Before the Honourable District Consumer Disputes Redressal Forum at
Alipore South 24 Parganas
Ref : Complaint
Case No. 323 of 2014
A N
D
IN THE MATTER OF
Smt Tandra Mitra,
wife of Sri Goutam Mitra,of 38/1(7E) Rajkrishna Pal Lane, P.S. Garfa, Kolkata
– 700075.
….Complainant
-vs-
M/S
B.S.Enterprise
being represented by its Proprietor
Sri
Chandan Sarker son of Late Joygopal Sarkar of 18/C Garfa Sitala mandir Road, P.S. Sur
vey Park, Kolkata – 700075.
Barun
Kumar Chanda son of Lt Phanindranath Chandra of 24 Garfa School Lane, P.S. Purba Jadavpur, Kolkata –
700075
Salil
Kumar Ghosh son of Lt J.C Ghosh of C16/6, Phase IV, E.K.T.P. Manjulia, P.S. Tiljala,
Kolkata – 700107.
Opposite
Parties.
WRITTEN OBJECTION ON
BEHALF OF OPP.PARTY NO.1 AGAINST THE COMPLAINT BEING FILED BY THE COMPLAINANT
HEREIN.
The humble petition on
behalf of the Opp. Party No.1 above
named
Most Respectfully Sheweth :
1. That the Opp.Party no.1 states that
the Para 2 of the alleged complaint being filed by the Complainant herein is an
admitted fact and as well is the matter of record.
2. That the Para 3 of the alleged
complaint is also the matter of record and the fact to be admitted.
3. That the Para 4 of the alleged
complaint is also the matter of fact as well as the entire contents of the said
Para of the purported complaint is also the matter of record.
4. That the entire contents of Para 5 of
the alleged complaint are also the admitted facts.
5. That the statements of Para 6 of the alleged complaint are also the
matter of facts and the statements to be admitted by your Petitioner.
6. That the contents of Para 7 of the
alleged complaint are also the matter of records and there is no denying the
fact that your Petitioner being the developer of the G+III storied building
bearing the Premises No. 354 Garfa Main Road, P.S. Survey Park, Kolkata –
700075 had after completion of construction had offered to sell the Godown
space and the Car Parking Space at and for the total consideration value of Rs
6,00,000/.
7. That the statements as Per Para 8 of
the alleged complaint is partly matter of record since it is the fact that
there was a proposal before your Petitioner for purchasing the Godown and the
Car Parking at the aforesaid consideration value but the said offer came not
from the part of the Complainant herein but from the part of her husband who is
incidentally the owner of a Grocery shop at the same locality wherein your
Petitioner resides.
8. That it is also to state that the
instant suit is not maintainable in law or in facts before your Honour’s Court
since the Complainant herein had
intended to purchase the said Godown absolutely for commercial purpose simply
to keep stock of goods of the grocery shop being owned by her husband and such
transaction of commercial nature shall not come within the purview of the
Consumer Protection Act.
9. That the statements as Per Para 9 of
the alleged complaint are matter of
facts since your Petitioner being the Developer herein had entered into an
agreement for sale on dated 14/12/2008 with the Complainant herein based on
certain terms and conditions as being mentioned therein the said agreement and
your petitioner had also received an amount of Rs 1,00,000/ by cheque out of
the total consideration value of the scheduled property.
10.
That
the statements as Per para 10 of the said complaint being filed by the
Complainant is partly matter of record save and except the words “according to the instruction of the
opp.party No.1” since the execution of the agreement was absolutely the
brain child of the Complainant and her husband and the reasons for execution of
such a separate agreement for sale in respect of purchasing the same property
is best known to the Complainant and such facts have also been stated at your
petitioner’s letter dated 26/06/2010 being sent to the Complainant herein.
11.
That
moreover the said Complainant and her husband had specifically requested your
Petitioner to enter into a separate agreement for showing acceptance of the
amount of Rs 3,00,000/ so that the memo will not be reflected in the original
agreement for sale but initially your
Petitioner had refused to proceed in such way but later on, the Complainant and
her husband being the known persons of the same locality had made your
petitioner to agree with the said proposal and henceforth payments were being
taken quite later from the date of execution of the said agreement.
12.
That
the statements as per Para 11 of the alleged complaint is absolutely false and
is simply manufactured to mislead your Honour’s Court as also with an intention
to deviate from the main stream and/or chain of events and such concocted
statement from the part of the Complainant proves her fraudulent acts and
misdeeds and to that effect your petitioner demands strict proof from the
Complainant is respect of such alleged statements.
13.
That
henceforth the entire statements as per para 11 of the said complaint is being
wholly denied since no such letter dated 18/01/2009 was issued to the complaint
rather the date of the said letter was simply 18/01/2010 and after verification
of the documents being filed by the Complainant it is being observed that the
said date has been forged by the complainant for her personal gain and as well
as to mislead your Honour’s Court.
14.
That
originally the fact states that, with the execution of the agreement for sale
dated 14/12/2008 your Petitioner, inspite of receipt of part payment out of the
total consideration value of the Scheduled Property, had given possession of
the said Godown space to the Complainant with effect from 3rd March
2009 simply based on request from the
part of the Complainant and her husband so that they could use the Godown commercially
for stocking goods of their grocery shop.
15.
That since, possession was handed over to the Complainant herein simply
based on good faith and relation your Petitioner had requested the Complainant
as well as her husband verbally on several times even visiting her husband’s
grocery shop in the same locality to complete the registration of the said
properties by clearing up payment of the balance amount in full and final but
the Complainant being conspired with her husband for the reasons best known to
them had rather took out time after time on regular occasions by showing flimsy
grounds (since they were carrying
the ulterior motive to enjoy possession month after month without paying the
rest amount, once possession had been ensured from your Petitioner) and thus waiting for near about 8
months from the date of execution of the agreement your Petitioner being
extremely confused was compelled to issue a letter dated 07/09/2009 informing
the complainant about your Petitioner’s intention and willingness to execute
the registered deed of Conveyance in her favour but subject to clearance of the
balance amount.
16.
That
it is pertinent to mention that the Complainant and her husband had also
assured your petitioner that they will clear up the balance amount and will
complete registration within the maximum period of 8 months from the date of
execution and gaining such assurances from their part your petitioner had
handed over possession to the Complainant.
17.
That
inspite of receipt of the aforesaid letter dated 07/09/2009 there was no
movement from the part of the Complainant rather she remained silent and
enjoyed possession of the said Godown and in such situation your Petitioner had
visited the grocery shop of the Complainant’s husband and created pressure upon
them through local party members to clear up the balance amount and conduct
registration.
18.
That
subsequently it was through discussions through the Legal consultant of the
Complainant, Sri Saikat Dutta Majumdar, the date was fixed for registration as
on 30/12/2009, the deed of Conveyance was prepared and was also approved by the
abovenamed Advocate of the Complainant on behalf of his client and accordingly
your Petitioner being accompanied with his wife and along with his Advocate
Rajib Gangopadhyay had remained present before the office of the D.S.R III at
Alipore being the concerned registration department for conducting registration
and had anxiously waited there from 12 noon till for about more than one hour wherein
the Complainant’s Advocate Saikat Dutta
Majumdar had also appeared but after a long wait your Petitioner came to know
from the Advocate of the Complainant that she will not return up for the
reasons best known to her.
19.
That
the Complainant had herself evade from conducting registration simply to escape
from paying the balance amount and presently the Complainant has filed the
instant suit before your Honour’s Court showing deficiency of service and gross
negligence on the part of your petitioner.
20.
That
finding no other way your Petitioner
returned back home and tried to communicate with the Complainant but there was
no response from her part since she was enjoying possession without paying the
full amount.
21.
That
thereafter your Petitioner had again issued
another letter dated 18/01/2010 addressing to the Complainant herein detailing
the entire facts and incidents so far being happened and moreover your
Petitioner was compelled to send such letter intimating the fact of deduction
of an amount of Rs 66,000/ as license fees thus @ Rs 6000/ per month for about
11 months since the aforesaid incidents proves that there was rather gross negligence and reluctance on the
part of the Complainant to complete registration of the Scheduled property and
she in conspiracy with her husband had simply carried the intention to enjoy
possession in the said way so that balance amount will not be required to
cleared off and such condition of deduction was also mentioned in the said
agreement.
22.
That
the statements as per para 12 of the alleged complaint is again out and out
false and concocted which is being strictly denied by your petitioner since the
Complainant herein had never approached before the opposite Parties 2 and 3 and
if so the Opposite parties herein would have surely narrated the said fact before
your petitioner and moreover the Complainant’s attitude and intention so far
genuinely proves her absolute unwillingness to proceed for registration since
she knew very well that she was liable to pay the balance amount of Rs
2,00,000/ at the time of registration and it was due to such reasons the
registration was not completed inspite of all preparations and presence of your
petitioner at the registration department as is being mentioned herein above.
23.
That
it is well before being mentioned in the previous paragraph that your
petitioner had on his own issued the letter dated 07/09/09 intimating his
willingness to execute the registered deed of conveyance in favour of the
complainant but it is absolutely baseless and untrue that the Complainant had
paid an amount of Rs 17,000 to your petitioner, rather your Petitioner had
received an amount of Rs 5,000/ only for stamp
from the Ld Advocate of the Complainant Saikat Dutta Majumdar in
presence of the Complainant and her husband and accordingly the said Deed of
Conveyance was prepared after purchasing the stamp paper in the name of the
complainant, deed was approved by her lawyer and registration date was fixed as
on 30/12/2009 with the consent of the complainant and the said fact has
specifically been stated as per Para 18 hereinabove.
24.
That
it was duly being the brainchild of the Complainant and her husband which had
rather made the way for execution of two separate agreements of the same even
date in respect of purchasing the same property, having the same schedule only
with an intention to evade from mentioning the full consideration value of Rs
6,00,000/ in the deed of conveyance and henceforth such part of the statements as per Para 13 of the
alleged complaint is strongly being denied and disputed thus demanding strict
proof from the part of the Complainant.
25.
That
it is the fact and matter of record that a Stamp paper having serial no. 691482
was purchased in the name of the Complainant and it was on that very stamp
paper the deed was prepared, being approved by the Ld Advocate of the
Complainant and accordingly registration date was fixed on 30/12/2009 taking
consent of the Complainant herein but she did not turn up and such facts has been deliberately
suppressed by the Complainant in her alleged complaint.
26.
That
to that effect your Petitioner had also issued the letter dated 18/01/2010
narrating the entire facts which was duly received by the Complainant.
27.
That
subsequent thereto your petitioner had received one letter dated 19/01/2010
through her Ld Advocate Saikat Dutta Majumdar and it was after perusal of the
contents of the said letter your Petitioner came to the conclusion that the
Complainant herein had carried the genuine intention to avoid from paying the
balance amount of Rs 2,00,000 and she was trying to perform the fraud practice
of establishing the consideration value as Rs 3,00,000/ instead of Rs 6,00,000/
which has later on being admitted by her Ld Advocate Biswadeb Chattopadhyay in
his notice and complaint.
28.
That
the said alleged letter dated 19/01/2010 had stated the consideration value as
Rs 3,00,000 in full and final as per para 2 of the said letter and moreover the
Complainant had also carried the dishonest and fraudulent intention to grab
some extra space by creating pressure upon your petitioner which has clearly
being reflected from the said alleged letter and henceforth insuch situation
your petitioner found no object to give reply to such letter.
29.
That
the contents and/or statements as per Para 14 of the said complaint being filed
by the Complainant herein is partly matter of fact but the rest are all
baseless and frivolous being far from truth and reality, since it is a fact
that your Petitioner being mentally and physically harassed and being the victim
of the consequences had sent an Advocate’s letter dated 26/06/2010 detailing
the entire facts of the Complainant’s misdeeds and fraudulent tactics thus
finally with an intimation for cancellation of the said agreement for sale
dated 14/12/2008.
30.
That
it is pertinent to mention that the said letter dated 26/06/2010 was duly
received by the Complainant herein.
31.
That
in the meantime the Complainant has deliberately and willfully for the reasons
best known to her has suppressed the material facts, the mentioning of which
will genuinely prove the deficiency and negligence from the part of the
Complainant herself since with the receipt of the letter dated 18/01/2010 on
29/01/2010 your Petitioner had suddenly received complaints from the legal
residents of the Premises 354 Garfa main Road, Kolkata – 700075 since the
Complainant’s husband along with his labours of the shop had involved in
creating all sorts of nuisances and chaos into the said premises and even involved in drinking liquor which had
caused disturbances to other residents and they were forced to lock the main
entrance gate of the premises but the Complainant’s husband had broke open the
lock as well as the iron gate and to that effect your petitioner being harassed
due to the overt acts of the Complainant and her husband was forced to lodge a
complainbefore the Purba Jadavpur P.S. on dated 10/02/2010 and accordingly your
petitioner had also preferred an application u/s 107 Cr.P.C before the ld
Executive Magistrate (2nd Court) at Alipore against the Complainant
and her husband vide Case No. M.P.632 of 2010.
32.
That
subsequently in the meantime it was due to the intervention of some friends and well wishers including the
local party members the matter was settled and your Petitioner again became
agreed to provide another chance to the Complainant herein so that the
registration will be completed as well as the transaction and accordingly your
petitioner was handed over a sum of Rs 5,000/ by one Giridhari Ghosh @ Giri
being known to the Complainant for
purchasing the stamp paper and to proceed for registration.
33.
That
accordingly valuation was assessed, Deed was drafted, plan for the scheduled
property was prepared which was wholly approved by the Advocate of the
Complainant and the date for registration was fixed on 12/03/2010,but it is
unfortunate to state that your petitioner had turned up along with his Advocate
for conducting the registration before the office of the DSR III at Alipore wherein two local party members had also
remained present but again after a long wait and wastage of valuable time and
energy of your petitioner he could learnt that the complainant will not turn up
for registration .
34.
That
in such situation who is responsible for non completion of registration on
behalf of the complainant as being alleged by the complainant in her ill
motivated complaint and the complainant herein has find no necessity to
incorporate the said facts in her complaint .
35.
That
finally your Petitioner had send the
legal notice dated 26/06/2010 to the complainant herein intimating her about
the cancellation of the agreemeTnt for sale dated 14/12/2008 which had also
crossed the stipulated time frame of 18 months as being mentioned in the said
agreement and it was with due receipt of the said notice the complainant found
no necessity to send any reply to such notice dated 26/06/2010 since more than
31/2 years, rather the complainant herself along with her husband had handed
over possession of the said godown.
36.
That
in the meantime your Petitioner had on several occasions repeatedly intimated
the Complainant to get refund of the money being given by her but there was no
response from her part.
37.
That
subsequently in absence of your Petitioner on dated 03/02/2014 suddenly the
Complainant’s husband Goutam Mitra in grave provocation from the complainant
being accompanied with some of his associates had barged into your petitioner’s
godown by breaking the lock and padlock of the said godown and ransacked the
interior walls of the godown in connivance with some unknown associates, broke
the fitted grills of the godown and committed theft of valuable woods like mahogany,shagun
bamboo etc which were remained stock at the said godown being presently in
possession of your petitioner.
38.
That
on getting the information your petitioner had immediately rushed before the
Survey Park Police Station and lodged the complaint vide G.D.E No. 200 dated 03/02/2014 which was
later on treated as F.I.R vide Survey
park P.S. Case no. 35 dated 03/02/2014 under sections 461/453/380/323/114 I.P.C
and the said case is still pending before the ld A.C.J.M at Alipore.
39.
That
suddenly after the lapse of all most more than 3 ½ years wherein within this
period the Complainant remained silent rather handed over possession of the Godown to your Petitioner and
thereafter the complainant’s husband had committed offence and in the meantime
the Complainant had taken hardship to send one legal notice to your petitioner
wherein it is funny to state that the complainant had subsequently changed her
words of fraudulent and foul tactics, the jugglery of which she had so far
shown in her letters since in the said notice dated 21/02/2014 she had finally
admitted the fact that the consideration value of the properties were fixed at
Rs 6,00,000 in full and final but initially she had taken recourse to dishonest
tactics by claiming the value of the property as Rs 3,00,000/ and Rs 1,00,000/
was paid for extra space as per her letter dated 19/01/2010.
40.
That
the said notice was specifically issued in favour of your petitioner to fulfill
the malafide intention of the complainant but sending of a mere letter after a
lapse of 3 ½ years wherein the agreement has already been cancelled and the
complainant remained silent for such a period after receipt of the notice dated
26/06/2010 simply state the silent admission and/or consent to the contents of
the said letter and moreover the whimsical sending of a legal notice does not at all create any cause
of action to the instant suit.
41.
That
however on receipt of the said notice your Petitioner had given a befitting
reply to the said notice by sending a reply notice dated 05/03/2014 to the Ld
Advocate of the Complainant through speed post but the said notice was
deliberately and intentionally refused to be accepted by her Advocate which
became not claimed inspite of sending the said reply notice at the authentic address of the
Complainant’s advocate.
42.
That
thereafter again another notice dated 30/05/2014 was send by the said Advocate
of the Complainant after a lapse of more or less 3 months, to your petitioner
but after perusal of the contents of the said letter your petitioner could
observe that some new stories have been incorporated into the said notice just
deviating from the contents of the previous notice which is nothing but the
outcome of an after thought containing some cooked up manufactured stories and
on receipt of said bull sheet notice your petitioner found no absolute
necessity to give reply to the said notice.
43.
That
as per Para 15 of the alleged complaint it is funny to state that the
complainant took about more than 3 months time to collect new particulars from
the complainant to send the fresh notice dated 30/05/2014 thus deviating from
the contents of the previous notice
dated 21/02/2014.
44.
That
as per Para 16 of the alleged complaint your Petitioner strongly denies and
disputes with the allegations as being framed against your petitioner and
states that the negligence arose from the part of the complainant herself
simply to cheat your petitioner by enjoying possession of the godown in the
illegal manner and moreover since the stipulated time frame of the agreement
for sale has already expired more than 3 years ago and moreover during the
subsistence of the said agreement for sale since the Complainant herself had
remain engaged in all sorts of foul play to avoid registration deliberately
intentionally and also escape from paying off the balance amount of the total
value of the property henceforth presently with the cancellation of said
agreement for sale there lies no question of handing over the said documents as
being mentioned in para 16 of the said complaint since the complainant herself
as deliberately failed to fulfill her commitments and the stipulated time frame
of the agreement had already expired.
45.
That
the alleged contents of Para 17 of the complaint is simply the outcome of the
criminal case being lodged against the complainant’s husband which is still
pending and no such incidence took place on dated 19/02/2014 since presently
she is not in possession of the said property and the said statements are
absolutely false baseless and is being strongly denied by your Petitioner and
at the same time is demanding strict proof from the Complainant herein and in
respect of the case being No. M.P. 865 of 2014 your petitioner found no
necessity to make his appearance in the said case.
46.
That
the statement as per Para 18 of the complaint is absolutely meaningless since
there lies no question of becoming revengeful upn the Complainant and her
husband since the complaint before the Survey Park P.S. was lodged on the very day of commission of offence by
the Complainant’s husband i.e on 03/02/2014 rather the M.P.Case No. 865 of 2014
has been filed against your petitioner on 19/02/2014 absolutely out of grudge
and to take revenge.
47.
That
the statements as per 19 of the complaint is absolutely vague and possess no
legal validity having no legs to stand upon and since the said transaction is
commercial in nature such petition does not lie within the consumer protection
act .
48.
That
the statements as per Para 20 of the said complaint is again false and untrue
and the cause of action for the suit completely extinguishes on 30/12/2009 when
the complainant failed to turn up before the registration office for
registration and again on 12/03/2014
when again the complainant failed to
turn up at the registration office and finally on 26/06/2010 after sending the
notice to the complainant with the
intimation for cancellation of the agreement for sale as also with the expiry
of the time frame of the agreement for sale.
49.
That
it is also to state that finally the complainant’s husband had visited your
Petitioner’s house after discussions
between themselves and had accepted the amount of Rs 4,00,000/ by an account
payee cheque vide No. 608455 dated 14/08/14 from your petitioner which was duly
credited in favour of complainant on 22/08/14 and accordingly your petitioner
had thereafter issued a letter dated 08/10/14 to the complainant with a demand
for issuing money receipt in respect of
credit of the aforesaid cheque but it is surprising to state that with the
receipt of the aforesaid letter by the complainant she had subsequently issued
another letter dated 12/10/14 to your Petitioner as the reply to your
Petitioner’s letter.
50.
That
it was on perusal of the said reply your Petitioner had learnt about the
misdeeds of the Complainant which was done deliberately and intentionally to
fulfill her fraudulent and dishonest motive and such acts have simply been done
only after receipt and encashment of the aforesaid cheque and moreover it is
funny to state that the cheque was encashed on 22/08/14 and she had visited her
band only on 08/10/2014 only after receipt of your petitioner’s letter and such
acts are absolutely calculated and ill motivated .
51.
That
your Petitioner is strictly denying the allegations as being imposed upon your
Petitioner by the Complainant in respect of the amendment petition being filed
by the Complainant since all such alleged statements are concocted, misleading
and baseless having no legs to stand upon.
52.
That
it is noteworthy to mention that the complainant herein had also met with the
local councilor only after committing offence of theft in respect of which
Survey Park P.S. Case No. 35 dated 03/02/14 had been lodged against the
complainant‘s husband, only with an object to settle the matter and when your
petitioner had requested the complainant and her husband to take refund of the
money they had duly agreed with.
53.
That
in the aforesaid facts and circumstances your Petitioner is praying for set
aside the said alleged complaint being filed by the Complainant herein against
your petitioner since the said complaint is
not at all maintainable in law and does not lie within the purview of
the Consumer Protection Act and moreover the said complaint is absolutely
barred by limitation.
In
the facts and circumstances it is therefore prayed that your
Honour would be graciously pleased to admit this petition and allow
your Petitioner’s prayer for set aside the
alleged complaint
being filed by the complainant herein before
your Honour’s Court and/or may pass any such
other order/s as your Honour may deem fit and
proper for the ends of justice.
And for this act of kindness your petitioner as in duty bound
shall ever pray.
V E R I F I C A T I O N
I Sri Chandan Sarker the Petitioner herein declare that the statements made in paragraphs
1 to 46 above are true to the best of
my knowledge and belief and the rests
are my humble submissions before the Learned Court . I sign this verification
on the day of 2014.
A F F I D A V I T
I SRI CHANDAN SARKER son of Late Joygopal Sarkar, by faith
Hindu, Indian, by occupation Business, aged about 56 years, on behalf of my
sole proprietorship firm M/S B.S. enterprise having its office and residence at
18/C Garfa Sitala Mandir Road, P.S. Survey Park, Kolkata – 700075 do hereby
solemnly affirm and declare as follows :
1.
That
I am the Opposite Party No.1 in the instant case being filed by the Complainant
and I am well conversant with the facts
and circumstances of the said case.
This is true to
my knowledge.
2.
That
the statements made in paragraphs 1 to 46 of my Written Objection are true to the best of my knowledge and belief and the rests are my
humble submissions before your Honour’s Court.
D E P O N E N T
Identified by
me
Advocate.
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