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First Appealno. of 2023
In the matter
of :
An Appeal
under Section 41 of the Consumer Protection Act, 2019, from the Order dated 01-12-2023,
passed in CC/361/2021, by the Learned Consumer Disputes Redressal Commission,
Kolkata Unit – III (South), West Bengal, 18, Judges Court Road, Kolkata -
700027;
AND
In the matter
of :
Impugned Order
dated 01-12-2023, passed in CC/361/2021, by the Learned Consumer Disputes
Redressal Commission, Kolkata Unit – III (South), West Bengal, 18, Judges Court
Road, Kolkata - 700027;
AND
In the matter
of :
Sri Ashok Kumar Gupta, Son of Late
Girija Prasad Gupta, having office at Premises being no. 2, Dharmadas Row,
Kolkata – 700026, and also residing at Premises being no. 15, Mullick Para
Lane, Post Office – Bangur, Police Station – Dum Dum, Kolkata – 700055,
District – North 24 Parganas.
______Appellant
-
Versus
–
Sri GourMitra, Son of Late Sital
Prasad Mitra, residing at Premises being no. 140A, Peary Mohan Roy Road, Post
Office – Alipore, Police Station – Chetla, Kolkata – 700027, District – South
24 Parganas.
__________Respondent
To,
The
Hon’ble President and his companion Hon’ble Members of the West Bengal State
Consumer Disputes Redressal Commission;
The humble
petition on behalf of the above named appellant Sri Ashok Kumar Gupta, most
respectfully;
Sheweth as
under;
1.
That
the Appellant is a peace loving and law abiding Citizen, carrying his business following
the Law. The appellant is residing and having his office at the address given
in the cause title of this appeal.
2.
That
the present First Appeal is preferring in challenging the proprietary &
entirety of the impugned Order dated 01/12/2023, passed in Consumer Complaint
being CC/361/2021, by the Learned Consumer Disputes Redressal Commission
Kolkata Unit – III (South).
3.
That
the Appellant was in receipt of the notice and therefore appeared in the
Consumer Complaint instituted by the Complainant i.e. the respondent herein.
The appellant participated in the said Consumer Complaint, and completed his
all pleadings, wherein the appellant categorically stated that the subjected
flat has been sold out and the appellant was agreed to refund the money given
by the respondent herein, with prevailing banking rate of interest, thereon.
The appellant further stated that the said Consumer Complaint was premature and
not maintainable as the events and transaction has been assailed between the
parties towards investment of money by the respondent herein, and the agreement
is merely a security document for the said money.
4.
That
in the facts and in the laws, it is totally evident from the said Consumer
Complaint itself that the Consumer Complainant made his endeavor to put the
Learned District Commission into motion to get his wrongful gains by procuring
orders in terms of his prayer before the Learned District Commission.
5.
That
in the facts and in the laws, it is totally evident from the said consumer
application itself that the consumer complainant is trying to miss utilizing
the jurisdiction of the Learned Consumer Disputes Redressal Commission Kolkata Unit
– III (South).
6.
That
on surfacing the above stated facts and the Law, in the said Consumer Case no. CC/361/2021,
the Learned Consumer Disputes Redressal Commission Kolkata Unit – III (South),
was pleased to pass the Order dated 01-12-2023, thereby allowing the said
Consumer Case on contest with cost. The relevant portion of the said order
dated 01/12/2023, is reproduce in the followings;
“That the instant
complaint is allowed on contest with cost.OP is directed to hand over the
possession of the `B’ schedule flat to the complainant and also execute and
register a deed of conveyance in respect of the flat in favour of the
complainant on receiving the balance consideration from him in accordance with
the agreement for sale dt. 6/11/2020 made between the parties.OP is also
directed to pay compensation of Rs.30,000/- and Rs.8,000/- towards cost of
litigation to the complainant. OP is directed to comply with this order
within 60 days from the date of this order, failing which, the complainant
shall be at liberty to proceed in accordance with law”.
7.
That
being aggrieved and dissatisfied with the Order dated 1st day of
December’ 2023, passed in Consumer Complaint no. CC/361/2021, by the Learned
Consumer Disputes Redressal Commission Kolkata Unit – III (South), the Appellant
preferred this appeal under Section 41 of the Consumer Protection Act, 2019, on
the following amongst others;
GROUND
I.
For
that the impugned
Order dated 01-12-2023, passed in CC/361/2021, by the Learned Consumer Disputes
Redressal Commission, Kolkata Unit – III (South), West Bengal, 18, Judges Court
Road, Kolkata - 700027, is erroneous being result of preoccupied mind of the
Learned Consumer Commission favouring the Respondent herein;
II.
For
that the subjected Schedule property being the flat has been sold by the
appellant based on conversation of the respondent herein, which has not been
considered by the Learned District Commission;
III.
For
that while the entire disputes and cause of action thereby by and between the
parties are not Consumer Disputes as meant for in the Consumer Protection Act’
2019;
IV.
For
that while the subjected agreement is in terms of the security of money
invested by the respondent, herein;
V.
For
that the said Consumer Complaint, if any, is premature proceeding, and thus not
maintainable at any terms either in the fact or in the terms of the Law;
VI.
For
that while the subjected flat has already been sold out and not in occupation
of the appellant, the impugned Order dated 01-12-2023, passed in CC/361/2021,
by the Learned District Commission is not executable;
VII.
For
that the
appellant participated in the said Consumer Complaint, and completed his all
pleadings, wherein the appellant categorically stated that the subjected flat
has been sold out and the appellant was agreed to refund the money given by the
respondent herein, with prevailing banking rate of interest, thereon. The
appellant further stated that the said Consumer Complaint was premature and not
maintainable as the events and transaction has been assailed between the
parties towards investment of money by the respondent herein, and the agreement
is merely a security document for the said money;
VIII.
For
that the Learned District Consumer Commission misunderstood the facts and the
concern of the Law involved in hearing the said Consumer Case and thus the same
has been allowed with cost, payable to the Consumer Complaint;
IX.
For
that the
Order dated 1st day of December’ 2023, passed in Consumer Complaint
no. CC/361/2021, by the Learned Consumer Disputes Redressal Commission Kolkata
Unit – III (South), suffered with gross errors and highly prejudice;
X.
For that the Order under challenge is of
prejudice to the appellant herein, and as such not desirable thereof, in terms
of the Law;
XI.
For
that the
Order dated 1st day of December’ 2023, passed in Consumer Complaint
no. CC/361/2021, by the Learned Consumer Disputes Redressal Commission Kolkata
Unit – III (South), should be dismissed in limnie in the interest of
administration of Justice;
XII.
For
that the
Order dated 1st day of December’ 2023, passed in Consumer Complaint
no. CC/361/2021, by the Learned Consumer Disputes Redressal Commission Kolkata
Unit – III (South), is not establishing any correct proposition of Law, and
thus the same would not be a precedent which cause prejudice highly, so far;
XIII.
For
that the
Order dated 1st day of December’ 2023, passed in Consumer Complaint
no. CC/361/2021, by the Learned Consumer Disputes Redressal Commission Kolkata
Unit – III (South), is erroneous based on summarize of misconception and
misunderstanding of the facts as well as the Law;
XIV.
For
that the Order dated 1st day of December’ 2023, passed in Consumer
Complaint no. CC/361/2021, by the Learned Consumer Disputes Redressal
Commission Kolkata Unit – III (South), is highly prejudice and denied justice
to the Revisionist;
XV.
For
that the
Order dated 1st day of December’ 2023, passed in Consumer Complaint
no. CC/361/2021, by the Learned Consumer Disputes Redressal Commission Kolkata
Unit – III (South), is Bad in Law;
8.
That
the other ground / grounds will be agitate/place at the time of hearing of this
appeal.
9.
That
unless this Hon’ble State Commission interferes in the present appeal, grave
injustice would be caused to the appellant.
10.
That
the appellant enclosing herewith the Original Certified Copy of the Order dated
1st day of December’ 2023, passed in Consumer Complaint no.
CC/361/2021, by the Learned Consumer Disputes Redressal Commission Kolkata Unit
– III (South).
11.
That
the appellant enclosing herewith the copy of the followings :
i)
Consumer
Complaint with all annexures in CC/361/2021;
ii)
Written
Version of the appellant;
iii)
Evidence
on affidavit by the Respondent;
iv)
Questionnaire
by the Appellant, & Reply by the Respondent;
v)
Evidence
on Affidavit by the Appellant;
vi)
Questionnaire
by the Respondent & Reply by the Appellant;
vii)
Brief
Notes of Argument by the Respondent & the Appellant;
12.
That this appeal is made bona-fide and for the
interest of administration of justice.
Under the
circumstances, the Petitioner, of this instant revision application / petition,
prays before your Lordship, would be graciously pleased to admit this instant appeal
under Section 41 of the Consumer Protection Act’ 2019, issue notice upon the Respondent,
call for the L.C.R. from the Ld. Lower Consumer Commission, and after
conducting the appropriate hearing of this instant appeal, set aside the
impugned Order
dated 1st day of December’ 2023, passed in Consumer Complaint no.
CC/361/2021, by the Learned Consumer Disputes Redressal Commission Kolkata Unit
– III (South),
and to dismiss the Consumer Complaint being CC/361/2021, in the interest of administration
of Justice,
And / or to STAY the
operation of the
Order dated 1st day of December’ 2023, passed in Consumer Complaint
no. CC/361/2021, by the Learned Consumer Disputes RedressalCommission Kolkata
Unit – III (South),
till disposal of the present appeal, before the Hon’ble State Consumer Disputes
Redressal Commission, West Bengal, in the interest of administration of
justice,
And /or to pass such
other or further necessary order or orders as your Lordship may deem, fit, and
proper, for the end of justice.
And
for this act of kindness, your Petitioner, as in duty bound shall ever pray.
Certificate;
I, certify that I have pursued
the records of this case, and I certify that there are merits and So, I
undertake to argue this case for the Appellant at the time of hearing;
Advocate
for the Appellant
Enclosing
herewith the following documents;
1. Certified Copy
of the Order dated 1st day of December’ 2023, passed in Consumer
Complaint no. CC/361/2021, by the Learned Consumer Disputes Redressal
Commission Kolkata Unit – III (South);
2. Consumer
Complaint with all annexures in CC/361/2021;
3. Written
Version of the appellant;
4. Evidence on affidavit
by the Respondent;
5. Questionnaire
by the Appellant, & Reply by the Respondent;
6. Evidence on
Affidavit by the Appellant;
7. Questionnaire
by the Respondent & Reply by the Appellant;
8. Brief Notes of
Argument by the Respondent & the Appellant;
AFFIDAVIT
Affidavit of Sri
Ashok Kumar Gupta, Son of Late Girija Prasad Gupta, aged about 48 years, by
faith Hindu, by Occupation Business, residing at premises being no. 15, Mullick
Para Lane, Post Office Bangur, Police Station DumDum, Kolkata – 700055.
I, the above deponents do
hereby solemnly affirm and declare as under :-
1. That
I beg to say that I am the Appellant, and thoroughly conversant with the facts
and circumstances of the present consumer case and I am competent to swear this
affidavit.
2. That
I beg to say that the grounds stated therein in the appeal are well founded to
argued in the present appeal, in the interest of administration of justice.
3. That
the facts contained in my memo of appeal, the contents of which have not been
repeated herein for the sake of brevity may be read as an integral part of this
affidavit and are true and correct to my knowledge.
The above
statements are true to my knowledge and belief.
DEPONENT
Identified
by me,
Advocate
Prepared in my Chamber,
Advocate
Dated : ________________2023;
Place :Alipore, Kolkata.
