QUESTIONNAIRE ON BEHALF OF THE COMPLAINANT TO THE OPPOSITE PARTY

 

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 Haripada Bhowmik

…Complainant/Petitioner

-Versus-

 

1. M/s. Chakraborty Associates
2. Sri Utpal Chakraborty

…Opposite Parties/Respondents

 

QUESTIONNAIRE ON BEHALF OF THE COMPLAINANT TO THE OPPOSITE PARTY NO. 2, SRI UTPAL CHAKRABORTY, IN RESPECT OF HIS AFFIDAVIT-IN-CHIEF

 

The Complainant respectfully submits the following questions to the Opposite Party No. 2, Sri Utpal Chakraborty, with reference to his Affidavit-in-Chief and the documents and evidence on record.

 

1. Do you admit that you entered into a Joint Venture Agreement dated 02.08.2014 with the Complainant in respect of the land comprising approximately 2 Cottah 5 Chittacks 03 Sq. ft. at KMC Premises No. 541, Chandal Para Road, Ward No. 124?

 

2. Do you admit that the Joint Venture Agreement dated 02.08.2014 bears your signature?

 

3. Do you dispute the genuineness or execution of the said Joint Venture Agreement?

 

4. Do you admit that under the said Joint Venture Agreement you undertook to develop and construct the building at your own cost?

 

5. Do you admit that the Complainant was to receive an Owner’s Allocation from the constructed building?

 

6. Do you admit that the Joint Venture Agreement provided for 33% of the total constructed area as the Owner’s Allocation?

 

7. Do you dispute that the remaining 67% of the constructed area constituted your Developer’s Allocation?

 

8. If you dispute the aforesaid 33% Owner’s Allocation, kindly identify the specific clause of the Joint Venture Agreement which, according to you, does not provide such allocation.

 

9. Do you admit that the Joint Venture Agreement authorised you to construct and complete the building within the stipulated period from the date of sanction of the building plan?

 

10. Do you admit that the Joint Venture Agreement contemplated delivery of possession of the Owner’s Allocation to the Complainant?

 

 

 

11. Do you admit that pursuant to the Joint Venture Agreement you obtained possession of the subject property from the Complainant for the purpose of development and construction?

 

12. Do you admit that the sanctioned building plan was obtained from the Kolkata Municipal Corporation after execution of the Joint Venture Agreement?

 

13. Do you admit that the sanctioned building plan was obtained in or about the year 2015?

 

14. Do you admit that construction of the building was substantially completed by December 2017?

 

15. If you dispute completion of construction by December 2017, state the actual date of completion and produce the documentary proof thereof.

 

16. Do you admit that after completion of construction you dealt with and/or sold/transferred portions constituting your Developer’s Allocation to third-party purchasers?

 

17. If you deny having sold or transferred any portion of your Developer’s Allocation, state specifically which portion remains unsold and produce the relevant documents.

 

18. Do you admit that, despite completion of construction, physical possession of the Owner’s Allocation was not handed over to the Complainant?

 

19. Do you admit that no registered possession letter in respect of the Owner’s Allocation was executed in favour of the Complainant?

20. Do you admit that no valid document showing delivery of physical possession of the Owner’s Allocation to the Complainant has been produced by you?

 

21. Do you admit that the Complainant repeatedly demanded delivery of his Owner’s Allocation?

 

22. Can you identify any particular date on which you actually offered physical possession of the Owner’s Allocation to the Complainant?

 

23. If you claim that possession was offered, state the date, mode and manner of such offer and produce the written offer.

 

24. Do you admit that even as on the date of your Affidavit-in-Chief, the Complainant had not received physical possession of the Owner’s Allocation?

 

25. Do you admit that you have not obtained any written acknowledgment from the Complainant recording delivery of the Owner’s Allocation?

 

26. You have stated in paragraph 5 of your Affidavit-in-Chief that a Supplementary Agreement dated 02.08.2016 was executed. Do you admit that the alleged Supplementary Agreement is the principal document upon which you rely to defeat the Complainant’s claim under the Joint Venture Agreement?

 

27. Do you admit that the alleged Supplementary Agreement was executed after the original Joint Venture Agreement dated 02.08.2014?

28. Do you admit that the alleged Supplementary Agreement does not cancel the original Joint Venture Agreement in its entirety?

 

29. Please identify the exact clause of the alleged Supplementary Agreement which, according to you, expressly cancels the Complainant’s entitlement to 33% of the total constructed area.

 

30. Please identify the exact clause by which the Complainant allegedly surrendered his right to the entire second floor/33% Owner’s Allocation under the Joint Venture Agreement.

 

31. Do you admit that there is no clause in the alleged Supplementary Agreement expressly stating that the Complainant has waived all his rights under the Joint Venture Agreement?

 

32. Do you admit that you have not obtained any separate registered deed of relinquishment, surrender or waiver from the Complainant in respect of his Owner’s Allocation?

 

33. Do you admit that the alleged Supplementary Agreement does not contain any recital stating that the Complainant has voluntarily surrendered his existing right to the Owner’s Allocation?

 

34. Do you admit that the Complainant never accepted physical possession of a 700 sq. ft. flat in complete satisfaction of his claim under the Joint Venture Agreement?

 

35. Do you have any document signed by the Complainant acknowledging that the 700 sq. ft. flat mentioned by you constitutes full and final settlement of his Owner’s Allocation?

36. If yes, identify the document and state its date.

 

37. Do you admit that no registered conveyance or registered settlement was executed transferring the alleged 700 sq. ft. flat to the Complainant?

 

38. You have stated that the Supplementary Agreement “remodeled” the clauses of the Joint Venture Agreement. Do you admit that the original Joint Venture Agreement continues to exist as a written agreement between the parties?

 

39. Do you admit that you have relied upon the original Joint Venture Agreement for obtaining development rights over the Complainant’s land?

 

40. Do you admit that you cannot rely upon the Joint Venture Agreement for obtaining development rights while completely denying the Complainant’s contractual rights under the same agreement, unless the alleged variation is proved?

 

41. Do you admit that the alleged Supplementary Agreement was never pleaded by you as a complete extinguishment of the Joint Venture Agreement?

 

42. Do you admit that the alleged Supplementary Agreement merely contains alleged modifications to certain terms?

 

43. State specifically which provisions of the Joint Venture Agreement were allegedly modified by the Supplementary Agreement.

 

44. Do you admit that the alleged Supplementary Agreement does not state that all obligations of the Developer under the Joint Venture Agreement stood discharged?

 

45. In paragraph 11 of your Affidavit-in-Chief you have stated that you have already paid ₹35,000/- to the Complainant. Do you admit this statement?

 

46. State the exact date on which the alleged payment of ₹35,000/- was made.

 

47. State the mode of payment of ₹35,000/-.

 

48. Was the alleged payment made by cash, cheque, bank transfer or any other mode?

 

49. If the alleged payment was made by cheque or bank transfer, state the cheque number/account details/transaction reference.

 

50. Do you possess any receipt signed by the Complainant acknowledging receipt of ₹35,000/-?

 

51. Do you possess any contemporaneous document showing that the alleged ₹35,000/- was paid towards the contractual consideration payable to the Complainant?

 

52. Do you admit that the alleged payment of ₹35,000/- does not by itself establish delivery of the Owner’s Allocation?

 

53. Do you admit that no document executed by the Complainant records that receipt of ₹35,000/- constituted full and final settlement of all his contractual claims?

54. Do you admit that the Joint Venture Agreement contemplated payment of non-refundable consideration in addition to the Owner’s Allocation?

 

55. Do you admit that ₹10,000/- was paid at the time of execution of the Joint Venture Agreement?

 

56. Do you admit that the balance amount stipulated under the original Joint Venture Agreement was payable at the time of delivery of the Owner’s Allocation?

 

57. Do you admit that the Owner’s Allocation was never delivered to the Complainant?

 

58. If the Owner’s Allocation was never delivered, on what basis do you contend that the entire contractual monetary obligation stood discharged?

 

59. Do you admit that you have not produced any receipt signed by the Complainant acknowledging payment of the entire contractual consideration?

 

60. Do you admit that the sanctioned building plan was obtained by you after execution of the Joint Venture Agreement?

 

61. Do you admit that the building was constructed pursuant to the development arrangement between you and the Complainant?

 

62. Do you admit that you exercised control over the construction and development of the building?

 

63. Do you admit that you dealt with the Developer’s Allocation independently of the Complainant?

 

64. Do you admit that third-party purchasers acquired portions of the building from your Developer’s Allocation?

 

65. Did you disclose to each such purchaser that the Complainant was entitled to a separate Owner’s Allocation under the Joint Venture Agreement?

 

66. If not, why was the Complainant’s Owner’s Allocation not separately delivered before dealing with the Developer’s Allocation?

 

67. Do you admit receipt of the legal notice dated 30.10.2021 issued on behalf of the Complainant?

 

68. Do you deny receipt of the said legal notice?

 

69. If you deny receipt, do you dispute the postal receipt and tracking report relied upon by the Complainant?

 

70. Did you send any written reply to the legal notice dated 30.10.2021?

 

71. If yes, state the date of your reply and produce a copy thereof.

 

72. If no reply was sent, do you admit that you did not issue any written denial of the Complainant’s claim immediately upon receipt of the legal notice?

 

73. Do you admit that the legal notice demanded delivery of the Owner’s Allocation and payment of the contractual amount?

 

74. Do you admit that, despite receipt of the legal notice, you did not deliver the Owner’s Allocation?

 

75. You have alleged that the Complainant suppressed the alleged Supplementary Agreement for material gain. Do you identify the specific paragraph of the original Consumer Complaint which contains a false statement regarding the existence of the alleged Supplementary Agreement?

 

76. Do you admit that your allegation of suppression is based principally upon your assertion regarding the alleged Supplementary Agreement?

 

77. Do you admit that you have not identified any particular false document fabricated by the Complainant?

 

78. Do you admit that the Complainant has consistently asserted his entitlement to the Owner’s Allocation?

 

79. Do you admit that the existence of an alleged Supplementary Agreement does not by itself prove that the Complainant waived all his rights under the Joint Venture Agreement?

 

80. In paragraph 15 of your Affidavit-in-Chief you have stated that the Complainant “rescinded” the Joint Venture Agreement by signing the Supplementary Agreement. Do you admit that the alleged Supplementary Agreement does not use the expression “rescission” of the Joint Venture Agreement?

 

81. Identify the exact clause by which the Joint Venture Agreement was allegedly rescinded.

 

82. Do you admit that no separate deed of rescission of the Joint Venture Agreement was executed by the parties?

 

83. Do you admit that you continued to retain the benefit of the development rights obtained under the Joint Venture Agreement?

 

84. Do you admit that you constructed the building on the Complainant’s land pursuant to the development arrangement between the parties?

 

85. Do you admit that you cannot point out any document whereby the Complainant expressly declared that he had abandoned or relinquished his Owner’s Allocation?

 

86. You have stated that under the alleged Supplementary Agreement the Complainant was entitled to a two-bedroom flat measuring approximately 700 sq. ft. super built-up area. Do you admit this statement?

 

87. Identify the flat number allegedly earmarked for the Complainant.

 

88. Identify the floor on which the said flat is situated.

 

89. Do you possess any sanctioned plan showing the said flat specifically earmarked in the Complainant’s name?

 

90. Do you possess any possession letter relating to the said alleged 700 sq. ft. flat?

 

91. Do you possess any document showing that the Complainant accepted the said flat in full satisfaction of his claim?

 

92. Do you admit that even the alleged 700 sq. ft. flat has not been physically handed over to the Complainant?

 

93. If you contend that it has been handed over, state the date of possession and produce the possession document.

 

94. Do you admit that you undertook to provide development/construction services to the Complainant in consideration of the contractual Owner’s Allocation and monetary consideration?

 

95. Do you admit that the building was constructed pursuant to the said arrangement?

 

96. Do you admit that the Complainant has not received physical possession of the Owner’s Allocation?

 

97. Do you admit that the Complainant has not received the contractual monetary amount claimed by him in full?

 

98. If both the above propositions are admitted, on what basis do you contend that there has been no deficiency in service?

 

99. Do you admit that the Complainant repeatedly demanded performance of the contractual obligations?

 

100. Do you admit that no final settlement agreement was executed between the parties releasing you from your obligations towards the Complainant?

 

101. Do you admit that the building was completed long before filing of the consumer complaint?

 

102. Do you admit that despite such completion, the Owner’s Allocation was not delivered?

 

103. Do you admit that the Complainant continued to demand delivery of his contractual allocation?

 

104. Do you admit that the Owner’s Allocation remains undelivered even after the institution of the consumer complaint?

 

105. If the Owner’s Allocation has subsequently been delivered, state the exact date of delivery and produce the possession document.

 

106. Do you admit that if the Owner’s Allocation remains undelivered, the contractual dispute between the parties continues to subsist?

 

107. Do you admit that the Joint Venture Agreement dated 02.08.2014 was voluntarily executed by you?

 

108. Do you admit that the Complainant permitted you to develop his land on the strength of the said agreement?

 

109. Do you admit that you obtained the sanctioned building plan and constructed the building pursuant to the development arrangement?

 

110. Do you admit that you received the benefit of developing the Complainant’s property?

 

111. Do you admit that you dealt with and/or sold your Developer’s Allocation to third parties?

 

112. Do you admit that the Complainant did not receive possession of his Owner’s Allocation corresponding to the 33% entitlement claimed under the Joint Venture Agreement?

 

113. Do you admit that there is no possession receipt signed by the Complainant showing delivery of the 33% Owner’s Allocation?

 

114. Do you admit that there is no registered document whereby the Complainant surrendered his 33% Owner’s Allocation?

 

115. Do you admit that there is no document signed by the Complainant recording that he accepted ₹35,000/- as full and final settlement of his contractual claims?

 

116. Do you admit that the alleged Supplementary Agreement is the sole basis of your contention that the Complainant’s entitlement was reduced from the allocation under the Joint Venture Agreement?

 

117. Do you admit that, notwithstanding your reliance upon the alleged Supplementary Agreement, you have not produced any document showing actual delivery of the alleged 700 sq. ft. flat to the Complainant?

 

118. Do you admit that the Complainant has not voluntarily abandoned his claim for the Owner’s Allocation?

 

119. Do you admit that, even according to your own Affidavit-in-Chief, the principal dispute between the parties concerns the nature and extent of the Owner’s Allocation?

 

120. Do you admit that the dispute could have been avoided if you had delivered to the Complainant the allocation actually agreed between the parties and paid the contractual consideration?

 

121. In view of the fact that you admit execution of the Joint Venture Agreement, do you have any document signed by the Complainant expressly acknowledging that his rights under the said Agreement stood finally extinguished?

 

122. Do you admit that, as on the date of filing of your Affidavit-in-Chief, you had neither delivered the Owner’s Allocation claimed by the Complainant nor obtained from him any written acknowledgment of full and final settlement?

 

123. Do you admit that the Complainant’s demand for his contractual entitlement was never finally settled by any written agreement executed between the parties?

 

124. Do you admit that you have not produced any document evidencing lawful discharge of all your obligations towards the Complainant under the development arrangement?

 

125. In the absence of such document, on what documentary basis do you claim that the Complainant is not entitled to any relief from this Hon’ble Commission?

 

126. Do you admit that your Affidavit-in-Chief does not disclose any document evidencing actual delivery of the Owner’s Allocation to the Complainant?

 

127. Do you admit that your Affidavit-in-Chief does not disclose any document evidencing full and final payment of the contractual consideration to the Complainant?

 

128. Do you admit that, despite completion of the construction and your alleged settlement under the Supplementary Agreement, the Complainant remains without the physical benefit of the Owner’s Allocation?

 

129. Do you admit that you have not produced any document showing that the Complainant voluntarily waived his claim before the legal notice dated 30.10.2021?

 

130. Do you admit that the Complainant’s claim for delivery of his Owner’s Allocation was never actually satisfied by you?

 

131. If your answer to Question No. 130 is “No”, kindly state the exact date, place, nature and documentary proof of such satisfaction.

 

132. Do you admit that there is no document contemporaneous with the alleged Supplementary Agreement showing that the Complainant agreed to accept ₹3,00,000/- and a 700 sq. ft. flat in complete and final satisfaction of all his rights under the Joint Venture Agreement?

 

133. Do you admit that you have not produced any document showing that the Complainant accepted the alleged substituted allocation without protest?

 

134. Do you admit that, even after the alleged Supplementary Agreement, the Complainant continued to demand his Owner’s Allocation?

 

135. Do you admit that the Complainant’s legal notice dated 30.10.2021 was not replied to by you?

 

136. If you contend that the Complainant’s claim was false, why did you not issue a contemporaneous written reply denying the same?

 

137. Do you admit that your present defence regarding the alleged Supplementary Agreement was not accompanied by any actual delivery of the alleged substituted allocation to the Complainant?

 

138. Do you admit that the alleged Supplementary Agreement, even according to your own case, was intended to modify the terms of the original Joint Venture Agreement and not to deprive the Complainant of every benefit arising from the development

arrangement?

 

139. Do you admit that the Complainant has received neither the 33% Owner’s Allocation claimed under the Joint Venture Agreement nor the alleged 700 sq. ft. alternative allocation claimed by you to arise under the Supplementary Agreement?

 

140. Do you admit that, whatever interpretation may be placed upon the two agreements, you have not actually delivered to the Complainant the property/benefit which you yourself say was due to him under the alleged Supplementary Agreement?

 

141. If your answer is in the negative, produce the document evidencing actual delivery.

 

142. Do you admit that your defence is therefore based upon an alleged contractual variation which has never resulted in actual satisfaction of the Complainant’s claim?

 

143. Do you admit that you have not produced any final settlement receipt, possession letter, registered transfer document, relinquishment deed or discharge document executed by the Complainant?

 

144. In the absence of any such document, do you still maintain that the Complainant has received and accepted full satisfaction of his contractual entitlement?

 

145. Do you admit that the Complainant’s Owner’s Allocation remains undelivered as on date?

 

146. If you deny Question No. 145, state the precise property delivered, its area, floor, flat number, date of delivery and produce the document evidencing such delivery.

 

147. Do you admit that you have not obtained any written acknowledgment from the Complainant stating that the dispute has been finally settled?

 

148. Do you admit that the Complainant has consistently maintained his claim for his Owner’s Allocation and the outstanding contractual consideration?

 

149. Do you admit that your Affidavit-in-Chief does not establish actual performance of your alleged substituted obligation under the Supplementary Agreement?

 

150. In view of your own admission that the Joint Venture Agreement dated 02.08.2014 was executed between you and the Complainant, do you have any document signed by the Complainant unequivocally recording complete discharge of your obligations under the said development arrangement?

 

151. If there is no such document, do you admit that the question of whether you have performed your contractual obligations remains outstanding?

 

152. Do you admit that the Complainant has approached this Hon’ble Commission because the benefit for which the development arrangement was entered into was never actually delivered to him?

 

153. Do you admit that, notwithstanding completion of construction, the Complainant has not obtained the physical possession of the Owner’s Allocation?

 

154. Do you admit that the Opposite Party has retained the benefit of development and sale of the Developer’s Allocation while the Complainant continues to assert that his own allocation has not been delivered?

 

155. Do you admit that, unless you establish actual delivery and acceptance of the alleged substituted allocation by the Complainant, your assertion that his contractual claim stood extinguished remains unsupported by any document of discharge?

 

156. Do you still maintain, after answering the above questions, that the Complainant is not entitled to delivery of the property/benefit contractually due to him?

 

157. If yes, state specifically the document and clause upon which you rely for such denial.

 

158. Do you admit that you have no document signed by the Complainant acknowledging that the entire claim has been finally and completely settled?

 

159. Do you admit that the Complainant has not received the contractual benefit which formed the consideration for permitting you to develop his land?

 

160. Do you admit that, therefore, the dispute regarding the Owner’s Allocation and contractual consideration has not been finally resolved between the parties?

 

161. Do you admit that your allegation that the Complainant has filed the complaint merely to harass you is unsupported by any independent documentary evidence?

 

162. Do you admit that your Affidavit-in-Chief does not disclose any independent document establishing that the Complainant’s consumer complaint is false?

 

163. Do you admit that you have not produced any document showing that the Complainant voluntarily waived or relinquished his statutory or contractual remedies?

 

164. Do you admit that you have not produced any document showing full and final satisfaction of the Complainant’s claim?

 

165. Do you admit that, until such proof is produced, the allegation that the Complainant has no surviving claim is merely your assertion?

 

166. Do you admit that the ultimate dispute between the parties is not whether the development arrangement existed, but whether you performed your obligations under that arrangement?

 

167. Do you admit that you have not demonstrated by any possession document that the Complainant ever received the Owner’s Allocation?

 

168. Do you admit that you have not demonstrated by any discharge receipt that the Complainant ever accepted full and final monetary settlement?

 

169. Do you admit that the Complainant has therefore continued to assert his entitlement to the Owner’s Allocation and the outstanding consideration?

 

170. In the circumstances, do you still deny that there has been failure on your part to deliver the contractual benefit claimed by the Complainant?

 

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