BEFORE THE HON’BLE CONSUMER
DISPUTES REDESSAL COMMISSION, WEST BENGAL, AT KRETA SURAKKA BHAWAN, PREMISES
NO. 11A, MIRZA GALIB STREET, GROUND FLOOR, KOLKATA – 700087
A.
NO. OF
2016
In the matter of :
An
Appeal under Section 15 of the Consumer Protection Act’ 1986, from the Order
& Judgment dated 30-09-2015, passed by the Learned District Consumer
Disputes Redressal Forum, at Barasat, North 24 Parganas, in CC/249/2015;
And
In
the matter of :
The
impugned Order & Judgment dated 30-09-2015, passed by the Learned District
Consumer Disputes Redressal Forum, at Barasat, North 24 Parganas, in
CC/249/2015;
And
In
the matter of :
Sri
Santanu Bhaduri , S/o Late Sunil kumar
Bhadhuri , residence of Sawgatam Apartment ,Flat No- 220 ,M.G.Road ,P.S. Thakurpukur now Haridwpur .Kolkata
-700082,W.B.
APPELLANT
VERSUS
1.
Smt. Kiran Singh
Rastogi, w/o. Sri Rajesh Rastogi ,
Ghoshpara Road(Shanka Baqnik Colony )
P.O. Barracpur ,P.s Titagah , Dist- North 24 Parganas , Kolkata 700120 ,
West Bengal
2.
Sri . Arabinda Ghosh
, S/o. Late Tarumoy Ghosh
3.
Smt . Sipra Ghosh
W/o. Wife of Late Tarumoy Ghosh
4.
Smt . Jui Ghosh d/o . Late Tarumoy Ghosh
Nos. 2, 3, and 4, are residents of No. 63, Dhaniapara K.
Road Anandapur, Barracpur, P.O. – Nonachandan Pukur, P.S- Tiatgarh , Dist-
North 24 Pgs , Kolkata -700102, West Bengal
RESPONDENTS
To,
The Hon’ble President and his
companion Members of the State Commission, West Bengal.
The memorandum of Appeal of the
appellant above named most respectfully Sheweth as under :
I.
That the present appeal under
Section 15 of the Consumer Protection Act’ 1986, is being against the Order
& Judgment dated 30-09-2015, passed by the Learned District Consumer
Disputes Redressal Forum, at Barasat, North 24 Parganas, in CC/249/2015.
II.
That in perusal to appreciate the
facts and circumstances of the present case, the appellant seeks liberty of
this Hon’ble Commission, the facts in the following paras :
i.
That the appellant is
a promoter /developer and a contractor by profession while the predecessor in interest
of the respondent no.2, 3, and 4, are the
landowners of the land which is more fully described in schedule “A” hereunder
and that the appellant and the predecessor in interest of the respondent no. 2,
3, and 4, entered into a development agreement dated 2nd December ,
2011.
ii.
That the appellant
under took to construct a multi storied residential building upon the said of
schedule “A” and the plan has been duly sanctioned.
iii.
That the respondent
no.1 in requirement and need for own use and occupation wanted a residential
flat and being satisfied and attracted entered into an agreement for sale dated 28th December, 2012 for
purchase of the residential flat and it is described in the schedule “B” for a total consideration of
Rs- 11,55,000/- (Rupees Eleven Lacs Fifty
Five thousand Only), and out of the said considratiopn amount paid the sum of
Rs. 8,50,000 /- (Rupees Eight Lacs Fifty
Thousand only ) and thus leaving the balance of Rs 3,05,000/- (Rupees Three
Lacs Five Thousand Only).
iv.
That it was further
stipulated that the said work of the construction in its entirely shall be
completed within September, 2013, and accordingly, handover peaceful possession
of the said residential flat when the respondent no. 1, would be required to
pay the balance amount of Rs. 3,05,000/- as it stipulated.
v.
That for the
respondent no. 1, begs to submits that for some unknown reasons the appellants
has abandoned the said work of construction.
vi.
That for the reason above
the respondent has filed one consumer complainant being no. CC/249/2015 before
the Learned district Consumer Disputes Redressal Forum, Barasat and praying for
certain reliefs.
vii.
That after proper
service of summons the appellant appeared before the Learned Forum, Barasat and
has filed his Written version.
viii.
That the appellant
had entered into a development agreement and the power of attorney with Tarumoy
Ghosh, father of the respondent no. 2 to 4 to develop the land of schedule of
the development agreement as well as General power Of Attorney executed by the
said Tarumoy Ghosh. The respondent no. 1 intended to purchase a flat against a
consideration of Rs. 11,55,000/- for which the respondent no. 1 entered into an
agreement for sale with the appellant
and paid a sum of Rs. 8,50,000/- out of the total consideration money to the
appellant.
ix.
That the appellant
states that the respondent no.1, did not come before the Learned Forum with
clean hands and clear picture. That after proper inspection the respondent
entered into development agreement with Tarunmoy Ghosh, fathather of the
respondent no. 2 to 4 being Land owners and the appellant constructed a
building with the permission or sanction plan from the competent concern
authority on the said schedule land, thereof.
x.
That the appellant
states that during the construction work, one Smt. Kalpana Sarkar lodged a
petition on 30.10.2012 before the Learned Executive magistrate at Barrackpore ,
North 24 Pgs . under section 144(2) Cr.p.c. against the respondent no. 2
/landowner and the appellant /developer and as per order of ld. Executive Court , Barrackore , the concern
Municipality directed the appellant on 09.11.2012 that not to carry out any type of construction pursuant to the
building plan until further order .
xi.
That your appellant
states that the said Kalpana Sarkar filed a Title suit being no. 75 of 2012 on
12.03. 2012 before the Ld. Civil judge (Jr . Divn.), 4th Court
at Sealdah against the Landowner and the developer, the
appellant herein in respect of the Landed property praying for declaration that
she is the absolute owner of the said land and a permanent injunction
restraining the defendants from disturbing her lawful possession and the civil suit is pending before the Learned
Civil Judge (Jr. Divn|) 4th Court at Sealdah and due to that reasons the
appellants could not complete the construction work of the said proposed
building as per time schedule mentioned in the development agreement dated 2nd
day of December 2011, executed by and between the landowner and the developer ,
the appellant herein.
xii.
That the appellant
sates that he comes to know about the Civil Suit in the year 2014 and already
informed the above mentioned incident to
all the intending purchases that it is
impossible to complete the said proposed building at the landed property which
is not intentional latches by the
appellants.
xiii.
That the appellants
stated that the said landlord, Tarumoy Ghosh died on 29.12.2014 intestate leaving behind his legal heirs and for that
the reason the said power of attorney
executed by Tarumoy Ghosh automatically
cancelled and the appellant has no power to any work and execute any
kind of deed in respect of the said multi storied building.
xiv.
That the respondent
no.1 filed the complaint case in the year of2015 , i.e after filling of the civil suit and the above
mentioned civil suit was filed in the year 2012 before the Ld. 4th
Civil Judge Junior Division at Sealdah , long before the filling of the above
mentioned complaint case.
xv.
That in respect of
the application by the Smt. Kalpana Sarkar , the concern municipality seized
the summon the sanction plan from the developer i.e the appellant.
xvi.
That the appellant
has no intentional latches /delay to complete the construction work of the
said building and comply the condition
as per agreement for the sale.
xvii.
That the respondent
no 1 has filed above mentioned case by suppressing the above mentioned fact
which the appellant had already informed to the respondent no 1.
xviii.
That the legal heirs
did not carry out any subsequent development agreement with the appellant to
complete the construction work in respect of the said landed property.
xix.
That the respondent
no 1 has filed the above mentioned complainant
case with the help of the said cancelled document like power of attorney , which is not effective
anymore after the death of the executor /land owner.
xx.
That in the case no. CC/249/2015 between the parties the
Ld. Forum passed the decree on 30.09.2015 where it was ordered that the respondent
no. 1 be allowed on contest in part against the appellant and dismissed
ex-parte against the other respondents. The appellant is directed to refund Rs
. 8,50,000/- to the respondent no 1 with interest of 12% per annum from
02.12.2012 till final payment within 2 months .
xxi.
That the appellant is
further directed to pay compensation of Rs. 20,000/- and Rs. 5,000/- as litigation cost to the
complainant within two months from the date of the order ,failing which the appellant shall
have to pay sum of Rs. 200/- per day from the date of order till its
realization , as punitive damages , which shall be deposited by the appellant in
the state consumer Welfare Fund.
xxii.
In view of the afore
mentioned facts and circumstances the
appellant has been compelled to prefer the instantappel against the impugned Order
& Judgment dated 30-09-2015, passed by the Learned District Consumer
Disputes Redressal Forum, at Barasat, North 24 Parganas, in CC/249/2015.
(a) whether a
complaint case or subsequent proceeding under the provision of Consumer
Protection Act can be heard without proper and effective service of demand of
justice prior to service of demand of justice upon the other side?
(b) whether the
complainant case under section 12 of the Consumer Protection Act, 1986 should
be entertained by the Learned Consumer Forum, when the complainant did not disclose the correct and accurate address of the
opposite party with deliberate and malafide intention to avoid the appearance
of the opposite party to contest the said complainant case?
(c) Whether a
complainant should be entertained and
entitled to any relief or reliefs, in the event of initiating a complainant
case by suppressing the material facts
with a view to prevent the opposite party to contest the complainant case?
III.
That being aggrieved of the
impugned Order & Judgment dated 30-09-2015, passed by the Learned District
Consumer Disputes Redressal Forum, at Barasat, North 24 Parganas, in
CC/249/2015, the Appellant seeks liberty of this Hon’ble Commission to raise
the following grounds amongst other:
G
R O U N D S
A.
FOR THAT The Learned Trial Forum has
failed to appreciate the facts and circumstances of the present consumer case
and has passed the impugned order without due application of the judicial mind;
B.
FOR THAT The Learned Trial Forum
below appreciating the factual aspect of the complainant case to its true
purport has passed the impugned order mechanically and with hyper
technicalities;
C.
FOR THAT The Learned Trial Forum below without it’s
judicial mind and natural justice has passed the impugned judgement which
otherwise bad in law and misconceived one;
D.
FOR THAT the impugned order is
based surmise and conjecture and not on the basis of factual and legal aspects
involved in complainant case;
E.
FOR THAT the Learned Trail Forum
below acted illegally and with material irregularity at the time of passing the
judgement and decree in complaint case;
F.
. FOR THAT the Learned Trial Forum below ought to have considered the averments as
mentioned in the WRITTEN Version filed by the respondents;
G.
FOR THAT the Learned Trial Forum below ought to have considered that due to pendency
of the civil suit and there is no power
of attorney in favour of the appellant , the appellant did not construct the
building;
H.
FOR THAT the Learned Trial Forum below ought to have considered that when a matter is pending before the Learned
Civil Court , should not be raised before the Consumer Forum;
I.
. FOR THAT the Learned Trial Forum below ought to have considered the written
objection along with annextures filed by the appellant before the Learned Trial Forum bellow but surprisingly, the Learned Trial
Forum below did not consider the same;
J.
FOR THAT the Respondent no 1 as the complainant had
initiated the whole proceeding had been initiated with a mala fide intention
and practice fraud upon the said. All the orders are bad in law and are
enforceable and the same is liable to be set aside in limine;
K.
FOR THAT the
Respondent no 1 has obtained the impugned order dated 30.09.2015 , passed by
the Leasrned District Consumer Disputes Redreesal forum , at Barasat, District
North 24 Parganas, West Bengal , by practicing fraud upon the Learned District
Forum and the respondent no 1 is not
entitled to reap the fruit out of the
said impugned order .Hence the respondent is not entitled to any cost or
compensation on the basis of said impugned order/judgement;
L.
FOR THAT as the all orders were
obtained by the respondent no 1 practicing fraud upon the Learned forum;
M.
FOR THAT the respondent no 1 complainant is that the
appellant entered into development
agreement and power of attorney with Tarumoy Ghodsh , father of respondent no 2 to 4 to develop the land of
the schedule of development agreement as well as the General Power of the
Attorney executed by the said Tarumoy Ghosh . The respondent no 1 intends to
purchase a flat against a consideration money a sum of Rs. 11, 55,00 /- for
which the respondent no 1 had entered into an agreement for sale with the
appellant and paid a sum of Rs. 8,50,000/- out of the total consideration money
to the appellant and the appellant could not deliver the possession of the flat
within due time;
N.
FOR THAT the respondent no 1 did not come before
Ld. Forum with clean hands and clear
pictures. That after proper inspection the respondent entered into development
agreement with Tarumoy Ghosh , father of respondent no 2 to 4 / landlord and
the appellant constructed a building with the permission or sanction plan from
competent concern authority upon the
said land;
O.
FOR THAT during the construction
work, one Smt. Kalpana Sarkar lodged a petition on 30.10.2012 before the
Learned Executive Magistrate at Barrackpur , North 24 Pgs . under section 144(2
) Cr.p.c. against the respondent no 2 / landlord and the appellant /developer
and as per order of the Ld. Executive Court . Barrackpore , the concern
Municipality directed the appellant on 09.11.2012 that not to carry out any
type of construction pursuant to the said building plan until further order;
P.
FOR THAT the said Kalpana Sarkar filed a Title suit being no. 75
of 2012 on 12.03.2012 before LD. Civil Judge (Jr. Divn.) 4th Court
at Sealdah against the landowner and the developer, the appellant herein in
respect of the landed property praying for
Declaration that she is the absolute owner of the said land and
permanent Injunction restraining the defendants from disturbing her lawful possession and civil case is pending before Learned
Civil court (Jr. Divn.) 4th court at Sealdah and due to that reason
the appellant could not complete the construction work of the said proposed
building as per time schedule mentioned in the development agreement dated 2nd
day of December 2011 executed by and between the landowner and the developer ,
the appellant herein ;
Q.
FOR THAT he came to know about
the civil suit in the year of 2014 and already informed that it’s not possible
to complete the said proposed building at the said landed property, within due
time, which is not international latches by the appellant;
R.
FOR THAT the said landlord,
Tarumoy Ghosh died on 29.12.2014 intestate leaving behind his legal heirs and
for that reason the said power of
attorney executed by Tarumoy Ghosh
automatically cancelled and the appellant has no power to any work and to
execute any land of deed in respect of the said multi storied building;
S.
FOR THAT the respondent no 1
filed the complaint case in the year of 2015 , i.e after filling of the civil
suit and the above mentioned civil suit was filed in the year 2012 before the
Ld. 4th Civil Judge Junior Division
Sealdah , long before the filling
of the mentioned complain case;
T.
FOR THAT in respect of the
application by Smt. Kalpana Sarkar , the concern municipality seized the
sanction plan from the developer i.e the appellant;
U.
FOR THAT the appellant has no
intentional latches / delay to complete the construction work of the said
building and comply the conditions as per agreement for sale;
V.
FOR THAT that the respondent no 1
has filed the above mentioned case by suppressing the abovementioned fact which
the appellant had already informed to the respondent no 1;
W.
FOR THAT the landowner, Tarumoy
Ghosh died, who had executed the Development agreement and also power of
Attorney in favour of the appellant and hence the appellant has no power to
complete the work in respect of the said building;
X.
FOR THAT the legal heirs did not
carry out any subsequent development agreement with the appellant to complete
the construction work in respect of the said landed property;
Y.
FOR THAT the Learned Trail Forum
below to have consider that there is an injunction upon the said property and
for that the appellant did not complete his work and the said civil case has
been filed long before the filling of the consumer complaint and in the said
case the land lords are the party;
Z.
FOR THAT the Learned Trial Forum below did not consider the said civil
suit being no. T.S. 75/2012 and passed the said order without any lawful
justification;
AA.
FOR THAT the impugned order dated
30.09.2015 is bad in law and the execution case is not maintainable in the eye
of law therefore, the impugned order should be set aside and quashed;
BB.
FOR THAT the appellant craves
leaves of this Hon’ble Court to amend any of the aforesaid grounds and further
craves leave to add other ground, before or at the time of hearing of this
petition.
IV.
That the
appellants state and submits that there is no consumer disputes between the
parties in terms of the provisions of the Consumer Protection Act’ 1986.
V.
That the
appellants state and submits that the respondent herein is not entitled to get
any relief in terms of her prayer as made out in his petition of complaint at
any terms of provision of the Consumer Protection Act’ 1986.
VI.
That the
appellants state and submits that the petition of complaint made by the
respondent herein should be dismissed and or set aside at the terms of the
provision of Section 26 of the Consumer Protection Act’ 1986.
VII.
That the appellant states and
submits that the Order & Judgment dated 30-09-2015, passed by the Learned
District Consumer Disputes Redressal Forum, at Barasat, North 24 Parganas, in
CC/249/2015, suffered with gross errors and highly prejudice.
VIII. That unless this
Hon’ble Commission interferes in the present appeal, grave injustice would be
caused to the Appellants / Opposite Parties.
IX.
That the appellants enclosing
herewith the Original Certified Copy of the Order & Judgment dated
30-09-2015, passed by the Learned District Consumer Disputes Redressal Forum,
at Barasat, North 24 Parganas, in CC/249/2015.
X.
That the appellants enclosing
herewith the copy of the followings :
i)
All order;
ii)
Petition of Complaint
being no. C.C. no. 249 of 2015;
iii)
Written version filed
by the o.p. no.1;
iv)
Examination in chief
on Affidavit by the Complainant;
v)
Examination in chief
on affidavit by the O.P. no. 1;
vi)
Written Argument
filed by the O.P. no.1;
vii)
Brief notes of
Argument of the Complainant;
XI.
That this memo of appeal /
application / petition, is made bona-fide and for the interest of justice.
Under
the circumstances, the Petitioners, of this instant application / petition,
prays before your Lordship, would be graciously pleased to admit this instant
application / petition, issue notice upon the opposite party, call for the
L.C.R. from the Ld. Lower Forum, and after conducting the appropriate hearing
of this instant application / petition, set aside the impugned Order &
Judgment dated 30-09-2015, passed by the Learned District Consumer Disputes
Redressal Forum, at Barasat, North 24 Parganas, in CC/249/2015, 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 perused
the records
of this case, and I certify that
there is merits
and So, I undertake to argue this
case for
the appellants at the time of
hearing.
Advocate for the Appellant.
Enclosing herewith the following
documents :-
1.
The Original Certified
copy of Order & Judgment dated 30-09-2015, passed by the Learned District
Consumer Disputes Redressal Forum, at Barasat, North 24 Parganas, in
CC/249/2015;
2.
All order;
3.
Petition of Complaint
being no. C.C. no. 249 of 2015;
4.
Written version filed
by the o.p. no.1;
5.
Examination in chief
on Affidavit by the Complainant;
6.
Examination in chief
on affidavit by the O.P. no. 1;
7.
Written Argument
filed by the O.P. no.1;
8.
Brief notes of
Argument of the Complainant;
AFFIDAVIT
I
, Sri Santunu Bhadhuri , s/o late Sunil Kumar Bhaduri, aged about _____ years,
by faith Hindu, by Occupation Business, residing at premises being Sawgatam
Apartment, Flat no -220, M.G. Road, P.S. Thakurpukur now Haridwpur, Kolkata
-700082, W.B, do hereby solemnly affirm and state as follows:
1)
That I am the
Appellant herein and as such being aware of the facts and circumstances of the
instant case I am competent to swear this Affidavit on oath.
2)
That the accompanying
application has been drafted by my counsel under my instructions.
3)
That I am reading and
understood the contents of the accompanying appeal and the same are true to my knowledge and /or true to
the records of the case .
4)
That the facts stated
herein above are true and correct to the best of my knowledge and belief and no
material concealment has ever been made thereof.
DEPONENT
Identified by me
Advocate
Prepared in my Chamber;
Advocate
Date : ______________2017;
Place : Kolkata.
N O T A R Y
