant.
|
Sl. No. |
Date |
Particulars’ |
|
01 |
21-12-2012 |
Development
Agreement; |
|
02 |
June’ 2013 |
Sanctioned
Building Plan; |
|
03 |
December’
2014 |
Period of 18
months; |
|
04 |
01-09-2014 |
Title Suit
no. 391 of 2014 instituted and status quo granted over the property; |
|
05 |
June’ 2017 |
Title Suit
no. 391 of 2014 disposed off; |
|
06 |
June’ 2017 |
Period of 18
months encumbered by a period of another 2 years 7 months, up-till June’
2017; |
|
07 |
October’
2017 |
Building
Completed and Possession handed over to the Owners; save and except the
present Consumer Complainant, as she refused to take the Letter of
Possession. |
====================XXXX======================
AFFIDAVIT
I,
Sujit Saha, son of Late Sambhu
Nath Saha, aged about 52 years, by faith Hindu, by occupation Business,
residing at Premises No. A/61/2, Bapuji Nagar, Kolkata – 700092, do hereby
solemnly affirm and state as follows;
- That
I am the Opposite Party No. 1 in the above Consumer Complaint and am well
acquainted with the facts and circumstances of the case and competent to
swear this affidavit.
- That
the statements made in paragraphs 1 to 15 of the said application are
based upon the records of the case and my personal knowledge and are true
and correct.
- That
the statements made in paragraphs 16 to 32 contain legal submissions based
upon legal advice received and believed by me to be true and correct.
- That
the proposed amendment is necessary for complete and effective
adjudication of the real controversy between the parties.
- That
the contents of the present affidavit are true and correct to my knowledge
and belief and nothing material has been concealed therefrom.
DEPONENT
Identified by me,
Advocate
NOTARY
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