Before
the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at 11A,
Mirza Ghalib Street, Kolkata – 700087.
FA
No. 785 of 2012.
(
Arisen out of Order Dated 14/08/2012, in Case no. CC/118/2012 of District South
24 Parganas DF, Alipore )
In
the matter of :
Shri
Kanailal Maity_____Appellant.
-
Versus –
Shri
Dhananjoy Kamila and others.
___Respondents.
BRIEF
NOTES OF ARGUMENT
ON
BEHALF OF APPELLANT
The present appeal
preferred challenging the Order dated 14/08/2012, of District South 24 Parganas
DF, Alipore, the said Order passed as of :
a) The
appellant was directed to pay Rs. 1,00,000/- for the unfinished work;
b) The
appellant was directed to pay Rs. 80,000/- as Compensation for harassment, and
mental agony;
c) The
appellant was directed to pay Rs. 1,00,000/- towards enhancement of market
value and stamp duty etc.;
d) The
appellant was directed to pay Rs. 10,000/- as cost;
e) The
appellant was directed for execution and registration of deed of conveyance in
favour of the complainant / respondent.
1)
That the Appellant / Respondent /
Opposite Party, being Developer, solely not able to execute and register the
deed of conveyance, since, the earls while Owner died and legal successor and
heir did not grant any Power of Attorney to execute any Sale Deed, on his
behalf, for this reasons alone, the appellant was not able to execute the
registration of Deed of Conveyance in favour of Respondent / Complainant. Such
cause of non execution of registration of Deed of Conveyance in respect of the
Flat of the Complainant / Respondent, solely devolved upon the Land Owner /
Respondent no.2, herein.
2)
The Development Agreement dated
27-05-1997, was entered into with Biswanath Ghosh, and whereas he given the
General Power of Attorney dated 05-06-1997,
and whereas the Agreement for Sale with the Complainant Purchaser has
been cause on 01-11-2003, in respect of one flat at ground floor in the newly
constructed building, and whereas the said Biswanath Ghosh, died in the year
2004, as on 30-12-2004, and on his expiry the General Power of Attorney become
in operative, though the possession of the said flat has been delivered to the
Complainant Purchaser on 16-12-2005.
3)
After expiry of the said Biswanath
Ghosh, his legal heirs and successors, raised so many disputes and instituted
Civil Suit being Title Suit no. 169 of 2005, { Rabi Sankar Ghosh – Versus –
Kanai Lal Maity } and Misc. Appeal no. 214 of 2005 ( Sri Kanai Lal Maity –
Versus – Sri Rabi Sankar Ghjosh ), and did not co-operate to cause any
execution of registration of Deed of Conveyance in favour of Purchaser.
4)
The said Title Suit ultimately
compromised between the parties, and whereas even though the present Land Owner
did not provide any power of Attorney in favour of the Developer, nor did cause
any endavour to execute and register the deed of conveyance in favour of the
purchaser.
5)
The present Land Lord / Owner entered
into a supplementary Agreement for Development, under the continuation of the
Principal Development Agreement dated 27-05-1997, though no General Power of
Attorney has ever been granted by him in favour of the developer for acting on
his behalf or to cause the sale and or execute the registration of Deed of
conveyance.
6)
The appellant handed over the physical
possession of the Flat as enumerated under Agreement for Sale dated 01-11-2003,
to the complainant purchaser as on 16-12-2005, while the total consideration
money was not at all paid and whereas the amount of Rs. 1,00,000/- were still
unpaid, vide Letter of Possession dated 16-12-2005.
7)
The allegation about the unfinished
work raised by the complainant purchaser is a frivolous and fabricated story as
to clinch issues in his favour, since the complainant purchaser has taken the
physical possession in completed conditions in all respects and whereas the
complainant purchaser placed some papers in Annexure 7, of his complaint before
the Learned Lower Forum, though those papers has not ever been authenticated
nor substantiated with any report of the surveyor commissioner, and thus the
story of unfinished work is a concocted story.
8)
Synopsis of Dates :
a)
27-05-1997 - Development
Agreement,
b)
05-06-1997 - General Power of
Attorney granted by Land Owner
in
favour of Developer,
c)
01-11-2003 - Agreement for
Sale,
d)
30-12-2004 - Land Owner
Biswanath Ghosh – DIED,
e)
16-12-2005 - Possession of
Flat DELIVERED,
f)
2005 -
Title Suit no. 169 of 2005 { Rabi
Sankar Ghosh –
Versus – Kanai Lal Maity }
g)
2005 -
Misc. Appeal no. 214 of 2005 { Sri
Kanai Lal Maity –
Versus – Sri
Rabi Sankar Ghosh }
h)
15-06-2012 - General Power of
Attorney granted by
Shri Rabi Sankar
Ghosh in favour of appellant,
i)
15-05-2012 - Consumer Case
being C.C. no. 118
of
2012, filed.
9)
The possession of the Flat was
delivered as on 16-12-2005, the possession Letter dated 16-12-2005, has been
relied upon and enclosed by the complainant as Annexure – 6, of the complaint
petition. which clearly states about the balance of Rs. 1,00,000/- and for the
registration of deed of conveyance, by the appellant.
10)
After acquiring possession of the
flat, the complainant did not make any payment of the balance amount of Rs.
1,00,000/- and did not cause any endavour for the execution and registration of
the deed of conveyance.
11)
The complainant in his petition of
complaint shows some of letter dated as of 30-12-2007, 25-04-2008, 26-04-2008,
and 24-05-2011, which bring much suspicion as after the expiry of two years
from the date of acquiring possession of the flat the letter has been given
purposively in a view to extend the limitation to file the complaint case
before the Hon’ble Consumer Forum, and thus not tenable.
12)
Regarding the allegation of unfinished
work two piece of paper as of annexure – 7 to the petition of complaint has
been provided by the complainant which shows the documents as of made in the
year 2008, and of amount of Rs. 9,395/- and Rs. 19,425/- only, bring much
suspicion as after acquiring the possession of the said flat in the year 2005,
the complainant could not find those but in the year 2008, he find all of a
sudden the list of unfinished work after the expiry of more than two years, is
not a believable story from any corner of argument.
13)
The complaint has been filed on and
after expiry of seven ( 7 ) years, from the date of accrual of cause of action,
if any, and thus under the limitation and bared in accordance with the
provision of Section 24A of the Consumer Protection Act’ 1986, and therefore
liable to be dismissed, and even in the factual circumstances and in any event
the complainant is not liable to get any relief as prayed for in his petition
of complaint.
14)
The appellant relied upon the
following judicial references :
a)
B.S. wallia – Versus – DLF Universal
Limited – CPJ ( 2014 ) I NC 215.
b)
Jay Grih Nirman Pvt. Limited – Versus
– Arunoday Apartment Owners Association – I ( 2014 ) CPJ 307 NC.
c)
Sunny Estates & anr. – Versus –
Venkateshwara Sarma & Others – III ( 2013 ) CPJ 170 NC.
d)
Revision Petition No. 1953 of 2011 (
from the Order dated 29-01-2011 of Maharashtra State Commission, Mumbai, in
Appeal No. 1430 of 2009 )- Kishore Shriram Sathe – Versus – Mr. Voivek Gajanan
Joshi – National Commission, New Delhi, - Pronounced on 1st October’
2013.
In
view of facts and in the Law, the appeal may be allowed in the interest of
administration of justice.
Through
____________
Counsel
for the appellant.
Date
: 9th day of March’ 2015.
Place
: Calcutta High Court.
Caveat No. of 2015