D.O.F. 31.11.2009
D.O.O.29.11.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Dated this the 29th day of November 2011.
C.C.No.319/2009
Mr.Sarada.K.M,
Rtd. Head Teacher,
‘Kallikoth’
P.O.Kuttiattoor 670 602 Complainant
(Rep. by Adv.E.P.Hamzakutty)
- Mr.Kadavandavida Kummitta Vettil Mujeeb,
“Baithul Safa”
Near Anayidukku L.P.School, Thana
Kannur 12.
- Thoossikkannan Abdul Hameed,
“Firaus”, Gokhale Road, Kannur 1.
- Chottachi Puthiya Purayil Moideenkunhi Haji,
“Safiyas” Neerozhukkumchal,
P.O.Chirakkal, Kannur 11.
4. Kadavandavida Kummitta Vettil Maqsood,
‘Sahira Manzil, P.O.Thana, Kannur 12.
5. Kannukkarathi Nyiad,
Safiyas” Neerozhukkumchal,
P.O.Chirakkal, Kannur 11.
6. Kadavantavida Kummitta Veettil Sajid,
“Sajinas”, West Talap, Kannur 1.
7. Kannukkarathi Rishad, Opposite Parties
Safiyas” Neerozhukkumchal,
P.O.Chirakkal, Kannur 11.
8. Mrs.Faharraz.A.H,
Firdhous,
Kanthur, Kannur 1.
9. Mrs.Kannukkarathi Sajida,
Baithul Safa, P.O.Thana,
Kannur 12.
10. M/s.K.K.Tech,
Near St.Michles Anglo Indian Higher
Secondary School,
Kannur 1.
(Rep. by Adv.K.L.Abdul Salam)
O R D E R
Smt. K.P. Preethakumari, Member.
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to handover the possession of the 3 bed room flat No.202 and car parking space P35 of Canndale Apartment along with `2, 00,000 as compensation with cost.
The case of the complainant in brief is that she has entered into a building construction agreement and sale agreement on 18.10.07 with opposite party for construction and sale of undivided share in landed property and 3 bed room flat and car parking space with the Canndale Apartments, wherein the opposite parties are the partners of the same. Later on 29.10.07, the opposite parties have executed a sale deed in favour of the complainant by which they transferred the absolute right in the property of 2.1% undivided share right, and interest in the immovable property as mentioned in the plot ‘E’ of the final decree in O.S.473 of Sub court, Thalassery.
As per the terms of the agreement the total value of property and apartment s fixed as `2,50,000.Complainant has paid `15,00,000 on 18.1.07 and later on `8 lakhs to opposite party towards the above consideration. As per the terms of the agreement opposite party would complete the construction of the building before 15.3.08 and the complainant is liable to pay the remaining 2 lakhs after completion. But the opposite parties have neither completed the construction of the apartment nor not informed about the completion of the same. Even after repeated request, the opposite parties are not ready and willing to handover the building. The opposite party has not applied for permanent electric connection till May 2009. The opposite party has not taken any steps for furnishing building Number to the building and also demanded huge amount in addition to the agreed amount from the complainant. So the complainant had issued a lawyer notice. But instead of complying the notice they had issued a reply stating untenable contentions. The opposite parties demanded additional amount of `2, 35,590 towards the share of tax amount to be paid by the complainant. The complainant already informed the opposite party that she is ready to pay her share of tax to the opposite party if any amount was paid by them for and on behalf of the complainant, if the opposite party had furnished and convinced the complainant, the receipt of such payment. The opposite party has not paid sale tax till August 2009. The opposite party has not paid any amount to the central excise department towards service tax to Candale Apartments separately and particularly for and on behalf of the complainant also. The complainant and her husband were retired employees and suffering from several deceases and hence spent money with the expectation that they can access their treatment and other facility in town speedily. But the act of opposite parties put them in trouble and sufferings which are beyond words. So the act of opposite parties amounts to deficiency in service and unfair trade practice. Hence the compliant.
In response to the notice issued by the Forum all opposite parties appeared and filed their version admitting that there is a building construction agreement and sale agreement with the complainant. But contended that the complainant is not a consumer and hence the complaint is not maintainable before this forum. The dispute is based on a contract and claimed for performance of contract with compensation, the alternative and appropriate remedy is to approach a civil court for specific performance of contract. The cause of action shown in the complaint is on 18.10.07, the complaint is belated one and hence the complaint is liable to be dismissed.
The opposite parties admits that the total value of the undivided share in the land and the apartment is `25,00,000 and out of which the complainant has paid `23,00,000 it is also admits that the opposite party has liability to complete the construction work on or before 15.3.08 and against the completion of works, the complainant is liable to pay the balance considertion of `2,00,000 to the opposite parties. The opposite parties informed the complainant and other owners in writing soon after the construction of the apartment. As such the opposite parties duly performed their part of contract in time, and accordingly executed the sale deed No.4511/07 of SRO Kannur dt. 18.10.08. But the complainant had defaulted the payment of balance consideration and additional `2,35,090 towards her respective share in payment of various taxes, which are already paid by opposite parties. The complainant after convincing the opposite parties about his readiness and willingness to pay the balance consideration and requisite tax amount, she dishonestly and malafidely obtained registered sale in favour and hold back from payment and betrayed and defrauded the opposite party. The complainant is also duty bound to pay her respective share of revenue building taxes, VAT, construction workers welfare cess, service tax, central and state excise as per clause 15 of building construction agreement. The opposite party had taken earnest effort to fulfill the liability towards the government and paid entire tax for and on behalf of the purchasers including the complainant in order to avoid the difference of opinion might be arose among the purchasers and subsequently opposite parties have collected the respective shares from the purchasers at the time of delivering of the possession of their respective flats. Accordingly on demand all purchasers have paid their respective shares to the opposite party at the time of execution of sale deed and handing over the possession. But the complainant had taken an adamant attitude with regard to the payment of taxes and other expenses. It is the complainant who willfully violated the terms of the agreement to guard her ill motive or vested interest.
As long as the complainant persists in her default stand, the opposite parties are not bound to handover the possession so the opposite parties may not blamed of inordinate delay. The opposite parties have not committed any deficiency in service and not violated the terms of the agreement. The opposite parties always ready and willing to handover the possession of the apartment to the complainant on payment of balance consideration and her respective share of tax paid by opposite parties. The complainant approached service tax department, sale tax department, municipality village and all other department in connection with the above said building to degrade the goodwill and reputation of opposite parties. So the opposite parties were under the impression that the complainant has no intention to pay the balance amount. All the purchasers except the complainant had paid their respective shares of their tax without further question. The complainant has made unsustainable claim against the opposite parties. The construction of all apartment was completed much earlier than March 2008. So the complainant has defaulted in payment of balance consideration even after getting absolute title by way of registered deed. So she has bound to pay 12% interest on the due amount. The complainant is liable to pay
`5, 0,000 as compensation to the opposite party for damages to the goodwill of opposite parties. If the complainant will continue the violation of terms the opposite party shall have the right to terminate the agreement and cancel the sale deed executed in favour of the complainant and also entitled to forfeit the 10% of the total sale consideration. So the complaint is liable to be dismissed.
Upon the above contentions the following issues have been
raised for consideration.
1. Whether the complainant is a consumer and Forum has
jurisdiction to try the case?
2. Whether the complaint is barred by limitation?
3. Whether there is any deficiency of service on the part of
opposite parties?
4. Whether the complainant is entitled to any relief as
prayed?
5. Relief and cost.
The evidence in the above case consists of oral testimony of
PW1, PW2, DW1 to DW3 and Ext. A1 and A14 and B1 to B7.
Issue No.1
The opposite parties contended that the complainant is not a consumer and the Forum has no jurisdiction to try the case. Since the dispute is based on a contract and claim is specific performance and the Forum has no authority to order specific performance of contract to deliver the possession and ownership of the apartment. The prayer in the complaint is to pay two lakh rupees as compensation for the delay caused in handing over the possession of the apartment due to deficiency of service and unfair trade practice on the part of opposite parties and to direct the opposite parties to handover the possession of the building. Moreover from the pleadings of the complainant also it is seen that the complaint is filed alleging deficiency on the part of the opposite parties since they have not handed over the possession of the building within specified time. So we re of the opinion that complaint is not for performance of any specific terms of the contract but for compensation for deficiency of service and delivery of possession and hence the complaint is maintainable before the Forum, since the Forum has ample jurisdiction to try the case and also held that the complainant is a consumer and hence issue No.1 is found infaovur of the complainant.
Issue No.2
The opposite parties further contend that the complaint is barred by limitation and no cause of action also shown in the compliant. The cause of action shown by the complainant in the complaint is 18.10.07, the date of construction agreement, 29.10.07, date of sale deed and 7.9.09, the date of lawyer notice. In Narayan Sivaji Vs. Gurumath Gauda AIR 1939 Bombay, the Bombay High Court gave the meaning of cause of action as “ A cause of action briefly means “ right and the infringement of that right”, where a party has an undoubted right and that right is infringed, a cause of action at once accrues to him. Several facts which are necessary constituents of a cause of action may not occur at one and the same time and in such an event, complete cause of action can arise only when last of such facts occurs. So considering this case the complaint has accrued the right on 18.1007 and on 29.10.07 the date on which construction agreement and sale deed were executed. This right was alleged as infringed on 15.3.08, the date on which the opposite parties agreed to complete the construction work and transfer of possession. So the cause of action was arisen for this complaint is an 15.3.08 and the complaint is seen filed on 31.11.09. So the complaint is filed within the prescribed time limit and hence it is seen that the complaint is not barred by limitation and hence we re of the opinion that the complaint is filed within time and issue No.2 also found in favour of the complainant.
Issue Nos. 3 to 5
The further case of the complainant is that even though she has paid Twenty three lakhs out of 25 lakhs the opposite parties has not completed the work of her flat and not handed over the possession on 15.3.08 and also demanded a further amount of more than two lakhs by way of taxes and other expenses. In order to prove her case she has produced documents such as building construction agreement sale agreement, absolute sale deed, copy of lawyer notice, copy of reply notice, brochure, reply issued from Kannur Municipality as per RTI Act, reply issued from office of the Assistant commissioner of Central excise under RTI Act, reply issued from Electrical Section, Burnassery, occupancy certificate, building permit, reply issued from Commercial tax office, notice issued from District Registrar office Thalssery, letter issued from ICICI Bank, prescription from Apollo DRDO Hospital, Discharge summary, plan from Municipal office, etc. In order to disprove the case the opposite parties also examined. DW1 to 3 and produced documents such as copy of agreement, copy of construction agreement, sale deed, copy of chalan receipts, chalan receipts for service tax, statement of service tax, counterfoil of service tax ,certificate of service tax, receipts for service tax, certificate of registration of sales tax etc. The construction, sale etc were admitted by opposite party. It is also admitted that the complainant had already paid 23 lakhs as per the agreement and kept a balance of 2 lakhs. It is also admitted that the complainant has not paid the charges with respect to registration such as documentation charge, registration and other incidental charges.
In order to find out the deficiency in this case first of all it is to be decided that whether the complainant is liable to play any charges to opposite parties. Since it is admitted that the complainant has not paid balance of consideration and taxes and some other charges
As per clause 15 of Ext.A1 building construction agreement the complainant agreed to pay KSEB caution deposit, OYEC charges and other expenses and charges for getting electric connection, KWA deposit and other charges for getting water connection, Municipal tax, proportionate share of one time, revenue building tax, if it is assessed by the revenue department as one building and or separate building tax of above flat if the revenue department assessed the building tax separately and cess, service tax(Central and state exercise) and expenses for bifurcations and registration of land in her name and the second party shall also pay all charges, levies sales tax and other taxes that may be levied or imposed and sought to be demanded and recovered by the Municipality, revenue department, labour department and or any department of the government or any other public authorities in respect of the said land and construction either before or after the completion of the building or at the time of delivery of the possession of the same, in proportion to the respective undivided share in the land and floor area of the apartment or independently on apartment wise basis or construction wise basis of apartment and land separately as decided by the opposite parties. But the difference of opinion exists with the complainant and opposite party is with respect to payment of different taxes such as service tax, VAT etc. The complainant deposed before the Forum that “ Rm\pT builder’s DT X½n-ep-ff {][m\ {]iv\T taxAS¨v receipt ImWn-¨m R§-fpsS sharesImSp-¡m³ R§ÄX-¿m-dm-Wv. VAT sâbpT service taxsâbpT hnln-XT sImSp-¡m³ R§Ä- C-t¸m-gp-T- X-¿m-dmWv. So it is seen that the complainant insists for separate receipt of taxes paid by the opposite parties on behalf of the complainant. But according to the opposite parties they had registered under the name and style of K.K. Builders before the concerned authorities and Ext.B4 (a)(i) and Ext.B6 substantiate these contentions of opposite parties and the Candale apartment is one of their such ventures. As per the finance Act service tax is levied on the person providing service and the tax can be collected from the user of service. Moreover the service provider is liable to pay service tax only when the payment for the service has been received by him and the basis for calculation of service tax is the gross amount charged by the service provider. The rate of service tax is 12% and the education cess of 2% as service tax also to be paid by the service provider for the service rendered by the service provider. In this case in hand opposite parties has to pay service tax and cess for the service rendered by the opposite parties for all the 45 flat owners. While assessing service tax value of goods involved for rendering services to be deducted. The opposite party has produced Ext.B5 series document and according to which they have paid a total amount of `16, 89,560 as service tax in the name of K.K.Tech and according to opposite party this was paid against the service tax of their project Candale Apartment having 45 flats. The DW2 the superintendent of Central excise deposed before the Forum that “ K.K.Tech F¶ Øm]-\-¯n\p department registration Dv. 2007emWv register sNbvXXp. B Øm]-\T CXp-h-sc-bmbn14, 25,323cq] AS-¨n-«p-v. AXnsâ details Fsâ ssIh-i-apv. Flat hm§nb individual\p excise duty direct Bbn AS-bv¡m³ Ign-bn-Ã. So from the above deposition it is seen that the opposite party has paid `14,25,323 towards service tax. But even though the complainant contended that they are ready to pay service tax and denied the amount paid by the opposite parties, the complainant has not produced or even mentioned what is the amount they are liable to be paid. But the complainant deposed before the Forum that `16,89,560cq] service taxBbn AS¨n«nà F¶p ]d-bm³ Ign-bn-Ã. Amount hy-X-ym-k-ap-m-Im-T”. According to DW2, Superintendent of Central Excise, the opposite parties have remitted 14,25,323 towards service tax including cess on behalf of 45 owners. So the complainant is liable to pay 1/45th of the above said amount i.e. `31,673.84 towards service tax.
Regarding payment of VAT also, the complainant made admission that she is liable to pay VAT. The opposite parties have produced Ext.B4 series and B7 series receipts and as per this receipts, the K.K.Tech has paid `8,50,000 as VAT on behalf of the opposite parties. DW3 is the commercial tax officer. He deposed that Hmtcm builder\p commercial tax registration compulsorybmWv. Hcp builder\p Hcp registrationBWv \ÂIp-I. Hmtcm flat\pT VAT AS-bvt¡-Xp builders BWv. Builders Hmtcm financial yearepT quarterly returns filesNbvXp tax AS-bv¡-W-T. CXp-hsc 20.50 lakhs AS-¨n-«pv”. Moreover considering the VAT system also, the seller has the duty to pay the VAT to the government after collecting from each purchaser. So regarding VAT also the complainant is liable to pay 1/45th of the above stated amount of `20,50,000 ie. `45555.55 to the opposite parties.
The complainant deposed before the Forum that sale deed, A3bpsS sNehp Rm³ sImSp-¯n-«nà , stampsâ ]WT sImSp-¯n-«nÃ. Registration fee AS-¨n-«n-Ã. OriginaltcJ Xcm-¯-Xp-sImv sImSp¡m-¯-XmWv, A3bpambn _Ô-s¸« bmsXmcp Nne-hp-I-fpT Rm³ sIm-Sp-¯n-«nÃ. So from the above deposition it is clear that the complainant has not given the charges with respect to the registration. So the complaint is also liable to pay the registration and incidental charges to the opposite parties.
Moreover as per the clause 9 of Ext.A1 building construction agreement it is agreed by the complainant that if the apartment with or without covered car parking spaces ready to occupation, whether the possession of the same is taken by him or not, he shall pay regularly the advance for minimum of 12 months the proportionate share that may be decided by the first party in all the outgoing and general expenses in respect of the property such as insurance , Municipal expenses or deposit in respect of motors, maintenance charges and all there cause and expenses shall keep deposit with the first party at the rate of `25 per square feet of the built up area which shall remain with the first party until the apartment owners associated is constituted as aforesaid. The second party shall continue to pay the outgoing as above until the association is formed. So the complainant is bound to pay the above said amount also. It is also seen that the complainant has not paid the charges as per clause 14 of building construction agreement.
So from the above discussion it is seen that the complainant has not paid the above stated amount of `31673.84 as service tax with cess, `45,555.55 as VAT, Registration and incidental charges, maintenance charges along with balance consideration amount of `2,00,000. But she has not paid the amount with a contention that the opposite parties have not shown her receipts of the taxes. As stated earlier complainant cannot pay the above taxes to the government and it is the obligation of the opposite parties to pay the same since such taxes are indirect taxes. So the above contention of the complainant cannot be considered as a deficient service with respect to the complainant, since the opposite party has the liability to pay the taxes and if not it will be recovered only from opposite party and hence the complainant will not suffer any hardship on account of this. The complainant has no case that the opposite parties re not ready to handed over possession, even though she had paid the entire consideration. Moreover admittedly the absolute sale deed also is executed in favour of the complainant. Another contention put forwarded by complainant is that the opposite parties have neither completed the construction nor intimated the complainant regarding the completion of the same. But there is no such stipulation in the agreement that the completion of construction should be intimated by the opposite parties to the complainant, even though there is stipulation as clause 19 in Ext.A2 that all communications should be issued through under certificate of posting or by Regd. Post with AD or by courier. The clause 4 of Building Construction Agreement stipulates that the complainant have access at all reasonable time with prior permission. So the contention that opposite parties has not informed the completion of construction is not sustainable.
The contention of the complainant is that the opposite parties have not completed the construction of the building during the stipulated period. But the opposite parties contended that they had completed the building during March 2008 and some minor works have to be completed. The complainant deposed before the Forum that 2009BK-Ìn-emWv Rm³ Ah-km-\-ambn _nÂUn-T-Kn Ib-dn-bXp. Central hall balcony bnep-ff tiles side cutsNbvXnÃ. Bath room tiles point sNbvXnÃ. Balconybn Hcp-Ø-e¯v piecesh¨n-«n-Ã. sNdnb finishing work_m¡n-bpv. This substantiate the contention of the opposite party that there is some minor work has to be done and admits that they will finish it as soon as the complainant had paid the entire amount. Moreover admittedly there are 45 flats including that of the complainant. So the complainant can very well examine anyone of such flat owners to prove her case that the building is not completed during stipulated time. So this contention also cannot be accepted as such.
Yet another contention put forwarded by the complainant is that the opposite parties have not constructed swimming pool even though there is provision in the brochure and approved plan. The complainant has no such pleading in the complaint. Nothing is mentioned about the swimming pool in the sale agreement, building construction agreement or in the absolute sale deed about the swimming pool. All other common amenities such as lift, common area and the like are elaborately mentioned in the documents. If the opposite parties have agreed to provide the amenity of swimming pool it should find a place in any of the above mentioned documents. So non providing of an amenity which is not mentioned in the related document cannot be considered as a deficient service and unfair trade practice on the part of opposite parties. So from the above discussion it is seen that the reason for not handing over the possession is due to the default on the part of the complainant. So she is liable to pay the above said amount of `31673.84 as service tax with cess. `45,555.55 as VAT, registration and incidental charges, maintenance charges along with `2, 00,000 as balance amount of consideration and also expenses under cause 14 of Building construction agreement. The opposite parties are bound to hand over the possession of the flat after curing the minor defects, on receipt of the above stated amount from the complainant and order passed accordingly.
In the result, the complaint is allowed partly directing the opposite parties to handed over possession of the building after completing the minor works within 15 days of receipt of the balance amount of consideration of `2, 00,000, `31,673.84 as service tax with cess, `45,555.55 as VAT along with registration and incidental charges and the maintenance charge and other charges as per clause 14 of the building construction agreement. In default the complainant can execute the order as per the provisions of consumer protection Act.
Sd/- Sd/-
President Member
APPENDIX
Exhibits for the Complainant
A1. Building construction agreement executed by both parties
A2. Copy of the Sale agreement executed by both parties
A3. Copy of the Sale deed executed by both parties
A4.Copy of the lawyer notice sent to authorized signatory of OP 10.
A5.Copy of the reply notice sent by OP
A6.Brochure issued by OP
A7.Copy of the information provided under RTI Act issued from
Kannur Municipality
A8.Copy of occupancy certificate issued from Kannur Municipality
A9.Copy of the building permit issued from Kannur Municipality
A10. Letter dt.7.8.09 issued by Sales Tax officer (Works Contract)
A11.Notice issued from Distr. Registrar office, Thalasery dt.10.8.09.
A12.Letter dt.9.10.09 issued from ICICI Bank
A13.Prescription for the treatment of complainant issued from Apollo
Hospital
A14.Discharge summary of K.T.K.Nambiar issued by Apollo DRDO
Hospital.
A15.Copy of the Plan
Exhibits for the opposite Parties:
B1 Copy of the Sale agreement executed by both parties
B2. Copy of the Sale deed executed by both parties
B3.Copy of Building construction agreement executed by both parties
B4.Copy of the chalan receipt
B5.Statement of service tax
B6.Copy of the Certificate of registration issued from Department of
commercial taxes
B7.Receipts for service tax
Witness examined for the Complainant
PW1.Complainant
PW2.C.V.Chandran
Witness examined for the opposite Parties:
DW1.K.K.Mahasood
DW2.K.C.Sreekumaran
DW3. Sunilkumar.C.M
/forwarded by order/
Senior Superintendent
