BEFORE
THE LEARNED DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
KOLKATA
UNIT-III, WEST BENGAL
18,
Judges Court Road, Kolkata 700027
CONSUMER
COMPLAINT CASE NO. 226 OF 2024
|
1. Smt. Kakali Sen |
Complainants |
|
Versus |
Opposite Parties |
EVIDENCE
ON AFFIDAVIT
ON
BEHALF OF THE OPPOSITE PARTIES
(Under
Section 38(9) read with Section 38(6) and other
applicable
provisions of the Consumer Protection Act, 2019)
AFFIDAVIT
I,
Sri Sujit Saha, son of Late Sambhunath Saha, aged about 52 years, by faith
Hindu, by occupation Business, residing at Premises No. A/61/2, Bapuji Nagar,
Post Office Regent Estate, Police Station Jadavpur, Kolkata - 700092, District
South 24-Parganas, being Opposite Party No. 2 and the sole proprietor of
Opposite Party No. 1, M/s S.S. Construction, do hereby solemnly affirm and
state as follows;
1. I am Opposite Party
No. 2 in the present proceeding and the sole proprietor of Opposite Party No.
1. I am personally acquainted with the transaction, the project records, the
payments and adjustments reflected in the accounts of Opposite Party No. 1, and
the circumstances in which possession of the subject flat and car-parking space
was delivered. I am therefore competent to affirm this affidavit for myself and
on behalf of Opposite Party No. 1.
2. I repeat, reiterate
and rely upon the Written Version filed by the Opposite Parties. The statements
contained herein are in continuation of, and shall be read together with, the
Written Version. Save what is expressly admitted in this affidavit or is borne
out by admitted records, every allegation in the complaint and in the
complainants' Evidence on Affidavit is denied.
3. The complaint is
misconceived and not maintainable in the form presented. The complainants have
suppressed material facts relating to receipt/refund and adjustment of money,
the outstanding balance consideration, their long and uninterrupted enjoyment
of possession, and their own failure to complete the contractual formalities
for conveyance. The complainants must be put to strict proof of each allegation
and each monetary claim.
4. Opposite Party No. 1
is a proprietorship concern engaged in real-estate development and construction
and is represented by me as its sole proprietor. The landowners, namely Sri
Amritlal Dutta, Sri Dhananjoy Dutta, Sri Ajay Dutta, Sri Digbijay Dutta, Smt.
Gopa Dutta and Smt. Molina Dutta, entered into a registered Development
Agreement dated 21 December 2012 with the Opposite Parties concerning the land
measuring approximately four cottahs at Mouza Baderaipur, J.L. No. 34, within
P.S. Jadavpur, comprised in the plots and premises described in the said
instrument, including the postal premises at D/82, Bapuji Nagar, Kolkata - 700092.
The instrument was registered before D.S.R.-I, Alipore as Book I, CD Volume 20,
pages 216-240, No. 04460 of 2012.
5. The landowners also
executed a registered Power of Attorney dated 21 December 2012 in my favour,
recorded before D.S.R.-I, Alipore in Book I, CD Volume 20, pages 241-256, No.
04461 of 2012. The said authority empowered me, inter alia, to undertake
development, enter into agreements for sale and execute deeds of conveyance in
favour of intending purchasers in accordance with the development arrangement.
6. The Kolkata Municipal
Corporation sanctioned the building plan for construction of a G+3 storied
building under B.P. No. 2013100235 dated 3 January 2014. Construction was
undertaken pursuant to the sanctioned plan and the project documents. The
complainants have not produced any report of a qualified civil engineer,
architect, municipal authority or other competent expert establishing any
actionable structural defect, deviation or incomplete work attributable to the
Opposite Parties.
7. The complainants
approached the Opposite Parties to purchase, from the developer's allocation,
Flat No. 2B on the southern side of the first floor, measuring approximately
750 sq. ft. super built-up area and consisting of two bedrooms, one kitchen,
drawing-cum-dining space, one toilet, one W.C. and one balcony, together with a
covered car-parking space measuring approximately 125 sq. ft. on the ground
floor.
8. A registered
Agreement for Sale was thereafter executed on 5 January 2016 and registered
before D.S.R.-I, Alipore in Book I, Volume 1601/2016, pages 1160-1210, No.
060100025 of 2016. The total agreed consideration was Rs. 42,00,000/- (Rupees
Forty-Two Lakhs only). The rights and obligations of the parties, including
payment of the entire consideration and completion of conveyancing formalities,
are governed by the terms of that registered instrument.
9. The complainants'
payment narrative is incomplete because it omits the material refund/adjustment
made in their favour. The gross amounts claimed or recorded include Rs.
6,80,000/-, two demand drafts bearing Nos. 095491 and 095492 dated 25 June 2016
for Rs. 85,000/- and Rs. 75,000/- respectively, bank-loan disbursement(s)
aggregating Rs. 33,60,000/-, and a further amount of Rs. 50,000/-. These
figures aggregate to Rs. 42,50,000/- before accounting for the refund and
adjustment stated below.
10.
On
or about 24 January 2016, the Opposite Parties refunded/paid Rs. 3,00,000/- to
the complainants through Cheque No. 184751 and a further sum of Rs. 75,000/- in
cash. After crediting the complainants with their gross remittances and
debiting the refund/adjustment of Rs. 3,75,000/-, the net consideration
retained by the Opposite Parties is Rs. 38,75,000/-. Consequently, a balance
sum of Rs. 3,25,000/- remains due and payable against the agreed consideration
of Rs. 42,00,000/-. The contrary assertion that the entire agreed
consideration, or any amount in excess thereof, stands finally paid is denied.
11.
The
complainants have not placed a complete, reconciled payment statement
correlating every alleged payment with its date, mode, bank debit, developer's
receipt and treatment in the parties' account. A loan sanction letter by itself
establishes only a sanctioned facility and not necessarily the date, amount and
beneficiary of every disbursement. The complainants are therefore required to
prove actual disbursement and receipt by primary banking and accounting
records.
12.
The
assertion that the further sum of Rs. 50,000/- was an extra and independent
payment demanded for completion of the garage is specifically denied. The
complainants must prove the alleged demand, its contractual basis, the precise
mode of payment and a receipt showing that it was accepted as an additional
garage charge rather than as part of the parties' running account.
13.
Upon
completion of the basic construction, physical possession of Flat No. 2B
together with the car-parking space was delivered to the complainants. Since
taking possession, the complainants have resided in and/or used the subject
premises and have enjoyed the same peacefully, without eviction, dispossession
or obstruction by the Opposite Parties. Their prolonged and beneficial
occupation is inconsistent with the sweeping allegation that no service was
rendered or that possession was denied.
14.
The
complainants themselves admit in their Evidence on Affidavit that possession of
the flat and car-parking space was delivered to them. Their grievance is
therefore confined principally to conveyance and alleged incomplete amenities.
Such admitted possession must be considered together with their unpaid balance,
their contractual obligations concerning stamp duty and registration expenses,
and the absence of reliable expert proof of the alleged incomplete or defective
work.
15.
The
allegations concerning the lift, staircase and garage are vague and unsupported
by technical evidence. Photographs, without proof of the date, location,
authorship, condition depicted and comparison with the sanctioned plan or
contractual specifications, cannot by themselves establish a continuing
deficiency attributable to the Opposite Parties. No authenticated municipal
inspection report, engineer's report, completion-status report or
contemporaneous complaint to KMC has been disclosed in the complainants'
affidavit.
16.
The
Opposite Parties have never refused to execute the deed of conveyance
unconditionally after performance by the purchasers. The Opposite Parties have
at all material times been ready and willing to proceed with registration upon
the complainants paying the outstanding balance of Rs. 3,25,000/-, arranging
the necessary stamp duty and registration charges, settling the draft deed and
attending the registering office in accordance with the Agreement for Sale.
17.
The
complainants did not tender the aforesaid balance amount along with a proposed
date for registration, did not produce proof of purchase of stamp paper/e-stamp
or payment of registration fees, and did not forward a mutually workable draft
conveyance for execution. A party who has not demonstrated its own readiness to
perform the reciprocal obligations cannot attribute the entire non-registration
to the Opposite Parties.
18.
The
advocate's notice dated 7 February 2024, even if received, did not extinguish
the complainants' liability to account for the refund/adjustment, pay the outstanding
balance and comply with the registration requirements. The Opposite Parties'
continuing willingness to execute conveyance upon full contractual compliance
remains unchanged.
19.
The
complainants' allegation that they have become 'trespassers' is self-serving
and incorrect. They were placed in possession pursuant to the Agreement for
Sale and their occupation has not been treated by the Opposite Parties as
unlawful. The absence of a registered conveyance does not convert consensual
possession delivered under the agreement into trespass at the instance of the
developer.
20.
The
complaint was instituted in 2024 although the Agreement for Sale was executed
in January 2016, the stipulated period referred to by the complainants ended in
January 2018, and possession was accepted and enjoyed for years. The
complainants have not disclosed a satisfactory chain of contemporaneous written
demands from 2018 onward. Their bare plea of a recurring or day-to-day cause of
action cannot, without proof, automatically revive claims founded on events
known many years earlier. The plea of limitation under Section 69 of the
Consumer Protection Act, 2019 is therefore maintained, subject to adjudication
on the complete record.
21.
The
complainants have also failed to establish the basis or quantum of
compensation. No expert valuation, computation of actual pecuniary loss, proof
of additional stamp duty actually paid, or other reliable material has been
produced to connect any alleged loss with an act or omission of the Opposite
Parties. Market appreciation or a statutory change in stamp duty cannot,
without causal proof, be converted into damages against the Opposite Parties.
22.
The
complainants' Evidence on Affidavit is further deficient inasmuch as
Complainant No. 1 claims to depose for Complainant No. 2 without disclosing a
written authority in the evidence itself. Facts exclusively within the personal
knowledge of Complainant No. 2, including his individual bank transactions,
loan dealings and communications, require proof by a competent witness and the
underlying records.
23.
The
questionnaire submitted by the Opposite Parties specifically calls upon the
complainants to produce their authority to depose, complete bank and
loan-disbursement records, receipts for every alleged payment, evidence
concerning Cheque No. 184751 and the cash adjustment, proof of tender of the
outstanding balance, registration preparations, expert/municipal material
concerning alleged defects, contemporaneous correspondence and the basis of
compensation. The absence of satisfactory answers and primary records should be
weighed while assessing the complainants' credibility and discharge of burden.
24.
The
complainants' general denials do not displace the documentary and accounting
issues raised in the Written Version. In particular, a mere denial that the
refund cheque was encashed is not proof that it was not received; the best
evidence would be the relevant bank statement and cheque-clearing record.
Likewise, the assertion of full payment requires a transaction-wise reconciliation
and acknowledgment of receipt by the Opposite Parties.
25.
The complainants have subsequently filed Answers to the
Questionnaire through Complainant No. 1. The said answers form part of the
evidentiary record and are material because, notwithstanding general denials,
they contain express admissions regarding possession, receipt of money,
non-payment of the residual consideration, want of technical evidence, want of
contemporaneous written demands and the speculative basis of compensation. The
Opposite Parties rely upon those admissions against the complainants.
26.
In answer to Question Nos. 12, 13, 23, 26 to 28, 43, 44, 48 to 51,
65 and the connected questions, the complainants have repeatedly stated that
the concerned bank has withheld a part or residual amount and that such amount
is yet to be released to the Opposite Parties. This is a clear admission that
the entire agreed consideration has not in fact been received by the Opposite
Parties. The attempt to shift responsibility for such non-disbursement to the
alleged non-production of a completion certificate does not convert an unpaid
amount into payment and does not support the allegation that the Opposite
Parties received the entire or excess consideration.
27.
In answer to Question Nos. 14, 15 and 18, the complainants have
admitted receipt of Rs. 3,00,000/- from the Opposite Parties, although they now
seek to characterise it as rent or compensation for alleged delay. No clause,
contemporaneous writing, receipt, settlement or calculation has been disclosed
showing that Cheque No. 184751 was issued and accepted as rent. The newly
introduced characterisation is inconsistent with the omission of any clear
rent-adjustment case in the original payment narrative and requires strict
proof. The admission of receipt nevertheless supports the Opposite Parties'
case that the complainants' gross-payment figures cannot be treated as the net
consideration retained by the developer.
28.
The complainants deny receipt of the further cash amount of Rs.
75,000/- in answer to Question Nos. 17 and 18. That denial creates a specific
issue for adjudication and makes the original accounts, cash-book entries,
vouchers, contemporaneous correspondence and witness evidence material. The
denial does not negate the separate and unequivocal admission concerning
receipt of Rs. 3,00,000/-, nor does it establish full payment of the Rs.
42,00,000/- consideration.
29.
In answer to Question No. 16, the complainants admit that the bank
statement disproving receipt or credit of the cheque amount was not filed,
while stating that it may be produced if directed. In answer to Question Nos.
19 to 22 and 70, they similarly defer production of original payment records.
Consequently, their assertion of full payment presently rests on incomplete
material and must be tested against primary bank records, the complete
loan-disbursement schedule, receipts, the memo of consideration and the
Opposite Parties' accounts.
30.
In answer to Question Nos. 24, 31 to 33, 42 and 53, the
complainants admit that they have been in possession and have continuously
resided in or used the flat, expressly stating in Answer No. 53 that possession
has continued since 2019. These admissions corroborate delivery and enjoyment
of the principal subject matter of the transaction. The assertion that
occupation was under compulsion or that the complainants incurred expenditure
to make the premises habitable remains unsupported by invoices, bills, payment
vouchers, an engineer's assessment or proof that any identified work was
contractually chargeable to the Opposite Parties.
31.
In answer to Question No. 39, the complainants expressly admit
that no engineer's certificate or report has yet been filed and say only that
it may be filed later. In answer to Question No. 41, they question the relevance
of any complaint to KMC rather than identifying one. Their allegations
regarding incomplete construction, lift, staircase, garage, common passage and
non-completion certificate are therefore not presently supported by independent
technical or municipal evidence capable of establishing the exact defect,
contractual obligation, date, cause, extent or reasonable rectification cost.
32.
The complainants' Answer No. 9 alleges that a completion
certificate has not been obtained because the building remains incomplete. This
is a conclusion and not proof of the reason for non-issuance. No communication
from KMC, inspection report, refusal order, defect notice or authenticated
status record has been produced to show that the competent authority withheld a
completion certificate for any particular default of the Opposite Parties. The
complainants cannot substitute their inference for evidence from the statutory
authority.
33.
In answer to Question Nos. 34, 35, 37 and 46 to 49, the
complainants accept that they are liable to pay registration and incidental
charges and further state that the residual bank payment is to be tendered at
registration. These answers reinforce the existence of reciprocal and
outstanding purchaser-side obligations. Their assertion that the developer
alone must arrange every formality does not dispense with their obligation to
provide funds, pay statutory charges, approve and execute the deed, attend
registration and ensure disbursement of the unpaid consideration.
34.
In answer to Question Nos. 56 to 58, the complainants rely upon a
continuous cause of action but, when asked for contemporaneous correspondence
between 2018 and 2023, state only that they verbally approached Opposite Party
No. 2 from time to time. Apart from the notice dated 7 February 2024, no
continuous series of dated written demands has been identified. This answer
materially supports the Opposite Parties' plea that the assertion of a
day-to-day cause of action requires strict scrutiny under Section 69 of the
Consumer Protection Act, 2019.
35.
In answer to Question No. 59, the complainants state that the
compensation was 'self-assessed' and would ultimately be decided by the Learned
Commission. In answer to Question No. 60, they admit that no medical record is
relied upon for the alleged mental agony. In answer to Question No. 61, they do
not produce a calculation connecting enhanced property value or stamp duty with
a proved breach. These answers demonstrate that the monetary claim lacks an
objective computation, expert valuation, actual-loss documents or reliable
causal foundation.
36.
The Special Power of Attorney annexed with the answers authorises
Complainant No. 1 to institute, verify and conduct proceedings and to adduce
evidence concerning the flat. The Opposite Parties do not ignore that
instrument. However, an authority to depose does not give the attorney personal
knowledge of every act performed exclusively by Complainant No. 2, his
individual bank dealings, loan instructions, communications or alleged
payments. Such facts must still be proved by the person having direct knowledge
or through admissible primary records.
37.
The complainants' answers are frequently confined to expressions
such as 'not a fact', 'agreement speaks for itself', 'will produce if
directed', 'will file in due course', or cross-references to other answers.
Such responses do not supply missing dates, receipts, bank entries, municipal
records, technical reports or calculations specifically sought by the
questionnaire. The Learned Commission may therefore draw the appropriate
evidentiary conclusion if the best available records remain withheld at the
stage of final adjudication.
38.
The
transaction was for a residential flat, but the Opposite Parties maintain the
preliminary objections taken in the Written Version regarding the complainants'
status, maintainability, jurisdiction and the true nature of the relief sought.
These objections are to be decided on evidence, including the intended and
actual use of the premises and the contractual framework, and are not waived by
this affidavit.
39.
Without
prejudice to those objections, the admitted Agreement for Sale, delivery and
enjoyment of possession, and the Opposite Parties' willingness to execute
conveyance upon receipt of the contractual balance demonstrate that there has
been no deliberate deficiency in service or unfair trade practice on the part
of the Opposite Parties. Any non-registration is substantially attributable to
the complainants' non-payment and non-completion of reciprocal conveyancing
steps.
40.
The
allegations of mala fides, gross negligence, arbitrary conduct and intentional
harassment are denied. They are conclusions unsupported by particularised facts
or independent evidence. The complainants have enjoyed the principal subject
matter of the transaction while withholding the outstanding balance and now
seek orders that would permit conveyance without full payment.
41.
Photocopies
relied upon by the complainants are subject to proof, admissibility and
production of originals or legally acceptable electronic/banking records. The
Opposite Parties reserve the right to object to documents that are
unauthenticated, incomplete, illegible, unrelated to the subject unit or
unsupported by a competent witness.
42.
I
rely upon the registered Development Agreement dated 21 December 2012, the
registered Power of Attorney dated 21 December 2012, the registered Agreement
for Sale dated 5 January 2016, the sanctioned building plan particulars, the
available payment/account records including the record relating to Cheque No.
184751 dated 24 January 2016, and such further original records as may be
produced with leave of the Learned Commission. Copies already forming part of
the proceeding may be read as part of this evidence, subject to proof and
admissibility.
43.
For
the foregoing reasons, the complainants have failed to prove any actionable
deficiency in service or unfair trade practice entitling them to the reliefs
claimed. The complaint deserves to be dismissed with costs. Alternatively, and
strictly without prejudice, any direction for conveyance must be conditional
upon reconciliation of accounts, payment of the balance consideration of Rs.
3,25,000/-, and the complainants bearing and arranging the applicable stamp
duty, registration charges and other purchaser-side obligations under the
Agreement for Sale.
44.
I
respectfully pray that this Learned Commission be pleased to take this Evidence
on Affidavit on record, reject the unsupported allegations and monetary claims
of the complainants, dismiss the complaint with appropriate costs, and pass
such further order or orders as may be deemed fit and proper in the interests
of justice.
LIST OF DOCUMENTS RELIED UPON
|
Sl. No. |
Document / Record |
Mark / Exhibit |
|
1 |
Written Version with
annexure, and Questionnaire already filed in C.C. No. 226 of 2024 |
Exh. 1 & Exh. 1/1 |
|
2 |
Complainants' Answers
to the Questionnaire with annexed Special Power of Attorney, in C.C. No. 226
of 2024 |
Exh. 2 |
VERIFICATION
I,
Sri Sujit Saha, the deponent above named, do hereby verify that the statements
contained in paragraphs 1 and 4 to 19 and 28 of this affidavit are true to my
personal knowledge and/or derived from the records maintained in the ordinary
course of business which I believe to be true; the statements contained in
paragraphs 2, 3 and 20 to 27 and 29 to 37 are based on the pleadings, records
and legal advice received and believed by me to be true; and the final
paragraph is my respectful prayer before this Learned Commission. No material
fact has knowingly been suppressed.
Verified
at Kolkata on this ____ day of __________, 2026.
|
Identified by me |
DEPONENT |
Notary
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