BEFORE THE
HON’BLE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOLKATA UNIT-III
Tramline
Building ( 1st Floor )
18, Judges
Court Road, Alipore, Kolkata - 700027
Consumer Case no. 288
of 2022
In
the matter of :
Smt. Barnali
Ghosh,
_______Complainant
-
Versus
–
M/s. Manimala Enterprise,
________Respondents
BRIEF
NOTES OF ARGUMENT
ON
BEHALF OF
THE
COMPLAINANT
SMT.
BARNALI GHOSH
FACTS;
1. The Respondent
no.1, M/s. Manimala Enterprise, a proprietorship firm, having its office
at premises being no. 90/1, Dr. S.P. Mukherjee Road, under P.O. Dum Dum,
Kolkata – 700028, is Proprietorship Firm carrying its business of construction
and development of land and building.
2. The
Respondent no.1, is represented by its Proprietor being the Respondent no.2,
herein as Smt. Pratima Sarkar, Daughter
of Late Sushil Kumar Paul, residing at premises being no. 90/1, Dr. S.P.
Mukherjee Road, under P.O. Dum Dum, Kolkata – 700028. The Respondent no.2, is
responsible for day to day affairs of the Respondent no.1, herein.
3. The
Developer, who offered and allured the complainant to take a residential Flat
being no. 203, on the Second Floor, at the South-West Facing, measuring about
750 Sq. ft. super built up area more or less consisting of 2 (two) Bed Rooms, 1
(One) Living-cum-dinning Room, 1 (One) Kitchen, 1 (One) Toilet, 1 (One) W.C.
and 1 (One) Verandah, being Municipal Holding No. 28, Panshila Govt. Colony,
Kolkata – 700112, under Khardah Police Station, Ward no. 19, within the local
limits of Panihati Municipality, in the District North 24 Parganas, along-with
undivided proportionate impartible shares or interest of the land measuring
about 4 Cottahs be the same a little more or less together with G + III storied
building standing thereon comprised in Mouza – Panshila, J.L. No. 6,
appertaining to L.O.P. No. 22, corresponding to L.R. Khatian nos. 1123, 1124,
& 1125, under C.S. Plot Nos. 200(P) & 283(P), corresponding to L.R. Dag
no. 552, being Municipal Holding No. 28, Panshila Govt. Colony, Kolkata –
700112, under Khardah Police Station, Ward no. 19, within the local limits of
Panihati Municipality, in the District of North 24 Parganas, together with
undivided proportionate and impartible shares in the common areas, facilities,
amenities, etc. of the said building and the said premises, at the total
consideration values as of Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only.
4. Sikha
Pal, Sri Rudra Pratim Pal, and Sri Partha Pratim Pal, being the Respondent no.
3, 4, and 5, herein are Joint Owners of the said Land on which the building
structure has been constructed by the Developer in terms of the Development
Agreement registered as Being no. 152403927 for the year 2021, and subsequently
granted a General Power of Attorney in favour of the Developer on 24-06-2021,
which registered in the office of the A.D.S.R. Sodepur and recorded in Book No.
I, Volume no. 1524-2021, Pages 155371 to 155406, Being no. 152404020 for the
year 2021.
5. In terms
of allured by the Developer Smt. Pratima Sarkar, the complainant, agreed to
take a residential flat as suggested by her to be good for residence in
Panihati Municpal area. The Complainant therefore paid a sum of Rs. 2,20,000/-
on 07-10-2021, Rs. 1,60,000/- on 07-10-2021, Rs. 67,000/- on 19-10-2021, and
Rs. 98/- on 20-10-2021, and Rs. 15,32,902/- by availing financial facilities
being Loan from Yes Bank on 26-10-2021, and Rs. 20,000/- through Cash to the
Developer, thus a total sum of Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only
paid by the complainant to the Developer and thus She executed and Registered a
Deed of Conveyance dated 28th day of October’ 2021 in Book no. I,
Volume Number 1901 – 2021, Pages from 445757 to 445805, Being no. 190108065 for
the year 2021, in favour of the Complainant.
6. The Respondent
no. 6, being Yes Bank Limited, having its Registered Office at 9th
Floor, Discovery of India, Nehru Centre, Dr. Annie Besant Road, Worli, Mumbai –
400018, is a financial institution, who granted Loan in favour of the Complaint
and made payment to the Respondent no. 1 and 2, thereof, a substantial amount
of money towards the Consideration Value of the said residential flat has been
given by the Respondent no. 6, granted such financial facilities through
Customer Loan Number as AFH001700969046, to the Complainant.
7. The
registration of the Deed of Conveyance by the respondents, even though
executed; But did not deliver the physical possession of subjected residential
flat.
8. The
Complainant on several occasion requested for the delivery of the physical
possession of Self-contained residential Flat of the said building and the said
premises, and the Letter of Possession with all other necessary documents
including Completion Certificate of the said Building premises. The Respondents
assured to give at the earliest though nothing yield even after elapse of
substantial period of time in this regard, therefore the Complainant is
apprehending the respondents some mischievous activities since inception of alluring
the complainant to take a residential flat from the development under the
Panihati Municipality.
9. It is
established that the respondents deceive the Complainant and taken money as of
Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, and dishonestly misappropriated
to their own gain and thereby cheated to the Complainant by adopting unfair
trade practices and deficiency in services in selling the residential flat to
the Complainant, which attract punishment for deeds as well as protection of
the complainant from their misdeeds, under the prescribed provisions of the Consumer
Protection Act, 2019.
10.
The
Complainant served a Legal Notice upon the respondents, through her Learned
Advocate vide Letter being Ref. AKS/Legal/3108-1998/22, dated 4th
day of April’ 2022, by Speed Post, thereby seeks to get Delivery of
Physical Possession of Self-contained residential Flat of the said building and
the said premises, and the Letter of Possession with all other necessary
documents including Completion Certificate of the said Building premises. Which
the respondents are in receipt, though did not heed to that and did not even
responded to the said letter to the complainant.
11.
The
act and omissions in the manners as described herein in the aforesaid paragraphs
are establishing unfair trade practices and deficiency in services on the part
of the respondents, in all the manners, and regards thereof.
12.
The
respondents shall also pay the compensation due to the complainant petitioner
for the harassment, troubles, physical inconvenience and mental agony arising
directly out of the breach of the services and breach of duty on the part of
the respondents. The complainant assesses such loss and damages at Rs.
6,00,000/- ( Rupees Six lakhs ) only.
13.
The
following documents relied on by the Complainant;
(a) copy of Deed
of Conveyance dated 28th October’ 2021,
(b) Copy of
Sanctioned Letter and EMI Schedule of Yes Bank,
(c) Copy of Legal
Notice with postal receipts and track reports,
DURING CONSUMER PROCEEDING;
(i) Even after in
receipt of notices served on the all the respondents, the respondent no. 1,
M/s. Manimala Enterprise, appeared in the present consumer proceeding through
Learned Advocate and seeking thereby time to file Written Version, and the
other respondents did not appear and consequently all the respondents did not
submit any written version being answer or reply to the petition of consumer
complaint.
(j) Therefore on
14/10/2022, the Hon’ble Commission, was pleased to direct exparte proceeding of
the present consumer proceeding against the respondents. Thus the present
consumer proceeding is continuing exparte against the respondents.
(k) Since the
respondent, did not submit their written version in the present consumer
proceeding, the Complainant do not get any occasion to put any comments, so
far.
CONCLUSION ;
The
Complainant is entitled to get relief in terms of her prayer in the petition of
consumer complaint.
Through
__________
Advocate
For
the Complainant
Date
: _________2023
Place
: Kolkata
