Before
the Hon’ble District Consumer Disputes Redressal Commission, Kolkata Unit – II,
at 7th floor, 8,
Lindsay St, Fire Brigade Head Quarter, New Market Area, Dharmatala, Taltala,
Kolkata, West Bengal 700087.
Consumer
Complaint no. CC/226/2020
In the matter of :
Shri Gopal Chandra Saha, _________Complainant
- Versus –
Shri Sukumar
Das, and Another, ________Respondents
BRIEF NOTES OF ARGUMENT
ON BEHALF OF
THE COMPLAINANT
FACTS
:
- The Respondent no.1, is a
Developer and the Respondent no.2, is a Land Owner, they entered into a
Development agreement Dated 11th day of March’ 2005, in respect
of a property being ALL THAT piece and parcel of land measuring 2 (two)
Kotthas 10 (ten) Chittacks more or less lying or situated at and being
municipal premises no. 75/1, Tiljala Road, Kolkata – 700 039, Police
Station – Tiljala, within the municipal limits of ward no. 65 of the
Kolkata Municipal Corporation, comprised in Dag nos. 46, 47, and 48
appertaining to khatian nos. 30 and 95 in Mouza – Tiljala, J.L. no. 15,
R.S. no. H.G.D. 5,6, Collectorate Touzi no. 1298/2833, Police Station –
Tiljala, and the said property butted and bounded as on North : 75/2,
Tiljala Road, On South : 12’/10’ wide KMC Road, on East : by 4’ wide road,
on west : 74/A, Tiljala Road.
- That the Complainant was a
Tenant in the said Scheduled Property, and an Agreement for Development
made on the 11th day of March’ 2005, by and between Shri Mihir
Kumar Dutta, Son of Late Lal Mohan Dutta, residing at premises beinbg no.
75/1, Tiljala Road, Kolkasta – 700039, wherein said Mihir Kumar Dutta
described as the owner of the one part and said Sri Sukumar Das described
therein as the Developer of the other part and whereby the said owner engaged and entered the
said Developer herein to develop, raise and / or construct a multi storied
brick built housing complex including completion thereof with all fixtures
and fittings on various terms and conditions together with sharing of the
built up areas in the proposed building to be constructed by the said
developer fully and entirely at the cost and expenses of his own and that
the said developer shall be entitled to get 55% (fifty five) per cent of
the built up areas together with all easement rights, passage, all common
facilities and benefit plus proportionate land in the said premises no.
75/1, Tiljala Road, Police Station – Tiljala, Kolkata – 700039, and that
the said developer being entrusted with full power and exclusive
discretion to sell his portion of the super built up ( Builtup +10% )
areas in the building as per the allocation and entitlements as granted,
assured, earmarked, acceded to and accepted and agreed by both the owner
and the developer therein.
- The Developer has started
construction of the building in the said premises in compliance of the set
of terms and conditions laid down in the said development agreement, and
as also the developer has almost completed construction of the said
proposed building, and at such stage in the year 2005, the Developer
expressed his intention to sell out according to the terms of the said
development agreement, the allotted portion of the developer’s area in the
said new building and that the tenant / Purchaser hereto have inspected
the building premises and the flat on the new building as also thoroughly
scrutinizing all the title deeds and other documents in relation to the
said premises and building being constructed thereon the tenant /
purchaser being fully satisfied with the same, agreed to acquire on the
basis of perpetual tenancy / purchase on terms and conditions as specified
in the Agreement dated 9th day of October’ 2005, for Sale of
One Flat from Developer’s allocation having measurement of 1200 Sq. feet (
more or less ) consisting of Two flats, four bed rooms, two kitchens, two
toilets, at the top floor, in the premises no. 75/1, Tiljala Road, Police
Station – Tiljala, Kolkata – 700039, against the consideration money as of
Rs. 6,84,000/- ( rupees Six Lakhs and Eighty Four Thousand ) only.
10. The Complainant paid a sum of Rs. 6,00,000/-
( Rupees Six Lakhs ) only, though the developer refused to take any money from
the complainant on several plea and context showing the disputes with the
respondent no.2, herein being the Land Owner, and assured that very shortly
things will be resolved and then the developer will take rest of money and
handed over the physical possession of the said two flats to the complainant
herein.
11. The developer through his letter
dated 02-09-2013, shows his willing to refund the money in the circumstances of
pendency of civil suit and other legal proceeding in between the developer and
the land owners, however the developer never return a single rupee to your
petitioner, till date.
12. The Complainant solely seeks to get
Flats in terms of the Agreement dated 9th day of October’ 2005, by
way of delivery of physical possession and execution and registration of deed
of conveyance in respect of such flats.
13. The acts and deeds as aforesaid
describe herein in the preceding paragraph are well established the cause of
deficiency in services on the part of the respondents, as well as unfaire trade
practices, as meant for in the Consumer Protection Act’ 2019.
14. The Complainant further seeks to get
Compensation assessed as of Rs. 3,00,000/- ( Rupees Three Lakhs ) only, from
the Respondents for the mental agony, & harassments, etc.
15. The Cause of action arose as on 9th
day of October’ 2005, while entered into an agreement with the Developer for
purchase of Flats against Consideration and making payments thereof to the
developer, and subsequently on each day of payment as was made to the
developer, and thereafter on 02-09-2013, while the developer sent a letter for
refund of money taken by him though nothing has ever been refunded by the
developer, therefore the cause of action continues day by day and still
continues thereof, thus the Cause of Actions continuing in nature for the
performances of the agreement dated 9th day of October’ 2005.
16.
The followings are the documents relied on by the Complainant;
(a) Agreement Dated 9th day
of October’ 2005;
(b) Development Agreement dated 11th
day of March’ 2005;
(c ) Letter dated 02-09-2013;
PROCEEDING;
a) Consumer
Petition admitted and notice on the respondents directed by the Hon’ble
District Commission;
b) Notice was not
duly served as the respondents moved from the given address;
c) Paper
publication has been directed on the Respondents;
d) Notice has
been duly Published in Bengali Daily News Paper;
e) Since the
Respondent chosen not to appear in the present Consumer Proceeding even after
Paper Publication, the Hon’ble District Commission directed consumer proceeding
exparte against the respondents;
f) Thus the
present consumer proceeding is at the stage of exparte against the respondents;
SUBMISSIONS;
The
Complainant is a purchaser and an old aged Senior Citizen. The Complainant paid
a substantial sum of money as of Rs. 6,00,000/- ( Rupees Six Lakhs ) only, to
the Developer, therefore a sum of Rs. 84,000/- ( Rupees Eighty Four Thousand )
only, is remaining to pay towards the balance consideration money for the Two
Flats in terms of the Agreement for Sale dated 9th day of October’
2005, which the Developer refused to take showing the cause of several disputes
and differences with the Land Owner, and subsequently gave a letter to the
complainant stating inter alia saying about the refund of money to the
complainant though did not refund any money to the complainant. The complainant
solely seeks to get his two flats as well as the compensation for harassment
and mental agony, etc.
CONCLUSION;
In
the given facts and circumstances, the complainant is entitled to get relief/s
as prayed for in his petition of consumer complaint as well as in his evidence
on affidavit.
Through
_____________
Advocate
Date
: 19-07-2022
Place
: Kolkata
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