Brief Notes of Argument in Consumer Case by the Consumer / Complainant / The Consumer Protection Act 2019

 

Before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at premises being no. 11A, Mirza Ghalib Street, Kolkata – 700 087.

 

                             Complaint Case no. CC/889/2018.

 

In the matter of :-

                                                          Shri Bankim Gain,

                                                                   …… Petitioner

-          Versus –

Shri Basudev Banik and others,

………Opposite Parties

 

BRIEF NOTES OF ARGUMENT

ON BEHALF OF THE PETITIONER

BANKIM GAIN

 

Facts :

 

1. The Opposite Party no. 1, and the Opposite Party no.2, Shri Basudev Banik and Shri Debasish Das, are the Developer, who allured the petitioner to purchase the subjected flat and taken money thereof, time and again.

 

2. The Opposite Parties nos. 3, 4, and 5, are the Land Owners and Co sharer of the Land measuring about more or less 2 ( two ) Cottahs, 10 ½ ( Ten and half ) Chhittaks comprised in Plot no. 962(P) & 963(P), J.L. no. 41, E.P. No. 237, S.P. No. 21, Mouza – Chandpur at present within limits of the Kolkata Municipal Corporation, under the Kolkata Municipal Corporation Ward No. 94, being Postal Premises No. 4/16, Rajendra Prasad Colony, Police Station – Jadavpur, being K.M.C. Premises No. 43, Graham Road, Kolkata – 700 033, District South 24 Parganas.

 

3. The Opposite Parties nos. 3, executed and granted Power of Attorney in favour of the Opposite Parties nos. 1, and 2, herein, the said Power of Attorney duly registered with the office of the Additional District Sub Registry office at Alipore, on 10-02-2014, vide Book no. IV, C.D. Volume No. 1, Page Nos. 3132 to 3145, Being No. 00252 for the year 2014.

 

4. The Opposite Parties nos. 3, 4, and 5, were entered into a Development Agreement dated 10-02-2014, with the opposite parties nos. 1, and 2, who agreed thereby to develop and or construct residential building on the given scheduled property as of the Land measuring about more or less 2 ( two ) Cottahs, 10 ½ ( Ten and half ) Chhittaks comprised in Plot no. 962(P) & 963(P), J.L. no. 41, E.P. No. 237, S.P. No. 21, Mouza – Chandpur at present within limits of the Kolkata Municipal Corporation, under the Kolkata Municipal Corporation Ward No. 94, being Postal Premises No. 4/16, Rajendra Prasad Colony, Police Station – Jadavpur, being K.M.C. Premises No. 43, Graham Road, Kolkata – 700 033, District South 24 Parganas.

 

5. The opposite parties nos. 1, & 2, were convinced your petitioner Shri Bankim Gain, Son of Late Kunja Behari Gain, for a flat in their project, and whereas your petitioner on good faith and belief agreed to take and therefore consequently in terms of their desire entered into one Agreement for Sale dated 2^nd day of May’ 2015, for The Self Contained flat on first floor, South West Side, measuring about 1000 Square feet, super built up area, be the same a little more or less together with common areas and common facilities consisting of 3 ( three) Bed Rooms, 1 ( one ) Living and Dinning room, 1 ( one ) Kitchen, 2 ( Two ) Bath cum Privy and a Balcony of the said, lying and situated being Postal Premises No. 4/16, Rajendra Prasad Colony, Police Station – Jadavpur, being KMC Premises No. 43, Graham Road, Kolkata – 700 033, District – South 24 Parganas, at the total consideration money as of Rs. 40,00,000/- ( Rupees Forty Lakhs ) only.

 

6. The said Agreement for Sale dated 2^nd day of May’ 2015, contained the following covenants :

 

a)    At page number 11 – paragraph number 2 – the simultaneously with the execution of these presents the Purchasers have paid to the Developer / Third Party a sum of Rs. 10,00,000/- ( Rupees Ten Lakhs ) only, as per memo given, here-in-below, and the remaining balance amount amounting to Rs. 30,00,000/- ( Rupees Thirty Lakhs ) only would be paid in terms of the payment Schedule described in the Forth Schedule hereunder written with the knowledge and consent of the party of the First Part. Be it mentioned here that if the purchaser fails to pay the 2 ( Two ) consecutive payment to the Developer in terms of the payment schedule hereunder written then the developer shall have every right to rescind and / or cancel this agreement and bound to refund back the amount paid till that date to the purchaser and the Purchasers shall have no right to raise any objection to that effect;

 

b)   At page number 12 – paragraph number 6 – In that event of this agreement  being cancel or rescind or terminate by the Purchaser then the Developer shall bound to refund back the money received till that date to the Purchaser here in below, or if the Vendors and / or the Developer jointly or severally fail to and / or neglect to complete the registration of the said flat within May, 2016, then the Purchasers will be at liberty to enforce the specific performance of this contract by institution of appropriate proceedings or at its option may sue against the Third Party / Developer for recovery of the earnest money with interest costs and other reliefs;

 

c)    At page number 15 – THE FOURTH SCHEDULE ABOVE REFERRED TO (Payment Schedule )

 

1.   At the time of execution of the agreement   Rs. 10,00,000/-

2.   After completion of 1^st floor roof casting      Rs. 3,00,000/-

3.   After completion of 2^nd floor roof casting     Rs. 3,00,000/-

4.   After completion of 3^rd floor roof casting      Rs. 4,00,000/-

5.   After completion of brick works                  Rs. 5,00,000/-

6.   After completion of Flooring                        Rs. 5,00,000/-

7.   At the time of Registration                          Rs. 10,00,000/-

Rs. 40,00,000/-

 

d)   At page number 12 – paragraph number 4 – That it is made that to fulfill the terms, conditions, covenants and provisions, herein, contained the duties, responsibilities and obligations of the Vendors to the Purchasers are joint and several;

 

e)    The said Agreement for Sale dated 2^nd day of May’ 2015, has been notorized as on 21^st day of May’ 2015, before the Learned Sandip Kumar Dey, Notary, Alipore Judges’ Court, District – South 24 Parganas.

 

7. The petitioner had paid the following sum of money in terms of the agreement for sale dated 2^nd day of May’ 2015 :

a)    A sum of Rs. 10,00,000/- ( Rupees Ten Lakhs ) only, on 2/5/2015;

b)   A sum of Rs. 2,75,000/- ( Rupees Two Lakhs and Seventy Five Thousand ) only, on 09/10/2015;

c)    A sum of Ra. 1,25,000/- ( Rupees One Lakh and Twenty Five Thousand ) only;

d)   A sum of Rs. 50,000/- ( Rupees Fifty Thousand ) only, on 02/09/2018.

 

Totaling as of Rs. 14,50,000/- ( Rupees Fourteen Lakhs and Fifty Thousand ) only.

 

8. That during such long tenure since 2^nd day of May’ 2015, to till date three years more or less period has been elapsed though the opposite parties did not complete the said new building premises and more particularly the subjected flat in terms of the agreement for sale dated 2^nd day of May’ 2015, which speaks as the completion occurred within a period of May 2016.

 

9. That as substantial period has ever been elapsed and the work in progress are much suspicious and apprehend able, and as even though your petitioner had made payments on good faith and belief in pursuance of conversation of the opposite parties and as they allured your petitioner, time and again. Therefore your petitioner is in genuinely belief that the opposite parties are not in a position to complete the said subjected flat and to hand over and thus your petitioner invoke the covenant at page number 12 – paragraph number 6, of the said agreement for sale dated 2^nd day of May’ 2015, as to “of this agreement  being cancel or rescind or terminate by the Purchaser then the Developer shall bound to refund back the money received till that date to the Purchaser here in below, or if the Vendors and / or the Developer jointly or severally fail to and / or neglect to complete the registration of the said flat within May, 2016, then the Purchasers will be at liberty to enforce the specific performance of this contract by institution of appropriate proceedings or at its option may sue against the Third Party / Developer for recovery of the earnest money with interest costs and other reliefs”.

 

10. That However, your petitioner was  in belief that good sense will prevail on the opposite parties, therefore prior to approaching the authority of Law, your petitioner through his Learned Advocate, served one Legal Notice dated 14-11-2018, on the Opposite Parties, seeking thereby inter-alia refund of money paid by your petitioner to the opposite parties, herein, with appropriate banking rate of interest, thereof. The said notice duly served on the opposite parties, though the opposite parties did not refund any money so far to your petitioner.

 

11. That therefore your petitioner’s seeks to get his money as of Rs. 14,50,000/- ( Rupees Fourteen Lakhs and Fifty Thousand ) only, with appropriate banking rate of interest thereon, preferably 12% rate of interest, calculating from the date of making the payment of such money so far, thereof.

 

During the proceeding :

 

12. On receipt of notice, the Opposite Party no. 1 & 2, has appeared in the present consumer proceeding. The opposite party no.1, has submitted his written version, cited as written version by the Opposite Party no. 1 & 2, though there is no such averment has been given by the Opposite Party no.1, that the Opposite Party no2, has ever been authorized him to give such written version on his behalf also.

 

13. The said written version of the opposite party no.1, is in very formal in nature based on denial only. However the opposite party contended that the subjected flat and premises are ready and he may deliver the possession of the said agreed flat upon receipt of the balance consideration money. The opposite party no.1, even after admitting the facts and contents and purports of the said agreement for sale with the petitioner, failed to answer on allegations raised by the petitioner, which are well founded and established.

 

14. The opposite party no.1, did not produce any document, to show that the subjected flat at the premises is ready for delivery by producing completion certificate of the premises from concerned Civic Body.

 

15. The opposite party no.1, did not put any questionnaire on submissions of EVIDENCE ON AFFIDAVIT by the Petitioner, which in terms of the Law, the Opposite Party admitting the facts and circumstances and the documents, placed by the Petitioner.

 

16. The Other Opposite Party being the Opposite Parties no. 3, 4, and 5, are the Landowners, who opt not to appear even after in receipt of the notices, issued by the Hon’ble Commission. The said remaining Opposite Parties did not appear and did not even submit their written version in the present consumer proceeding.

 

17. The Opposite Parties no. 1, and 2, appeared; But the Opposite Party no.1, filed the Written Version. The Opposite Party no.2, did not submit his any written version.

 

18. The Opposite Parties are not even due diligent to contest the Consumer proceeding, which apparently shows cause of their deficiency in services and unfair trade practices as meant for in the Consumer Protection Act’ 2019.

 

Submissions :

 

19.  The material facts placed by the Petitioner is unchallenged.

 

20.  The Documents relied on by the Petitioner, as (a) Agreement for Sale dated 2^nd day of May’ 2015, (b) Money receipts of payments made by the Petitioner to the Opposite Parties, (c) Legal Notices through the Learned Advocate of the Petitioner to the Opposite Parties, with Post receipts, and Track reports, are sufficient to established the contents & purports of the petitioner as stated in his petition of consumer complaint and his Evidence on Affidavit.

 

21. In the given facts that the subjected flat is still not completed and rest of the consideration payment for such flat, does not arise.

 

22. The agreed terms for completion of the flat, has been violated by the opposite parties.

 

23. The facts and the Documents placed by the Petitioner has not been rebutted by the Opposite Parties.

 

24. It has specifically agreed upon by and between the parties of the said agreement for sale dated 2^nd day of May’ 2015, at page number 12 – paragraph number 6, of the said agreement for sale dated 2^nd day of May’ 2015, as to “of this agreement  being cancel or rescind or terminate by the Purchaser then the Developer shall bound to refund back the money received till that date to the Purchaser here in below, or if the Vendors and / or the Developer jointly or severally fail to and / or neglect to complete the registration of the said flat within May, 2016, then the Purchasers will be at liberty to enforce the specific performance of this contract by institution of appropriate proceedings or at its option may sue against the Third Party / Developer for recovery of the earnest money with interest costs and other reliefs”.

 

25. In the given facts, your petitioner is entitled well to get relief in terms of his prayer, placed before the Hon’ble Commission.

 

 

 

 

 

Judicial references :

 

26. In the case of Saradamani Kandappan Vs. S. Rajalakshmi & Ors., [ (2011) 12 SCC 18], the Honble Supreme Court has observed that as a general preposition of law time is not essence of contract unless the parties to the contract intend to make time an essential condition for performance of contract, by expressly providing so or it can be inferred by necessary implication from conduct of the parties. The Apex Court has appears to have said that the said general presumption of law that time is not the essence of a contract that is for sale of immovable properties needs to be revisited as time forms an essential condition for the performance of contract in circumstances of ever-increasing prices of real-estate property which are bound to affect transactions of sale of immovable property. In our considered view, the condition that time shall be the essence of this contract is an essential condition applying to any clause in the Agreement where time is fixed.

 

27.  The Judgment dated 31/07/2017 of the Honble National Commission in Consumer Complaints No. 1131 to 1140 of 2016 ( C.C. No. 1130/2016. Niru Kaushal & Anr. Vs. Unitech Ltd.) and Judgment dated 06/05/2019 in Consumer case No. 1702/2016, [Shalab Nigam Vs. Orris Infrastructure and 3C Company (NCDRC)]. In the cases supra and in many other cases like Complaint No. 347 of 2014, Swarn Talwar and 2 Ors Vs. Unitech Ltd. and other connected consumer complaints. (Judgment dated 14/08/2015), Satish Kumar Pandey & Anr. Vs. Unitech Ltd. and connected matters. (Judgment dated 08/06/2015), similar view has been taken. it is observed as under:- It is an undisputed proposition of law that ordinarily the parties are bound by the terms and conditions of the contract voluntarily agreed by them and it is not for a Consumer Forum or even a Court to revise the said terms. However, a term of a contract, in my view will not be final and binding if it is shown that the consent to the said term was not really voluntary but was given under a sort of compulsion on account of the person giving consent being left with no other choice or if the said term amounts to an unfair trade practice.

 

28. In the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra [Civil Appeal No. 3182 of 2019 @ SLP (C) No(S). 1795 of 2017], the respondent had paid an amount of Rs. 39,29,280/- in 2006 in terms of letter of allotment dated 20/09/2006. The agreement between the parties envisaged that the appellant would hand over possession of a Row House to the respondent by 31/12/2008 with a grace period of a further six months ending on 30/06/2009. The respondent filed a consumer complaint praying for possession of the Row House and in the alternative for the refund of the amount paid to the developer together with interest at 12% per annum. Compensation of Rs. 20 lakhs was also claimed. The State Commission allowed the complaint by directing the appellant to refund the moneys paid by the respondent together with interest at 12% per annum and compensation of Rs. 5 lakhs. The National Commission, by Judgment dated 21/11/2016, modified the order by reducing the compensation from Rs. 5 lakhs to Rs. 2 lakhs. It was contended before the Honble Supreme Court that the primary relief which was sought in the consumer complaint was for delivery of possession and the completion certificate was received on 29/03/2016, which was intimated to the respondent on 11/04/12016. Before the State Commission, in its written submissions, the appellant had offered possession of the Row House to the respondent. Nearly seven years had elapsed after extended date for the delivery of possession which expired on 30/06/2009. When the buyer was in default, the agreement stipulated that interest at the rate of 18% per annum from the date of default untill the date of payment would be charged for a period of two months, failing which the allotment would be cancelled by deducting 5% of the entire value of the property. The Honble Apex Court held that the agreement was evidently one sided since for a default on the part of the buyer, interest at the rate of 18% was liable to be charged but a default on the part of the developer in handing over possession would make him liable to pay interest only at the savings bank rate prescribed by the SBI. The Honble Supreme Court held that a period of seven years is beyond what is reasonable. The orders passed by the State Commission and the National Commission for refund of moneys were held to be justified. Only the interest of 12% per annum as granted by the National Commission was reduced to 9% per annum. It was contended by the Ld. Counsel for the said OPs that the case supra is distinguished since the period of delay was seven years. In the present case, the delay is more than 3 years and this delay also cannot be considered as negligible. In our considered view, this delayis also not reasonable. In the present case, though the Complainant has prayed for compensation (rent assistance) amount on account of delay in handing over possession, however, the principle prayer is for refund of the amount paid to the said OPs. In the Consumer Case No. 2524 of 2017 (Amit Soni & Anr. Vs. M/s. Umang Realtech Pvt. Ltd. & Anr.), in similar circumstances, the Honble National Commission, by relying upon the Judgment of the Apex Court in the case of Kolkata West International City Pvt. (supra), has allowed the complaint in part directing both the opposite parties jointly and severally to refund the principle amount with interest @ 12% per annum from the respective dates of deposit till the date of realisation together with compensation of Rs. 1,00,000/- and costs of Rs. 25,000/-. 

Brief Notes of Argument in Consumer Case by the Consumer/ Complainant / The Consumer Protection Act 2019

 

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

 

Written Objection by the defendants on an application of Party Addition by the Plaintiffs / Civil Suit / Partition Suit

 

In the Court of the Learned Civil Judge ( Senior Division ) 1^st Court, Baruipur, South 24 Parganas

                                                          Title Suit no. 52 of 2009

                                                          In the matter of ;

                                                          Kanai Krishna Das (Mondal),

                                                                                  __________Plaintiff

-      Versus –

Ashim Krishna Das (Mondal) and Others,

                   __________Defendants

Written Objection by the defendants no. 1to5, against the petition U/O 1 Rule 10 C.P.C. by the plaintiff, dated 17^th day of February’ 2022;

 

The humble petition of the above named defendants, most respectfully;

Sheweth as under;

1.   That the petition under objection containing two numbers of pages, wherein at the first page the content and purports has been given by the plaintiff and at the second page affidavit has been given by the plaintiff. The said petition does not contain any annexures and or the lists of the documents relied on by the plaintiff in establishing his contents and purports, so far. Therefore the said petition is not maintainable in the eye of law.

 

2.   That the petition under objection is not maintainable as the same has not been placed in any prescribed form under the Law. The said petition did not ask to invoke even any inherent jurisdiction of the Learned Court. The plaintiff did not describe as to how he made a dead person alive by making him a party in the present suit proceeding. The plaintiff failed to enumerate any fact as how, and when, he came into knowledge of such death of the said person, to whom he made party in the present civil suit. Therefore the petition under objection is liable to be rejected at once with exemplary cost, thereof.

 

 

3.   That allegedly the defendant no. 28, died on 22-09-2018, and after expiry of substantial considerable period of 3 year, 4 months 26 days being on 17^th Feb’ 2022, the petition under objection has been placed by the plaintiff, which is apparently improper and not maintainable and thus liable to be dismissed with exemplary cost thereof in the interest of administration of Justice.

 

4.   That the defendant no. 28, died leaving behind her 4 (four) daughters; But the plaintiff stated about 3 (three) daughters only, which are incorrect version and statement. Such untrue statement should be turn down.

 

5.   That it is not claimed that the petitioner is a person who ought to have been joined as a necessary party to the suit, and the only question is whether he could be impleaded as a party whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle the questions involved in the suit. Thus the petition under objection is not maintainable and liable to be rejected at once with exemplary cost thereof in the interest of administration of Justice.

 

6.   That the test for determining in adding the alleged persons as party to the suit has not been placed by the plaintiff. No appropriate application has ever been placed by the plaintiff in substituting the alleged persons within the time frame under CPC. The plaintiff failed to adhered with the observation held in Benares Bank Limited Versus Bhagwandas, reported in AIR 1947 All 18, and described as true tests by Supreme Court in Deputy Commr. Hardoi Versus Rama Krishna, reported in AIR 1953 SC 521. Therefore the petitioner under objection is not maintainable and liable to be dismissed with exemplary cost, thereof, in the interest of administration of Justice.

 

7.   That this written objection is made bonafide and in the interest of administration of Justice.

 

It is therefore prayed that your Honour would graciously be pleased to accept this written objection of the defendants and to reject the petition under objection placed by the plaintiff, in the interest of administration of Justice, and/ or to pass such other necessary 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, Shri Ashim Krishna Das Mondal, being the defendant no. 1, in the above referred Suit, conversant and acquainted with the material facts of the Suit. I made this written objection against the petition placed by the plaintiff, for myself and on behalf of the defendant nos. 2, 3, 4, and 5, in the Suit. I Sign, and verify this written objection on 10^th day of November’ 2022, at Baruipur Court premises.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AFFIDAVIT

I, Ashim Krishna Das Mondal, Son of Late Sudhamoy Das Mondal, aged about 61 years, by faith Hindu, by Occupation Business, residing at Village Sonarpur Gorkhara Hatuipara, Ward no. 10, Post Office & Police Station – Sonarpur, Kolkata – 700150, District – South 24 Parganas, do hereby solemnly affirm and says as follows;

 

1.   That I am the defendant no. 1, herein in the present Civil Suit. I am conversant and acquainted with the material facts in the Suit. I am authorized by the defendant no. 2, 3, 4, and 5, herein. I am competent to swear this affidavit on their behalf as well as on my behalf.

 

2.   That the contents of paragraph number 1, 2, 3, & 4, are true to the best of 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 : 10^th day of November’ 2022

Place : Baruipur, South 24 Parganas

 

N O T A R Y