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District – South 24 Parganas

Before the Ld. District Consumer Disputes Redressal Commission at Sealdah

CC No. of 2024

In the matter of:

A consumer complaint u/s 35 of the Consumer
Protection Act, 2019.

AND

In the matter of:

Shilpi Palit, wife of Sanjay Palit, residing at
9A, Umakanta Sen Lane, PO – Ghughudanga,
PS – Chitpur, Kolkata – 700037.
… Complainant

Versus

1. M/s Maa Construction, a proprietorship firm,

office at 10/H/1, Seven Tanks Lane (Dipen
Ghosh Sarani), PS – Sinthee, Kolkata –
700030.

2. Tamal Chaki, 10/H/1, Seven Tanks Lane

(Dipen Ghosh Sarani), PS – Sinthee, Kolkata –
700030.

3. Gautam Dey, son of Dinesh Chandra Dey,

residing at H No. 5, Niribili Path, PS –
Satgaon, PO – Udayan Vihar, Guwahati,
Assam, PIN – 781171.
… Opp. Parties

This humble complaint on behalf of the

complainant herein.

Value of complaint: Rs. 31,80,000/- (Rupees Thirty-one Lakh Eighty

Thousand only)

MOST RESPECTFULLY SHOWETH:

1. That the present complaint is being filed by the complainants against the
deficiency of service, unfair trade practices, fraud and cheating that has been
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committed by the opp. Parties against the complainant regarding purchase of a

flat being all that piece and parcel of one self contained flat ad-measuring about
1200 sq. ft super built up area more or less being Flat no. 1A (East-South and
Western side) on 1st Floor in “Sri Guru Apartment” situated on a land measuring
2 cottahs 11 chittacks 17 sq. ft., in Mouza Sultanpur, JL No. 10, RS No. 148,
Touzi No. 172, comprised of RS and LR Dag No. 1657, under RS Khatian No.
1337, no LR Khatian No. 3587 under Dum Dum Municipality, Ward No. 1,
Holding No. 41, Nirmal Sengupta Sarani (Manikpur), PS – Dum Dum, District
North 24 Parganas, PIN – 700079.

2. That the complainant is a bona fide, law-abiding citizen of India and is a

working individual.

3. That the OP no. 1 is a sole proprietorship concern dealing in construction /

development of buildings, flats proprietor Tamal Chaki, 10/H/1, Seven Tanks
Lane (Dipen Ghosh Sarani), PS – Sinthee, Kolkata – 700030. The OP no. 2 is a
natural person constituting the juristic person of the proprietorship. Hence, OPs
1 and 2 are collectively responsible for the dues, acts and omissions by the op.
no. 1 proprietorship since the OPs have defrauded the complainant in the
transaction in question, denied the complainant of her lawful demands in the
demand notice and are hence, jointly and severally liable. As such, OP no. 2 is a
necessary party to these proceedings.

4. That the OP No. 3 is the land owner who owns the land upon which the OPs 1
and 2 have constructed the multistoried building. The OP No. 3 has been a party
to the development agreement entered among the OPs and the OP No. 3 had
also drawn and registered a Development Power of Attorney in favour of Tamal
Chaki. As such, OP no. 3 is a necessary party to these proceedings.

5. That in and around January, 2022, the complainant had approached the OPs for
the purchase of a flat being all that piece and parcel of one self contained flat
ad-measuring about 1200 sq. ft super built up area more or less being Flat no.
1A (East-South and Western side) on 1st Floor in “Sri Guru Apartment” situated
on a land measuring 2 cottahs 11 chittacks 17 sq. ft., in Mouza Sultanpur, JL
No. 10, RS No. 148, Touzi No. 172, comprised of RS and LR Dag No. 1657,
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under RS Khatian No. 1337, no LR Khatian No. 3587 under Dum Dum
Municipality, Ward No. 1, Holding No. 41, Nirmal Sengupta Sarani (Manikpur),
PS – Dum Dum, District North 24 Parganas, PIN – 700079.

6. That the OPs informed the complainant that the building is near about ready
and the complainant ought to make payment of a booking amount of Rs.
4,00,000/-. Complying with the OPs’ demands, thereafter, the complainant, by
way of 2 cheques drawn on ICICI Bank, Rishikesh Branch, made a payment of
total Rs. 4,00,000/- to the OPs out of Rs. 31,80,000/- which was the total
consideration amount as agreed between the parties.

7. On 31.01.2022, the complainant and the OP entered into an agreement for sale
with respect to all that piece and parcel of one self-contained flat ad-measuring
about 1200 sq. ft super built up area more or less being Flat no. 1A (East-South
and Western side) on 1st Floor in “Sri Guru Apartment” situated on a land
measuring 2 cottahs 11 chittacks 17 sq. ft., in Mouza Sultanpur, JL No. 10, RS
No. 148, Touzi No. 172, comprised of RS and LR Dag No. 1657, under RS
Khatian No. 1337, no LR Khatian No. 3587 under Dum Dum Municipality,
Ward No. 1, Holding No. 41, Nirmal Sengupta Sarani (Manikpur), PS – Dum
Dum, District North 24 Parganas, PIN – 700079. A true copy of the Agreement
for Sale dated 31.01.2022 is annexed herewith and marked as Annexure C/1.

8. That thereafter, vide home loan from HDFC Bank, the complainant paid the
OPs and amount of Rs. 20,00,000/- which has well been accepted by the OPs.
Hence, in total, the complainant has paid Rs. 24,00,000/- out of Rs. 31,80,000/-
(total consideration) to the OPs. A true copy of the home loan papers of the
complainant are annexed herewith and marked as Annexure C/2.

9. That the OPs 1 and 2 had presented themselves as the constituted attorney of
the owner of the land, Sri Gautam Dey, and informed the complainant that the
said OPs had entered into a registered development agreement as well as a
registered development power of attorney with regard to all that piece and
parcel of land measuring 2 cottahs 11 chittacks 17 sq. ft., in Mouza Sultanpur,
JL No. 10, RS No. 148, Touzi No. 172, comprised of RS and LR Dag No. 1657,
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under RS Khatian No. 1337, no LR Khatian No. 3587 under Dum Dum
Municipality, Ward No. 1, Holding No. 41, Nirmal Sengupta Sarani
(Manikpur), PS – Dum Dum, District North 24 Parganas, PIN – 700079. A true
copy of the Development Agreement entered into among the OPs is annexed
herewith and marked as Annexure C/3.

10. That as per the understanding between the complainant and the developer, and
as per usual practice, the complainant was ready to make payment of the
amount within 90 days and the complainant had, in March, 2022, verbally and
over phone-call requested the OPs 1 and 2 to take the remaining amount of Rs.
7,80,000/- and register the property in favour of the complainant as well as,
give vacant and peaceful possession of the said property to the complainant.

11. That strangely, after the complainant had requested the OPs 1 and 2, they
stopped communicating with the complainant for reasons best known to
themselves. After due enquiry, the complainant went to check the building
wherein the flat is situated and was shocked and surprised to see that the
building is incomplete. The complainant thereafter obtained the development
agreement wherein it is clearly mentioned that the developer was supposed to
deliver entire complete building within 24 months since the date of obtaining
sanctioned plan. As per the OP No. 3, the original sanctioned plan was obtained
on 09.08.2017, which makes the date of completion 09.08.2019. But as on date,
the said building is far from complete.

12. That upon further enquiry, the complainant has come to know that the owner of
the said land, namely, Gautam Dey, has initiated proceedings against the OPs 1
and 2 before the Ld. Additional District Judge, 4 th Court, at Barasat u/s 9 of the
Arbitration and Conciliation Act, 1996, being Misc. Case No. 6 of 2022
(Arbitration) wherein the said Gautam Dey has undertaken to initiate arbitration
proceedings against the developer. The complainant has duly obtained
necessary documents of the case and has found out that on 05.03.2022, the Ld.
Judge had ordered a status quo in respect of the suit property. A true copy of all
orders in Misc. Case No. 6 of 2022 before the Ld. Additional District Judge, 4 th
Court, at Barasat, is annexed herewith and marked as Annexure C/4.
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13. That it has also come to the knowledge of the complainant that the OPs had
violated the above order by the Ld. Court and the vide order of the Ld. Court
dated 20.04.2022, the Dum Dum Police officials were sent to the site and as per
police report dated 11.01.2023, Tamal Chaki, the developer and his workers
were arrested and taken into police custody. A true copy of the police report in
Misc. Case No. 6 of 2022 before the Ld. Additional District Judge, 4 th Court, at
Barasat, is annexed herewith and marked as Annexure C/5.

14. That it has further come to the notice of the complainant that the OPs 1 and 2
had preferred an FMA No. 760 / 2023 or FMAT No. 260 / 2023 before the
Hon’ble High Court at Calcutta wherein they had submitted before the Hon’ble
Court without having sent notice to the land owner. On 06.09.2023, the Hon’ble
High Court was pleased to vacate the order of status quo. In response, the
landowner had filed a CAN No. 3 / 2023 in FMA No. 760 / 2023 wherein, vide
order dated 16.10.2023, the Hon’ble High Court has observed “In order to give
another opportunity, we direct the applicant to serve a copy of the application
upon the learned Advocate, who represented the appellants, before this side of
Puja Vacation and shall file affidavit of service on the returnable date. In
addition to the same, the learned Advocate is directed to give a notice upon the
appellants that this application shall be listed on 20th November 2023 under
the heading “Application”. A true copy of the order of the Hon’ble High Court
dated 16.10.2023 in FMA No. 760 / 2023 is annexed herewith and marked as
Annexure C/6.

15. That without getting into the details of your dispute with the landowner, there is
no doubt about the fact that the landowner’s confidence in the developer has
reached the lowest and at this moment, the development power of attorney and
the development agreement have become a subject matter of a dispute. In
presence of such a dispute, the agreement for sale entered between the OPs 1
and 2 and the complainant is void in limine. In the agreement for sale, the
developer had put signature as the attorney of Gautam Dey whereas Gautam
Dey is currently contesting litigation against the developer which has reached
the doors of the Hon’ble High Court. The complainant has nothing to do with
this dispute and had simply wanted to purchase the apartment, but till date, has
not got the same and given the legal circumstances at present, the same is
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impossible. As such, the complainant is entitled to a refund of the amount

already paid along with interest and compensation.

16. That the developer’s position as the attorney of the landowner has come under
dispute and as such, the agreement for sale cannot culminate into a sale deed.
Notwithstanding anything above, the developer was supposed to complete the
building by 09.08.2019, whereas the same is still incomplete, which is a breach
of the terms and conditions in the Development Agreement. Moreover, as
Developer, the OPs 1 and 2 were supposed to accept the remaining amount
from the complainant and deliver possession of the flat as well as register the
sale flat in favour of the complainant vide a registered deed of conveyance. In
presence of a legal dispute on the development agreement and the development
power of attorney, the entire marketability of the flat in question has come
under dispute. As such, the agreement for sale is void at present and hence, the
complainant is entitled to refund of the amount already paid along with interest
and compensation.

17. That it is worthy to note here that now, amidst the chain of litigation between
the developer and the landowner and knowing well that the developer’s position
of attorney of the landowner is under dispute since the landowner has
undertaken to arbitrate on the development agreement, the developer has the
audacity to ask for remaining amount from the complainant whereas the
Hon’ble High Court, vide its order dated 16.10.2023 has held that it is going to
hear both parties in CAN No. 3 / 2023 in FMA No. 760 / 2023.

18. That amidst all this, the complainant is under no liability to make payment to
the developer, especially if the developer had not completed the building within
time, no matter the circumstances (since legal dispute between the landowner
and the developer does not fall under “force-majeure” as per clause 6 of page
13 of the Development Agreement). It is also pertinent to mention here that the
complainant, with the hope and belief that she would have a flat in her name,
had waited for the developer to deliver the flat and had been paying rent to the
tune of Rs. 15,000/- per month in an alternate accommodation hoping that one
day the developer would deliver the said flat. Instead, the developer had duped
the complainant of her monies and had practically compelled her to pay rent to
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the tune of Rs. 15,000/- per month in an alternate accommodation from June,
2023 till date and at the same time is paying EMI against loan for a home that
that the developer has robbed the complainant of.

19. That there is no doubt that in existence of a dispute between the developer and
the landowner, and keeping in mind the fact that the developer had wilfully
violated an order of the Ld. Additional District Judge at Barasat and was
arrested by the Dum Dum Police officials, the developer’s position as attorney
in the agreement for sale is not clean or legal, and the developer’s goodwill with
the complainant has undergone irreparable damage. Hence, the said agreement
for sale is as good as void. In addition to the above, the developer has failed to
complete the construction of the building within time as well as failed to give
possession and register the complete flat in favour of the complainant. Hence,
the complainant should not suffer any further and is liable to get the refund as
well as interest and compensation.

20. That on 07.02.2024, the complainant had issued a demand notice to the
developer demanding the following –

“In light of the present facts and circumstances, it is hereby demanded

that you do the following –
i. Refund Rs. 24,00,000/- to my client along with an interest of
18% p.a since the date of execution of the agreement for
sale, i.e, total of Rs. 32,64,000/-;
ii. Pay an amount of Rs. 10,00,000/- as compensation for
mental harassment, anxiety, depression caused to my client
by your acts and omissions;
iii. Reimburse an amount of Rs. 15,000/- per month for 9
months totalling Rs. 1,35,000/- towards total rent paid by my
client in her alternate accommodation due to your failure to
deliver vacant possession of the said flat and register a deed
of conveyance in favour of my client, subject to increase as
she continues to live in the said alternate accommodation;
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All totalling to an amount of Rs. 43,99,000/- (Rupees Forty-three Lakh

Ninety-nine Thousand only) (subject to increase by month) within 7
days from the date of receipt of this notice, failing which my client shall
be compelled to initiate legal action against you both criminally and
civilly.”

A true copy of the demand notice dated 07.02.2024 along with postal receipt
and track report is annexed herewith and marked as Annexure C/7.

21. That Section 2(7) of the Consumer Protection Act, 2019, says as under –
“(7) "consumer" means any person who—

(i) buys any goods for a consideration which has been paid or
promised or partly paid and partly promised, or under any
system of deferred payment and includes any user of such
goods other than the person who buys such goods for
consideration paid or promised or partly paid or partly
promised, or under any system of deferred payment, when such
use is made with the approval of such person, but does not
include a person who obtains such goods for resale or for any
commercial purpose; or
(ii) hires or avails of any service for a consideration which has
been paid or promised or partly paid and partly promised, or
under any system of deferred payment and includes any
beneficiary of such service other than the person who hires or
avails of the services for consideration paid or promised, or
partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the
approval of the first mentioned person, but does not include a
person who avails of such service for any commercial purpose.

Explanation. — For the purposes of this clause, — (a) the

expression "commercial purpose" does not include use by a
person of goods bought and used by him exclusively for the
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purpose of earning his livelihood, by means of self-

employment;
(b) the expressions "buys any goods" and "hires or avails any
services" includes offline or online transactions through
electronic means or by teleshopping or direct selling or multi-
level marketing;”

22. That in this case, the complainant had accepted the offer to purchase the said
flat, and accordingly, had made part / advance payment of Rs. 24,00,000/- to
the Ops 1 and 2 who are the attorney of OP No. 3. The complainant herein had
invested / made payment for the purchase of the flat from the opp. Parties and
for that reason, the agreement dated 31.01.2022 was executed and the amount
was paid. Hence, the complainant qualifies as a “consumer” herein as per the
above definition.

23. That the definition of “unfair trade practice” as u/s 2(47) of the Act, 2019,
inter alia, states as under –

“(47) "unfair trade practice" means a trade practice which, for

the purpose of promoting the sale, use or supply of any goods
or for the provision of any service, adopts any unfair method
or unfair or deceptive practice including any of the following
practices…”

24. That in this case, the OPs have accepted Rs. 24,00,000/- without even
completing the building whereas the same was supposed to be completed in
2019, let alone transferring the flat and handing over vacant and peaceful
possession, and the same, that leads to deception. As such, there exists unfair
trade practice committed by the OPs against the complainants.

25. That the scope of Section 2 (47) of the Consumer Protection Act, 2019, which
defines “unfair trade practice” is that the unfair method should be for the
purpose of gaining wrongfully in the business, which the OPs 1 and 2 have, by
accepting Rs. 24,00,000/- from the complainant and thereafter neither
completing the building nor giving possession nor having requisite power of
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attorney over the developed property. At this stage, having been deprived of
her right to property, the complainant has lost her goodwill with the OPs 1 and
2, and is hence, claiming monetary refund along with interest and
compensation.

26. That on this day, the complainant cannot have possession or right title, interest
in the said property since there exists a dispute between the developer and the
landowner, and keeping in mind the fact that the developer had wilfully
violated an order of the Ld. Additional District Judge at Barasat and was
arrested by the Dum Dum Police officials, the developer’s position as attorney
in the agreement for sale is not clean or legal, and the developer’s goodwill
with the complainant has undergone irreparable damage. Hence, the said
agreement for sale is as good as void. In addition to the above, the developer
has failed to complete the construction of the building within time as well as
failed to give possession and register the complete flat in favour of the
complainant. The only remedy left for the complainant is a relief in the form
of refund with interest and compensation.

27. That the OPs 1 and 2’s acts and omissions especially to the extent of not
having completed the construction of the building and violating the terms of
the development agreement, which is the mother of all agreements with
respect to a newly constructed building with owner’s and developer’s
respective allocations, the same is indicative of the fact that the OPs 1 and 2
have outright lied to the complainant and deceived her only to defraud the
complainant by robbing her hard-earned monies to the tune of Rs. 24,00,000/-,
and land her in debt of a home loan wherein there is no home at all. Hence, the
agreement ought to be deemed to have never executed by the OPs 1 and 2 in
good faith and with clean hands, and hence, the complainant has lost her
goodwill upon the OPs and hence, seek refund of her monies along with
interest and compensation.
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28. That the cause of action arose on 07.02.2024 when the complainant decided to
finally issue a legal demand notice with allegations, averments and a claim
over the said advance payment along with interest and compensation. The
cause of action, till date, is continuing since the OPs 1 and 2 have not
refunded the advance payment along with interest and compensation as
demanded. Notwithstanding anything above, the cause of action had arisen on
31.01.2022 when the agreement for sale (void as it stands at present due to
circumstances mentioned above) was executed between the complainant and
the OPs 1 and 2, and by that time, the OPs had not even completed
construction of the building. The cause of action has been continuing since
then and is continuing as on date, in the form of demand of refund of the
advance payment along with interest and compensation.

29. That subject to the satisfaction of this Ld. Commission, till date, if 18%
simple interest per annum is applied on Rs. 24,00,000/- calculated since the
date of execution of agreement, i.e, 31.01.2022, it would amount to Rs.
32,64,000/-. Thereafter, a further compensation of Rs. 10,00,000/- (Rupees
Ten Lakh only) for committing unfair trade practices against the
complainants, mental harassment, agony and anxiety caused to the
complainants. The complainant is also entitled to reimbursement of an amount
of Rs. 15,000/- per month for 9 months totalling Rs. 1,35,000/- towards total
rent paid by the complainant in her alternate accommodation due to the
developer’s failure to deliver vacant possession of the said flat and register a
deed of conveyance in favour of the complainant, subject to increase as she
continues to live in the said alternate accommodation. Thus, at present the
complainant is entitled to at least Rs. 43,99,000/- (Rupees Forty-three Lakh
Ninety-nine Thousand only) from the OPs 1 and 2 jointly and severally, along
with all cost of the complaint.

30. For the purpose of jurisdiction, the complainant resides at 9A, Umakanta Sen
Lane, PO – Ghughudanga, PS – Chitpur, Kolkata – 700037. The OPs 1 and 2
are situated at 10/H/1, Seven Tanks Lane (Dipen Ghosh Sarani), PS – Sinthee,
Kolkata – 700030. As such, this Ld. Commission is competent to adjudicate
on the present dispute under Section 34 of the Consumer Protection Act, 2019.
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The value of the complaint is Rs. 31,80,000/- (Rupees Thirty-one Lakh Eighty
Thousand only), which is the total consideration for the scheduled flat as
agreed between both parties, hence, this Ld. Commission has pecuniary
jurisdiction to try this complaint.

31. That the complainant has not filed any other consumer complaint before any
other commission involving the same cause of action against the OPs.

32. That the present complaint is valued at Rs. 31,80,000/- (Rupees Thirty-one
Lakh Eighty Thousand only) and court fees of Rs. ………….. has been duly
paid and attached herewith.

33. That unless this Ld. Commission hears the complaint and grants relief to the
complainants, the complainants shall be at huge loss and injury.

In light of the above-mentioned facts and

circumstances, it is hereby humbly prayed that
Your Honour may be graciously pleased to –

i. Direct the OPs 1 and 2 to jointly and severally

to refund the amount of Rs. 24,00,000/- (Rupees
Twenty-four Lac only) along with 18% simple
interest per annum calculated since the date of
execution of agreement, i.e, 31.01.2022; and / or

ii. Direct the OPs 1 and 2 to reimburse an amount

of Rs. 1,35,000/- (calculated as Rs. 15,000/- per
month for 9 months) of total rent paid by the
complainant in alternate accommodation due to
the said OPs’ deficiency of service; and / or

iii. Direct the OPs 1 and 2 to jointly and severally

to pay an amount of amount of Rs. 10,00,000/-
(Rupees Ten Lakh only) as compensation,
damages for mental harassment, agony and
anxiety, and for committing deficiency of
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service, unfair trade practices against the

complainant; and / or

iv. All cost of the complaint; and / or

v. Pass such other or further orders as this Ld.

Court may deem fit and proper in the facts and
circumstances of the case.

And for this act of kindness, the complainant as in dutybound shall ever pray.

SCHEDULE OF PROPERTY

All that piece and parcel of one self contained flat ad-measuring about 1200
sq. ft super built up area more or less being Flat no. 1A (East-South and
Western side) on 1st Floor in “Sri Guru Apartment” situated on a land
measuring 2 cottahs 11 chittacks 17 sq. ft., in Mouza Sultanpur, JL No. 10, RS
No. 148, Touzi No. 172, comprised of RS and LR Dag No. 1657, under RS
Khatian No. 1337, no LR Khatian No. 3587 under Dum Dum Municipality,
Ward No. 1, Holding No. 41, Nirmal Sengupta Sarani (Manikpur), PS – Dum
Dum, District North 24 Parganas, PIN – 700079.

VERIFICATION

Verified at Kolkata on this day of , 2024, that the statements

made in para 1 to are true to the best of our knowledge and
beliefs and the rest are our submissions before this Ld. Commission. Nothing
material has been concealed thereof.

DEPONENT
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AFFIDAVIT

I, Shilpi Palit, aged about _____ years, wife of Sanjay Palit, residing at 9A,
Umakanta Sen Lane, PO – Ghughudanga, PS – Chitpur, Kolkata – 700037,
hereby solemnly affirm as follows:

1. I am the complainant in the instant complaint proceedings and I am well

acquainted with the facts and circumstances of the instant case and am
competent to swear this affidavit.

2. I state that the statements made in paragraphs 1 to ……. are true to the best of
my knowledge and rest is my respectful submission before this Ld.
Commission.

DEPONENT
Identified by me

Advocate