Before
the Hon’ble District Consumer Disputes Redressal Commission Kolkata Unit – III,
( Kolkata South ), at Alipore, Kolkata – 700 027, West Bengal.
CC
/ 76 / 2022
In
the matter of :
Purnojyoti
Roy & another,
__________Complainants
- Versus
–
Smt. Mina Basu, and another.
_______Opposite
parties.
Written
Version of the Opposite Party No. 5 Smt. Mina Basu.
The humble
petition on behalf of the Opposite Party No. 5 Smt. Mina Basu, above named;
Most Respectfully Sheweth as under :
1.
That the Petitioner has been served
with the purported copy of petition, made by the Complainant. The Petitioner
have gone through the contents of the purported petition and made replies to
the same, are as follows.
2.
That the Complaint is not maintainable
in its present form, either in term of the facts or in term of the Law.
3.
That the Petition is speculative,
harassing, motivated and barred by the Principles of Law and hence it is liable
to be rejected at once.
4.
That the petition is suffering from
misjoinder and non-joinder of necessary party in the proceeding, and therefore
liable to be dismissed at once with exemplary costs.
5.
That the petition is suffering from
suppression of material facts and necessary party, and therefore liable to be
dismissed at once with exemplary costs.
6.
That the petition is suffering from
any legal demand and thereby cause of action, the present petition is motivated
and without any jurisdiction.
7.
That the Opposite Party do not admit
all the allegations made in the application of the Petitioner / Complainant, to
be true and save and except those that are specifically admitted he put the
Petitioner, to the strict proof of the rest.
8.
That the contents of the Complaint is
vague and based on after thought concocted story, made out by the Complainant
to in-clinch issues in his favour, and thus no part of the contents of the
Complaint has ever been admitted by the Opposite Party, except those are the
matter of records.
9.
That the Opposite Party states that
the present Complaint has been instituted by the Complainant against the
Opposite Party to cause several hassle and harassments to the Opposite Party.
10.
That this opposite party Smt. Mina
Basu, did not have any contract and or agreement with the complainant, on any
occasions, whatsoever, and therefore deserve to be dismissed with cost thereof
in terms of the provisions of the Consumer Protection Act’ 2019.
11.
That this opposite party Smt. Mina
Basu, do not have any contract and or agreement with the complainant, on any occasions,
whatsoever, and therefore deserve to be dismissed with cost thereof in terms of
the provisions of the Consumer Protection Act’ 2019.
12.
That there is no privity of contract
between the parties, and therefore deserve to be dismissed with cost thereof in
terms of the provisions of the Consumer Protection Act’ 2019.
13.
That the complainant is not a Consumer
as per provision of Section 2 (7) of the Consumer Protection Act’ 2019, and
therefore deserve to be dismissed with cost thereof in terms of the provisions
of the Consumer Protection Act’ 2019.
14.
That the present complaint has not
been placed in terms of the provision of Section 69 of the Consumer Protection
Act’ 2019, and therefore deserve to be dismissed with cost thereof in terms of
the provisions of the Consumer Protection Act’ 2019.
15.
That the present complaint is barred
to place for any nature of adjudication before the Hon’ble Commission, in terms
of the provision of Section 69 of the Consumer Protection Act’ 2019.
16.
That the Complainant did not place any
leave application for condonation of delay at any terms in the present consumer
proceeding placed by him before the Hon’ble Commission, and therefore deserve
to be dismissed with cost thereof in terms of the provisions of the Consumer
Protection Act’ 2019.
17.
That the present complaint has no
cause of action to place before the Hon’ble Commission, in any terms of the
provisions of the Consumer Protection Act’ 2019, and therefore deserve to be
dismissed with cost thereof in terms of the provisions of the Consumer
Protection Act’ 2019.
18.
That the present complaint has no
accrual of any cause of action to place before the Hon’ble Commission, in any
terms of the provisions of the Consumer Protection Act’ 2019, and therefore
deserve to be dismissed with cost thereof in terms of the provisions of the
Consumer Protection Act’ 2019.
19.
That the Opposite Party herein Smt.
Mina Basu, is not a service provider and did not provide any services under any
terms of contract to the complainant, and thus the present application of the
complainant liable to be dismissed with cost thereof in terms of the provisions
of the Consumer Protection Act’ 2019.
20.
That the story of the complainant does
not constitute the consumer disputes in terms of the provisions of the Consumer
Protection Act’ 2019, and therefore deserve to be dismissed with cost thereof
in terms of the provisions of the Consumer Protection Act’ 2019.
21.
That the present application of the
complainant is an endavour of him to cooked up a false story with his
manufactured documents shown to be relied on by him, before the Hon’ble
Commission, for his wrongful gains and others, and therefore deserve to be
dismissed with cost thereof in terms of the provisions of the Consumer
Protection Act’ 2019.
22.
That the present complaint is false,
vague, and frivolous one, and thus entitle the rejection with cost on the
complainant, in terms of the provisions of the Consumer Protection Act’ 2019.
23.
That there is no Consumer disputes to
be adjudicated before the Hon’ble Commission, between the parties herein, and
therefore deserve to be dismissed with cost thereof in terms of the provisions
of the Consumer Protection Act’ 2019.
24.
That the Opposite Party states and
submits that the Complainant’s disputes, is not a Consumer dispute and the
Complainant is not a consumer, as defined and enumerated in the relevant
provisions of the Consumer Protection Act’ 2019.
25.
That before dealing with the
statements made in the petition under objection paragraph wise, this Opposite
Party states the following facts for Your Honour’s kind perusal :
A)
That one Title Suit has been
instituted by Sri Utpal Roy, Son of Late Ramesh Chandra Roy, Sri Tapan Nag, Son
of Late Ramani Kanta Nag, and Smt. Sutapa Roy, Wife of Utpal Roy, being
Partners of M/s. Skylark Construction, having its office at premises no. 28A,
Raja S.C. Mullick Road, Police Station – Jadavpur, Kolkata – 700 032, against
Smt. Mina Basu, widow of Late Amiya Kumar Basu, residing at premises no. 6,
Shiba Temple Lane, Police Station – Kasba, Kolkata – 700 078, viz. Title Suit
no. 14 of 2008. The case of the plaintiffs in a nutshell is that the defendant
is the owner of the suit property. Plaintiff with an intention to develop the
said suit premises by way of construction of multi storied building consisting
of several flats, car parking space etc. Entered into an agreement on
17-08-2001, with M/s. Skylark Construction a partnership firm represented by
it’s partners. The Plaintiff decided to take the project for construction of
partly G + 3 and partly three storied building on the suit plot in accordance
with the sanction plan of K.M.C. It was settled between the parties that one
flat on first floor front side south west and another one on the second floor
front side south west and one car parking space of the proposed building will
be given to the owners. Also Rs. 3,75,000/- will be given in addition.
Plaintiff already paid Rs. 2,00,000/- to the defendant by way of cheque dated
17-08-2001, drawn on Bank of Baroda, Moore Avenue Branch. It was settled that
balance amount will be payable at the time of delivery of possession of flats.
It was further agreed that the defendant will execute a general power of
attorney in favour of the plaintiff in order to facilitate the construction
work. In terms of the agreement dated 17-08-2001, plaintiff submitted draft
plan of proposed building before K.M.C. There was a clause in that agreement
that the proposed construction of the building shall be completed within 24
months but if there is any delay due to non compliance of the terms of
agreement by defendant the construction period shall be extended. Defendant
delivered all relevant title deeds save and except mutation certificate from B.L.
& L.R.O. defendant assured that she will deliver the mutation certificate
from B.L. & L.R.O. but did not do the same for which there was delay in
getting sanction from K.M.C. However the plaintiff started construction and
completed sixty per cent of the work. Defendant also did not execute any Power
of Attorney, as agreed upon. Thereafter on 05-01-2008, defendant issued a
notice through her advocate Sri Malay Sengupta on the plaintiff stating that
the agreement dated 17-08-2001, stand cancelled. In that letter defendant also
demanded to take back the original documents. According to the plaintiff
defendant has got no right to cancel the agreement unilaterally without any
reason. Due to such acts of defendants, plaintiff suffered enormous loss,
therefore the suit being Title Suit no. 14 of 2008, has been filed by the
plaintiff against the defendant before the Learned 5th Court of
Civil Judge ( Senior Division ) at Alipoire, South 24 Parganas.
B)
That in the said Title Suit no. 14 of
2008, before the Learned 5th Court of Civil Judge ( Senior Division
) at Alipoire, South 24 Parganas, Smt. Mina Basu, widow of Late Amiya Kumar
Basu, residing at premises no. 6, Shiba Temple Lane, Police Station – Kasba,
Kolkata – 700 078, being the defendant therein in the said Suit before the
Learned Court, contested the said Suit by filling her written statement.
Defendant stated that the suit is not maintainable. Defendant denied all the
allegation made against her by the plaintiff. The defendant case is that it was
agreed between the parties that the construction will be completed within a
period of 24 months after getting the sanction plan but plaintiff neglected to
complete the same. Defendant denied that due to non supply of mutation
certificate plaintiff failed to obtain sanction plan from K.M.C. The plan was
sanctioned on 24-03-2004, and it was valid upto 23-03-2007. But even after
lapses of 24 months plaintiff failed to complete construction and even they did
not handover the owner’s allocation to the defendant. Due to non performance of
plaintiff the agreement dated 17-08-2001, already stood cancelled, and
thereafter defendant gave a letter to plaintiff asking them to return the
original documents, but till date the plaintiff did not do so. It is also
stated that the plaintiff did not insist defendant to execute any general power
of attorney, on all these grounds defendant prays for dismissal of the suit.
C)
That to prove said Suit, before the
Learned Court, the Plaintiff no. 1, Shri Utpal Roy, deposed as P.W. 1, the
documents filed by the plaintiff are marked as Exbt. 1, Agreement for
development dated 17-08-2001, marked as Exbt. 2, Sanctioned plan no. 797/03,
marked as Exbt. 3. Letter dated 18-02-2008, addressed to the plaintiffs firm
along with envelop, marked as Exbt. 4. (Series ) copy of letter dated
28-02-2008, along with postal receipt and A.D. card marked as Exbt. 5. Letter
addressed to Utpal Roy, marked as Exbt. 6, A/D card marked as Exbt. 7, Letter
dated 12-06-2009.
D) That
in the said Suit, before the Learned Court, it is admitted by both the parties
that defendant who is the owqner of the suit premises entered into an agreement
with the plaintiff, which is a partnership firm for development of the suit
property by raising multistoried building. It was also agreed that the
construction will be completed within 24 months after receiving the sanctioned
plan from K.M.C. The plaintiff alleged that though defendant handed over the
title deed but did not handover the mutation certificate from B.L. & L.R.O.
for which obtaining sanctioned plan from K.M.C. got delayed. It is further
alleged that even defendant did not execute any power of attorney in favour of
the plaintiff for undertaking the construction work. However, the plaintiff
constructed sixty percent of the proposed building, and thereafter requested
defendant again to execute the power of attorney. But without doing so
defendant by a letter dated 05-01-2008, cancelled the agreement. On the other
hand, defendant denied all such allegations and stated that though the plaintiff
obtained sanctioned plan on 24-03-2004, but failed to raise construction within
the stipulated period.
E)
That PW 1, in his affidavit in chief
corroborated his plaint case. In cross examination he admitted that though
exbt.1, is dated 17-08-2001, but on the notorised page the date of execution is
mentioned as 28-08-2001. He stated that he does not have any documents to show
that they have sent the draft copy of power of attorney to the defendant. He
also stated that it is not mentioned in exbt. 1, that without any mutation
certificate they will not be able to obtain any sanction plan. From his
evidence it also appears that he has got no documents to show that he is
authorized by other partners to depose in the case nor his partnership business
/ partnership firm is registered under societies act.
F)
That PW 1, also stated that he did not
assign any reason to defendant specifying any reason for delay in completion of
the said project. He also did not give any letter to the defendant asking her
to execute any power of attorney in his favour. Corporation did not give him
any letter informing him that without mutation of B.L. & L.R.O. no plan
could be sanctioned. He did not file any report of chartered engineer and it is
his own assumption that he has completed ninety five percent of the
construction work. He admitted that exbt. 1, does not bear signature of owner.
He also admitted that the defendant did not take any consideration money. He
also admitted that there is no initial of defendant in page – 2 of exbt 1,
where there is a handwritten portion. Though his learned lawyer Sri Prasanta
Mukherjee drafted the agreement but nowhere it has been written that he drafted
the same. He also admitted that sanction plan was valid upto 23-03-2009, and he
did not get any completion certificate from K.M.C. upto 23-03-2009. He also
admitted that stipulated time expired long ago. He also stated that though her
original documents of defendant are lying with him but he will not return those
documents.
G) On the other hand defendant deposed as DW1 and
she is in her affidavit in chief corroborated her case. At the time of cross
examination DW1 only tendered exbts. 5, 6, and 7, and no other question was put
to her.
H) That
thereafter the said Title Suit no. 14 of 2008, { Sri Utpal Roy and Others –
Versus – Smt. Mina Basu } has get it finality in terms of the Judgment
delivered on Friday the 20th day of August’ 2010, by the Learned 5th
Court of Civil Judge ( Senior Division ), at Alipore, South 24 Parganas, which
ordered as “that the Suit be and the same is dismissed on contest but without
cost”.
I)
That thereafter on defeating the said
Suit, the plaintiff preferred an appeal from the Original Decree being the
Judgment delivered on Friday the 20th day of August’ 2010, by the
Learned 5th Court of Civil Judge ( Senior Division ), at Alipore,
South 24 Parganas, which ordered as “that the Suit be and the same is dismissed
on contest but without cost”, before the Hon’ble High Court at Calcutta, viz.
FA / 46 / 2011, which consequentially dismissed by the Order dated February’
14, 2011.
J)
That in view of the facts of the
Judgment delivered on Friday the 20th day of August’ 2010, by the
Learned 5th Court of Civil Judge ( Senior Division ), at Alipore,
South 24 Parganas, which ordered as “that the Suit be and the same is dismissed
on contest but without cost”, there is no agreement and or contract between
Smt. Mina Basu, and M/s. Skylark Construction, Sri Utpal Roy, Sri Tapan Nag,
and Smt. Sutapa Roy, in any manner, whatsoever.
K)
That this opposite party, have no iota
of any knowledge of the present complainant, and his false story, so far, and
therefore this opposite party, is in now related to the complainant and his
false story, as stated by him in his petition of complaint, in any form,
whatsoever.
L)
That the said Title Suit no. 14 of
2008 { Sri Utpal Roy and Others – Versus – Smt. Mina Basu }, has been filed and
instituted as on 29-01-2008, by Sri Utpal Roy, Son of Late Ramesh Chandra Roy,
Sri Tapan Nag, Son of Late Ramani Kanta Nag, and Smt. Sutapa Roy, Wife of Utpal
Roy, being Partners of M/s. Skylark Construction, having its office at premises
no. 28A, Raja S.C. Mullick Road, Police Station – Jadavpur, Kolkata – 700 032,
against Smt. Mina Basu, widow of Late Amiya Kumar Basu, residing at premises no.
6, Shiba Temple Lane, Police Station – Kasba, Kolkata – 700 078, before the
Learned 5th Court of Civil Judge ( Senior Division ), at Alipore,
South 24 Parganas, which has get it finality in terms of the Judgment delivered
on Friday the 20th day of August’ 2010, by the Learned 5th
Court of Civil Judge ( Senior Division ), at Alipore, South 24 Parganas, which
ordered as “that the Suit be and the same is dismissed on contest but without
cost”.
M) That
there is no privity of contract between the parties.
N)
That the complainant is not a Consumer
as per provision of Section 2 (7) of the Consumer Protection Act’ 2019.
O) That
there is no Consumer disputes to be adjudicated between the parties, before the
Hon’ble Commission, between the parties herein.
P)
That the present claim of the
Complainants if any, is barred by the Limitation as enshrined under the
provision of Section 69 of the Consumer Protection Act’ 2019.
Q) That
there is no agreement and or contract by and between the complainant and this
opposite party, herein, in any manner, whatsoever.
R)
That the Opposite Party, herein have
no iota of knowledge about the alleged story of the complainant herein, against
the other opposite parties, and the receipt shown therewith.
S)
That the Opposite party, herein have
no relationship with the complainant herein as alleged by him, in his petition
of complaint.
T)
That the opposite party, herein have
no disputes as alleged by the complainant herein, in his petition of complaint.
U) That
the opposite party, is not a necessary party to the story of the complainant
herein as alleged by him in his petition of complaint.
V)
That the Complaint herein as alleged
by him did not seeks any specific relief in his petition of complaint, against
the opposite party, herein.
W) That
the Opposite Party, is not a service provider and or developer, and or promoter
to the complainant herein in the facts and in the law.
X)
That there is no relationship of this
opposite party with the O.P. no. 1,2,3, & 4, and the Complainant, in terms
of the Indian Contract Act’ 1872.
Y)
That there is no relationship as of
Consumer and the Service provider by and between the opposite party, and the
complainant herein, in terms of the Indian Contract Act’ 1872.
Z)
That the present Consumer disputes as
alleged by the complainant herein, is not maintainable in the facts and in the
law against the opposite party, in the terms of the Consumer Protection Act’
1872.
AA)
That the allegations as contended by
the complainant herein are all fake and frivolous one, as those are not substantiated
with any single piece of papers or evidentiary value papers.
BB)
That the present complaint has been
made before the Hon’ble Commission, motivated and with an intention for the
wrongful gain and acquire of wrongful claim thereby the complainants herein.
CC)
That the Opposite Party, herein did
not cause any deficiency in services, and or unfair trade practices, in terms
of the provisions of the Consumer Protection Act’ 2019, and rules made thereof.
DD)
That the Complainants did not have any
piece of paper and or document to show that there is any agreement and or
contract in respect of the flat, with the opposite party, herein, in any
manner, whatsoever.
EE)
That the opposite party, herein being
the law abiding and peace loving citizen of the country bound by the bonafide
moral and legal duty to act in the prescribed proposition of the established
Law of Land, and therefore in absence of any contract and or agreement with the
complainant herein, She cannot act upon and deed, in any perverted manner,
whatsoever.
FF)
That the Complaint is not a Consumer,
in terms of the provision of Section 2(7) of the Consumer Protection Act’ 2019,
as the Complainant did not take any services and or goods, in any manner,
whatsoever, from this opposite party.
GG)
That the Complainant did not have any
contacts and or relationship in any terms whatsoever, with this opposite party.
HH)
That there is no cause of action has
ever been described and or more particularly raised against this opposite
party, by the complainant.
II)
That there is no specific allegation
and or relief has ever been described and prayed for by the complainant against
this opposite party.
JJ)
That there is no consumer dispute has
ever been raised and or given in the petition of complaint by the complainant
against this opposite party, therefore there is no consumer disputes with this
opposite party.
26.
That without waiving any of the
aforesaid Objections and Facts and fully relying thereupon and without
prejudice to the same. The Opposite Party, now deals with the specific
paragraphs of the said Application in seriatim as hereunder.
27.
That the Application is not
maintainable either in facts or in its present form and the petitioner has no
cause of action for bringing this suit against the Opposite Party as the said
application is speculative, harassing, motivated, concocted and baseless as is
barred by the Principles of Law and hence same is liable to be rejected at
once.
28.
Save and except the statements made in
the said application which are matter of record, the Opposite Parties denies
each and every allegations contained in the said application and calls upon the
petitioner to strict proof of the said allegations.
29.
That pertinently it is states that one
Title Suit has been instituted by Sri Utpal Roy, Son of Late Ramesh Chandra
Roy, Sri Tapan Nag, Son of Late Ramani Kanta Nag, and Smt. Sutapa Roy, Wife of
Utpal Roy, being Partners of M/s. Skylark Construction, having its office at
premises no. 28A, Raja S.C. Mullick Road, Police Station – Jadavpur, Kolkata –
700 032, against Smt. Mina Basu, widow of Late Amiya Kumar Basu, residing at
premises no. 6, Shiba Temple Lane, Police Station – Kasba, Kolkata – 700 078,
viz. Title Suit no. 14 of 2008. The case of the plaintiffs in a nutshell is
that the defendant is the owner of the suit property. Plaintiff with an
intention to develop the said suit premises by way of construction of multi
storied building consisting of several flats, car parking space etc. Entered
into an agreement on 17-08-2001, with M/s. Skylark Construction a partnership
firm represented by it’s partners. The Plaintiff decided to take the project
for construction of partly G + 3 and partly three storied building on the suit
plot in accordance with the sanction plan of K.M.C. It was settled between the
parties that one flat on first floor front side south west and another one on
the second floor front side south west and one car parking space of the
proposed building will be given to the owners. Also Rs. 3,75,000/- will be
given in addition. Plaintiff already paid Rs. 2,00,000/- to the defendant by
way of cheque dated 17-08-2001, drawn on Bank of Baroda, Moore Avenue Branch.
It was settled that balance amount will be payable at the time of delivery of
possession of flats. It was further agreed that the defendant will execute a
general power of attorney in favour of the plaintiff in order to facilitate the
construction work. In terms of the agreement dated 17-08-2001, plaintiff
submitted draft plan of proposed building before K.M.C. There was a clause in
that agreement that the proposed construction of the building shall be
completed within 24 months but if there is any delay due to non compliance of
the terms of agreement by defendant the construction period shall be extended.
Defendant delivered all relevant title deeds save and except mutation
certificate from B.L. & L.R.O. defendant assured that she will deliver the
mutation certificate from B.L. & L.R.O. but did not do the same for which
there was delay in getting sanction from K.M.C. However the plaintiff started
construction and completed sixty per cent of the work. Defendant also did not
execute any Power of Attorney, as agreed upon. Thereafter on 05-01-2008,
defendant issued a notice through her advocate Sri Malay Sengupta on the
plaintiff stating that the agreement dated 17-08-2001, stand cancelled. In that
letter defendant also demanded to take back the original documents. According
to the plaintiff defendant has got no right to cancel the agreement
unilaterally without any reason. Due to such acts of defendants, plaintiff
suffered enormous loss, therefore the suit being Title Suit no. 14 of 2008, has
been filed by the plaintiff against the defendant before the Learned 5th
Court of Civil Judge ( Senior Division ) at Alipoire, South 24 Parganas.
30.
That further pertinently it is states
that in the said Title Suit no. 14 of 2008, before the Learned 5th
Court of Civil Judge ( Senior Division ) at Alipoire, South 24 Parganas, Smt.
Mina Basu, widow of Late Amiya Kumar Basu, residing at premises no. 6, Shiba
Temple Lane, Police Station – Kasba, Kolkata – 700 078, being the defendant
therein in the said Suit before the Learned Court, contested the said Suit by
filling her written statement. Defendant stated that the suit is not
maintainable. Defendant denied all the allegation made against her by the
plaintiff. The defendant case is that it was agreed between the parties that
the construction will be completed within a period of 24 months after getting
the sanction plan but plaintiff neglected to complete the same. Defendant
denied that due to non supply of mutation certificate plaintiff failed to
obtain sanction plan from K.M.C. The plan was sanctioned on 24-03-2004, and it
was valid upto 23-03-2007. But even after lapses of 24 months plaintiff failed
to complete construction and even they did not handover the owner’s allocation
to the defendant. Due to non performance of plaintiff the agreement dated
17-08-2001, already stood cancelled, and thereafter defendant gave a letter to
plaintiff asking them to return the original documents, but till date the
plaintiff did not do so. It is also stated that the plaintiff did not insist
defendant to execute any general power of attorney, on all these grounds
defendant prays for dismissal of the suit.
31.
That further pertinently it is states
that to prove said Suit, before the Learned Court, the Plaintiff no. 1, Shri
Utpal Roy, deposed as P.W. 1, the documents filed by the plaintiff are marked
as Exbt. 1, Agreement for development dated 17-08-2001, marked as Exbt. 2,
Sanctioned plan no. 797/03, marked as Exbt. 3. Letter dated 18-02-2008,
addressed to the plaintiffs firm along with envelop, marked as Exbt. 4. (Series
) copy of letter dated 28-02-2008, along with postal receipt and A.D. card
marked as Exbt. 5. Letter addressed to Utpal Roy, marked as Exbt. 6, A/D card
marked as Exbt. 7, Letter dated 12-06-2009.
32.
That pertinently it is states that in
the said Suit, before the Learned Court, it is admitted by both the parties
that defendant who is the owqner of the suit premises entered into an agreement
with the plaintiff, which is a partnership firm for development of the suit
property by raising multistoried building. It was also agreed that the
construction will be completed within 24 months after receiving the sanctioned
plan from K.M.C. The plaintiff alleged that though defendant handed over the
title deed but did not handover the mutation certificate from B.L. & L.R.O.
for which obtaining sanctioned plan from K.M.C. got delayed. It is further alleged
that even defendant did not execute any power of attorney in favour of the
plaintiff for undertaking the construction work. However, the plaintiff
constructed sixty percent of the proposed building, and thereafter requested
defendant again to execute the power of attorney. But without doing so
defendant by a letter dated 05-01-2008, cancelled the agreement. On the other
hand, defendant denied all such allegations and stated that though the
plaintiff obtained sanctioned plan on 24-03-2004, but failed to raise construction
within the stipulated period.
33.
That further pertinently it is states that PW
1, in his affidavit in chief corroborated his plaint case. In cross examination
he admitted that though exbt.1, is dated 17-08-2001, but on the notorised page
the date of execution is mentioned as 28-08-2001. He stated that he does not
have any documents to show that they have sent the draft copy of power of
attorney to the defendant. He also stated that it is not mentioned in exbt. 1,
that without any mutation certificate they will not be able to obtain any
sanction plan. From his evidence it also appears that he has got no documents
to show that he is authorized by other partners to depose in the case nor his
partnership business / partnership firm is registered under societies act.
34.
That further pertinently it is states
that PW 1, also stated that he did not assign any reason to defendant
specifying any reason for delay in completion of the said project. He also did
not give any letter to the defendant asking her to execute any power of
attorney in his favour. Corporation did not give him any letter informing him
that without mutation of B.L. & L.R.O. no plan could be sanctioned. He did
not file any report of chartered engineer and it is his own assumption that he
has completed ninety five percent of the construction work. He admitted that
exbt. 1, does not bear signature of owner. He also admitted that the defendant
did not take any consideration money. He also admitted that there is no initial
of defendant in page – 2 of exbt 1, where there is a handwritten portion.
Though his learned lawyer Sri Prasanta Mukherjee drafted the agreement but
nowhere it has been written that he drafted the same. He also admitted that
sanction plan was valid upto 23-03-2009, and he did not get any completion
certificate from K.M.C. upto 23-03-2009. He also admitted that stipulated time
expired long ago. He also stated that though her original documents of
defendant are lying with him but he will not return those documents.
35.
That further pertinently it is states
that On the other hand defendant deposed as DW1 and she is in her affidavit in
chief corroborated her case. At the time of cross examination DW1 only tendered
exbts. 5, 6, and 7, and no other question was put to her.
36.
That pertinently it is states that
thereafter the said Title Suit no. 14 of 2008, { Sri Utpal Roy and Others –
Versus – Smt. Mina Basu } has get it finality in terms of the Judgment
delivered on Friday the 20th day of August’ 2010, by the Learned 5th
Court of Civil Judge ( Senior Division ), at Alipore, South 24 Parganas, which
ordered as “that the Suit be and the same is dismissed on contest but without
cost”.
37.
That pertinently it is states that
thereafter on defeating the said Suit, the plaintiff preferred an appeal from
the Original Decree being the Judgment delivered on Friday the 20th
day of August’ 2010, by the Learned 5th Court of Civil Judge (
Senior Division ), at Alipore, South 24 Parganas, which ordered as “that the
Suit be and the same is dismissed on contest but without cost”, before the
Hon’ble High Court at Calcutta, viz. FA / 46 / 2011, which consequentially
dismissed by the Order dated February’ 14, 2011.
38.
That pertinently it is states that in
view of the facts of the Judgment delivered on Friday the 20th day
of August’ 2010, by the Learned 5th Court of Civil Judge ( Senior
Division ), at Alipore, South 24 Parganas, which ordered as “that the Suit be
and the same is dismissed on contest but without cost”, there is no agreement
and or contract between Smt. Mina Basu, and M/s. Skylark Construction, Sri
Utpal Roy, Sri Tapan Nag, and Smt. Sutapa Roy, in any manner, whatsoever.
39.
That pertinently it is states that
this opposite party, have no iota of any knowledge of the present complainant,
and his false story, so far, and therefore this opposite party, is in now
related to the complainant and his false story, as stated by him in his
petition of complaint, in any form, whatsoever.
40.
That pertinently it is states that the
said Title Suit no. 14 of 2008 { Sri Utpal Roy and Others – Versus – Smt. Mina
Basu }, has been filed and instituted as on 29-01-2008, by Sri Utpal Roy, Son
of Late Ramesh Chandra Roy, Sri Tapan Nag, Son of Late Ramani Kanta Nag, and
Smt. Sutapa Roy, Wife of Utpal Roy, being Partners of M/s. Skylark
Construction, having its office at premises no. 28A, Raja S.C. Mullick Road,
Police Station – Jadavpur, Kolkata – 700 032, against Smt. Mina Basu, widow of
Late Amiya Kumar Basu, residing at premises no. 6, Shiba Temple Lane, Police
Station – Kasba, Kolkata – 700 078, before the Learned 5th Court of
Civil Judge ( Senior Division ), at Alipore, South 24 Parganas, which has get
it finality in terms of the Judgment delivered on Friday the 20th
day of August’ 2010, by the Learned 5th Court of Civil Judge (
Senior Division ), at Alipore, South 24 Parganas, which ordered as “that the
Suit be and the same is dismissed on contest but without cost”.
41.
That with references to the statements
made in paragraph nos. 1, 2 and 3, of the application, this Opposite Parties
deny and disputes each and every allegations made therein save and except what
are the matters of record and not related to this opposite party. The Opposite
Party repeats and reiterates the statements made in paragraph no.25, herein
above. The Opposite Party denied that the complainant is a Consumer under
Section 2 (7) of the Consumer Protection Act, 2019 as amended upto date. This
Opposite Party denied that “ of the first part, represented by the constituted
attorney (1) Utpal Ray, son of Late Ramesh Chandra Ray, a Hindu Business man of
37/1/1, Prince Golam Hossain shah Road, Kolkata -32 and (2) Tapan Nag, son of
Late Ramani Kanta Nag, a Hindu Business man of 42/1C, Prince Golam Hossain Shah
Road, Kolkata-32, by and under an unregistered general power of attorney dated
October 11, 2007” this Opposite Party have no iota of knowledge of such alleged
agreement during the pendency of the Title Suit as stated herein above in the
preceding paragraph, which has been instituted by the alleged developer and or
the then promoter, so far, before the Learned Court, and more particularly,
this Opposite Party did not enter into any agreement with the complainant or
with the O.P. no. 1, 2, 3, and 4, and did never executed any Power of Attorney,
in favour of the O.P. no. 2, and 4, so far, in any terms of the facts as well
as in any terms of the Law, and thus this Opposite Party is not liable and or
responsible for any agreement which has ever entered into by and between the
alleged complainant and the O.P. no. 1,2,3, and 4, herein.
42.
That with references to the statements
made in paragraph nos. 4, 5, 6, 7, 8 and 9, of the application, being the
petition of the complaint made by the complainant, this Opposite Parties deny
and disputes each and every allegations made therein save and except what are
the matters of record and not related to this opposite party. The Opposite
Party repeat and reiterate the statements made in paragraph no. 25, herein
above. The Opposite Party denied the statement of the complainant “ the
opposite parties issued possession letter in favour of the wife of the
complainant no.1 and mother of the complainant no. 2, vide letter dated
28-10-2009.” since the reality has been decided in the Title Suit no. 14 of
2008, by the Learned Competent Court of Civil Jurisdiction, and thus such
contention of the Complainant is vague and is of no legal sanctity, thereof. Since
the facts has been placed on record that no Power of Attorney has ever been executed
by the opposite Party Smt. Mina Basu, in the said Title Suit no. 14 of 2008,
before the Learned Competent Court of Civil Jurisdiction and which
consequentially affirmed by the Hon’ble High Court at Calcutta.
43.
That with references to the statements
made in paragraph nos. 10, 11, 12, 13, 14, and 15, of the application, this
Opposite Parties deny and disputes each and every allegations made therein save
and except what are the matters of record and not related to this opposite
party. The Opposite Party repeat and reiterate the statements made in paragraph
no. 25, herein above. This opposite party states that no cause of action has
ever been accrued on this opposite party as all the event as described bonafide
lying on the Complainants of the present proceeding and therefore this opposite
party is not even means and or measure of any cause and or event as described
by the complainant herein.
44.
That the statement about the Power of
Attorney dated 11-10-2007, by the complainant in his Agreement at page no. 1, therein,
are manufactured documents since no such
power of attorney has ever been executed by this opposite party Smt. Mina Basu,
and thus this opposite party, denied such alleged purported document, which has
been relied on by the complainant and consequently reserve her right to lodge
Criminal Complaint against the Complainant and the O.P. no. 1, 2, 3, and 4,
before the Learned Competent Criminal Court of Law, for the punishment, in
terms of the Indian Penal Code’ 1860.
45.
That this opposite party states that
the present petition of complaint is not bonafide against this opposite party,
and the complainant is not entitled to get any relief in terms of her prayer
made therein from this opposite party in terms of the provision of the Consumer
Protection Act’ 2019.
46.
That in the facts and in the laws, it
is totally evident from the application itself that the complainant made his
endeavor to put the Hon’ble Commission into motion to get his wrongful gains by
procuring orders in terms of his prayer before the Hon’ble Commission.
47.
That in the facts and in the laws, it
is totally evident from the application itself that the complainant is trying
to miss utilizing the jurisdiction of this Hon’ble Commission.
48.
That in the above circumstances, there
is no cause of action for the present proceedings by the Petitioner, against
the Opposite Party, the Opposite Party, accordingly pray that the Complaint be
dismissed with costs.
49.
That in the above circumstances, there
is no deficiency in service, and or unfair trade practices, on the part of the
Opposite Party, rather the Opposite Party is victim of the concocted story and
wrongful demand of the complainant.
50.
That in view of the facts that the
Opposite Party is victim of the purported alleged allegations and wrongful
demand, the Opposite Party thereby seeking compensation as of Rs. 1,00,000/- (
Rupees One Lakh ) only, for harassment and mental anxiety, arising from the
institution of the present proceeding by the complainant, against this opposite
party, before the Hon’ble Commission.
51.
That the Petitioner, neither has any
cause of action nor the basis for filling the present complaint and the
Petitioner’s complaint is entirely baseless and misconceived and deserve to be
dismissed on this ground alone.
52.
That the Complaint is false, frivolus
and vexatious and has been filed with the mala fide intention, and as such
deserves to be dismissed with special costs.
53.
That the Petitioner, is not entitled
to any relief as prayed in the Complaint, and the same is liable to be
dismissed.
54.
That in the aforesaid circumstances,
the Opposite Party is seeking the dismissal of the Complaint filed by the
Petitioner, with exemplary cost.
55.
That the Opposite Party enclosing
herewith the xerox of the Certified copy of Title Suit no. 14 of 2008, { Sri
Utpal Roy and Others – Versus – Smt. Mina Basu } which has get it finality in
terms of the Judgment delivered on Friday the 20th day of August’
2010, by the Learned 5th Court of Civil Judge ( Senior Division ),
at Alipore, South 24 Parganas, which ordered as “that the Suit be and the same
is dismissed on contest but without cost”. With this written version, before
the Hon’ble Commission.
56.
That the Opposite Party crave leave to
produce any necessary documents and or papers, in the proceeding at the time of
hearing and or placing the Evidence on Affidavit, before the Hon’ble Commission,
in the interest of Administration of Justice.
57.
That the present complaint should be
dismissed at once in terms of the provisions of the Consumer Protection Act’ 2019,
as the same is found frivolous and vexatious one, against this opposite party.
It is therefore
prayed that the Hon’ble District Consumer Disputes Redressal Commission,
Kolkata Unit – III, Alipore, Kolkata - 700027, would graciously be pleased to
allow this Written Version of the Opposite Party, and to dismiss and or reject
at once the petition of complaint filed by the Petitioner, against this
opposite party herein, with costs, in terms of the provisions of the Consumer
Protection Act’ 2019, and rules made therein, in the interest of administration
of justice, and or to pass such other necessary order or orders or further
order or orders as the Hon’ble Commission, 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, Smt. Mina
Basu, being the Opposite Party no.5, in the instant Complaint matter, states
that I am well conversant with all the material facts and circumstances as
stated in the foregoing paragraphs of the written version and I am well
acquainted thereto. And I verify and sign this instant Written Version, as on
_______________2022, at Alipore, Kolkata - 700027.
Smt. Mina Basu
Identified by me,
Advocate.
Prepared in my
Chamber,
Advocate.
Dated : __________2022.
Place :
Alipore, Kolkata.
A
F F I D A V I T
I Smt. Mina
Basu, wife of Late Amiya Kumar Basu, aged about ______years, by faith Hindu, by
Occupation House Wife. Residing at premises being no. 6, Shib Temple Lane,
Kolkata – 700078, do hereby solemnly affirm and declare as follows :
1.
That I being the Opposite Party no. 5,
in the instant case being filed by the Complainant herein, and I am well
conversant with the facts and circumstances of the said consumer case.
This is true to
my knowledge.
2.
That the statements made in paragraphs
1 to __________of my Written Version are true to the best of my knowledge and
belief and the rests are my humble submissions before your Honour’s Commission.
D E P O N E N T
Identified by me
Advocate.
Prepared in my
Chamber,
Advocate.
Date : ___________2022.
Place :
Alipore, Kolkata.
N O T A R Y
