Written Objection by the Opposite Party in Criminal Appeal / Section 29 / Domestic Violence / Protection of Women from Domestic Violence Act 2005

 

District : Howrah.

In the 2^nd Court of the Learned Additional Session Judge, at Uluberia, Howrah. Orisha Trunk Rd, Sizberia, Kalibari, Uluberia, Howrah, West Bengal 711315.

 

Criminal appeal No. 03 of 2021

 

                                                          In the matter of :

                                                          Smt. Tithi De Adhikary,

_________ Appellant/ Aggrieved Person.

-      Versus –

 

1.   State of West Bengal;

2.   Sri Arnab De, Son of Sri Apurba Kumar De;

3.   Smt. Sutapa De, Wife of Sri Apurba Kumar De;

4.   Shri Apurba Kumar De, Son of Late Haran Chandra De;

_____________Opposite Parties/ Respondents.

 

Written Objection by the Opposite Parties/ Respondents

2) Shri Arnab De, 3) Smt. Sutapa De, and 4) Shri Apurba Kumar De;

 

The humble petition on behalf of the Opposite Parties/ Respondents, most respectfully;

 

Sheweth as under :

 

1.           That the appeal under objection is not maintainable in fact.

 

2.           That the appeal under objection is not maintainable in law.

 

3.           That the present appeal under Section 29 of the Protection of Women from Domestic Violence Act 2005, has been preferred by the aggrieved person, challenging the Order dated 21/08/2021, passed by the Learned Additional Chief Judicial Magistrate at Uluberia, Howrah, in Misc. Case no. 174 of 2020, praying inter alia for interim maintenance at the tune of Rs. 40,000/- ( Rupees Forty Thousand ) only, per month.

 

4.           That the Respondents has also preferred an appeal under Section 29 of the Protection of Women from Domestic Violence Act 2005, challenging the Order dated 21/08/2021, passed by the Learned Additional Chief Judicial Magistrate at Uluberia, Howrah, in Misc. Case no. 174 of 2020, praying inter alia for setting aside the interim maintenance, vide Criminal Appeal no. 4 of 2021, which is pending before this Learned Court. The aggrieved person appeared therein.

 

5.           That before dealing with the statements made in the petition under objection paragraph wise, this Respondents, states the following facts for Your Honour’s kind perusal :

 

a)    That Shri Apurba Kumar De, being the Respondent no. 4, herein started looking for a suitable bride by refereeing to the newspaper around September – October’ 2018. He contacted Tithi’s parent using the contact details as mentioned in the news paper. the marriage talks could not be continued due to someone’s demise in their family. in the meanwhile, the respondents had other marriage prospects which the respondents were looking into, but nothing was yield. Therefore, the talks again started and went towards positive direction around November – December’ 2018.

 

b)   That the respondents thereafter decided to visit the house of the aggrieved person herein, in east Burikhali Bauria. The date finalization was not done yet and it was almost January’ 2019. The Respondent no.4, had in persistent views that the marriage should not be arrange so quickly, therefore the respondents proposed to the father and family member of the aggrieved person for the marriage in the month of November – December 2019, whereas on hearing such proposal the father of the aggrieved person expressed his views as cancelled if in the month of November – December 2019. However, this is the Respondent no.2, Shri Arnab De, who asked his father and mother to agreed on date as given by the family members of the aggrieved person Smt. Tithi De Adhikary, as the respondent no.2, herein did not want to cancel such marriage arrangement only for variation of date of marriage, so far.

 

c)    That therefore the Respondents visited the house of the aggrieved person for final date of marriage. The respondents have absolutely no demand but the respondents asked for the marriage hall to be AC. The family of the aggrieved person agreed to such proposal, by expressing their saying as “we will try our best”.

 

d)   That on 6^th day of May’ 2019, being the date of marriage has been settled. The arrangement of marriage has been held at the behest of the aggrieved person and her family members at marriage hall namely “Mangalik” at Village – Burikhali, Police Station – Bauria, District – Howrah.

 

e)    That at the day of marriage, while the respondents, and with their friends, relatives, reached to the marriage hall as was acknowledged by the family members of the aggrieved person, Everybody astonished to their utter surprise that the said marriage hall was not AC accommodated. Whereas the friends of the respondent no.2, herein, who had planned to stay back after the marriage had to change their plan as it was too hot to stay.

 

f)     However, apart such issues of AC of the said marriage hall, marriage between the Respondent no.2, and the Aggrieved person herein, conducted well without any further issue or issues, so far.

 

g)    That after the marriage performance in accordance with Hindu rites, and customs, the aggrieved person accompany with the Respondents and their family members, friends, and relatives and reached to the matrimonial house. The address of which has been depicted in the cause title of this application.

 

h)   That the marriage has been registered subsequently on 17^th day of May’ 2019, at Horah district.

 

i)     That on 8^th day of May’ 2019, reception has been arranged by the Respondents, being post marriage ceremony performance, with due invitation to the family, friends, and relatives of the aggrieved person, herein. The reception ceremony has been arranged by the respondents at their premises in community hall of their complex. The reception has been well organized and food and services has served appropriately among the participants and attendees.

 

j)     That while everything of reception over, and the respondents reached to their house, the aggrieved person started crying and said that her father along with her whole family felt very much insulted by the respondents. The respondent no.2, asked as to who and why they felt so to that she said that the respondents’ arrangement was not good especially the buffet system of eating which they dislike very much. Further she said that while her family arrived for the reception no one went to receive them which is absolutely false as the respondent no.4, her father in law himself went to receive them.

 

k)   That it is pertinent to states that at the time of marriage, the family of the aggrieved person, did not offer any tea and snack while people reached there. They offered directly dinner. There was nothing prepared for people who are vegetarian. While all the scenario has been mentioned in front of the aggrieved person, she refuted everything furiously and behaved in much unwanted manner to the respondents.

 

l)     That after few days later, the respondents while visited the house of the aggrieved person, then the same allegation of false insult has been arisen by the father of the aggrieved person. They also raised one another issues that maternal uncle of the respondent no.2, has misbehaved during the marriage and has also insulted him in the reception. The father of the aggrieved person said that his daughter should have nothing to do with the said maternal uncle like no gifts and no ongoing to their place. For the time being not knowing the truth, the respondent no.2, herein apologized in front of him and said sorry on his behalf. But later the respondent no. 2, got to know that nothing of this sort had ever happened. The respondent no.2, herein asked few people who were present in his marriage and everyone were unaware of anything of this sort.

 

m)  That after such un-eventual events and incidents, the Respondent no.2, and the aggrieved person went for their honeymoon to Darjeeling. The Couple went by flight from Kolkata and according the aggrieved person it was her life’s first flight. Son naturally she was overwhelmed by the experience. The whole trip she enjoyed to the fullest as the couple load of photographs to prove that. On 21^st May’ 2019, the couple came back at home in Sonarpur, south 24 Parganas, and disruption started again. The respondent no.3, herein had not accepted a gift that the aggrieved person had bought from Darjeeling because of her bad behavior and attitude, so far, which the aggrieved person described it as an insult to her by her mother-in-law, and therefore the aggrieved person started quarrel at home. To much utter surprise the aggrieved person used to record every conversation and quarrel with her mobile phone and used to relay everything to her parents.

 

n)   That the aggrieved person on each and every occasion while she picked up quarrel, asked her father to visit her matrimonial house, and whereas the father of the aggrieved person off and on visited the house of the respondents, and on all and every occasion, while her father visited the house of the respondents, shouted at the door of the house in very filthy languages and whereas on some of the occasion the vicinity people reached at the house and intervene into unnecessary issues raised by the father of the aggrieved person.

 

o)    That in this scenario the respondents were not knowing what to expect when her father comes, so the respondents sent the respondent no.3, to the said aunt’s place because she is a heart patient who has gone though surgery and may not be able to take all the commotion at behest of the aggrieved person and her father.

 

p)   That on 23^rd May’ 2019, the father of the aggrieved person visited the house of the respondents. Shocking started talking about the same said marriage hall allegations and alleged insult and all that stuff in a very high pitch tone and much insulting manner. All this was also witnessed by paternal aunty of the respondent no.2, herein, and the lady who worked in house of the respondents at that time. Later the respondent no.3, and her sister, and her sister’s husband also came, they all tried to convince them that fights can happen, but they should forget and forgive all that and should let new couple start their lives. But her father said that he would like to take away her daughter for a few days to his place. The respondent no.4, herein, instead requested her father to let her stay as it was birthday of the respondent no.2, on the 31^st day of May’ 2019, and thereafter the respondent no.2, will be leaving for his workplace at Pune for a month, so She can go and stay in that time. Very fortunate, her father agreed on such suggestion of the respondent no.4, herein.

 

q)    Though the respondent no.2 was in trauma due to such unexpected behavior of the aggrieved person and her father, which repeatedly occurred at their behest. The aggrieved person used to talk and message the respondent no.4, i.e. father-in-law very rudely without any respect. Later i.e. on 1^st day of June’ 2019, the respondent no.2, herein left for Pune.

 

r)    That while the respondent no.2 herein was in Pune in course of his official duty and engagement, the aggrieved person used to call and whatsapp to him, and where in many calls and whatsapp all along she used to blame him about the said allegation of insult at the marriage. According to her the respondents had insulted her father by bringing many members of the respondents while all they were trying to do was make everything normal. She further alleged that she was tortured so much that this falls under domestic violence and threatened to go to police. The respondent no.2 herein shocked to hear such versions of the aggrieved person.

 

s)    Somehow all the quarrel diminished by passage of time, so far. The Respondent no.2 herein came back from Pune to Kolkata on 1^st day of July’ 2019. On such returning the respondent no.2 herein went to her place to bring her back home. The Aggrieved person back happily with the respondent no.2, at her matrimonial house at Sonarpur. The Aggrieved person used to go to her office and the respondent no.4, herein being father-in-law used to see her off at main gates and while returning the respondent no.2, used to receive her. Every day in the morning her father-in-law would gear up and prepare food for her because she used to get up early and she had complained to her parents that the respondents do not feed her properly and also not on time. In between all this she also alleged that the water ast her matrimonial house was not good for her health and she wanted mineral water, while the respondents have an RO machine fitted in house and every one drink from the said machine. However, the respondent no.4, her father-in-law used to bring for her mineral water bottle, every day, though she was not satisfied with the brand of such mineral water.

 

t)      On 10^th day of July’ 2019, the aggrieved person started packing her apparel and articles and preparing to leave her matrimonial house, and whereas while her in-laws asked why she was leaving she said that she must study her medical exam as she is preparing for the same and this house does not give her the right atmosphere to study and that she does not have all her books here. Hearing this the respondents did not stop her, thinking it was for a good reason that she is going.

 

u)   That the Aggrieved person packed and was leaving while her father-in-law again went to see her off at the main gate of complex and his surprise found her father, mother, and sister outside the gates waiting for her. They said some insulting statements to her father-in-law, which was witnessed the security guards at the gate. Later while the respondent no.2, herein called her father to ask why he has insulted his father he just shouted at him and threatened that the respondent no.2, herein need to go to jail. That was the day the respondent no.2, herein acknowledged such facts to the Narendrapur Police Station, by lodging GD Entry, thereof.

 

v)    After such communication happened over phone and whatsapp and the quarrel continued at the behest of the aggrieved person and her parents. Every time the topic was the same that the respondents had insulted them a lot and that the respondent no.2, herein is of no use and does not do his duty. The respondent no.2, herein have records of all whatsapp interactions with her.

 

 

w)  The Aggrieved person at her own whims refused to come back and join the respondents at her matrimonial house. However, on one day she came at her matrimonial house, and entered into her room directly without any conversation with her in laws, and opened her almirah and took some stuff with her. The respondent no.2, herein asked her to stay back but she again refused and left her matrimonial house once again.

 

x)    On 21^st day of March’ 2020, the respondent no.2, herein got a call from the Police Station and thereafter the respondents came into knowledge about an FIR lodged by the aggrieved person, herein.

 

y)    That thereafter the respondent no.2, herein tried himself off and on to reconcile issues to take her and to restore his matrimonial life with the aggrieved person but this is the aggrieved person who on all of occasions refused and did not heed for such restoration of matrimonial life, in any manner, whatsoever.

 

z)    That the respondent no.2, herein do not have any immovable property in his name, as of now, and the respondent no.2, herein is in Service under Mphasis Private Limited, having its office at Pune – 411028. His net income from such Salary is as of Rs. 78,308/- ( Rupees Seventy Eight Thousand and Three Hundred Eight ) only. Total Expenditure born by the Respondent no. 2, herein as of Rs. 75,000/- ( Rupees Seventy Five Thousand ) only. The Respondent no.2, herein have two number of family member being dependent on him as his Father and Mother having surviving their life in their old age. The Spouse of the respondent no.2, herein is not a dependent since She is earning herself through her employment and sufficiently accumulate her income to run herself and for her livelihood.

 

aa) That the following proceedings are instituted before the Learned Court as initiated by the Aggrieved person against the Respondents herein : (i) Mat Suit no. 238 of 2020 { Smt. Tithi De Adhikary – Versus – Arnab Dey } under Section 13 of Hindu Marriage Act, before Learned ADJ at Uluberia, Howrah; (ii) Misc. Case no. 175 of 2020 { Smt. Tithi De Adhikary – Versus – Arnab De } under Section 125 of Cr.P.C. before the Learned ACJM at Uluberia, Howrah; (iii) Misc. Case no. 174 of 2020 { Smt. Tithi De Adhikary – Versus – Arnab De & Others } under Section 12 of Protection of Women from Domestic Violence Act, before the Learned ACJM at Uluberia, Howrah; (iv) Bauria Police Station Case no. 37 of 2020, under Section 498A, 406, & 34 of IPC and Section 3 & 4 of DP Act { State – Versus – Arnab De and Others }, before the Learned ACJM at Uluberia, Howrah;

 

bb)        That the Respondents are all along victim as well as persons of suffering of mental and physical cruelty inflicted by the aggrieved person day by day, though the respondents tolerates such continuous cruelty of the aggrieved person as they preferred to continue as a healthy family,  but this the aggrieved person who all along ignore the morality of the respondents, the aggrieved person is not a housewife lady she never participate in house hold work of day to day, she treat and used her matrimonial house members as her servant and always dominate to instruct the respondent no.2, and the aggrieved person become perverse may be due to her mental illness, which she hide from the respondents.

 

cc) That   the aggrieved person is a cause of domestic violence upon the respondents, the respondents are innocent, as they never did cause any domestic violence on the aggrieved person, rather the respondents are victim of the domestic violence inflicted by the aggrieved person, herein.

 

dd)        That the Respondents all along tried off and on to take back the aggrieved person but this is the aggrieved person who at her own whims refused to join her matrimonial tie with the respondent no.2, herein, however, Since, the Respondent no.2, herein was in belief that good sense will prevail on the aggrieved person, the respondent no.2, herein tried off and on but all in vain at the instances of the aggrieved person.

 

6. That the Respondents beg to state that the contents and purports are different and contradictory in the statement made by the aggrieved persons in different proceedings and therefore the statements of the aggrieved person is untrustworthy and not acceptable as not believable one.

 

7. That the Respondents beg to state that the Aggrieved Person withdrawn the Matrimonial Suit and the Misc. Case being the proceeding under Section 125 Cr.P.C. which She instituted and subsequently withdrawn at her own whims, without stating her any cogent reasons, thereof.

 

8. That the Respondents beg to states that the Respondents are victim of cruelty, torture, and desertions caused by the aggrieved person and by her mother upon them, continuously.

 

9.   That the respondent no.2, herein tried himself off and on to reconcile issues to take her and to restore his matrimonial life with the aggrieved person but this is the aggrieved person who on all of occasions refused and did not heed for such restoration of matrimonial life, in any manner, whatsoever.

 

10.               That the Respondent no.2, herein, all along lived separately, at Kolkata due to his job, and more particularly due to the aggrieved person, who all along refused to stay at her in laws at native place of the respondent no. 2, herein. The respondent no.2, herein is husband of the aggrieved person, the respondent no.4, herein is father in law of the aggrieved person, and the respondent no.3, herein is a mother in law of the aggrieved person.

 

11.               That the respondent no.2, herein do not have any immovable property in his name, as of now, and the respondent no.2, herein is a under employment and thereby acquiring his Salary there from, and this only became sources of his earning.

 

12.                       That the Respondents are all along victim as well as persons of suffering of mental and physical cruelty inflicted by the aggrieved person day by day, though the respondents tolerates such continuous cruelty of the aggrieved person as they preferred to continue as a healthy family,  but this the aggrieved person who all along ignore the morality of the respondents, the aggrieved person is not a housewife lady she never participate in house hold work of day to day, she treat and used her matrimonial house members as her servant and always dominate to instruct the respondent no.2, and the aggrieved person become perverse may be due to her mental illness, which she hide from the respondents.

 

13.                       That   the aggrieved person is a cause of domestic violence upon the respondents, the respondents are innocent, as they never did cause any domestic violence on the aggrieved person, rather the respondents are victim of the domestic violence inflicted by the aggrieved person, herein.

 

14.                       That the Respondent no. 2, is in employment, and thereby he is getting Salary as of Rs. 78,000/- ( Rupees Seventy Eight Thousand ) only, from his employer, and whereas the Respondent no. 2, herein have no immovable property, and the Respondent no.2, herein have to maintain his old aged parents and look after their medical treatment and other essential necessity.

 

15.                       That the Respondents all along tried off and on to take back the aggrieved person but this is the aggrieved person who at her own whims refused to join her matrimonial tie with the respondent no.2, herein, however, Since, the Respondent no.2, herein was in belief that good sense will prevail on the aggrieved person, the respondent no.2, herein tried off and on but all in vain at the instances of the aggrieved person.

 

16. That the appeal of the aggrieved person is not maintainable in any form of law, in the present proceeding before the Learned Court, therefore the respondents seeks to get dismissal of such appeal of the aggrieved person at once with exemplary costs thereof, in the interest of administration of justice.

 

17. That the present written objection is made bonafide in the interest of administration of justice.

 

It is therefore prayed that your Honour would graciously be pleased to allow this written objection of the respondents and to reject and or to dismiss the appeal of the aggrieved person herein, in the interest of administration of justice, and or to pass such other 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, the Respondent no. 2, herein, do hereby solemnly state and declare that the statements made in the foregoing paragraphs are true to the best of my knowledge and belief and I sign this verification on this the ______day of September’ 2022, at Court premises.

 

 

 

 

 

 

 

 

 

 

 

 

Affidavit

 

I, Sri Arnab De, Son of Sri Apurba Kumar De, aged about 40 years, by faith Hindu, by Occupation Service, residing at B1/4 003, Peerless Prantik Housing Complex, Sonarpur, Police Station – Narendrapur, District – South 24 Parganas, Kolkata – 700150, West Bengal, do hereby solemnly declare and affirm as follows :

 

1.   That I am competent to swear this affidavit, and I am authorized to swear this affidavit on behalf of the respondent no.3, and 4, who are my father and mother respectively.

2.   That I am respondent no.2, herein in the present proceeding, before the Learned Court.

3.   That I am conversant and acquainted with the material facts as stated in the foregoing paragraphs of my Written.

4.   That the statements as made by me in the foregoing paragraphs in the written objection are true to the best of my knowledge and belief.

5.   That all the above statements are true to the best of my knowledge and belief.

 

 

 

 

DEPONENT

Identified by me,

 

Advocate.

Prepared in my Chamber,

 

Advocate

Date : __________________2022.

Place : Uluberia, Howrah.

NOTARY

 

Order in Misc. Application / Consumer Case / Ramkrishnan Jayashree Versus Greenhaven Realty Private Limited

 

District Consumer Disputes Redressal Commission

South 24 Parganas

Baruipur , Kolkata - 700 144.

 

Miscellaneous Application No. MA/8/2021 ( Date of Filing : 15 Mar 2021 ) In Complaint Case No. CC/102/2020

1. Smt. Ramakrishnan Jayashree, W/O- Shri Perinkulam Ramamurthy Rama Krishnan Kol-700103 ...........Appellant(s) Versus 1. M/S Greenhaven Realty Private Limited Kol-700107 ...........Respondent(s)

 

BEFORE:
	ASISH KUMAR SENAPATI PRESIDENT
	Mrs. Sangita Paul MEMBER

 

PRESENT:

Dated : 30 Nov 2021

Final Order / Judgement

9.....30.11.2021.... The Ld. Advocate for the petitioner / O.P. No.6 is present.  None appears on behalf of the complainants / O.Ps.  The M.A. is taken up for hearing.  The Ld. Advocate for the petitioner submits that the petitioner / O.P. No.6 is an unnecessary party and the complainants/OPs have made allegations against the petitioner / O.P. No.6 in Para – 5 and Para-13 of the written complaint.  It is urged that Ms. Green  Haven Realty Pvt. Ltd. is not a member of the Ptr/O.P. No.6 and the Ptr/ O.P. No.6 is not received any complaint from the O.Ps. / complainants as alleged in Para-13 of the complaint.  It is contended that the case is not maintainable against the petitioner / O.P. No.6.      Perused the M.A . and considered the submission of the Ld. Advocate for the petitioner.  On a careful consideration, we find that the complainants have some allegations against the petitioner / O.P. No.6 as stated in Para 5 and Para – 13 of the complaint.  It is not wise to decide without allowing the complainants / O.Ps. to file evidence that the allegations against the petitioner / O.P. No.6 are genuine or false.  In out considered opinion, the question of maintainability of complaint in respect of O.P. No.6 may be decided after taking evidence from both sides.  MA is thus dismissed exparte against the Ops.  The petitioner / O.P. No.6 is at liberty to rise the point of maintainability at the time of final hearing.  It appears from the record that notice upon O.P. No.4 has been served.  But none appears on behalf of O.P. No.4.  O.P. No.6 has already filed W.V.  No S.R. is received upon the O.P. Nos. 1, 2 3 & 5.  The complainant is to take fresh steps for causing service of notice upon the O.P. No.1, 2 3 & 5 at their own cost  by speed post / Registered Post with AD fixing 10.01.2022 for S.R. upon O.P. Nos. 1,2,3 and 5 and further order

 

[ ASISH KUMAR SENAPATI]

PRESIDENT

[ Mrs. Sangita Paul]

MEMBER

Consumer Case / Judgment / Bikash Musib Versus Greenhaven Realty Private Limited

 

District Consumer Disputes Redressal Commission

South 24 Parganas

Baruipur , Kolkata - 700 144.

 

Complaint Case No. CC/107/2019 ( Date of Filing : 31 Jul 2019 )

1. Shri Bikash Musib, S/O Shukdev Musib. residing at Mouza- Upardihi, G.P.- Jamatra, P.O.- Alijhara, P.S. Chhatna, Dist.- Bankura, Pin- 722137. West Bengal. ...........Complainant(s) Versus 1. 1. M/S. Greenhaven Realty Pvt. Ltd. Registered Office at Premises Being no. GF-12, 1953, Rajdanga Main Road, ( 1st Floor ), Kolkata- 700107, P.S. - Kasba. 2. 2. Mr. Biswanath Mondal, S/O Sri Mangal Chandra Mondal, Chairman cum Managing Director and Authorised Signatory of M/S. Greenhaven Realty Pvt. Ltd. Registered Office at Premises Being no. GF-12, 1953, Rajdanga Main Road, ( 1st Floor ), Kolkata- 700107, P.S. - Kasba. 3. . Residing at Village- Purba Goyalbatikheyadaha, Sonarpur, Kolkata- 743369. 4. 3. Mrs. Ira Mondal, Wife of Known, of M/S. Greehaven Realty Pvt. Ltd. Registered Office at Premises Being no. GF-12, 1953, Rajdanga Main Road, ( 1st Floor ), Kolkata- 700107, P.S. - Kasba. 5. . Village- Purba Goyalbatikheyadaha, Sonarpur, South 24- Pargnas, Kolkata- 743369.. 6. 4. Mr. Sudipta Kumar Ghosh, S/O Sisir Kumar Ghosh, Director of M/S. Greenhaven Realty Pvt. Ltd. Registered Office at Premises Being no. GF-12, 1953, Rajdanga Main Road, ( 1st Floor ), Kolkata- 700107, P.S. - Kasba. 7. .Mr. Sudipta Kumar Ghosh, S/O Sri Sisir Kumar Ghosh. Residing at Premises being no. C-181, Baisakhi Abasan Block AG, Salt Lake, Kolkata- 700091. 8. 5. Smt. Paroma Pathak, Daughter of Sri Apurba Pathak, Director of M/S. Green haven Realty Pvt. Ltd. Registered Office at Premises Being no. GF-12, 1953, Rajdanga Main Road, ( 1st Floor ), Kolkata- 700107, P.S. - Kasba. 9. . residing at Premises being no. 129 , Jessore Road, Dum Dum, Kolkata- 700055. ............Opp.Party(s)

 

BEFORE:
	SHRI ASHOKE KUMAR PAL PRESIDENT
	JAGADISH CHANDRA BARMAN MEMBER
	SMT. SANGITA PAUL MEMBER

 

PRESENT:

Dated : 26 Aug 2022

Final Order / Judgement

Sri Ashoke Kumar Pal, President The matrix of the complaint case in short is that with the intention to construct his own house the complainant booked two plots of land measuring 2 cottahs each from the OPs being Plot No.2B138 and 2B164 in the Township Project “Green City Sonarpur” more fully described in the schedule of the agreement dated 19.07.2012 and 13.03.2013 at a valuable consideration of 2,50,000/- each.  The complainant paid Rs.4,90,007/- by installments on different dates starting from 14.02.2012 to 03.06.2014 for which money receipts have been issued by the OPs.  Thereafter, the complainant on several occasions requested the OPs to execute and register a proper deed of conveyance in terms of the agreement dated 19.07.2012 and 13.03.2013.  But except giving assurance the OPs did not do anything. In July, 2014 the OPs gave another proposal to the complainant in modification of their project as “Plot with Bungalow” and asked the complainant to make further payment to which the complainant denied and asked the OPs for refund of the money paid by him with Bank interest and compensation.  On 22.06.2015 the Respondent No.1 issued a cheque drawn on Quatak Mahindra Bank amount to Rs.6,38,666/- in favour of the complainant as a refund.  The complainant present  the said cheque to his banker, State Bank of India on 13.07.2015 but the same was dishonored and returned back with remark “Fund insufficient”. Ultimately, the OPs did not pay back the money with interest and compensation and hence this case.  The OP No.2(B) and 3(B) came forward to contest this case by filing W/V denying all the allegations made in the petition of complainant.  The OP No:2(B) and 3(B) categorically denied the allegations made in the petition of complainant and other material averments of the petition of complaint in their W/V and prayed for dismissal of this case with cost. The instant case proceeded exparte as against the rest of the OPs as per Order No:07 dated 28.11.2019.   Points for consideration :- Is the complainant a consumer? Are the O.Ps. guilty of deficiency in service and unfair trade practice? Is the complainant entitled to get relief or relieves as prayed for? Decision with Reasons :- Point No.1 :-  On perusal of the case record along with documents, it appears that the complainant was willing to purchase the scheduled two plots of land measuring about 2 cottahs each more fully described in the schedule of the agreement dated 19.07.2012 and 13.03.2013 being plot no:2B138 and 2B164 and the OPs agreed to sell the same to the complainant for which two agreements for sale dated 19.07.2012 and 13.03.2013 was made by and between the parties.  The complainant paid Rs.4,90,007/- by instalments on different dates starting from 14.02.2012 to 03.06.2014. Therefore, the complainant is a consumer as defined in Section 2(7) of the Consumer Protection Act, 2019.  As such, point No.1 is decided in favour of the complainant and against the OPs. Point No.2 :-  The complainant booked the two scheduled plots of land and entered into two separate agreements dated 19.07.2012 and 13.03.2013 with the OPs to that effect.  The complainant also made payment of Rs.4,90,007/- (Rupees four lakhs ninety thousand and seven) on different dates and the OPs acknowledged the receipt of the same by issuing money receipts.  The complainant filed copy of the money receipts along with the petition of complaint from which it appears that all the payments have been properly made.  On the other hand, despite the payment of major portion of the full consideration amount by the complainant as per terms of the agreements dated 19.07.2012 and 13.03.2013 the OPs failed and neglected to hand over the possession of the schedule plots of land to the complainant and to execute and register proper deeds of conveyance.  The complainant finding no other alternative demanded the OPs to pay back the amount of Rs.6,38,666/- along with Bank interest and compensation.  Therefore, it is clear from the averment of the complainant that the OPs are guilty of deficiency in service and unfair trade practice.  As such, the 2nd point is also decided in favour of the complainant and against the OPs. Point No.3 :-  The complainant booked the scheduled plots of land from the OPs and make payment of Rs.4,90,007/- (Rupees four lakhs ninety thousand and seven) on different dates.  But the OPs violated the terms and conditions of the agreement dated 19.07.2012 and 13.03.2013.  Neither the OPs handed over the possession of the scheduled plots of land as described in the schedule of the agreements for sale dated 19.07.2012 and 13.03.2013 nor they returned the amount of Rs.6,38,666/- (Rupees six lakhs thirty eight thousand six hundred and sixty six) with interest and compensation which they received from the complainant as per terms of agreement for sale dated 19.07.2012 and 13.03.2013.  Therefore, as the complainant did not get any positive response from the OPs he has been compelled to file the present case against the OPs on the relieves sought for in the petition of complainant.  As such, there is no hesitation to hold that the complainant is entitled to get the relief as prayed for.  As the OPs did not hand over the physical possession of the  scheduled plots of land to the complainant nor any deed of conveyance has been executed and registered in favour of the complainant,  the complainant failed to get service from the OPs.  On the other hand, the complainant was harassed by the OPs by various ways.  Therefore, the complainant is entitled to get the relief as prayed for.  Thus the 3rd point is also decided in favour of the complainant and against the OPs. In the result, the complaint case succeeds. Fees paid is correct. Hence, it is,                                                                                   ORDERED That the complaint case be and the same is allowed on contest against the OPs with cost of Rs.25,000/- (Rupees twenty five thousand). The OPs are jointly and severally Iiable and directed to refund the entire amount of Rs.4,90,007/- (Rupees four lakhs ninety thousand and seven) only along with 12% simple interest p.a. w.e.f. 14.02.2012 (date of payment of 1st instalment) till the date of final realization within 45 days from the date of passing this order.       The OPs are jointly and severally directed to pay the compensation to the tune of Rs.2,00,000/- (Rupees two lakhs) only for harassment, mental pain and agony and deficiency in service suffered by the complainant within 45 days from the date of passing this order. The OPs are jointly and severally liable and directed to pay litigation cost of Rs.25,000/- (Rupees twenty five thousand) to the complainant within 45 days from the date of passing this order. The Complainant is at liberty to put the order into execution after the expiry of 45 days if the orders are not complied with by the OPs within 45 days from the date of passing this order. Let a copy of the order be supplied free of cost to both the parties as per rules.                     The Final order will be made available in www.confonet.nic.in.

 

[ SHRI ASHOKE KUMAR PAL]

PRESIDENT

[ JAGADISH CHANDRA BARMAN]

MEMBER

[ SMT. SANGITA PAUL]

MEMBER