BEFORE THE
HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLKATA UNIT-III
Tramline
Building ( 1st Floor )
18, Judges
Court Road, Alipore, Kolkata - 700027
Consumer
Complaint no.CC/654/2021.
In
the matter of :
Sri
HaripadaBhowmik, Son
of Ganga CharanBhowmik, residing at premises being no. 107/H/1, ParuiPacca
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
UtpalChakroborty, Son of Ullas Kumar Chakroborty, residing at premises no.
P-74, State Bank Park, Thakurpukur, Kolkata – 700 063, South 24 Parganas
________Respondents
EVIDENCE
ON AFFIDAVIT BY THE PETITIONER
AFFIDAVIT
Affidavit of Sri HaripadaBhowmik, Son of Ganga CharanBhowmik,
aged about _______years, by faith Hindu, by Occupation ________________,
residing at premises being no. 107/H/1, ParuiPacca Road, Kolkata – 700061,
District South 24 Parganas.
I,
the above deponent do hereby solemnly affirm and declare as under :-
1. That I am
being the petitioner, in the above consumer case, thoroughly conversant with
the facts and circumstances of the present case and am competent to swear this
affidavit.
2. That I beg to says
that I am an old aged person & Senior Citizen, and presently suffering from
the different old aged ailments. Life for me is too short. I am a Victim at the
behest of the respondents. I am a Land Owner having absolute title &
Ownership in respect of the Land measuring about 2 Cottah 5 Chhitacks 03 Sq.
ft. in Plot no. 8 under Mouza – Purbabarisha, J.L. no. 23, R.S. No. 43, R.S.
Khatian No. 1118, KhandaKhatian No. 3090, Dag no. 1977, under the jurisdiction
Thakurpukur Police Station, previously Behala Police Station, comprising being
KMC Premises no. 541, Chandal Para Road, Ward no. 124, having Assessee No.
411240206291.
3. That I beg to says
that the Respondent no. 1, M/s. Chakraborty Associates, is a Sole
Proprietorship Firm, carrying business of development &constructuin of the
Buiding structure, represented by the respondent no. 2, being the
Proprietor SriUtpalChakroborty, Son of
Ullas Kumar Chakroborty, who being the Developer allured me to develop and
construct the building structure at his own cost and in consideration will
provide the Owner’s allocation to me.
4. That I beg to
says that 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,
represented by the Proprietor Sri
UtpalChakroborty, Son of Ullas Kumar Chakroborty, residing at premises no.
P-74, State Bank Park, Thakurpukur, Kolkata – 700 063, South 24 Parganas,
entered into a Joint Venture Agreement dated 2nd day of August’
2014, with me, in respect of the Land measuring about 2 Cottah 5 Chhitacks 03
Sq. ft. in Plot no. 8 under Mouza – Purbabarisha, J.L. no. 23, R.S. No. 43,
R.S. Khatian No. 1118, KhandaKhatian No. 3090, Dag no. 1977, under the
jurisdiction Thakurpukur Police Station, previously Behala Police Station,
comprising being KMC Premises no. 541, Chandal Para Road, Ward no. 124, having
Assessee No. 411240206291, for the development being the construction of the
three-storied building thereof at the cost of the respondents and in
consideration the respondents will take 67% of the total constructed area as
enumerated in the said joint venture agreement.
5. That I beg to says
that the said Joint Venture Agreement dated 2nd day of August’ 2014,
contented the following relevant contents and purports to observe and perform
by and between the parties of the said agreement :
ARTICLE X TITLE
INDEMNITIES – Paragraph number 3 – That Owner hereby also undertakes that the
Developer shall be entitled to construct and complete the building within 18
months from the date of sanction of the Plan by Calcutta Municipal Corporation
in the said premises described in the schedule hereunder and to transfer, sale
lease out or assign the flats in the proposed building in Developer’s
allocation to any party or parties except the flats to be allotted to the
owner. In case of delay in delivering possession of the Owner’s allocation due
to latches of the Developer he shall be liable to pay reasonable penalty to the
owner for the period of delay.
6. That I beg to says
that further it is contended in the said Joint Venture Agreement dated 2nd
day of August’ 2014, that in addition to the allocation of 33% of FAR to the
Owner. The Developer shall pay to the Owner non-refundable sum of Rs.
1,00,000/- ( Rupees One Lakh ) only in the following manner :-
i) Rs. 10,000/- (
Rupees Ten Thousand ) only at the time of execution of the agreement;
ii) Rs. 90,000/- (
Rupees Ninety Thousand ) only at the time of delivering the owner’s allocation.
7. That I beg to says
that consequently, upon execution of the said Joint Venture Agreement, the
respondents paid only Rs. 10,000/- ( Rupees Ten Thousand ) only and took the
physical possession of the schedule property and obtained the sanctioned
building plan in the year 2015 from the Calcutta Municipal Corporation. The
respondents have completed the building structure by the month of December’
2017, and thereafter sold their developer’s allocations to the intending
purchasers though respondents did not handover the possession of the owners’
allocation to me.
8. That I beg to says
that the Respondents breached the terms of the said Agreement and thereby the
respondents did not handover the physical possession of the owner’s allocation
as enumerated therein. The Respondents did not pay the balance money of
non-refundable as described in the said agreement to me.
9. That I beg to says
that on several occasion I visited the respondents with request to take my
owner’s allocation in terms of the said Joint Venture Agreement dated 2nd
day of August’ 2014. The Respondents assured to give though nothing yield at their
behest.
10.
That
I beg to says that all of the described acts, deeds, and commissions, of the
respondents established the purports of Unfair Trade Practices, and Deficiency
in Services, as meant for in terms of the prescribed provisions of the Consumer
Protection Act 2019.
11.
That
I beg to says that the Considerable period has been elapsed at the respondents’
behest and I am still awaiting to get my Owner’s allocation with the balance of
no-refundable amount, so far in terms of the said Joint Venture Agreement dated
2nd day of August’ 2014. In such eventual facts I lost my hope to
get any resolution from the respondents. Therefore I resort before the Hon’ble
District Commission.
12.
That
I beg to says that since, Iwas in belief that good sense will prevail on the
respondents, therefore prior approaching the competent court of law, I seeks to
get the following :
i) Letter of
Possession of the owner’s allocation in terms of the Joint Venture Agreement
dated 2nd day of August’ 2014;
ii) Handing Over of
the Physical Possession of the owner’s
allocation in terms of the Joint Venture Agreement dated 2nd day of
August’ 2014;
iii) Balance money of
non-refundable money as enumerated in the owner’s allocation in terms of the
Joint Venture Agreement dated 2nd day of August’ 2014;
iv) Completion
Certificate in respect of the owner’s allocation in terms of the Joint Venture
Agreement dated 2nd day of August’ 2014;
v) Reasonable penalty
in delaying delivery of possession of the owner’s allocation by the respondents
in terms of the Joint Venture Agreement dated 2nd day of August’ 2014;
13.
That
I beg to says that I served my representation through my Learned Advocate Sri
Rabindranath Das, Advocate, vide Notice dated 30th day of October’
2021, upon the respondents through Speed Post. The Respondents are in receipt
of such notice though did not act upon and even did not answer the said notice.
Therefore in compelling circumstances, resort before this Hon’ble District Consumer
Disputes Redressal Commission.
14.
That
I beg to says that the Present disputes as referred herein above are the
Consumer Disputes and I being the Land Owner is a Consumer and the Respondents
being the Developer are the Service Provider as meant for in the Consumer
Protection Act 2019.
15.
That
I beg to says that I am a victim at the behest of the respondents for their
deficiency in services and unfair trade practices.
16.
That
I beg to says that I am entitle to get my Owners allocation with appropriate
statutory documents from the respondents as well enumerated in the said Joint
Venture Agreement dated 2nd day of August’ 2014.
17.
That
I beg to says that the respondents shall also pay the compensation due to me
for the harassment, troubles, physical inconvenience and mental agony arising
directly out of the breach of the services and breach of duty on the part of
the respondents / opposite parties. I, assesses such loss and damages at Rs.
6,00,000/- ( Rupees Six lakhs ) only.
18.
That
I beg to says that the purported activities of the respondents established
deficiency in services, which is contrary to the Law.
19.
That
I beg to says that from all of the statements made above, it is clear that the
opposite parties are guilty of deficiency in service as meant in the Consumer
Protection Act’ 2019.
20.
That
I beg to says that the purported acts and deeds of the respondents established
as of the Unfair Trade Practices and deficiency in services, as meant in the
prescribed provisions of the Consumer Protection Act’ 2019.
21.
That
I beg to says that the Cause of action for the present proceeding arose as on 2nd
day of August’ 2014, while I entered with the respondents in the Joint Venture
Agreement, and consequentially on completion of the building structure and due
to non-compliance and breach of the said Joint Venture Agreement in delivering
the Owner’s allocation to me, and thereafter adverse date and the same is
continuing till date, and the respondents / opposite parties are having offices
given in the cause title of this application, which is within the jurisdiction
of the Hon’ble Commission.
22.
That
I beg to says that the present application valued at Rs. 50,00,000/- ( Rupees
Fifty Lakhs ) only, in consideration of the Owner’s allocation and refundable
amount as Rs. 1,00,000/- ( Rupees One Lakh ) only, in terms of the Joint
Venture Agreement dated 2nd day of August’ 2014.
23.
That
the instant application / Petition, is within the pecuniary jurisdiction of
this Hon’ble Consumer Disputes Redressal Commission Kolkata Unit – III, in terms
of the prescribed provisions of the Consumer Protection Act’ 2019.
24.
That
I beg to says that the present consumer complaint is being filed within the
period as prescribed under section 69 of the Consumer Protection Act,
2019.
25.
That
I am praying to exhibit the following documents, which relied on by me and
already enclosed with my petition of Consumer complaint :
i)
Joint Venture Agreement dated 2nd
day of August’ 2014;
ii)
Sale Deed of the Petitioner;
iii)
KMC Tax Receipt;
iv)
Notice dated 30th day of
October’ 2021, with Postal receipt, and Track Report;
26.
I therefore prayed for the following
relief/s:
To appoint the
Survey Passed Engineer Commissioner to ascertain the Owner’s allocation being
33% of total constructed area i.e. entire Second Floor of the Constructed three
storied building at the premises, in terms of the Joint Venture Agreement dated
2nd day of August’ 2014, in the interest of administration of
Justice;
To direct the
opposite parties / respondents to deliver Physical possession of the Owner’s
allocation to the Petitioner in terms of the Joint Venture Agreement dated 2nd
day of August’ 2014, in the interest of administration of Justice;
To direct the
opposite parties / respondents to give Letter of Possession of the owner’s
allocation in terms of the Joint Venture Agreement dated 2nd day of August’
2014, to the Petitioner, in the interest of administration of Justice;
To direct the
opposite parties / respondents to give Balance money of non-refundable money being
Rs. 90,000/- ( Rupees Ninety Thousand ) only, as enumerated in the owner’s
allocation in terms of the Joint Venture Agreement dated 2nd day of August’
2014, to the Petitioner, in the interest of administration of Justice;
To direct the
opposite parties / respondents to give the Completion Certificate in respect of
the owner’s allocation in terms of the Joint Venture Agreement dated 2nd day of
August’ 2014, to the Petitioner in the interest of administration of Justice;
To direct the
opposite parties / respondents to pay Reasonable penalty in delaying delivery
of possession of the owner’s allocation by the respondents to the Petitioner, in
terms of the Joint Venture Agreement dated 2nd day of August’ 2014, in the
interest of administration of Justice;
To direct the opposite parties to pay
compensation, as for the harassment, troubles, loss of money, physical
inconvenience and mental agony, suffered by the petitioner from the purported
activities and others by the opposite parties as assessed as Rs. 6,00,000/- (
Rupees Six Lakhs ) only to your petitioner;
To grant the cost of the proceedings ;
To grant any other relief to the
applicant / petitioner as found out by your Lordship, in the facts and
circumstances of the Complaint.
SCHEDULE
{
Owner’s Allocation }
All that piece & parcel of 33% of
total constructed area i.e. entire Second Floor of the Constructed three
storied building at the premises lying and situated at Land
measuring about 2 Cottah 5 Chhitacks 03 Sq. ft. in Plot no. 8 under Mouza –
Purbabarisha, J.L. no. 23, R.S. No. 43, R.S. Khatian No. 1118, KhandaKhatian
No. 3090, Dag no. 1977, under the jurisdiction Thakurpukur Police Station,
previously Behala Police Station, comprising being KMC Premises no. 541,
Chandal Para Road, Ward no. 124, having Assessee No. 411240206291.
BEFORE THE
HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLKATA UNIT-III
Tramline
Building ( 1st Floor )
18, Judges
Court Road, Alipore, Kolkata - 700027
Consumer
Complaint no. of 2021.
In
the matter of
:-
Sri
HariPadaBhowmik.
……Petitioner.
-
Versus
–
M/s. Chakraborty
Associates and anr,
………Respondents
2
: That the facts contained in my accompanying consumer complaint / application,
the contents of which have not been repeated herein for the sake of brevity may
be read as an integral part of this affidavit and are true and correct to my
knowledge.
DEPONENT
Verification
I,
the above named deponent do hereby solemnly verify that the contents of my
above affidavit are true and correct to my knowledge, and no part of it is
false and nothing material has been concealed therein.
Verified
this ………….the day of …………….2021, at Kolkata.
DEPONENT
Identified
by me,
Advocate.
Prepared
in my Chamber,
Advocate.
Dated
:……………2021.
Place
: Kolkata.
N O T A R Y
VAKALATNAMA
BEFORE THE
HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLKATA UNIT-III
Tramline
Building ( 1st Floor )
18, Judges
Court Road, Alipore, Kolkata - 700027
Consumer Complaint no. of 2021
Sri HaripadaBhowmik., ___________Complainant / Petitioner.
- Versus –
M/s. ChakrabortyAssociates, and another.
____________Respondents / Opposite Parties.
KNOW ALL MEN by these presents that I / We, HaripadaBhowmik,
Son of Ganga
CharanBhowmik, residing at premises being no. 107/H/1, ParuiPacca Road, Kolkata
– 700061,
do hereby constitute and appoint the under
mentioned Advocate, Pleader, Vakils, jointly and each of them severally to be
pleader of take such steps and proceedings as may be necessary on my / our
behalf and for that purpose to make sign, verify and present all necessary
petitions, plaints, written statements and other documents and do nominate and
appoint or retain senior counsels, vakil, advocates and other persons, lodge
and deposits moneys and documents and other papers in the Ld. Court and the
same again withdraw and to take out of Court and to obtain or grant as the case
may be effectual receipts and discharge for the same and for all moneys which
may be payable to me / us in the premises. To enter into compromise with my /
our approval and withdraw, all moneys from the court AND GENERALLY to act in the premises and proceedings
arising there out whether by way of execution, review, appeal, or otherwise or
in any manner contested there with as effectually and to all intents and
purpose as I / We could act if personally present and such substitution and as
pleasure to revoke I / We hereby ratifying and agreeing to confirm whatever may
be lawfully done by virtue hereof.
In witness whereof
this Vakalatnama has been executed by me / us.
This the …………………day of ………………2021.
Shri Ashok Kumar Singh, Advocate, High Court Bar Association Room No. 15, High Court at Calcutta. Mobile number : 9883070666 / 9836829666, E-mail : aksinghadvocate@rediffmail.com Enrolment number : _____________________________
ShriBiplab Some, Advocate. Miss SuchitraChakrabortyAdvoicate. ShriPritam Das, Advocate. ShriSanjibBandyopadhyay, Advocate. Shri Rabindranath Das, Advocate.
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