JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          The appellants/complainants booked residential flats with the respondent Anand Properties in a project which the respondent was to develop on land comprising Survey No.85 (part) of Sub-Division & Taluka Mulshi within the limits of Zilla Parishad, Pune and different flats in the proposed project were allotted to them.  They also executed agreements with the respondent incorporating their respective obligations in respect of the said purchase.  The possession as per the agreements was to be delivered by June 2014, which can be said to mean by 30.06.2014.  The case of the appellants, as set out in the amended complaint, is that the aforesaid flats were booked through Jain Sangh, Pune.  Since the possession of the flats was not delivered to them within the time stipulated in the agreements and amenities which the respondent was to provide in the said project, were allegedly not provided, they approached the concerned State Commission by way of separate Consumer Complaints.  There was also dispute between the parties as regards the payment of Service Tax and Value Added Tax.  The State Commission decided the said complaint vide order dated 26.04.2016 with the following directions:         

3.      The statutory obligation as contemplated under the Maharashtra Ownership of Flat Act, 1963 shall be completed by the opposite party upon acceptance of the amount payable as value added tax and service tax and balance consideration as per registered agreements payable in respect of each flat by the flat purchaser concerned.  We direct the parties to abide by these directions within a period of two months from the date of this order and dispose of those complaints accordingly.  If possession of flats is not handed over to each of the flat purchaser within two months as directed, the opposite party shall be liable to pay compensation of Rs. Two lakh to each of the flat purchaser.

2.      Being aggrieved from the order passed by the State Commission, the appellants approached this Commission by way of their respectively individual appeals.  Those appeals were disposed of by this Commission vide common order dated 23.09.2016 which to the extent it is relevant, reads as under:   

          3.      The following are the issues involved in these matters:

(a) Whether the appellants/complainants are liable to pay Service Tax to the respondent/OP?

          (b) Whether the appellants/complainants are liable to pay Value Added Tax to the respondent/OP?

          (c)Whether the appellants/complainants are entitled to compensation on account of delay in delivery of possession of the flats booked by them?

          (d) Whether the respondent/OP has provided all the facilities and amenities as per the terms of the agreement with the complainants/appellants, including the brochure on the basis of which the bookings were made and as per the provisions of Maharashtra Ownership Flat Act, 1963. 

4.      The learned counsel for the appellants/complainants submits that they have with them the mails sent by the OP which would clearly show that the price at which flats were sold to the complainants/appellants was inclusive of Value Added Tax and Service Tax.  The said e-mails however, were not filed before the State Commission. 

          The learned counsel for the OP/respondent submits that the possession was delayed on account of the failure of the appellants/complainants to pay the balance sale consideration, Value Added Tax and Service Tax.  He also would like to file additional documents in order to substantiate the case of the respondent/complainant in this regard. 

5.      On a perusal of the impugned order, I find that the State Commission has not gone into the question as to whether the sale consideration agreed between the parties included Value Added Tax and Service Tax or not.  Moreover, the imposition of the Service Tax has already been struck down by a Division Bench of Delhi High Court in W.P.(C) No. 2235 of 2011 Suresh Kumar Bansal Vs. Union of India  and connected matters decided on 03.06.2016.  The alleged liability of the appellants/complainants in respect of the Service Tax therefore, needs to be considered in the light of the aforesaid decision as well as the documents exchanged between the parties.  The alleged liability in respect of Value Added Tax also needs to be re-considered in the light of the mails exchanged between the parties. 

6.      I also find, from a perusal of the impugned order that the State Commission has not even adverted to the claim of the complainants/appellants for payment of compensation despite compensation having been demanded in the complaints.  The State Commission ought to have examined the claim for payment of compensation in the light of the facts and circumstances of the case including the correspondence exchanged between the parties.  The State Commission also needs to examine whether there was default on the part of the complainants/appellants in making payment of the balance sale consideration and if so, what would be the effect the said default.  The State Commission will also have to find out when the construction of the flats was complete and when the occupancy certificate was applied.  In fact, according to the learned counsel for the appellants/complainants, the requisite occupancy certificate has not been obtained till date by the respondent/OP.  It is a statutory obligation of the builder to obtain the occupancy certificate before delivering possession to the flat buyers.  The State Commission therefore, needs to examine the effect of the alleged failure of the OP/respondent to obtain the requisite occupancy certificate before delivering possession of the flats to the complainants/appellants. 

7.      This is also the grievance of the complainants/appellants is that a number of facilities and amenities which the OP/respondent was to provide as per the promise made in the brochure on the basis of which the bookings were made by them, the terms of the agreements executed between the parties and the provisions of the Maharashtra Ownership Flat Act, 1963, have not been provided.  The State Commission is required to examine as to whether there is any default on the part of the OP/respondent in performing the contractual and statutory obligations in respect of the amenities and facilities. 

8.      For the reasons stated hereinabove, the impugned order is set aside and the matters are remanded back to the State Commission for deciding the same afresh in the light of this order after giving opportunity to both the parties to file additional evidence including additional documents within four weeks of the parties appearing before the State Commission.  The parties are directed to appear before the concerned State Commission on 18.10.2016. 

9.      The learned counsel for the complainants/appellants submits that they would like to amend the complaints so as to widen the scope of the complaints.  If such applications are filed, the same shall be considered by the State Commission on merit.          

3.      After the complaints filed by the complainants had been remanded back to the State Commission for deciding the same afresh in the light of the directions contained in the order of this Commission dated 23.09.2016, the complainants/appellants amended the consumer complaints which they had initially instituted before the State Commission and reply to the amended complaints was also filed by the respondent. 

4.      The complaints were decided afresh by the State Commission vide order dated 09.01.2018 which contained the following directions:         

1. Complaints are partly allowed.

2. Complainants are hereby directed to pay the amount of service tax and VAT to the opponent as claimed by them alongwith remaining amount of sale consideration, if any.

3. Opponent is hereby directed to give possession of the flats to the complainants by making necessary modifications in the flats of complainants as per the agreement and brochure.

4. Opponent is hereby directed to refund the amount of sale consideration if the carpet area of the flats of complainants is less than the area mentioned in the agreements.

5. Opponent is hereby directed to form the Co-operative Housing Society of the flat purchasers and execute conveyance of land and building in favour of the society and upon obtaining occupation certificate in respect of the building from Corporation.

6. Opponent is hereby directed to make all aforesaid compliances within a period of two months from the date of passing of this order otherwise opponent will have to pay compensation of Rs.22,00,000/- (Rupees Two Lakhs only) to each of the complainant/flat purchaser.On failure of the same complainants will be entitled to get interest @ 9% per annum on the amount of compensation from the date of deposit till realization of amount.

7. Opponent is directed to pay cost of Rs.10,000/- (Rupees Ten Thousand only) to each of the complainant.

5.      Being aggrieved from the order passed by the State Commission, the appellants/complainants are again before this Commission. 

6.      Admittedly, possession of the allotted flats has already been taken by the appellants/complainants from the respondent.  The learned counsel for the appellants states on instructions that she is pressing these appeals on the following three points:

          (i)      The actual carpet area as defined in the agreement of the flats delivered to the complainants/appellants is less than the carpet area sold to them;

          (ii)      Several amenities which the respondent was to provide in the complex, have not been provided;

          (iii) No compensation has been awarded to the complainants/appellants for the delay in delivery of possession and      

          (iv)    The Service Tax is the liability of the respondent and not of the complainants/appellants.

7.      As far the difference in the carpet area of the flats is concerned, though the State Commission has directed the respondent to refund the sale consideration if the carpet area is less than the area mentioned in the agreements, it has not indicated, in its order as to how the question as to whether the carpet area is less than the area mentioned in the agreements or not will be decided.  As per the report of the Architect of the appellants, the carpet area of the flats was less than the carpet area mentioned in the agreement whereas as per the report of the Architect of the respondent, the carpet area of the flats was equal to the carpet area mentioned in the agreements.  In these circumstances, it would only be fair and reasonable to appoint a third party Architect to measure the carpet area of the flats delivered to the complainants, in the presence of the parties and find out whether the actual carpet area of one or more flats calculated as per the agreements between the parties, is less than the carpet area mentioned in respect of such flats in the agreement or not.  If the third party Architect finds that the carpet area of any flat is less than the carpet area mentioned in the sale agreement pertaining to that flat, the respondent shall refund the proportionate amount of the sale consideration received from the concerned complainant to him in terms of the order of the State Commission, within eight weeks of determination by the said third party Architect.  The State Commission is directed to appoint a third party Architect for this purpose after hearing the learned counsel for the parties and considering the names which they may suggest for the purpose. 

8.      As far as payment of Service Tax and Value Added Tax is concerned, the case of the complainants/appellants seems to be based upon an e-mail dated 06.07.2012 purporting to be sent by Jain Sangh, Pune to the respondent Anand Properties and one of the complainants namely Mr. Sankalp Jain.  The State Commission is directed to examine the person who sent the aforesaid e-mail on behalf of Jain Sangh, Pune to the recipients of the mail and then decide, in the light of his deposition and other facts and circumstances of the case as to whether the Service Tax and Value Added Tax were included in the price of the flats or they were to be paid separately by the flat buyers. 

9.      As far as amenities are concerned, I find that despite specific direction given by this Commission in para 7 of its order dated 23.09.2016, the State Commission did not even examine the said issue.  The State Commission is therefore, directed to comply with the direction given in para 7 of the order of this Commission dated 23.09.2016 and give a clear cut finding as to whether the respondent had defaulted in performing its contractual and/or statutory obligations in respect of one or more amenities and facilities or not.  If the State Commission finds such a default, it shall pass appropriate orders with respect to the provision of such amenities and facilities by the respondent or in the alternative, compensate the complainants/appellants on account of they being deprived of the said amenities and facilities.  If the State Commission so feels necessary, it may also appoint an Architect to verify whether any particular facility/amenity has been made available in the complex or not. 

10.    I also find that despite specific direction, contained in para 6 of the order of this Commission dated 23.09.2016, the State Commission has not even gone into the question of compensation to the complainants/appellants for the delay in delivery of possession of the flats to them.  The learned counsel for the respondent submits that seven complainants/appellants have, while taking possession of their respective flats, expressly admitted that they had inspected the entire flat with all the details and upon satisfaction regarding the area, workmanship, construction quality etc., they had requested the developer to deliver vacant and peaceful possession.  The contention of the aforesaid complainants/appellants is that they were compelled by circumstances to execute the document containing the aforesaid admission since they were keen to take possession of their respective flats whereas the respondent had refused to deliver possession without execution of possession and confirmation receipt in the format devised by it.  This of course is disputed by the respondent whose counsel maintains that the said document was voluntarily executed by the concerned complainants/appellants.  However, this is a matter which needs to be examined by the State commission and appropriate finding needs to be rendered by it in this regard. 

11.    If the State Commission finds that there was unjustified delay on the part of the respondent in delivery of possession of the allotted flats to the complainants, and it also finds that either the concerned complainants/appellants did not execute the receipt of possession and confirmation in the above referred format devised by the respondent or that the said document was executed under coercion, it shall pass appropriate order with respect to payment of compensation to the appellants/complainants for the delay in delivery of possession of the allotted flats to them. 

12.    The parties are directed to appear before the concerned State Commission on 14.01.2019. 

          The State Commission shall decide the appeals afresh strictly in terms of the directions contained in this order within six months of the parties appearing before it.  The appeals stand disposed of accordingly.