FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating thatOP firm as a part of its’s business has constructed a multistoried building named “Rabismaran Apartment” containing self contained residential flats, shops commercial spaces etc. on and over the L.R plot no.1293 L.R kh. No.2964 and 2963 of Mouza – Balagarh, P.S Chinsurah, Dist-Hooghly and the complainants in the said Rabismaran Apartment have purchased a residential flat being flat no.2FB at 2^nd floor, measuring covered area of 760 sq.ft. and super built up area 950 sq.ft. alongwith a car parking space being garage no.3 at the ground floor measuring about 172 sq.ft. alongwith undivided proportionate share of the land upon the apartment has been constructed alongwith proportionate share of common area and facilities attached to the building at a consideration price of Rs.26,27,000/- by a registered deed of sale being no.0601000990 for the year 2018.  The said flat and garage has been shown by red border in the plan no.2 annexed with the said deed.  Be it mentioned here prior to execution and registration of the aforesaid deed an unregistered agreement for sale was executed on 10.03.2016 by and between the complainants and the OPs and in the said unregistered agreement for sale though there has specifically state the association which will be formed in between the occupies of the building (i.e. the aforementioned Rabismaran Apartment) the complainant will be bound to be the members of the association as also the complainants will be governed by the provisions of the West Bengal Apartment Ownership Act.  The OPs are well aware that all the residential flats of the said apartment has already been sold as also are well aware that as per the provisions of the prevailing law that the OPs being the developer /promoter of the aforesaid apartment are duty bound to take necessary steps for formation of an association of the apartment owners but curious enough that the Ops did not bother and or pay any heed to take steps for formation of the association of the flat owners of the aforesaid apartment inspite of repeated request of the complainants for the reason best known to them.  The OPs intentionally and willfully did not perform their aforesaid duty and avoided to perform their said duty by showing various pretexts.  Such type of avoidance activities on the part of the Ops are nothing but deficiency in service and the complainants in compliance of the stipulation as stipulate in the agreement for sale has paid Rs.50,000/- proportionate cost for installation of electrical transformer / brassbar for the purpose of supply electricity to the aforesaid apartment.  The OP no.1 after receiving the said amount for and on behalf of the OP development firm did not issued any money receipt in favour of the complainants inspite of the requests, tagids on several occasions by the complainants to the OP no.1 but the op no.1 avoided to issue any receipt against receiving of Rs.50,000/- by showing various pretext though the OP no.1 is bound to issue / grant money receipt for the same.  The said activities on the part of the op no.1 is contrary to the law and tantamount to unfair trade practice and the complainants as per demand of the OP no.1 one of the partners of the OP firm, have already paid Rs.1,18,238/- on 10.01.2018 as Service Tax.  Against which though the OP no.1 has been issued a money receipt as authorized signatory for Tirupati Developers in the name of the complainants but in the said receipt no service tax  registration number has been mentioned.  The complainants after receiving the said receipt on several occasions requested the OP no.1 to issue a proper receipt bearing the service tax registration number and valid document with regard to deposition of the said amount as service tax with the concerned Government department but the op no.1 did not pay any heed rather denied to issue such proper receipt on the plea that the receipt issued in the name of the complainants will speak that the money amount  to Rs.1,18,238/- has been received as Service Tax.  Proper receipt showing the service tax registration number or proof of deposition of the said amount as service tax with the concerned Govt. department is very much required by the complainants as they being the Income tax payee are bound to show the amount as proof of payment of service tax in their respective Income Tax file.  The OP no.1 is bound to issue / grant proper receipt with service tax registration number of the Govt. to the complainants.  The OP no.1 being a promoter is well aware about the concerned law of our country inspite of that he denied to issue the same, which is nothing but unfair trade practice on his part as also on the part of the OP developers firm and beside the aforesaid unlawful activities of the OPs particularly of the OP no.1 the complainants on several occasions verbally requested the OPs to issue a copy of the completion certificate of the appropriate statutory authority with regard to completion of the apartment name Rabismaran Apartment.  The OPs being the developers are well aware that after completion of a building there is need to obtain of a completion certificate from the concerned authority and it is required.  But the op no.1 did not bother to pay any heed to the request of the complainants.  Moreso on 09.09.2018 a meeting was held in presence of the complainants including the other flat owners with regard to issuance of completion certificate and on that date in that meeting the OP no.1 & 3 promised to the complainants that they will take necessary steps to provide a copy of completion certificate but they did not honour their own promises as they till date did not issue a copy of the completion certificate to the complainants.  The said activities are nothing but deficiency in service on the part of the op no.1 & 3 and the complainants finding no other alternative on 12.2.2019 issued a letter requested all the OP no.1 to 3 to provide the aforesaid documents but the ops inspite of receiving the said letter neither replied to the same nor provided the asked documents to the complainants rather remained deaf ear.

Complainant filed the complaint petition praying direction upon the opposite party to pay the service tax bearing the service tax registration number of the Govt. or a document of similar nature and to pay a sum of Rs. 50,000/- for cost of installation of electric transformer and to pay a sum of Rs.50,000/- for mental harassment and agony and to pay a sum of Rs.1,00,000/- for deficiency in service

Defense Case:-The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the OP no.1 constructed a building in the name and style as “Rabismaran Apartment” containing a self contained residential flats, garage shops, commercial spaces on L.R. Plot no.1293, L.R Khatian no.2964 & 2963 of Mouza – Balagarh, P.S-Chinsurah, Dist-Hooghly and the petitioners purchased flats from the ops as per description as given in the said paragraph in the year 2012 for valuable consideration and prior to sale there was an unregistered agreement of sale was executed in between the parties to the case.

The allegation that the receipt supplied to the complainant by the OPs does not bear service tax registration no. does not hold good.  These Ops are not liable if the govt. receipts does not bear service tax registration no.  The OPs paid service tax before the Govt. vide pucca receipts.  All those allegations do not come under the purview of unfair trade practice and deficiency of service and completion certificate is issued by the local Municipality.  At present Hooghly Chinsurah Municipality is not issuing any completion certificate to anybody for the reasons best known to them.  These OPs have nothing to do with this matter. As per case of opposite parties, they have no negligence or deficiency of service. For all these reasons ops are praying for dismissing this case.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainants are residents of Chinsurah, Hooghly and ops have their offices at Chandannagore and Chinsurah, Hooghly which are lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law. It is the settled principle of law that a consumer invoking the jurisdiction of the District Commission can seek such relief as he or she considers appropriate. This legal principle has been observed by Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is reported in AIR2022SC1824.

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the ops engaged in the work of development and promoting buildings.
2. It is also admitted fact that the ops promoted and/ or developed multistoried building “Rabismaran Apartment” containing self contained residential flats, shops, commercial spaces etc.
3. There is no controversy over the issue that the said apartment is situated L.R plot no.1293 L.R kh. No.2964 and 2963 of Mouza – Balagarh, P.S Chinsurah, Dist-Hooghly.
4. There is no dispute over the issue that the complainants purchased a residential flat being flat no. 2FB at the 2^nd floor of the said building.
5. It is admitted fact that the said flat which the complainant intended to purchase was measuring covered area of 760 sq.ft. and super built up area 950 sq.ft. alongwith a car parking space being garage no.3 at the ground floor measuring about 172 sq.ft. alongwith undivided proportionate share of the land upon the apartment has been constructed alongwith proportionate share of common area and facilities attached to the building.
6. It is also admitted fact that the total consideration money which was payable in the matter of purchasing the said flat was Rs. 26,27,000/-.
7. There is no controversy over the issue that the complainants paid the said consideration money.
8. There is no dispute over the issue that initially one unregistered agreement for sale was executed on 10.3.2016 in between the complainants and ops.
9. It is admitted fact that subsequently sale deed in respect of the above noted flat was executed and registered vide sale deed being no. 0601000990 for the year 2018.
10. It is also admitted fact that the complainants paid service tax in respect of the purchase of above noted flat to the ops and the ops issued receipt but the said receipt was not containing “service tax registration number” of Govt.
11. There is no controversy over the issue that the complainants also paid Rs. 50,000/- to the ops in the matter of installation of transformer for supplying electricity in the said flat.
12. There is no dispute over the issue that the complainants in the matter of getting proper receipt of the service tax requested the ops and on 9.9.2018 a meeting was conducted in the matter of issuing service tax receipt and in the matter of issuing completion certificate.
13. It is admitted fact that the ops have not yet issued any completion certificate to the complainants and other flat owners in respect of the above noted apartment.
14. It is also admitted fact that on 12.2.2019 the complainants issued a letter requesting the ops for providing proper service tax receipt and completion certificate.    

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainants are adopting the plea that they have not yet received proper service tax receipt and completion of certificate which is undoubtedly  a deficiency of service but on the other hand the ops are adopting the plea that they have already supplied service tax receipt to the complainant and have failed to produce the completion certificate as the local municipality has not yet issued the same and so there is no deficiency of service on the part of the ops.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords and also for the interest of disposal of the points of consideration nos. 4 and 5 of this case this District Commission after going through the evidence on record finds that the service tax receipt which has been issued by the ops are not containing any registration number and it is admitted fact that the ops have not yet provided any completion certificate. In this regard it is the settled principle of law that the District Commission has the power to direct refund of amount and to compensate a consumer for deficiency of service. This legal principle has been observed by Hon’ble Apex Court in the case of Ghaziabad Development Authority vs. R.B. Sharma and it is reported in 2004 (3) CPR 92. Similar view has been taken by Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is reported in AIR2022SC1824.

Thus, it is crystal clear that the complainant has proved his case in respect of all the points of consideration adopted in this case and so the complainants are entitled to get reliefs which have been prayed in this case.

In the result it is accordingly

ordered

that the complaint case being no. 116 of 2019 be and the same is allowed on contest but in part against the ops.

It is held that complainants are entitled to get a direction upon the ops for issuing proper service tax receipt containing registration number of the Govt. and also entitled to get completion certificate from the ops. The ops are directed to issue the above noted documents in favour of the complainants within 45 days from the date of this judgement. Otherwise the complainants are given liberty to execute this award as per law. No order is passed in respect of any compensation in favour of the complainants. However, complainants are entitled to get Rs. 10,000/- as litigation cost from the ops.

Opposite parties are directed to pay the said amount within 45 days from the date of this order otherwise complainants are given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite parties are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.