|
DISTRICT
CONSUMER DISPUTE REDRESSAL COMMISSION
|
|
KOLKATA
UNIT-III(South),West Bengal
|
|
18,
Judges Court Road, Kolkata 700027
|
|
|
|
Consumer
Complaint no. 226 of 2024
In the matter
of :
Smt. Kakali Sen,
and Anr.,
________Complainants
-
Versus
–
M/s. S.S. Construction
and Anr.
_________Respondents
OBJECTION FILED BY THE OPPOSITE PARTY
TO THE COMPLAINANT’S PRAYER TO TREAT THE COMPLAINT AS EVIDENCE ON AFFIDAVIT
The
Opposite Party respectfully submits this objection to the petition filed by the
Complainant seeking to treat the complaint itself as "evidence on
affidavit" without placing a separate Evidence on Affidavit, as required under law:
- That the present Consumer Complaint is pending
before this Hon’ble Commission and the Opposite Party has already filed
its detailed Written Version rebutting and controverting all the material
allegations made by the Complainant.
- That the Complainant has now filed an
application/petition praying that the Consumer Complaint, which is
supported by verification, be treated as evidence on affidavit without
filing a separate Affidavit of Evidence.
- That such a prayer is wholly untenable in law
and contrary to the express provisions of the Consumer Protection Act,
2019, particularly Section 38(5) which states:
“Every proceeding
before the District Commission, State Commission or the National Commission
shall be deemed to be a judicial proceeding and the Commission shall have the
same powers as are vested in a civil court under the Code of Civil Procedure,
1908 in respect of taking evidence on affidavit…”
- That the procedure followed in consumer fora
clearly mandates that the complainant, after the opposite party files the
Written Version, must place his/her evidence by way of a separate
Affidavit,
annexing the documents relied upon, which shall be marked as Exhibits.
- That treating the original complaint (which may
merely be verified and not sworn as an evidence affidavit) as equivalent
to formal Evidence on Affidavit would prejudice the rights of the Opposite
Party, particularly when the Written Version has already controverted the
factual contentions.
- That there is no provision under the Consumer
Protection Act, 2019, or the Consumer Protection (Consumer Disputes
Redressal Commissions) Rules, 2020, permitting waiver of the Evidence on
Affidavit merely on the ground that the complaint is verified.
The complaint and the evidence are procedurally distinct and serve
different purposes.
- In
the case of Maddu Rama v. Vishal Mega
Mart,
A/28/2023
(Sep 27, 2023) the Telangana State Consumer
Disputes Redressal Commission emphasized the importance of filing an
evidence affidavit. The Commission noted that
the complaint was dismissed for default/non-prosecution without examining
the affidavit and documents filed by the complainant. The Commission held that under Section 38(6), every
complaint shall be heard on the basis of affidavit and documentary evidence
placed on record. Consequently, the matter was
remanded back to the District Commission with directions to allow both
parties to file their evidence affidavits and dispose of the case on
merits.
- That the absence of an Evidence on Affidavit
from the Complainant renders the complaint procedurally incomplete, and in
such circumstances, no effective adjudication can take place, and the
matter cannot proceed to final hearing.
- That unless and until the Complainant files
proper Evidence on Affidavit, the Opposite Party cannot exercise its right
to seek leave for cross-examination (if necessary), or rely on any
rebuttal evidence.
- Therefore,
it is most respectfully prayed that;
- The Hon’ble Commission may be
pleased to reject the Complainant’s prayer to treat the complaint as
Evidence on Affidavit;
- Direct the Complainant to
file proper Evidence on Affidavit in support of the complaint within
a time-bound manner;
- Pass any other order as this
Hon’ble Commission may deem fit in the interest of justice.
AND FOR THIS ACT OF KINDNESS, THE OPPOSITE PARTY
SHALL, AS IN DUTY BOUND, EVER PRAY.
VERIFICATION
I, Sujit Saha, being the O.P. no.
2, in the present consumer proceeding, do hereby verify that the contents of
the above objection are true and correct to my knowledge and belief. No part of
it is false and nothing material has been concealed therefrom.
Verified at Alipore
Judges’ Court on this 22nd day of May’ 2025
AFFIDAVIT
I,
Sujit Saha, Son of Late Sambhunath Saha, aged about 52 years, by faith Hindu, by
Occupation Business, residing at Premises being no. A/61/2, Bapuji Nagar, Post Office
– Regent Estate, Police Station – Jadavpur, Kolkata – 700092, District South 24
Parganas, do hereby solemnly affirm and says as follows;
1. I am proprietor
of the Opposite Party no. 1, M/s. S.S. Construction. I am the Opposite Party number
2, in the present Consumer Proceeding. I am acquainted and conversant with the material
facts stated in the objection and competent to swear this affidavit.
2. That the statements
of the paragraph no. 1 & 2, are true to my knowledge and belief, and the rests
are my humble submissions before the Hon’ble Commission.
The above statements
are true to my knowledge and belief.
DEPONENT
Identified by me,
Advocate
Prepared in my
Chamber,
Advocate
Date : 22nd
day of May’ 2025
Place : Alipore
Judges’ Court
N O T A R Y
