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

 

Before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at Premises being no. 11 A, Mirza Ghalib Street, Kolkata-700087.

 

                                      Consumer Complaint no. CC/291/2019

                                                         In the matter of :

Shri Uttam Bose,

___Complainant

-      Versus –

Smt. Shyamali Paul, and Others,

______Opposite Parties

                                               

Brief Notes of Argument

On behalf of

The Complainant

ARGUMENT ;

 

The relationship of the landlord and tenant which was earlier between the parties ceased to exist after the execution of the agreement between the complainant and the respondents, there was a new relationship of flat purchaser and the Builder/ Developer. When a tenant hands over the property on the basis of an agreement relying on the promise that the builder would hand over a portion of the property in lieu of handing over of the possession, the same would be termed as consideration paid by the complainant to the Respondent. The handing over of the constructed premises would be consideration and as such the complainant would be a consumer within the meaning of Section 2(1)(d) of the Act and failure to provide the flat by the respondents is a deficiency in service.

 

(1)  Jagdishbhai M. Sneth alias Soni Versus Surbhih Realtors India Private Limited, NCDRC, New Delhi, Revision Petition Nos. 2589-2590 of 2008, held on 24 April’ 2012;

 

(2)  Regional Provident Fund Commissioner Versus Shiv Kumar Joshi, III (1989) CPJ 36 (SC);

 

(3)  Sonia Bhatia Versus State of U.P. & Ors., 1981 (2) SCC 585;

 

(4)  Ghansi Ram Lal Shah Versus Supriya Suhas Sarmalkar & Ors, decided on 06.09.2011, in R.P. No. 337/11, by the Hon’ble NCDRC, New Delhi;

 

LIST OF DATES;

Sl. No.	Date	Particulars’
01	2009	Agreement between the complainant and the respondent no. 1, 2, and 3;
02	05/10/2010	Agreement between the Contractor and the Owners;
03	17/06/2017	Letter by complainant;
04	2017	Letter by complainant;
05	22/08/2017	Letter by Respondent no.1;
06	11/09/2017	Reply by Complainant;

 

FACT ;

 

1.   That the Respondent no.1, Smt. Shyamali Paul, the Respondent no. 2, Shri Sushil Poddar, and the Respondent no.3, Sushma Poddar, are the Joint Owners in respect of the piece and parcel of homestead Land admeasuring an area 3100 Sq. ft. more or less and premises together with more than 100 years old constructed brick built two storied building ( all tenanted ) standing thereon lying and situated at being Premises no. 66B, Manicktolla Street, presently known as Sisir Bhaduri Sarani, Municipal town of the Kolkata comprised in Holding no. 122, Block – 14, Ward no. 27, Kolkata – 700 006, Police Station – Amherstreet, in the North Division of the town of Kolkata under whom and in which premises on the ground floor, consisting of one Flat, Shri Uttam Bose, is a monthly tenant at the said premises being no. 66B, Manicktolla Street, presently known as Sisir Bhaduri Sarani, Kolkata – 700 006, Police Station – Amherstreet.

 

2.   That the Respondent numbers 1 to 3, jointly decided to demolish the exisisting structure at the said Premises 66B, Manicktolla Street, presently known as Sisir Bhaduri Sarani, Municipal town of the Kolkata comprised in Holding no. 122, Block – 14, Ward no. 27, Kolkata – 700 006, Police Station – Amherstreet, in the North Division of the town of Kolkata, which includes of present tenanted portion of the complainant, herein Shri Uttam Bose. The said Shri Uttam Bose is a monthly tenant at the Ground Floor measuring about 702.67 Sq. ft. more or less at a monthly rent of Rs. 420/- ( Rupees Four Hundred and Twenty ) only.

 

3.   That the Respondents number 1 to 3, being the co-sharer and joint Land Owners of the Schedule Property, was intend to construct a new multi storied building thereon according to Sanctioned Building Plan of the Kolkata Municipal Corporation, and accordingly the Respondent numbers 1 to 3, approached the Complainant, herein with specified proposal as of the Respondent numbers 1 to 3, herein shall construct the proposed multistoried building at their own cost and also transfer the right, title, and interest of the property morefully detailed in the Schedule “A” in the Agreement made in the year 2009, in favour of the Complainant herein, without any monetary consideration i.e. at Free of Cost and a Deed of Gift / Deed of Conveyance will be prepared and also registered in favour of the Complainant, herein. The said Deed will be registered after obtaining the clearance certificate (C. C.) from the Municipal Authority concern.

 

4.   That it is pertinent to states that the Respondent numbers 1 to 3, herein and the Complainant agreed in terms of the said Agreement made in the year 2009, that at the time of handover of the possession of the schedule “A” property therein, the complainant shall surrender his tenancy right, in favour of the respondent number 1 to 3, herein, and on the other hand against such surrender the respondent number 1 to 3, must transfer the right, title, and interest of the property in terms of the schedule “A” morefully describe in terms of the agreement made in the year 2009, In favour of the complainant, herein, through proper registered Deed of Gift / Deed of Conveyance, whichever is necessary.

 

5.   That the said Agreement made in the year 2009, contain the following necessary terms between the Respondent number 1 to 3, herein and the Complainant, which are as follows :

 

a)    At Page number 4, Paragraph number 4 – That the newly constructed room to be handed over to the tenant by the landowners as “A” schedule of the property i.e. Tenanted portion shall be fitted with doors, windows and electric lines and fittings, floorings and ceiling and plastered and whitewashed parish finished walls with safety and securely gates together with all facilities enjoyed in respect of the said tenancy.

 

b)   At Page number 5, paragraph number 5 – During the time of construction of the proposed Multistoried building at premises being No. 66B, Manicktolla Street, presently known as Sisir Bhaduri Sarani, Kolkata – 700 006, the Landlord shall at his own cost / expenses, make separate and also suitable accommodation for the said tenant / proposed purchaser herein, till the handover of the possession of the property as described morefully in the “A” Schedule, to the said tenant / proposed purchaser.

 

c)    At page number 5, paragraph number 6 – the tenant shall be entitled top sue the landlord or to have suitable compensation from the landlord or to take necessary legal steps against the landlord, if there will be any in fault in the activity / statement of the landlord or there will any obstruction in having possession of the property as morefully described in the schedule “A”, by tenant or there will be any delay in returning back the tenant, his tenancy right / proposed ownership right by the landlord in time.

 

d)   At page number 5, “A” Schedule of the Property – ALL THAT the one residential Flat including 2 Bed rooms, one drawing room one kitchen and toilet and bath room on the 2^nd floor measuring an area of 702.67 sq. ft. more or less carpet area over the piece and parcel of land hereunto belonging whereof the same is erected and built containing by estimation and area of 4 Cottahas, 8 Chhittacks, 7 sq, ft. ( 3100 Sq. ft. ) more or less together with all present rights common facilities and amenities attached thereto situate and lying at Premises being No. 66B, Manicktala Street present known as Sisir Bhaduri Sarani, Kolkata – 700 006, Police Station Amherstreet, Ward no. 27, within the local limits of the Kolkata Municipal Corporation.

 

6.   That the Respondent no.4, Smt. Chandana Bose, Daughter of Late Santi Ranjan Das, residing at premises no. 66B, Manicktolla Street ( presently known as Sisir Bhaduri Sarani ), Police Station Amherstreet, Kolkata 700 006, is a Contractor, with whom the Respondent no. 1 to 3, entered into an Agreement for construction of 4 ( four ) storied building at the premises no. 66B, Manicktolla Street ( presently known as Sisir Bhaduri Sarani ), in the municipal town of Kolkata, comprised in Holding no. 122, Block 14, Ward no. 27, Kolkata – 700 006, Police Station Amherstreet, consisting of several flats, extra space, etc. according to the sanctioned plan obtained from the Kolkata Municipal Corporation authority bearing Sanction plan no. Permit no. 18, dated 08.07.2010. The Respondent no. 1 to 3, entered into such agreement with the Respondent no.4, as on 5^th day of October’ 2010.

 

7.   That the Agreement dated 5^th day of October’ 2010, contained the following terms between the Respondent nos. 1 to 3, and the Respondent no. 4, therein :

 

a)    At Page no. 4 – paragraph number 5 – the said Contractor shall build and completely finish and make the said construction of 4 storied building as mentioned herein on or before the 4^th day of March’ 2012 ( 18 months ) unless prevented by any Labour, strike, fire, accident, mob violence, earth quake, attack from the air or any other major disturbance which shall beyond the control of the contractor.

 

b)   At Page no. 4 – paragraph number 6 – the owner shall build the said construction, under his direct personal supervision and in the best worksman like manner and shall be empowered to employ a sub-contractor for completing any portion thereof.

 

c)    At Page no. 4 – paragraph number 8 – within 18 months of the completion of the said construction, the owner shall pay to the contractor, such balance amount as he may then be entitled to according to the terms of this contract upon scrutiny of all his bills.

 

d)   At page no. 4, paragraph number 9 – In case the owner shall desire for, any additional work or works to be done or executed, in the said construction, the contractor shall duly execute such additional work in a proper substantial and workman like manner, in all respects according to such altered plans, if any and within  the time prescribed or any extension thereof as may be mutually agreed and to the satisfaction of the owner. The additional costs of such additions, if any shall be estimated and paid by the owner to the contractor accordingly.

 

e)    At Page no. 5, paragraph number  10 – The owner shall be entitled to determine this agreement, if the contractor neglects to complete the work or suspend the same or delay the progress thereof without any reasonable causes or refuses or persistently neglects to make good the defective work, if any. On the other hand in cases of termination / determination of this agreement, the contractor shall be entitled to the moneys, unpaid on settlement of the account between the both parties and scrutiny of all bills.

 

f)     At Page no. 5, paragraph number 11 – In case any dispute or difference shall arise between these parties, during the progress of or after construction or abandonment of the work as to the measuring of construction of this contract or to any matter arising directly or indirectly under this contract then the same shall be referred to a common arbitrator, selected by both parties and the final decision of the arbitrator shall be binding on both the parties.

 

g)    At page no. 5, paragraph number 12 – Although, in case if the said dispute or difference will not solved, even by the interference of an arbitrator, then it will be decided, according to the provisions of the Indian Contract Act’ 1872.

 

8.   That the Complainant vacated his tenanted portion premises, in terms of the said Agreement made in the year 2009, and whereas the Respondent no. 1 to 3, obtained Sanctioned Building Plan being Plan permit number 18, dated 08.07.2010, from the Kolkata Municipal Corporation, and entered into an agreement with the Respondent no.4, for Construction, and whereas 18 ( Eighteen ) months has already been expire even if the date of agreement with the contractor being the respondent no. 4, herein, though the respondents did not hand over the physical possession, and did not arrange for the execution and registration of the Deed of Conveyance in favour of the Complainant, herein.

 

9.   That on inspection, the Complainant found that the proposed building premises completed in such manner though the flat as subjected for the Complainant has not been completed yet, and therefore the Complainant time and again, very often visited to the Respondents, and requested for completion at the earliest and whereas the respondents all along assured but did not adhere to the same and therefore they did not complete such subjected flat for the Complainant and thus the said subjected Flat still lying incomplete in the said proposed building premises.

 

10.                That the Respondents did not arrange any accommodation and did not pay any rent for accommodation to the Complainant, since the day of vacating the tenanted portion premises in terms of the Agreement made in the year 2009, and therefore the Complainant suffering with payment of rent per month as he assailed alternate rented accommodation in terms of the said agreement with the respondents, herein. The Complainant incurred rent as of Rs. 6,00,000/- ( Rupees Six Lakhs ) only, till the day of placing this application.

 

11.                That the Respondent no. 1, herein Smt. Shyamali Paul, having her address as of premises being no. 13U, Ariff Road, Kolkata – 700 067, replied the letter of the complainant dated 22-07-2017, through her letter dated 22^nd day of August’ 2017, which contend inter alia as “ I have earlier time and again informed you to take possession of the flat without making any delay” and further as “ I request you not to become more and more anxious rather to take care to receive possession of the said flat after satisfying your other statutory liabilities and formalities”. Whereas the said residential flat has never been completed at the said premises and at the second square the market value in such long tenure has been increased by the Directorate of Registration and Stamps Revenue and therefore Consequentially the Stamp Duty and Registration charges has been enhanced, in terms of the facts and circumstances as lying with the Directorate of Registration and Stamps Revenue, West Bengal.

 

12.                That the Complainant solely seeks to get his Residential Flat which have market valuation as ascertained by the Directorate of Registration and Stamp Revenue as of Rs. 76,48,861/- ( Rupees Seventy Six Lakhs Forty Eight Thousand and Eight Hundred Sixty One ) only, from the Respondent numbers 1 to 3, herein.

 

DOCUMENTS;

 

That the Complainant relying on the following documents :

 

a)    Agreement with the Respondent number 1 to 3, made in the year 2009;

b)   Agreement dated 5^th day of October’ 2010;

c)    Letter of Complainant to the Respondents;

d)   Letter of Respondents to the Complainant;

e)    Market Valuation report of the Directorate of Registration and Stamp Revenue;

 

DURING PROCEEDING;

 

(i)           The Respondent no.1, Shyamali Paul, appeared submitted her Written Version, and put forward her questionnaire to the Complainant; But failed to place her Evidence on Affidavit, even after availing sufficient Opportunity;

 

(ii)          The Other Respondents did not appear in the Consumer Proceeding;

 

 

CONCLUSION;

 

The Complainant is entitled to get relief in terms of his prayer, made in the petition of Consumer Complaint before the Hon’ble Commission;

 

 

=========================XXX============================

Evidence on Affidavit by the Opposite Party in Consumer Case / Consumer Case / The Consumer Protection Act 2019

 

BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLKATA UNIT-III

Tramline Building ( 1^st Floor )

18, Judges Court Road, Alipore, Kolkata - 700027

 

Consumer Case no. CC/240/2020

 

In the matter of:

1.   Shri Tushar Kanti Ganguly, Son of Shri Khudiram Ganguly,

 

2.   Smt. Sharmistha Ganguly, wife of Tushar Kanti Ganguly,

Both are residing at present at premises being no. N-59, Kailash Ghosh Road, Police Station – Haridevpur, Kolkata – 700008, District – South 24 Parganas.

....Complainants

 

      -versus-

 

1.   Sri Soumen Chakraborty, Son of Ashoke Chakraborty and Proprietor of M/s. AG Construction, a proprietorship concern having its office formerly at 4/4B, Motilal Gupta Road, Post Office – Barisha, Police Station – Haridevpur, Kolkata – 700008, at present at 90, Santosh Roy Road, James Long Crossing, Kolkata – 700008.

 

2.   Smt. Rama Manna, wife of Late Amiya Kumar Manna, of premises being no. 291, Kailash Ghosh Road, Police Station – Haridevpur, Kolkata – 700008.

           ... Opposite Parties

 

EVIDENCE ON AFFIDAVIT

OF THE OPPOSITE PARTY NO. 1

SHRI SOUMEN CHAKRABORTY.

 

A F F I D A V I T

 

I, Sri Soumen Chakraborty, Son of Ashoke Chakraborty, aged about _____years, by faith Hindu, by Occupation Business, and Proprietor of M/s. AG Construction, a proprietorship concern having its office formerly at 4/4B, Motilal Gupta Road, Post Office – Barisha, Police Station – Haridevpur, Kolkata – 700008, at present at 90, Santosh Roy Road, James Long Crossing, Kolkata – 700008, do hereby solemnly affirm and declare as follows :

 

1.   That I being the Opposite Party no. 1, in the instant case being filed by the Complainants, and I am well conversant with the facts and circumstances of the said case.

 

2.   That I beg to say that the Opposite Party no. 1, M/s. A.G. Construction, a Proprietorship Firm, having its office at premises being no. 4/4B, Motilal Gupta Road, Kolkata – 700008, now at 90, Santosh Roy Road, Kolkata – 700008, Police Station – Haridevpur, District – South 24 Parganas, represented by its Proprietor Shri Soumen Chakraborty, Son of Shri Ashok Chakraborty.

 

3.   That I beg to say that one agreement for sale Dated 3^rd day of December’ 2014 has been entered between the parties, i.e. the complainants and the Opposite party no. 1 Sri. Soumen Chakraborty and the Opposite Party no.2, herein Smt. Rama Manna, Wife of Late Amiya Kumar Manna, being the Land owner of the scheduled property and the Opposite party no 1 Sri. Soumen Chakraborty is a developer. The said agreement for sale entered between the parties more particularly with the complainants, herein, cause such agreement in respect of ALL THAT one Self contained leaving flat no. “A4” consisting of one bed room, one toilet, one kitchen cum – dinning having an area of 400 Square feet super built up area including super built charge more or less lying or situate on the 1^st floor of the building together with proportionate undivided share of the land underneath the building room and flat along with easement, quasi easement right and other benefits, over the common passage for common use, occupation and enjoyment in the said building at Premises No. 291, Kailash Ghosh Road, Police Station – Haridevpur, Kolkata – 700008, ward no. 123 of the Kolkata Municipal Corporation, within the District of South 24 Parganas, for the consideration value as of Rs. 8,50,000/- ( Rupees Eight Lakhs and Fifty Thousand ) only.

 

4.   That I beg to say that the said agreement for sale dated 3^rd day of December’ 2014 containing the following covenants:

 

i.             At page no. 7, paragraph no. 3, the purchaser hereto with the execution of this agreement shall pay to the developer/ First party herein a sum of Rs. 1,70,000/- (rupees one lacs seventy thousands) only towards advance/ earnest money and/or part payment out of total consideration money of Rs. 8,50,000/- (rupees eight lacs fifty thousands) only (the receipt of which the vendor/First Party both hereby admit and acknowledge as per memo hereunder written) and the balance of the total consideration amount shall be paid by the purchaser to the developer/ First party before the registration and/or possession of Plot in the following manner:

 

i)             Paid Rs. 1,70,000/- (rupees One Lac and seventy Thousands) only as advance money Booking money this day i.e. Execution of the Agreement.

ii)           Paid Rs.4,00,000/- (rupees four lacs) only shall be paid within a 1^st roof casting.

iii)          Paid Rs. 1,30,000/- (rupees one lac and thirty thousand) only shall be paid within a 2^nd roof casting.

iv)          Paid Rs. 1,00,000/- (rupees one lac) only shall be paid within a brick work time.

v)            Paid Rs. 50,000/- (rupees fifty thousand) only shall be paid within at the time of delivery of possession and / or before the Registration.

 

ii.           At page no. 10, paragraph no. 14 the purchaser shall be liable to make payment the balance consideration amount within the stipulated period as mentioned above, failing which the purchaser will be liable and responsible to bear the interest ever the due amount 12% per annum for a period of one month from the date of payment.

 

iii.          At page no. 11, paragraph no. 16 the transaction of sale and purchase in between the parties hereto relating to the said property will be completed within 15 months from the date of this agreement subject to making payment of the balance consideration amount and also delivery of possession as aforesaid.

 

5.   That I beg to say that the complainants had paid Rs. 1,70,000/- (Rupees one lac and seventy thousand) only, on the date of execution of the said Agreement for Sale dated 3^rd day of December’ 2014 and subsequently he paid as of Rs. 3,00,000/- ( Rupees Three lacs ) only, on 26-04-2016, and therefore paid in total as of Rs. 4,70,000/- (Rupees Four Lacs and Seventy Thousand) only. It is pertinently states that no money has ever been paid by the Complainants in terms as agreed in the Agreement for Sale dated 3^rd day of December’ 2014. The Complainants variably failed to make payment to the opposite party, as agreed upon, and therefore this opposite party seeks to get the balance consideration money as of Rs. 3,80,000/- ( Rupees Three Lakhs and Eighty Thousand ) only, from the Complainants with interest being 12% interest per annum on such balance money as of Rs. 3,80,000/- ( Rupees Three Lakhs and Eighty Thousand ) only, and thereafter on receipt of such balance money and the interest thereon in terms of the agreement dated 3^rd day of December’ 2014, the opposite party will hand over the physical possession of the subjected flat and cause endeavour of the execution and registration of Deed of Conveyance in favour of the Complainants at the Complainants’ Cost and expenses. The Complainants are defaulter in making payment in terms of the agreement for sale dated 3^rd day of December’ 2014, and therefore at the complainants’ behest this opposite party suffering a lot for such tenure till date. This are the complainants who denied the performance in terms of the agreement for Sale dated 3^rd day of December’ 2014. The Complainants resort the present consumer proceeding to take benefit of their own wrong, which is contrary to the established prescribed provisions of the Consumer Protection Act’ 2019.

 

6.   That I beg to say that the facts in its entirety the disputes, if any, between the parties are not the consumer dispute as meant for in the Consumer Protection Act’ 2019.

 

7.   That I beg to say that the opposite party, herein have no disputes as alleged by the complainants herein, in their petition of complaint.

 

8.   That I beg to say that the opposite party, is not a necessary party to the story of the complainants herein as alleged by them in their petition of complaint.

 

9.   That I beg to say that the allegations as contended by the complainants herein are all fake and frivolous one, as those are not substantiated with any single piece of papers or evidentiary value papers.

 

10.                That I beg to say that the present complaint has been made before the Hon’ble Forum, motivated and with a intention for the wrongful gain and acquire of wrongful claim thereby the complainants herein.

 

11.                That I beg to say 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.

 

12.                That I beg to say that there is no cause of action has ever been described and or more particularly raised against this opposite party, by the complainants.

 

13.                That I beg to say that there is no consumer dispute has ever been raised and or given in the petition of complaint by the complainants against this opposite party, therefore there is no consumer disputes with this opposite party

 

14.                That I beg to say that the Complainants did not perform the agreement between the parties and deliberately failed to adopt the contents of the said Agreement for Sale dated 3^rd day of December’ 2014. The complainants had paid Rs. 1,70,000/- (Rupees one lac and seventy thousand) only, on the date of execution of the said Agreement for Sale dated 3^rd day of December’ 2014 and subsequently he paid as of Rs. 3,00,000/- ( Rupees Three lacs ) only, on 26-04-2016, and therefore paid in total as of Rs. 4,70,000/- (Rupees Four Lacs and Seventy Thousand) only. It is pertinently states that no money has ever been paid by the Complainants in terms as agreed in the Agreement for Sale dated 3^rd day of December’ 2014. The Complainants variably failed to make payment to the opposite party, as agreed upon, and therefore this opposite party seeks to get the balance consideration money as of Rs. 3,80,000/- ( Rupees Three Lakhs and Eighty Thousand ) only, from the Complainants with interest being 12% interest per annum on such balance money as of Rs. 3,80,000/- ( Rupees Three Lakhs and Eighty Thousand ) only, and thereafter on receipt of such balance money and the interest thereon in terms of the agreement dated 3^rd day of December’ 2014, the opposite party will hand over the physical possession of the subjected flat and cause endeavour of the execution and registration of Deed of Conveyance in favour of the Complainants at the Complainant’s Cost and expenses. The Complainants are defaulter in making payment in terms of the agreement for sale dated 3^rd day of December’ 2014, and therefore at the complainants’ behest this opposite party suffering a lot for such tenure till date. This are the complainants who denied the performance in terms of the agreement for Sale dated 3^rd day of December’ 2014. The Complainants resort the present consumer proceeding to take benefit of their own wrong, which is contrary to the established prescribed provisions of the Consumer Protection Act’ 2019.

 

15.                That I beg to say that 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 complainants herein.

 

16.                That I beg to say that 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 complainants herein. The Complainants are defaulter in making payment in terms of the agreement for sale dated 3^rd day of December’ 2014, and therefore at the complainants’ behest this opposite party suffering a lot for such tenure till date. These are the complainants who denied the performance in terms of the agreement for Sale dated 3^rd day of December’ 2014. The Complainants resort the present consumer proceeding to take benefit of their own wrong, which is contrary to the established prescribed provisions of the Consumer Protection Act’ 2019. The Complainants are not entitled to get any relief as prayed by him in the present consumer proceeding.

 

17.                That I beg to say that the contents of paragraph number 12, of the application is a serious concern, as stated by the complainants, and at the same time, the genuine suspicions arose as to whether this present consumer proceeding instituted upon the petition of complaint is also a genuine one or not, therefore need an enquiry in respect of filling several complaint and the signatures thereon of the complainants. As it appears from website two complaint has been earlier instituted by the complainants as (1) CC/140/2020, and (2) CC/219/2020,  and whereas the consumer complaint being no. CC/140/2020, has been not pressed and therefore not proceeded, and thereafter the Consumer proceeding being CC/219/2020, has been proceeded and such consumer proceeding is pending having next date as 23-12-2020, and thereafter the present consumer proceeding has been instituted in which notice has been served on the opposite party, and therefore the opposite party cause necessary endavour to place his written version being reply on the petition of complaint as was placed by the complainants in the present consumer proceeding, and whereas on being came into knowledge as of several proceedings more particularly the signatures are not of the complainants as stated in the paragraph number 12 of the present petition of complaint genuinely and reasonably raised apprehensions as of the originality of the present petition of complaint and the signatures as may be appeared thereon of the complainants or not, need a serious intervention of the Hon’ble District Consumer Disputes Redressal Commission, Kolkata Unit – III. Therefore this opposite party seeks an enquiry into such facts as stated in the paragraph number 12, of the petition of complaint, at the earliest, prior to proceed any further in the present consumer proceeding, in the interest of administration of justice.

 

18.                That I beg to say that the present petition of complaint is not bonafide against this opposite party, and the complainants are not entitled to get any relief in terms of their prayer made therein from this opposite party in terms of the provision of the Consumer Protection Act’ 2019.

 

19.                That I beg to say that in the facts and in the laws, it is totally evident from the application itself that the complainants made their purported endeavor to put the Hon’ble Forum into motion to get their wrongful gains by procuring orders in terms of their prayer before the Hon’ble Commission.

 

20.                That I beg to say that in the facts and in the laws, it is totally evident from the application itself that the complainants are trying to miss utilizing the jurisdiction of this Hon’ble Commission.

 

21.                That I beg to say that in the above circumstances, there is no cause of action for the present proceedings by the Petitioners, against the Opposite Party, the Opposite Party, accordingly pray that the Complaint be dismissed with costs.

 

22.                That I beg to say 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 complainants.

 

23.                That I beg to say 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 complainants, against this opposite party, before the Hon’ble Commission.

 

24.                That I beg to say that the Petitioners, neither has any cause of action nor the basis for filling the present complaint and the Petitioners’ complaint is entirely baseless and misconceived and deserve to be dismissed on this ground alone.

 

25.                That I beg to say 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.

 

26.                That I beg to say that the Petitioners, are not entitled to any relief as prayed in the Complaint, and the same is liable to be dismissed.

 

27.                That I beg to say that in the aforesaid circumstances, the Opposite Party is seeking the dismissal of the Complaint filed by the Petitioners, with exemplary cost.

 

28.                That the statements made in paragraphs 1 to 17 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 : ____________2023.

Place : Alipore, Kolkata.

 

N O T A R Y

 

 

 

Brief notes of argument by the Opposite Parties in Consumer Case / Consumer Case / The Consumer Protection Act 2019

 

Before the Hon’ble District Consumer Disputes Redressal Commission Kolkata Unit – III, Alipore, Kolkata – 700 027, West Bengal.

                                                          CC / 474 / 2019

                                                          In the matter of :

Shri Tapas Kumar Biswas, and another,

                                                                             __________Complainants

-      Versus –

A.G. Construction and another.

                   _______Opposite parties.

 

Brief Notes of Argument

On behalf of

the Opposite Party No. 1, & 2,

M/s. A.G. Construction,

and

Shri Soumen Chakraborty.

 

 

ARGUMENT ;

 

On an after 26-09-2018, while the money was refunded through cheque on being cancellation of the agreement for sale dated 27/11/2016, between the parties, thus there is no Agreement for Sale in between the Parties, no privity of contract between the Complainants and this Opposite party, therefore asking for the value of the dishonored cheque by the complainants does not come in the ambit of the Consumer Protection Act 2019, such a dispute is not a consumer dispute.

 

FACT;

 

A)   That the Complainants being Shri Tapash Kumar Biswas, and Smt. Keya Guha Biswas, enterewd into an Agreement for Sale dated 27-11-2016, with this opposite party for purchasing ALL THAT one Self contained Flat being Flat No. 2B consisting of One Bed room, one toilet, one kitchen cum – dinning having an area of 400 Sq. ft. super built up area more or less lying and situate on the 2^nd floor of the building together with proportionate undivided share of the Land underneath the building measuring about 3 Cottahs 1 Chitack and 28 Sq. ft. more or less lying and situate at Mouza – Dakshin Behala, J.L. no. 16, R.S. Dag no. 494, and 498, R.S. no. 81, under Khatian No. 37, and 45, being premises no. 68, Talpukur Road, Police Station – Thakurpukur, Kolkata – 700 061, under Kolkata Municipal Corporation Ward no. 126, District – South 24 Parganas, Assessee No. 411262000684, at the total consideration money as of Rs. 8,00,000/- ( Rupees Eight Lakhs ) only.

 

B)   That in the terms of the said Agreement for Sale dated 27-11-2016, the Complainants herein paid a sum of Rs. 1,25,000/- ( Rupees One Lakh and Twenty Five Thousand ) only at the time of execution of the said agreement for sale dated 27-11-2016, between the parties, as earnest money out of the total consideration money as of Rs. 8,00,000/- ( Rupees Eight Lakhs ) only.

 

C)   That the said Agreement for Sale dated 27-11-2016, consisting the following terms, which reproduced herein as follows :

 

i)             At Page no. 8, Paragraph number 3 – That the Purchaser hereto with the execution of this agreement shall pay to the Developer / First Party herein a sum of Rs. 1,25,000/- ( Rupees One Lakh and twenty five thousand ) only towards advance / earnest money and / or part payment out of the total consideration of Rs. 8,00,000/- ( Rupees Eight Lac ) only the receipt of which the Vendor / First Party both hereby admit and acknowledge as per memo hereunder written ) and the balance of the total consideration amount shall be paid by the Purchaser to the Developer / First Party before the registration and / or possession of the plot in the following manner :-

 

i)             Paid Rs. 1,25,000/- ( Rupees One Lac Twenty five thousand ) only as advance money Booking money this day i.e. Execution of the Agreement.

ii)           Paid Rs. 4,00,000/- ( Rupees Four Lac ) only shall be paid within a plinth level time.

iii)          Paid Rs. 1,00,000/- ( Rupees One Lac ) only shall be paid within a 1^st Roof casting.

iv)          Paid Rs. 75,000/- ( Rupees Seventy Five Thousand ) only shall be paid within a 2^nd Roof casting.

v)            Paid Rs. 50,000/- ( Rupees Fifty Thousand ) only, shall be paid within a Brick work time.

vi)          Paid Rs. 50,000/- ( Rupees Fifty Thousand ) only, shall be paid at the time of delivery of possession and / or before the Registration.

 

ii)           At page no. 11, paragraph no. 13 – In the event of any default on the part of the owner / developer, if the said new Building and the said Flat / Unit / Apartment are not completed within the stipulated period, the Purchaser shall be entitled to and are hereby authorized to claim interest at the rate of 12% per annum on the amount paid to the Vendor.

 

iii)          At page no. 11, paragraph number 14 – That the Purchaser shall be liable to make payment the balance consideration amount within the stipulated period as mentioned above, failing which the Purchaser will be liable and responsible to bear the interest ever the due amount 12% per annum for a period of one month from the date of payment.

 

iv)          At page no. 11, paragraph number 16 – That the transaction of sale and purchase in between the parties hereto relating to the said property will be completed within 15 months from the date of this agreement subject to making payment of balance consideration amount and also delivery of possession as aforesaid.

 

D)  The Complainant on expiry of the substantial period of time approached to the opposite party herein for the refund of money, and whereas the opposite party herein refund the money taken by him as of Rs. 1,25,000/- ( Rupees One Lakh and Twenty Five Thousand ) only to the Complainant through cheque, which dishonored subsequently on representation. Thus in the entirety of the facts the disputes if any is a disputes related to the refund of money by the opposite party to the complainants.

 

E)   The Complainants did not pay money towards consideration value of the said subjected flat in terms of the covenants of the said such agreement for sale dated 27-11-2016, and consequently asked for refund of their money as they did not able to pay further.

 

F)   On an after 26-09-2018, there is no Agreement for Sale in between the Parties, no privity between the Complainants and this Opposite party and thus there is no privity of Contract between the parties.

 

G)  This is the Complainants who cause the non performance of the Agreement for Sale entered by them and thus the cancellation of said Agreement For Sale dated 27-11-2016, has been occurred at the behest of the Complainants and therefore in such a factual circumstances this Opposite Party has not even been into any Deficiency in Services and Unfair Trade Practice as in the terms of the Consumer Protection Act’ 1986.

 

H)  The Opposite Party is a Debtor to the Complainant and the Complainant is a Creditor to the Opposite Party, herein.

 

I)     The Complainant is not entitled to get any relief in terms of their prayer to refund the money being value of the Dishonored Cheque, the Hon’ble District Commission lost its jurisdiction to try.

 

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