Brief Notes of Argument in Consumer Case

 

Before the Hon’ble District Consumer Disputes Redressal Commission, South 24 Parganas, Baruipur, Kolkata – 700144

 

                                                Consumer Complaint no. CC/107/2019

 

                                                          In the matter of :

                                                          Shri Bikash Musib,

                                                                             _________Complainant

-      Versus –

M/s. Greenhaven Realty Private Limited, and Other,

                   __________Respondents

 

Brief notes of Argument on behalf of the Complainant

 

 

Facts :

 

1.   That in the year 2011, an advertisement was circulated in a network site namely Magic Bricks and in the said advertisement the respondents publicized a scheme to sell huge chunk of land by dividing it into numbers of plots, subsequently in the year 2012, a property fair was also held at the Science City, Kolkata, which was organized by CREDAI Bengal, and in the said Fair the Respondent Company publicized the said scheme to sell huge chunk of land by dividing it into numbers of plot. The respondent company promoted a project namely GREEN CITY SONARPUR and invited applications from the intending purchasers to purchase plots of land under the said project by making payments to the respondents in number of installments within a stipulated period of time mentioned in their advertisement brochure.

 

2.   That the Complainant paid Rs. 5,000/-  and Rs. 45,000/- being 20% valuation of the plot to the respondent company. The respondent company vide letter dated 03-03-2012, intimated tro the complainant about the allotment of a plot being number 2B137, in the township project GREEN CITY SONARPUR. Thereafter the respondents entered into an agreement for sale dated 19^th day of July’ 2012 , with the complainant, wherein the value of the said plot of land with all amenities thereby given as of Rs. 2,50,000/- . the said Plot of Land described as measuring about 2 (Two) Cottah being Scheme Plot no. 2B138, lying and situasted at Mouza – Sangur, J.L. no. 108, Dag no. 1623, Khatian no. 544, Police Station & Sub Registry Office – Sonarpur, Kolkata – 700150, District South 24 Parganas, which comprise with right to take electric, tap water, telephone, etc. connection through over and under the 20ft wide common passage adjacent to the said plot of land together with all easement rights and appurtenance thereto.

 

3.   That the Complainant subsequently booked one another plot of land with all amenities with the respondents, as the respondents convinced the complainant to take two plot of land as to construct house thereon for accommodation of the complainant’s large numbers of family members.

 

4.   That the Respondents made another agreement for Sale dated 13^th day of March’ 2013, with the complainant in respect of another further schedule of plot of land measuring 2 (two) Cottahas being Scheme no. 2B164 lying and situated at Mouza Sangur, J.L. no. 108, Dag no. 1978, Khatian No. 1094 & 1095, Police Station & Sub Registry Office – Sonarpur, Kolkatas – 700150, together with right to take Electric, Tap Water, etc., connection through over and under the 20 ft wide common passage adjacent to the said plot of land together with all easement rights and appurtenance thereto, for a total consideration of Rs. 2,50,000/-

 

5.   That therefore in totaling the calue of the plot of land in two agreement for sale which come as of Rs. 5,00,000/- ( Rupees Five Lakhs ) only, and whereas the Complainant paid in total as of Rs. 4,90,007/- ( Rupees Four Lakhs and Ninety Thousand and Seven ) only, to the Respondents, therefore only a sum of Rs. 10,000/- ( Rupees Ten Thousand ) only, remained to be paid to the respondents by the complainant. The complainant made his last payment on 3^rd day of June’ 2014.

 

6.   That in the month of July’ 2014, the respondents came with another proposal as of that they have decided to modify their project as “PLOT with BUNGLOW” and asking for further payments towards additional costs. The Complainant decline to take such offer of the respondents, and thus asked for refund of his money with banking rate of interest thereon along with appropriate compensation thereon.

 

7.   That the Complainant continuously ventilate his grievance to the respondents through CREDAI Bengal and whereas finally on 22-06-2015, the respondents given a cheque of Rs. 6,38,666/-  to the complainant, being refund of money with interest and compensation, thereof. The said cheque has been presented on 13^th day of July’ 2015, by the complainant to his banker for collection of the values of the said cheque into his account, but the said cheque has been dishonored with the remarks “Funds Insufficient”, and the same has been intimated by the banker to the complainant on 13^th day of July’ 2015.

 

8.   That in the Agreement for Sale dated 19^th day of July’ 2012, and 13^th day of March’ 2013, at page no. 3, para 1, at last portion it has been described as “ In the event of failure to give maraketable title to the Purchaser / Allottee the Developer under takes to refund the amount that will be paid upon execution of these presents to the Purchaser / Allottee.” And in para 3, stated as “ Each allotte along with the Developer will be entitled to the following easement rights and similarly be subject to similar easements and rights to the other unit allottees as also the developer i) Right of access and way in common with the Developer and / or other allottees at all time with the use and enjoyment of common area and facilities to which they are entitled to. Ii) Easements quasi easements, appendages and  appurtenances belonging to or appurtenant to plots as usually held used and occupied or known as part or parcel thereof or appertaining thereto provided always that nothing herein contained shall permit the allottee or any person deriving title under him or his agent and invitee to obstruct in any way by vehicle, deposit or materials, rubbish or otherwise free passage of other person or persons including the developer and other allottee entitled to such way as aforesaid. iii) the right of protection of the plot by and from all parts of the project as far as they are normally protected. iv) the right of flow in common of electricity, telephone, water and waste or soil from and to the plot through pipes, drains, wires, and conduits lying or being in under through or over the other parts of the said project as applicable, so far as may be reasonably necessary for the beneficial use occupation and enjoyment of each plot.

 

RELIED ON THE FOLLOWING DOCUMENTS :

 

a)    Letter of Allotment dated 3^rd day of March’ 2012;

b)   Agreement for Sale dated 19^th day of July’ 2012;

c)    Letter of Allotment dated 20^th day of November’ 2012;

d)   Agreement for Sale dated 13^th day of March’ 2013;

e)    Money Receipts;

f)     Ledger provided by the Respondent;

g)    Email Communications;

h)   Cheque no. 000090, and return memo;

 

PRAYER :

 

a)    to direct the respondents / opposite parties to pay Rs. 6,38,666/- ( Rupees Six Lakhs Thirty Eight Thousand and Six Hundred Sixty Six ) only, being the value of the purported cheque, to your petitioner, as was ascertained and given by the Opposite Parties / Respondents at the event of change of the nature of their projects;

 

b)   and or alternatively direct the respondents / opposite parties to pay Rs. 4,90,007/- ( Four Lakhs and Ninety Thousand and seven ) only, with appropriate Banking rate of interest to the Complainant herein, in the interest of administration of justice;

 

c)    To direct the opposite parties to pay compensation, as for the harassment, troubles, loss of business, physical inconvenience and mental agony, suffered by the petitioners from the purported activities and others by the opposite parties as assessed as ₹ 3,00,000/- ( Rupees Three Lakhs ) only to your petitioners;

 

d)   To grant the cost of the proceedings ;

 

e)    To grant any other relief or alternate relief to the petitioner as found out by your Honour, in the facts and circumstances of the Complaint.

 

WRITTEN VERSION BY THE RESPONDENT NO. 2(b) BISWANATH MONDAL AND RESPONDENT NO. 3(b) MRS. IRA MONDAL ;

 

1.   That the respondent no. 2b Mr. Biswanath Mondal was the director of M/s. Green Haven Realty having 60% share therein and Sri Sudipto Kumar Ghosh and Smt. Paroma Pathak jointly had 40% share.

 

2.   That the respondent no. 3b Mrs. Ira Mondal is the wife of Sri Biswanath Mondal and became director of the said Company in pursuant to fleeing/ resigning of the other two directors Sri Sudipto Kumar Ghosh and Smt. Paroma Pathak share in the company.

 

3.   That the present complainant first has approached Mr. Biswanath Mondal for settlement of his disputes before approaching the consumer forum, the said Mr. Mondal has also paid a sum of Rs. 20,000/- in 2018 by RTGS mode from Central Bank, Jadavpur Branch as part payment honouring the said settlement.

 

4.   That with respect to the averments made in paragraph no. 15, the respondents denies each and every allegations made therein. These respondents states that the allegation of deficiency of service for non execution of sale deed is a false and frivolouse story as the complainant never sought specific performance to possess the said land and never asked for execution and registration deed of sale in their favour. These respondents are ready and willing to execute and register deed of conveyance as of today if the complainant so desire.

 

 

 

 

SUBMISSIONS ;

 

In the given facts and circumstances, the respondents could not keep their commitment and as such agreed to refund the amount and ultimately by a cheque, they refunded the amount of Rs.6,38,666/-.  The evidence on record goes to show that on the requests of the respondent company, the complainant did not deposit the cheque immediately but ultimately on 13-07-2015, the cheque in question was presented by the complainant to his banker, and the said cheque was dishonoured with the remark 'funds insufficient'.

The entire episode clearly depicts the gross negligence and deficiency in the services on the part of service provider towards a 'consumer' as defined in  the Act.  The complainant had to suffer much due to harassment and mental agony and as such it is also justified in imposing compensation.  The acts and conducts of the respondents compelled the complainant to lodge the complaint and, therefore, the complainant is entitled to get relief/s in terms of his prayer before the Hon’ble District Commission.

 

JUDICIAL REFERENCES ;

First Appeal No. A/365/2015  (Arisen out of Order Dated 16/02/2015 in Case No. CC/605/2014 of District South 24 Parganas), { Greenhaven Realty Pvt Limited and Others – Versus – Sri Prithwish Sarkar and Other } Judgment dated 15^th day of May’ 2017, decided by the Hon’ble State Consumer Disputes Redressal Commission, West Bengal;

 

 

Through …………………

 

Advocate

Date : 22^nd day of June’ 2022

Place : Baruipur, South 24 Parganas

 

Protest Petition

 

District : South 24 Parganas.

In the Court of the Learned Additional Chief Judicial Magistrate, at Alipore, South 24 Parganas.                                                                                                                                                                                                                 

Ref. : Netaji Nagar Police Station Case no. 469 of 2019, dated 25-12-2019.

{ Under Section 341,323,506,509,354, and 114 of the Indian Penal Code’ 1860 }

In the matter of :

State of West Bengal.

_____________Complainant.

Manicklata Khamaru.

_____Defacto Complainant.

-          Versus –

NARAZI PETITION

Rupam Dasgupta, and others.

          ______________Accused.

The humble petition of the above named Defacto Complainant Manicklata Khamaru, most respectfully;

Sheweth as under :

1. That in the above referred case matter, investigating Agency, submitted its report in Final form. The defacto complainant does not agree with the Final report, since there has been no investigation by the investigating agency, in the alleged offence. The Investigating Officer has submitted final report in cahoot with the alleged accused person. The same has been submitted only through desk work and upon being influenced by the accused person who have strong connection with the ruling political party.

 

2. Under the Code ‘investigation‟ consists, generally, of the following steps: (1) Proceeding to the spot, (2) Ascertainment of the facts and circumstances of the case, (3) Discovery and arrest of the suspected offender, (4) Collection of evidence relating to the commission of the offence, which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places or seizure of things considered necessary for the ‘investigation’ and to be produced at the trial, and (5) information of the opinion as to whether, on the material collected, there is a case to place the accused before a Magistrate for  trial and if so, taking the necessary steps for the same by the filing of charge-sheet under Section 173, of the code.

 

3. That one Complaint has been lodged by Manicklata Khamaru, Wife of Late Surya Khamaru, against the accused persons named therein, for their alleged offences committed to be punishable under Section 341, 323, 506, 509, 354, & 114 of the Indian Penal Code’ 1860, with the Netaji Nagar Police Station, which has been registered as FIR no. 469 of 2019, dated 25-12-2019.

 

4. That the defacto complainant / petitioner states that the said Final Report has never been communicated to the defacto complainant by the I.O. concern in any manner, whatsoever, the defacto complainant came to know about the said Final Report, while she appeared before the Learned Court, on the said occasions. The said final report has been submitted by the I.O., on the said occasions, the defacto complainant placed her one petition praying therein for time to place her NARAZI Petition against such Final Report, and whereas the Learned Court was pleased to allow such prayer of the defacto complainant.

 

5. That the defacto complainant / petitioner furnished hereunder the facts and true story related to her complaint and or reproduced her contents of the petition of complaint, which has been made before the Learned Court, once again, as the accused persons jointly visited the premises and confined forcibly the defacto and her daughter upon several threats and assaulted and also outraged the modesty of the defacto and her daughter and used most abusive languages with their conscious and intent to insult the defacto and her daughter in pursuance to compelled them to evict the premises as to gran the property influencing their political phenomena.

 

6. That the defacto Complainant being old aged lady and her daughter were helpless as no male member in their support was in the said house. However, the defacto complainant lodge the facts with the Netaji Nagar Police Station, which consequently registered as an FIR no. 469 of 2019.

 

7. That the accused persons are influential politically involved persons at the vicinity of the said house where they entered forcibly in their pursuance to grab the property for their wrongful gain. The accused persons repeated their deeds and harassed the said old aged lady and her daughter following their acts of battery & assault following outraged modesty on them.

 

8. That even after the Netaji Nagar Police Station registered such fact as an FIR did not cause any investigation in the field and by doing the desk work submitted the report in final form before this Learned Court.

 

9. That the defacto complainant states and submits that a fair investigation would include a complete investigation. A complete investigation would mean an investigation, which looks into all aspects of an accusation, be it in favour of the accused or against him. Article 21, undoubtedly, would mean that every victim of offence has the right to demand a fair trial meaning thereby that him or he has the right to demand the state discharge its constitutional obligation to conduct a fair investigation that the investigation culminates into fair trial.

 

10. That the defacto complainant states and submits that the alleged accused persons with their political back ground with ruling political party have been successful in influencing the police authority to submit final report although there are sufficient ground of ranshacking the house of the defacto complainant and physical assault inflicted and outraged modesty on Women. Even after the brutality of assault, outraged modesty, and damage caused to the house of the defacto complainant her daughter namely Miss Suchitra Khamaru has been killed.

 

11. That the defacto complainant states and submits that she is staying and residing lawfully; but the accused persons in association with their men and agents are trying to grab the property of the defacto complainant, the defacto complainant have already lodged complaint with police authority for other subsequent incidents.

 

12. That the defacto complainant states and submits that the investigating officer was not acting impartially and in-obedience to law is clear from the fact which has been brought up in this application, before the Learned Court.

 

13.  That the defacto complainant states and submits that It is, therefore, necessary for the Learned Court to determine as the facts brought on record necessitated direction for re-investigation or further investigation.

 

14.  That the defacto complainant states and submits that the present case is not a simple case of lapses committed by the investigating officer; rather, the accusations are of manipulation of investigation.

 

15.  That the defacto complainant states and submits that if an investigating officer is not faithful, honest or truthful, while recording the statement of witnesses, and conducting investigation in all aspects, then, such an investigation cannot give rise to a fair Investigation, which culminates to a fair trial.

 

16.  That the defacto complainant states and submits that the present application, clearly reveal that there are, at least, the contents and story which established mala fide and illegal investigation by the investigating officer.

 

17.  That the defacto complainant states and submits that these facts are not mere lapses or ignorance in conducting investigation; rather, these facts make out a case of foul play and deliberate manipulation of investigation and suppression of material facts, by the investigating officer.

 

18.  That the defacto complainant states and submits that since the present case is a clear case of unfair investigation, it could have been rectified by further investigation as well as by re-investigation. When further investigation is possible, re-investigation shall not be directed.

 

19.  That the defacto complainant states and submits that the above admitted facts, as indicated above, clearly made out a clear case of unfair and manipulated investigation, by the investigating officer of this case.

 

20. That the defacto complainant states and submits that the present I.O. submitted the Final Report in such a manner, so that he can save the accused persons from the punishment for the offences committed to be punishable under Section 341, 323, 506, 509, 354, & 114, of the Indian Penal Code’ 1860.

 

21.  That the defacto complainant state and submits that in the facts and circumstances, petitioner’s seeking re-investigation and or fresh investigation of the above referred case matter, by the Joint Commissioner of Police, ( Crime ) Detective Department, of the Kolkata Police, and or by the Additional Director and Inspector General of Police, C.I.D.,  West Bengal,  in the interest of administration of justice.

 

22.  That the defacto complainant  state and submits that unless the re-investigation directed by the Learned Court in the above referred case matter, the Petitioner will be highly prejudice to get faire justice and suffer with highly irreparable loss and injury.

 

23.  That this application is made bonafide in the interest of administration of justice.

In the above mentioned facts and circumstances, it is prays that your Honour would be graciously pleased to as the following order or orders :

 

a)    To allow this application of the defacto complainant, in the interest of fair administration of justice; and or ;

 

b)   to direct the re-investigation of the above referred Case being Netaji Nagar Police Station Case no. 469 of 2019, by the higher rank Police Officer as the Joint Commissioner of Police, ( Crime ) Detective Department, of the Kolkata Police, and or by the Additional Director and Inspector General of Police, C.I.D.,  West Bengal;  and or,

 

c)    to direct the further or fresh investigation of the above referred Case being  Netaji Nagar Police Station case no. 469 of 2019, by the higher rank Police Officer, as the Joint Commissioner of Police, ( Crime ) Detective Department, of the Kolkata Police, and or by the Additional Director and Inspector General of Police, C.I.D.,  West Bengal;

 

d)   and / or to pass such other necessary order or orders or further order or orders as your Honour may deem, fit, and proper, for the end of justice.

 

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

 

Verification.

I, Manicklata Khamaru, Wife of Late Surya Khamaru, aged about _______years, by faith Hindu, by Occupation House Wife, residing at A/1/9, Ramgarh Colony, Post Office - Naktala, Police Station – Netaji Nagar, Kolkata – 700047, District – South 24-Parganas, hereby declare that the particulars furnished above are true to the best of my knowledge. I duly verify this application as on the _________day of _________2022, at the Alipore Criminal Court.

Manicklata Khamaru.

Identified by me,

Advocate.

Prepared in my Chamber,

Advocate.

Dated : 21^st day of June’ 2022.

Place : Alipore Criminal Court.

 

 

Affidavit

I, Manicklata Khamaru, Wife of Late Surya Khamaru, aged about _______years, by faith Hindu, by Occupation House Wife, residing at A/1/9, Ramgarh Colony, Post Office - Naktala, Police Station – Netaji Nagar, Kolkata – 700047, District – South 24-Parganas, do hereby declare and says as follows :

1.   That I am the defacto complainant in the present criminal proceeding, before the Learned Court. I am well conversant and acquainted with the material facts stated in the foregoing paragraphs of my protest application.

 

2.   That I am competent to swear this affidavit. The contents and purports has been read over in Bengali Languages to my understanding by my Learned advocate, and therefore on such clear understanding the present application under my instructions has been drafted and prepared by my Learned Advocate.

 

3.   That the paragraph numbers _______to ________, are true to my knowledge and belief and the rests are my humble submissions before the Learned Court.

 

That the above statements are true to my knowledge and belief.

 

 

 

 

DEPONENT

Identified by me,

 

 

Advocate

 

Prepared in my Chamber,

 

 

Advocate

Date : 21^st day of June’ 2022

Place : Alipore Police Court.