FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Brief facts of the case are that the complainants booked a residential flat being No. D, Block-6 on the 2nd floor of the building named Club Town Getway measuring an area of 1475 sq. ft. more or less along with one covered car parking space on the ground floor of Block-G. The OP is the developer of the aforesaid project. Complainants had entered into an Agreement for Sale dated 28.08.2013 with the OP. The sale price of the subject flat and covered car parking space was Rs. 78,53,070/- and service charge was Rs. 2,48,705/-. Complainants paid entire sale price and service charge to the OP against money receipts. In terms of the Agreement for Sale, the OP was liable to handover physical possession of the subject flat and covered car parking space to the complainants within 36 months. Despite several request and reminder, the OP failed and neglected to hand over physical possession of the subject flat and covered car parking space to the complainants. Having no other alternative, the complainants filed a consumer case being CC No. 458 of 2017 before the Hon’ble SCDRC against the OP. During pendency of the said consumer case the dispute was amicably settled in terms of agreement dated 31.08.2017. Complainants “not pressed” the consumer case being CC No. 458/2017 and the Hon’ble SCDRC vide order dated 07.02.2018 dismissed the complaint being not pressed. The OP refund the sale price of the subject flat and covered car parking space to the complainants in terms of the agreement dated 31.08.2017 but failed and neglected to refund service tax of Rs. 2,48,705/-. The OP did not file any refund application to the concerned authority though they are liable to refund the service tax. Legal notice dated 05.08.2019 sent to the OP with a request to refund the service tax amount within 30 days from the date of receipt thereof but the OP failed to discharge their obligation as per agreement dated 31.08.2017. There is unfair trade practice and deficient in service on the part of the OP. Hence, the complainants filed the instant consumer case against the OP.
Despite service of notice, OP did not turn up to contest the case by filing WV within the statutory period as provided under the CP Act, 2019. Thus, the case runs ex parte against the OP.
Complainant No. 1 Niladri Sircar filed his evidence by way of affidavit in which he has reirritated all the averments taken in the complaint and relied the documents annexed with the complaint petition. We have heard the Ld. Advocate appearing for the complainants and also perused the material available on record including written argument.
In course of hearing the Ld. Advocate for the complainants submitted that there is a gross deficiency in service and unfair trade practice on the part of the OP. Despite agreement dated 31.08.2017, the OP did not refund the service tax of Rs. 2,48,705/- to the complainant. Photocopy of Annexure-A of the complaint petition goes to show that the OP agreed to refund service tax of Rs. 2,48,705/- to the complainants as and when they received such amount from the concerned Service Tax Authority. It is true that the OP refund the entire sale price of the flat and covered car parking space to the complainants in terms of the agreement dated 31.08.2017. It is true that the OP did not refund the service tax amount to the complainants in terms of the settlement agreement. On perusal of the Annexure-C of the complaint petition, it appears to us that the CPIO & Assistant Commissionerate (RTI) Tollygunge CGST & CX Division, Kolkata, South informed the complainants that the OP never filed any refund application of GST/service tax amount. Even, the OP did not reply the legal notice dated 05.08.2019. The OP did not perform their legal obligation in terms of the settlement/ agreement dated 31.08.2017. Complainants cannot be made to wait indefinitely for refund of Service Tax Amount. Thus, the Commission has the authority to pass appropriate order in this complaint case.
In our opinion, the complainants are”Consumers” under the provision of Consumer Protection Act, 2019. We also find both deficiency in service within the meaning of section 2 (11) and unfair trade practice within the meaning of section 2 (47) of the Consumer Protection Act, 2019 to be well and truly evident on the part of the OP.
In view of the above discussion, the present consumer complaint is allowed in part ex parte against the OP with the following directions:-
- OP is directed to refund Rs. 2,48,705/- (Rupees Two lacs forty eight thousand seven hundred five) only being the service tax to the complainants.
- OP is directed to pay Rs. 15,000/- (Rupees fifteen thousand) only as compensation to the complainants for their mental agony and harassment.
- OP is further directed to pay Rs. 5,000/- (Rupees five thousand) only to the complainants towards litigation cost.
The aforesaid directions shall be complied with within a period of 90 days from today, failing which the amount of Rs. 2,48,705/- shall carry interest @ 5 % P.A. till its realization.
Copy of the judgment be supplied to the parties as per CP Act. Judgment be uploaded on the website of this Commission forthwith for perusal of the parties.
