Before the Hon’ble
District Consumer Disputes Redressal Forum Kolkata Unit – III, ( Kolkata South
), at Alipore, Kolkata – 700 027, West Bengal.
MA
/ / 2019
{
arising out of CC / 70 / 2018 }
In
the matter of :
Dr.
Biswajit Paul,
__________Complainant
-
Versus –
Smt.
Mina Basu, and another.
_______Opposite parties.
An application by the
Opposite Party No. 1 Smt. Mina Basu, for Production of Original Documents,
being Unregistered Power of Attorney dated 11th October’ 2007, herein.
The humble petition on behalf of the
Opposite Party No. 1 Smt. Mina Basu, above named;
Most
Respectfully Sheweth as under :
1)
That this opposite party states that
one Title Suit has been instituted by Sri Utpal Roy, Son of Late Ramesh Chandra
Roy, Sri Tapan Nag, Son of Late Ramani Kanta Nag, and Smt. Sutapa Roy, Wife of
Utpal Roy, being Partners of M/s. Skylark Construction, having its office at
premises no. 28A, Raja S.C. Mullick Road, Police Station – Jadavpur, Kolkata –
700 032, against Smt. Mina Basu, widow of Late Amiya Kumar Basu, residing at
premises no. 6, Shiba Temple Lane, Police Station – Kasba, Kolkata – 700 078,
viz. Title Suit no. 14 of 2008. The case of the plaintiffs in a nutshell is
that the defendant is the owner of the suit property. Plaintiff with an
intention to develop the said suit premises by way of construction of multi
storied building consisting of several flats, car parking space etc. Entered
into an agreement on 17-08-2001, with M/s. Skylark Construction a partnership
firm represented by it’s partners. The Plaintiff decided to take the project
for construction of partly G + 3 and partly three storied building on the suit
plot in accordance with the sanction plan of K.M.C. It was settled between the
parties that one flat on first floor front side south west and another one on
the second floor front side south west and one car parking space of the
proposed building will be given to the owners. Also Rs. 3,75,000/- will be
given in addition. Plaintiff already paid Rs. 2,00,000/- to the defendant by
way of cheque dated 17-08-2001, drawn on Bank of Baroda, Moore Avenue Branch.
It was settled that balance amount will be payable at the time of delivery of
possession of flats. It was further agreed that the defendant will execute a
general power of attorney in favour of the plaintiff in order to facilitate the
construction work. In terms of the agreement dated 17-08-2001, plaintiff
submitted draft plan of proposed building before K.M.C. There was a clause in
that agreement that the proposed construction of the building shall be
completed within 24 months but if there is any delay due to non compliance of
the terms of agreement by defendant the construction period shall be extended.
Defendant delivered all relevant title deeds save and except mutation
certificate from B.L. & L.R.O. defendant assured that she will deliver the
mutation certificate from B.L. & L.R.O. but did not do the same for which
there was delay in getting sanction from K.M.C. However the plaintiff started
construction and completed sixty per cent of the work. Defendant also did not
execute any Power of Attorney, as agreed upon. Thereafter on 05-01-2008,
defendant issued a notice through her advocate Sri Malay Sengupta on the
plaintiff stating that the agreement dated 17-08-2001, stand cancelled. In that
letter defendant also demanded to take back the original documents. According
to the plaintiff defendant has got no right to cancel the agreement
unilaterally without any reason. Due to such acts of defendants, plaintiff suffered
enormous loss, therefore the suit being Title Suit no. 14 of 2008, has been
filed by the plaintiff against the defendant before the Learned 5th
Court of Civil Judge ( Senior Division ) at Alipoire, South 24 Parganas.
2)
That this opposite party states that
in the said Title Suit no. 14 of 2008, before the Learned 5th Court
of Civil Judge ( Senior Division ) at Alipoire, South 24 Parganas, Smt. Mina
Basu, widow of Late Amiya Kumar Basu, residing at premises no. 6, Shiba Temple
Lane, Police Station – Kasba, Kolkata – 700 078, being the defendant therein in
the said Suit before the Learned Court, contested the said Suit by filling her
written statement. Defendant stated that the suit is not maintainable.
Defendant denied all the allegation made against her by the plaintiff. The
defendant case is that it was agreed between the parties that the construction
will be completed within a period of 24 months after getting the sanction plan
but plaintiff neglected to complete the same. Defendant denied that due to non
supply of mutation certificate plaintiff failed to obtain sanction plan from
K.M.C. The plan was sanctioned on 24-03-2004, and it was valid upto 23-03-2007.
But even after lapses of 24 months plaintiff failed to complete construction
and even they did not handover the owner’s allocation to the defendant. Due to
non performance of plaintiff the agreement dated 17-08-2001, already stood
cancelled, and thereafter defendant gave a letter to plaintiff asking them to
return the original documents, but till date the plaintiff did not do so. It is
also stated that the plaintiff did not insist defendant to execute any general
power of attorney, on all these grounds defendant prays for dismissal of the
suit.
3)
That this opposite party states that
to prove said Suit, before the Learned Court, the Plaintiff no. 1, Shri Utpal
Roy, deposed as P.W. 1, the documents filed by the plaintiff are marked as
Exbt. 1, Agreement for development dated 17-08-2001, marked as Exbt. 2,
Sanctioned plan no. 797/03, marked as Exbt. 3. Letter dated 18-02-2008,
addressed to the plaintiffs firm along with envelop, marked as Exbt. 4. (Series
) copy of letter dated 28-02-2008, along with postal receipt and A.D. card
marked as Exbt. 5. Letter addressed to Utpal Roy, marked as Exbt. 6, A/D card marked
as Exbt. 7, Letter dated 12-06-2009.
4)
That this opposite party states that
in the said Suit, before the Learned Court, it is admitted by both the parties
that defendant who is the owqner of the suit premises entered into an agreement
with the plaintiff, which is a partnership firm for development of the suit
property by raising multistoried building. It was also agreed that the
construction will be completed within 24 months after receiving the sanctioned
plan from K.M.C. The plaintiff alleged that though defendant handed over the
title deed but did not handover the mutation certificate from B.L. & L.R.O.
for which obtaining sanctioned plan from K.M.C. got delayed. It is further
alleged that even defendant did not execute any power of attorney in favour of
the plaintiff for undertaking the construction work. However, the plaintiff
constructed sixty percent of the proposed building, and thereafter requested
defendant again to execute the power of attorney. But without doing so
defendant by a letter dated 05-01-2008, cancelled the agreement. On the other
hand, defendant denied all such allegations and stated that though the
plaintiff obtained sanctioned plan on 24-03-2004, but failed to raise
construction within the stipulated period.
5)
That this opposite party states that PW 1, in
his affidavit in chief corroborated his plaint case. In cross examination he
admitted that though exbt.1, is dated 17-08-2001, but on the notorised page the
date of execution is mentioned as 28-08-2001. He stated that he does not have
any documents to show that they have sent the draft copy of power of attorney
to the defendant. He also stated that it is not mentioned in exbt. 1, that
without any mutation certificate they will not be able to obtain any sanction
plan. From his evidence it also appears that he has got no documents to show
that he is authorized by other partners to depose in the case nor his
partnership business / partnership firm is registered under societies act.
6)
That this opposite party states that
PW 1, also stated that he did not assign any reason to defendant specifying any
reason for delay in completion of the said project. He also did not give any
letter to the defendant asking her to execute any power of attorney in his
favour. Corporation did not give him any letter informing him that without
mutation of B.L. & L.R.O. no plan could be sanctioned. He did not file any
report of chartered engineer and it is his own assumption that he has completed
ninety five percent of the construction work. He admitted that exbt. 1, does
not bear signature of owner. He also admitted that the defendant did not take
any consideration money. He also admitted that there is no initial of defendant
in page – 2 of exbt 1, where there is a handwritten portion. Though his learned
lawyer Sri Prasanta Mukherjee drafted the agreement but nowhere it has been
written that he drafted the same. He also admitted that sanction plan was valid
upto 23-03-2009, and he did not get any completion certificate from K.M.C. upto
23-03-2009. He also admitted that stipulated time expired long ago. He also
stated that though her original documents of defendant are lying with him but
he will not return those documents.
7)
That this opposite party states that
on the other hand defendant deposed as DW1 and she is in her affidavit in chief
corroborated her case. At the time of cross examination DW1 only tendered
exbts. 5, 6, and 7, and no other question was put to her.
8)
That this opposite party states that
thereafter the said Title Suit no. 14 of 2008, { Sri Utpal Roy and Others –
Versus – Smt. Mina Basu } has get it finality in terms of the Judgment
delivered on Friday the 20th day of August’ 2010, by the Learned 5th
Court of Civil Judge ( Senior Division ), at Alipore, South 24 Parganas, which
ordered as “that the Suit be and the same is dismissed on contest but without
cost”.
9)
That this opposite party states that
thereafter on defeating the said Suit, the plaintiff preferred an appeal from
the Original Decree being the Judgment delivered on Friday the 20th
day of August’ 2010, by the Learned 5th Court of Civil Judge (
Senior Division ), at Alipore, South 24 Parganas, which ordered as “that the
Suit be and the same is dismissed on contest but without cost”, before the
Hon’ble High Court at Calcutta, viz. FA / 46 / 2011, which consequentially
dismissed by the Order dated February’ 14, 2011.
10)
That this opposite party states that
in view of the facts of the Judgment delivered on Friday the 20th
day of August’ 2010, by the Learned 5th Court of Civil Judge (
Senior Division ), at Alipore, South 24 Parganas, which ordered as “that the
Suit be and the same is dismissed on contest but without cost”, there is no
agreement and or contract between Smt. Mina Basu, and M/s. Skylark
Construction, Sri Utpal Roy, Sri Tapan Nag, and Smt. Sutapa Roy, in any manner,
whatsoever.
11)
That this opposite party states that
this opposite party, have no iota of any knowledge of the present complainant,
and her false story, so far, and therefore this opposite party, is in now
related to the complainant and his false story, as stated by him in his
petition of complaint, in any form, whatsoever.
12)
That this opposite party states that
the said Title Suit no. 14 of 2008 { Sri Utpal Roy and Others – Versus – Smt.
Mina Basu }, has been filed and instituted as on 29-01-2008, by Sri Utpal Roy,
Son of Late Ramesh Chandra Roy, Sri Tapan Nag, Son of Late Ramani Kanta Nag,
and Smt. Sutapa Roy, Wife of Utpal Roy, being Partners of M/s. Skylark
Construction, having its office at premises no. 28A, Raja S.C. Mullick Road,
Police Station – Jadavpur, Kolkata – 700 032, against Smt. Mina Basu, widow of
Late Amiya Kumar Basu, residing at premises no. 6, Shiba Temple Lane, Police
Station – Kasba, Kolkata – 700 078, before the Learned 5th Court of
Civil Judge ( Senior Division ), at Alipore, South 24 Parganas, which has get
it finality in terms of the Judgment delivered on Friday the 20th
day of August’ 2010, by the Learned 5th Court of Civil Judge (
Senior Division ), at Alipore, South 24 Parganas, which ordered as “that the
Suit be and the same is dismissed on contest but without cost”.
13)
That this Opposite Party states that
the complainant’s story in nutshell is as follows ( as stated by the
complainant in the petition of complaint ), which has been specifically
disputed and denied and put to the
strict proof thereof :
a)
The Complainant is a purchaser of Flat
no. 6 South/East/West with a Car Parking Space in the 2nd Floor
(front) in the Building Constructed by M/s. Skylark Construction, the Developer
(Opposite Parties No. 2) on the Land of the Owner Smt. Mina Basu (Opposite
Parties No.1) at 112, kalitala Road, Police Station – Kasba, Kolkata – 700078,
by virtue of a Developer Agreement dated 17.01.2001 made between Opposite Party
No. 1 and Opposite Party No. 2.
b)
The Complainant into an Agreement
dated 09/09/2008 with the Owner and the Developer to purchase a flat being Flat
No. 6, measuring super built up area of 1300 Sq. Ft. In the 2nd
Floor South/ East/ North and a car parking space of super built up area of 130 Sq. Ft. On the ground floor of
the building under construction lying and situate at 112, kalitala Road, Police
Station – Kasba, Kolkata – 700078, for the consideration of Rs. 19,00,000/- (
Nineteen lakh rupees) only to be paid on different dates with the progress of
the works.
c)
That at the time entering into
aforesaid Agreement for Sale dated 09/09/2008, your petitioner came to know
from Developer Agreement dated 17/01/2001 made between the Owner of the land
Smt. Mina Basu Opposite Party No. 1 of 6, Shib Temple Lane, Kolkata – 70078 and
the Developer M/s. Skylark Construction represented by its partners (1) Sri
Utpal Roy (2) Sri Tapan Nag and (3) Smt. Sutapa Roy that the developer would
develop the land of the owner at 112, kalitala Road, Police Station – Kasba,
Kolkata – 700078 by constructing a partly G + 3 and partly 3 storied building
on the basis of a plan would be sanctioned from Kolkata Municipal Corporation
and on completion of the building the Owner shall get her own allocation and
the Developer shall be entitle to sell his allocation portion as mentioned in
the said Developer Agreement and would take purchase price of the flat from the
prospective buyers and by entering into Agreement for Sale with the buyers
would be executed by the owner, develop and respective purchasers.
d)
The said Development Agreement dated
17/01/2001 contained several terms and conditions amongst themselves that
included provision of Power of Attorney and that the Owner executed a General
Power of Attorney in favour of the two partners namely Utpal Roy and Tapan Nag
of the Skylark Construction, the Developer to act on behalf of the Owner Smt.
Mina Basu.
e)
The Agreement for Sale dated
09/09/2008 between the Owner Opposite Partly No. 1 Developer Opposite Party No.
2 and the Purchased for sale of flat no. 6 in the 2nd floor South/
East/ North with car parking space (front) within the Developer’s allocation
was signed by the Owner by the pen of Utpal Roy, the Attorney of the Owner the
Developer and the Purchaser the Complainant herein.
f)
The Complainant had to take Housing
Loan from the Bank, your Petitioner paid the purchase price amounting to Rs.
15, 00,000/- (Fifteen Lakh rupees) only to the developer, leaving of Rs.
4,00,000/- (Four Lakh rupees)only was to be paid to the Developer on
Registration of the flat, according to the terms of the Agreement.
g)
The Complainant states that the
Developer on completion of the building handed over possession of the flat on
10th August 2010 to the purchaser with possession letter.
h)
The complainant wrote his first letter
only on 08-06-2013, to the developer, for the registration of deed of
conveyance in her favour.
i)
The Complainant wrote his first letter
to this opposite party, only on 22-06-2017, through his Learned Advocate, which
has been replied by this opposite party, through her letter dated 24-07-2017.
14)
That the Complainant relied on the
following documents and or papers and the same has been annexed with the
petition of complaint :
a)
Unregistered Development Agreement
dated 17th day of August’ 2001;
b)
Unregistered Power of Attorney dated
11th October’ 2007;
c)
Unregistered Agreement for Sale made
as on 9th day of September’ 2008;
d)
Possession Letter, dated 10-08-2010;
e)
Letter dated 08-06-2013;
f)
Letter dated 22-06-2017;
g)
Letter dated 27-07-2017;
h)
Letter dated 24-07-2017;
i)
Letter dated 23-10-2017;
j)
Letter dated 22-11-2017;
k)
Letter dated NIL;
l)
Letter dated 17-11-2017;
15)
That the Opposite Party no.1, Smt.
Mina Basu, beg to states that She did never execute any General Power of
Attorney, as annexed at Page number 36 to 45, of the Petition of Complaint, and
therefore such alleged Power of Attorney as relied on by the Complaint is a
manufactured and false document, thus the Opposite Party no.1, herein seeks the
Production of Original Documents as contained in running page number 36 to 45,
of the Petition of Complaint.
16)
That the Opposite Party no.1, Smt.
Mina Basu, beg to states that the Opposite Party made one appropriate
application for production of original documents being Unregistered Power of
Attorney dated 11th October’ 2007, which was registered as
MA/115/2019, and whereas the Complainant submitted written objection contended
inter alia that the complainant do not possess the said purported Unregistered
Power of Attorney dated 11th October’ 2007, and whereas the xerox
copy only has been given by the opposite party no.2, herein in the present
consumer proceeding, and consequently the Hon’ble Forum Pass necessary order
dated 01-08-2019.
17)
That the Opposite Party no.1, Smt.
Mina Basu, beg to states that since no General Power of Attorney has ever been
executed by this opposite party in any one favour and more particularly in
favour of the opposite party no.2, herein in the present consumer proceeding,
and more particularly in entirety of facts since inception, there has never
been any power of attorney executed by this opposite party, thus the story of
power of attorney is fabricated, concocted, and afterthought, as the same has
not ever been in existence, so far. Even though the complainant claiming that
the complainant in receipt of such power of attorney being photocopy from the
opposite party no.2, herein, thus the necessary requirement has raised to bring
in picture the original one such alleged power of attorney from the said
opposite party no.2, herein, in the interest of appropriate adjudication and
faire justice.
18)
That the Opposite Party no.1, Smt.
Mina Basu, beg to states that the entirety of the alleged facts of the
Complainant is at stake for appropriate verification and thus require the
production of original documents, relied on by the Complainant in her petition
of Complaint, more particularly the Documents as appeared at running page
number 36 to 45, with her petition of complaint, in the interest of
administration of justice. Thus reasonable necessity has arisen for the
production of the said purported alleged Unregistered Power of Attorney dated
11th October’ 2007, in original in the present consumer proceeding
before the Hon’ble Forum, in the interest of administration of justice.
19)
That unless the Hon’ble Forum, direct
the Opposite Party no.2, for the production of the Original Documents, being
such alleged Unregistered Power of Attorney dated 11th October’ 2007,
the Opposite Party no.1, Smt. Mina Basu, will highly prejudice and suffer with
irreparable loss and injury, thereof.
20)
That the balance of convenience and in
conveniences are in favour of the Opposite Party no. 1, herein, and either the
Complainant or the opposite party no.2, herein, will not prejudice, in any
manner, whatsoever.
21)
That this application is made
bonafide, in the interest of administration of justice.
It is therefore prayed that Your
Honour would graciously be pleased to allow this application and to direct the Opposite
Party no.2, to produce the Original Documents being the alleged Unregistered
Power of Attorney dated 11th October’ 2007, in the interest of
administration of justice, and or to pass such other necessary order or orders
as your Honour may deem, fit, and proper for the end of justice.
And for this act of kindness, the
Petitioner, as in duty bound shall ever pray.
Verification
I, Smt. Mina Basu, being the Opposite
Party no.1, in the instant Complaint matter, states that I am well conversant
with all the material facts and circumstances as stated in the foregoing
paragraphs of the petition and I am well acquainted thereto. And I verify and
sign this instant Written Version, as on _______________2019, at Alipore,
Kolkata - 700027.
The Opposite Party
Identified by me,
Advocate.
Prepared in my Chamber,
Advocate.
Dated : _______________________2019.
Place : Alipore, Kolkata.
A
F F I D A V I T
I Smt. Mina Basu, wife of Late Amiya
Kumar Basu, aged about ______years, by faith Hindu, by Occupation House Wife.
Residing at premises being no. 6, Shib Temple Lane, Kolkata – 700078, do hereby
solemnly affirm and declare as follows :
1.
That I being the Opposite Party no. 1,
in the instant case being filed by the Complainant herein, and I am well
conversant with the facts and circumstances of the said consumer case.
This is true to
my knowledge.
2.
That the statements made in paragraphs
1 to __________of my application are true to the best of my knowledge and belief and the rests are my
humble submissions before your Honour’s Forum.
D E P O N E N T
Identified by me
Advocate.
Prepared in my Chamber,
Advocate.
Date : _________________________2019.
Place : Alipore, Kolkata.
N O T A R Y
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