Wednesday, October 16, 2024

An application for getting back the vehicle from the Decree Holder in Consumer Execution Case

District : South 24 Parganas.

Before the Hon’ble District Consumer Disputes Redressal Forum, at Baruipur, South 24 Parganas.

Execution Application no. 250 of 2013.

{ arising out of CC / 233 / 2013 }

In the matter of :

Shri Animesh Chakraborty,

__________Decree Holder.

- Versus –

M/s. Ghosh Brothers Automobile ( India ) Pvt. Limited. And others.

_________Judgment Debtors.

An application for getting back the vehicle from the Decree Holder in accordance with order & judgment dated 27-09-2013, passed by the Hon’ble Forum, in CC / 233 / 2013.

The humble petition on behalf of the Judgment Debtor no.1, M/s. Ghosh Brothers Automobile ( India ) Pvt. Limited, most respectfully ;

Sheweth as under :

1. That the Judgment Debtor no. 1, states that the Judgment Debtor no.1, M/s. Ghosh Brothers Automobile ( India ) Pvt. Limited, is represented by it’s authorized representative Shri Lakshman Chhetri, Son of Buddhi Bahadur Chhetri, aged about 39 years, by faith Hindu, by occupation Service, residing at premises being 1 No. Nadibag, Mollapara Gate, Degberia, Post Office – Badu, Police Station – Madhyamgram, Kolkata – 700 128, District – North 24 Parganas, in the present proceeding.

2. That the Judgment Debtor no. 1, states that the present proceeding is arising out of CC/ 233 / 2013, for the compliance of Order and Judgment dated 27-09-2013, passed by the Hon’ble District Consumer Disputes Redressal Forum, South 24 Parganas, in CC / 233 / 2013. The extract of the relevant portion of such judgment reproduced below herein :

“ That the case being C.C. no. 233 of 2013 be and the same is decreed on contest against O.P. – 1 and exparte against rest with cost payable by O.P. nos. 1 and 2.

The O.P. nos. 1 and 2 are directed to refund the sum of Rs. 1,82,014/- to the complainant and to take back the vehicle from the complainant in as its condition, to pay cost of Rs. 10,000/- and compensation to the tune of Rs. 5,00,000/- totaling to Rs. 6,92,014 rounded up to Rs. 6,92,000/- to the complainant within one month from this day, failing which, the entire amounts shall carry on interest @ 10% p.a. from the date of default till realization.”

3. That the Judgment Debtor no. 1, states that the Judgment Debtor no.1, preferred an appeal against such Order & Judgment dated 27.09.2013, before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, through it’s employee, vide appeal being no. FA / 1149 / 2013 { M/s. Ghosh Brothers Automobile ( India ) Pvt. Limited. – Versus – Animesh Chakraborty and others } and whereas stay of the present proceeding granted by the Hon’ble Commission, and the appeal was admitted for final hearing before the Hon’ble State Commission, but due to latches of the said employee and the Learned Advocate appointed by him on behalf of the Judgment Debtor no.1, herein, the said appeal was dismissed for default, on 08-05-2015, and therefore the said purported order and judgment dated 27-09-2013, came into its existence for compliance by the Judgment Debtor no.1, herein before the Hon’ble Forum.

4. That the Judgment Debtor no. 1, states that the Judgment Debtor no.1, thereafter also not proper on record due to latches of such employee, who authorized to look after the present proceeding, and consequently on 16-09-2015, warrant of arrest was directed by the Hon’ble Forum against the Judgment Debtor no.1, herein in the name of it’s Directors Pratul Kumar Ghosh and Pranab Kumar Ghosh, and thereafter the dates in the present proceeding followed as for execution report of warrant of arrest.

5. That the Judgment Debtor no. 1, states that as nothing has been properly communicated by the said employee to the company, the company was not in the proper knowledge of the present proceeding.

6. That the Judgment Debtor no. 1, states that the Judgment Debtor no.1, on being came into knowledge of the warrant of arrest issued by the Hon’ble Forum, the Judgment Debtor no.1, authorized it’s person to appear before the Hon’ble Forum, in the present proceeding and to comply with the Order & Judgment dated 27-09-2013, passed by the Hon’ble Forum, in CC / 233 / 2013.

7. That the Judgment Debtor no. 1, states that in pursuance of Order & Judgment dated 27-09-2013, passed by the Hon’ble Forum, in CC / 233 / 2013, the Judgment Debtor submitted Demand Draft in favour of the decree holder ANIMESH CHAKRABORTY, in the following manner :

a) Demand Draft being no. dated , for Rs. 6,92,000/- ( Rupees Six Lakhs and Ninety Two Thousand ) only. { the total amount as directed }.

b) Demand Draft being no. dated , for Rs. 1,44,200/- ( Rupees One Lakh and Forty Four Thousand and Two hundred ) only. { being amount of interest as directed }.

8. That the Judgment Debtor no. 1, states and submits that the following are the manner of calculation of interest amount in accordance with the direction of the Hon’ble Forum in CC / 233 / 2013, vide Order & Judgment dated 27-09-2013 :

“ The O.P. nos. 1 and 2 are directed to refund the sum of Rs. 1,82,014/- to the complainant and to take back the vehicle from the complainant in as its condition, to pay cost of Rs. 10,000/- and compensation to the tune of Rs. 5,00,000/- totaling to Rs. 6,92,014 rounded up to Rs. 6,92,000/- to the complainant within one month from this day, failing which, the entire amounts shall carry on interest @ 10% p.a. from the date of default till realization.”

Therefore for entire year of 2014 – 10% per annum become Rs. 69,200/- ( Rupees Sixty Nine Thousand and Two Hundred ) only.

And for the entire year of 2015 - 10% per annum become Rs. 69,200/- ( Rupees Sixty Nine Thousand and Two Hundred ) only.

And for the month of November and December for the year 2013 – for two months only – Rs. 5,800/- ( Rupees Five Thousand and Eight hundred ) only.

Totaling of Rs. 1,44,200/- ( Rupees One Lakh and Forty Four Thousand and Two Hundred ) only.

9. That the authorized person of the Judgment Debtor no.1, is seeking to take back the said Vehicle from the Decree Holder with all the Original Paper and with the necessary paper for the transferring the name of such vehicle from the decree holder to the Judgment Debtor no.1, in accordance with the Order & Judgment dated 27-09-2013, passed by the Hon’ble Forum in CC / 233 / 2013, in the interest of administration of justice.

10. That the authorized person of the Judgment Debtor no.1, states and submits that unless the Hon’ble Forum, direct the decree holder to return the said Vehicle from the Decree Holder with all the Original Paper and with the necessary paper for the transferring the name of such vehicle from the decree holder to the Judgment Debtor no.1, in accordance with the Order & Judgment dated 27-09-2013, passed by the Hon’ble Forum in CC / 233 / 2013, will highly prejudice and suffer with irreparable loss and injury.

11. That the authorized person of the Judgment Debtor no.1, states and submits that the balance of convenience and inconvenience is in favour of the Judgment Debtor no. 1, and the Decree Holder will not prejudice in any manner.

12. That the authorized person of the Judgment Debtor no.1, states and submits that the Judgment Debtor no.1, is entitle to get substantial justice and equity before the Hon’ble Forum, as the compliance has been occurred, in the present proceeding before the Hon’ble Forum.

13. That the authorized person of the Judgment Debtor no.1, states and submits that the prayer of the Judgment Debtor no.1, are in accordance with the natural justice.

14. That this application is made bonafide in the interest of administration of justice.

It is therefore prayed that the Hon’ble Forum, would graciously be pleased to allow this application and to direct the Decree Holder to return the said Vehicle from the Decree Holder with all the Original Paper and with the necessary paper for the transferring the name of such vehicle from the decree holder to the Judgment Debtor no.1, in accordance with the Order & Judgment dated 27-09-2013, passed by the Hon’ble Forum in CC / 233 / 2013, 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 Forum, may deem, fit, and proper in the interest of administration of justice.

And for this act of kindness, the Petitioner, as in duty bound shall ever pray.

Verification

I, Shri Lakshman Chhetri, being the authorized person of the Judgment Debtor no.1, herein in the present proceeding before the Hon’ble Forum, made this application. I am conversant with the material facts as stated in my application and I acquainted thereof. I verify and sign this application as on 31^st day of December’ 2015, at Baruipur.

Shri Lakshman Chhetri,

Identified by me,

Advocate.

Prepared in my Chamber,

Advocate.

Date : 31^st day of December’ 2015.

Place : Baruipur.

District : South 24 Parganas.

Before the Hon’ble State Consumer Disputes Redressal Forum, at Baruipur, South 24 Parganas.

Execution Application no. 250 of 2013

{ arising out of CC / 233 / 2013 }

In the matter of :-

Shri Animesh Chakraborty,

……Decree Holder.

- Versus –

M/s. Ghosh Brothers Automobile ( India ) Pvt. Limited. And others,

………Judgment Debtors.

AFFIDAVIT

Affidavit of Shri Lakshman Chhetri, Son of Buddhi Bahadur Chhetri, aged about 39 years, by faith Hindu, by occupation Service, residing at premises being 1 No. Nadibag, Mollapara Gate, Degberia, Post Office – Badu, Police Station – Madhyamgram, Kolkata – 700 128, District – North 24 Parganas.

I, the above deponent do hereby solemnly affirm and declare as under :-

1 : That I am being the Authorized Person of the Judgment Debtor no.1, M/s. Ghosh Brothers Automobile ( India ) Pvt. Limited., in the above Execution proceeding, thoroughly conversant with the facts and circumstances of the present proceeding and am competent and authorized to swear this affidavit.

2 : That the facts contained in my accompanying application, 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.

DEPONENT

Verification

I, the above named deponent do hereby solemnly verify that the contents of my above affidavit are true and correct to my knowledge, and no part of it is false and nothing material has been concealed therein.

Verified this ………….the day of …………….2015, at Baruipur.

DEPONENT

Identified by me,

Advocate.

Prepared in my Chamber,

Advocate.

Dated : 31^st day of December’ 2015.

Place : Baruipur.

N O T A R Y

Questionnaire in Consumer Case

District : South 24-Parganas.

Before the Hon’ble District Consumer Disputes Redressal Forum, at Kolkata – Unit – III, Alipore Judges’ Court, Alipore.

CC / 01 / 2015

In the matter of:

Sri Bholanath Sarkar ( Sardar ),

…….. PETITIONER

- Versus –

Smt. Chaitali Kar, and others,

… ……OPPOSITE PARTIES

QUESTIONNAIRE

Questionnaire on behalf of the Opposite Party no.3, Smt. Chaitali Kar.

Question no. :

1. Did you states the same facts as stated in your petition of complaint ?

2. What are the documents relied upon by you, states about those documents ?

3. Whether you made annexures those documents with the petition of complaint ? states the paragraph in which ?

4. Did you make any annexure of documents with your Affidavit in chief ? if so, what are those documents ?

5. Did you supply the copy of those documents with the copy of the Affidavit in Chief to the Opposite Parties ?

6. Supply copy of all the documents, you relied upon, with the original one for verification and necessary inspection thereof before the Hon’ble Forum.

7. Do you have any documents to show that the Opposite Party no. 3, is a men and or agent of the Opposite Party no.1 ? produce a copy of the same.

8. Do you have any documents to show that the Opposite Party no.3, has ever been in your alleged transaction, if any ? produce a copy of the same.

9. Do you have any communication related to your alleged transaction with the opposite party no.3, if any ? produce a copy of such communication.

10. Can you produce the Bank Statement of your concern Bank Account to show that you had paid Rs. 10,00,000/- to the Opposite Party no.3, herein, if any ? produce a copy of such Bank statement of your concern bank account.

11. Do you have any document to show that the Opposite Party no.3, is related to the Opposite Party no.1, herein in any manner, whatsoever ? if so, please produce a copy of such documents.

12. Are you a tax payer ? if yes, please produce a copy of your Income Tax Return for the relevant period.

13. Did you disclose such facts of alleged transaction of Rs. 10,00,000/- with the Income Tax Authority ? if yes, please provide a copy of such documents of disclosure.

14. If you are not a tax payer, then please provide a copy of PAN Card, and place a documents to show that from where and from whom you earn and or accumulate such huge amount in your Bank Account.

15. Please state your income per month from your profession being an Advocate. Do you have any document to show such income, provide a copy of the same.

16.

17.

Evidence on Affidavit in Consumer Case

District : Kolkata Central.

Before the Hon’ble District Consumer Disputes Redressal Forum, Kolkata Unit – II ( Central ).

C. C. no. 76 of 2016.

In the matter of :

Lili Halder,

___Complainant.

- Versus –

Alchemist Township India Limited, ___Opposite Parties.

EVIDENCE ON AFFIDAVIT

ALCHEMIST TOWNSHIP INDIA LIMITED

AFFIDAVIT

I SRI ________________________ son of ________________________, by faith Hindu, Indian, by occupation Service, aged about _______ years, working for gain at M/s. Alchemist Township India Limited, Baruipur Branch, having it’s office at Subhash Complex, Padmapukur, 2^nd Floor, Kolkata – 700 144, District South 24 Parganas, do hereby solemnly affirm and declare as follows :

1. That I being the representative of the Opposite Parties in the instant case being filed by the Complainant, and I am well conversant with the facts and circumstances of the present case.

This is true to my knowledge.

2. That I beg to say that the Complaint is not maintainable in its present form.

This is true to my knowledge.

3. That I beg to say 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 I beg to say 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 I beg to say 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 I beg to say 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 I beg to say that the contents of the Complaints are vague and based on after thought concocted story, made out by the Complainant to in-clinch issues in her favour, and thus no part of the contents of the Complaint has ever been admitted by the Opposite Parties, except those are the matter of records.

8. That I beg to say that the present Complaint has been instituted by the Complainant against the Opposite Parties to cause several hassle and harassments to the Opposite Parties.

9. That I beg to say 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’ 1986.

10. That I beg to say that the allotment letter as per application dated 06-07-2013, were issued to the complainant herein, in the project at Park Avenue, Talwandi, Tehasil Zira, District Firozpur, Punjab, with a liberty that she can withdraw, and whereas the complainant, withdraw her allotment, and seeks the refund of money thereby.

11. That I beg to say that in the said allotment letter it was specifically contended that the matter of compensation should be decided by the opposite parties, and the same should be at discretion of the Opposite Parties. The Complainant herein admits such propositions and versions of the opposite parties.

12. That I beg to say that the Complainant surrender her allotment to the opposite parties and seeks refund on money paid by her to the opposite parties.

13. That I beg to say that the opposite parties without deducting any taxes and statutory duties, levy, etc, refund the money along with the compensation amount though several cheques to her.

14. That I beg to say that there is no agreement for sale has ever been entered between the parties, towards the sale of Land ever developed by the opposite parties.

15. That I beg to say that the allotment letter issued by the opposite parties on request of the complainant does not raise any contract between the parties, rather the said allotment letter is an receipt and or acknowledgement of money given by the complainant to the opposite parties.

16. That I beg to say that there is no privy of contract between the opposite parties, and therefore the complainant is not a purchaser and even intending purchaser from the opposite parties.

17. That I beg to say that this is the Complainant who refuse to proceed further and seek refund of her money paid by her, therefore there is no deficiency in services.

18. That I beg to say that the dishonor of cheques by the banker of the opposite parties does not give raise of any cause of action for the consumer disputes.

19. That I beg to say that the disputes related to the dishonor of cheques should be decided by the appropriate forum of Law, and the Consumer Disputes Redressal Forum, have no jurisdiction to try with such disputes.

20. That I beg to say that the Complainant is not a consumer in terms of the Provisions of Section of the Consumer Protection Act’ 1986, and rules made thereunder.

21. That I beg to say that the complainant’s disputes is not a consumer disputes in terms of the Provisions of Section of the Consumer Protection Act’ 1986, and rules made thereunder.

22. That I beg to say that the allotment letter for the interest to acquire plot in a project, does not raise any relationship of consumer and service provider. The judicial precedent severally has been delivered by the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, and the National Consumer Disputes Redressal Commission, New Delhi, in this context, and in absence of any contract, the complainant cannot come up before the Hon’ble Forum, claiming herself as a consumer.

23. That I beg to say that the Opposite Parties is not a service provider in an alleged context of the complainant, and the complainant is not a consumer in the said alleged context, and therefore there is no relationship as of consumer and service provider, and if any disputes arise such disputes is not a consumer disputes at all between the parties.

24. That I beg to say that the Opposite Parties is a company incorporated in accordance with the Companies Act’ 1956, consequently on repeal of the said act in accordance with the Companies Act’ 2013, under it’s incorporation of certificate issued by ROC. The opposite parties act in accordance with the provisions of Law.

25. That I beg to say that the disputes which has been raised by the complainant herein is the disputes related to the dishonor of cheques, and not the consumer disputes, therefore the complainant have no cause of action to invoke the Hon’ble Forum jurisdiction in this regard.

26. That I beg to say that the Complainant is not entitled to get any relief in terms of her prayer, before the Hon’ble Forum.

That I beg to say that the Application under Section 12 of the Consumer Protection Act’ 1986, 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 Parties 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. That I beg to say that in the facts and in the laws, it is totally evident from the application itself that the complainant made her endavour to put the Hon’ble Forum into motion to get her wrongful gains by procuring orders in terms of her prayer before the Hon’ble Forum.

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

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

31. 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 Parties, rather the Opposite Parties is victim of the concocted story and wrongful demand of the complainant.

32. That I beg to say that in view of the facts that the Opposite Parties is victim of the purported alleged allegations and wrongful demand, the Opposite Parties 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, before the Hon’ble Forum.

33. That I beg to say 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.

34. 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.

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

36. That I beg to say that in the aforesaid circumstances, the Opposite Parties is seeking the dismissal of the Complaint filed by the Petitioner, with exemplary cost.

37. That I beg to say that the documents being annexed with the petition of complaint is relied upon by the Opposite Parties herein in the present proceeding before this Hon’ble Forum.

38. That I beg to say that the Complainant misconstrued and misrepresented the documents annexed with her petition of complaint before the Hon’ble Forum.

39. That I beg to say that the documents annexed with the petition of complaint by the complainant is not a share certificate and or in nature of certificate of investment of any nature, such documents are of allotment letters with the opposite parties.

40. That I beg to say that the present complaint should be dismissed at once in terms of the provisions of Section 26 of the Consumer Protection Act’ 1986, as the same is found frivolous and vexatious one.

41. That I beg to say that all of my statements are true to my knowledge and belief.

D E P O N E N T

Identified by me

Advocate.

Prepared in my Chamber,

Advocate.

Date : __________________2016.

Place : Kolkata.

N O T A R Y