Shri Partha Kumar Basu, Hon’ble Member :

This compliant case is filed by one Smt. Rupa Ghosh u/s 35 of the Consumer Protection Act 2019 against the OP 1 Developer of a property construction company namely Snigdhaneer Construction, Garia, Kolkata – 700 084 represented by it’s partners Mr.Biman Bhattacharjee (OP-1A) and Mr.Bidhan Bhattacharjee (OP-1B) and the landowners Mr.Pranab Kumar Mukherjee- (OP-2) -since deceased, Ms. Kalyani Mukherjee (OP-3), Ms. SrabaniMukherjee (OP-4), Ms. Archana Mukherjee (OP-5), Mr. Amit Mukherjee (OP-6), Ms Anindita Mukherjee (OP-7), Mr. Gour Chandra Ghosh (OP-8) - since deceased represented by his successors Ms.Tapasi Ghosh (OP-8A), Ms.Puja Ghosh (OP-8B) and Mr. Rajib Ghosh (OP-8C) in a dispute of housing matter wherein all the OPs from OP-2 to OP-8C are the pro-forma OPs. The name of the OP-2 and OP-5 were expunged as per Order No.6 dated 19.09.2022.The case is running ex-parte against OP-3 as per Order No.6 Dated 19.09.2022.

The case of the complainant as averred in a capsulated form is that the complainant being one of the land owners filed another complaint case no. CC/27/2022 before the Hon’ble State Commission, West Bengal against the OP-1 to OP-3 Developers and OP-4 to OP-12 land owners as pro-forma OP. The Hon’ble State Commission did not admit the complainant on the ground of pecuniary jurisdiction as per order dated 29.03.2022 being the OP-1A and OP-1B partners of the OP-1 Developer Company and being OP-2, OP-3, OP-4, OP-5 , OP-6, OP-7, OP- 8A, OP-8B, OP-8C the co-owners / co-sharers of the land in question upon which a property was agreed to be constructed by both the sides as per Development Agreement dated 09.11.2005. As per condition of owners’ allocation and developer’s allocation along with other terms and conditions as mentioned therein for which a POA was executed in favour of OP 1A and OP 1B. In that Development Agreement it was agreed that the developer would deliver the owners’ allocation within 30 months from the date of sanctioned plan in default Rs.1,000/- per day would be payable if the developer fails to deliver the possession to the complainant / owners’ allocation. Subsequently both the developer and the complainant entered into another registered supplementary agreement on 20.09.2019 for delivery of possession of the Flat No.C on 2^nd floor of Block 1 admeasuring 1035 Sft. SBU and one car parking of 150 Sft. within 12 months from the date of supplementary agreement i.e. 20.09.2020. The original Development Agreement was executed on 09.11.20005 and the sanctioned building plan was obtained from 28.06.2012. But on this occasions also, the OP Developers (OP-1, OP-1A, !B) failed to deliver the possession or to pay compensation @ Rs.1,000/- per day in spite of repeated persuasions along with letters dated 28.11.2015, 16.02.2016, 08.11.2021 and 19.01.2022 although the Developer intimated their willingness to deliver the possession as per their letter dated 06.09.2021. Due to the continuous cause of action in respect of deficiency in service, the instant case was filed by the petitioner with a prayer for a direction on the Developers (OP-1, OP-1A, and OP-1B) to deliver the possession of the said flat at per Schedule. The complainant also prays for a direction on the OPs to provide the completion certificate along with Rs.23,00,000/- as damage assessed @ Rs.1,000/- per day from the date of sanctioned plan on 28.06.2012 along with a compensation of Rs.5,00,000/- and a cost of Rs.50,000/-. The complainant also prayed for a payment of Rs.40,00,000/-, alternatively, in lieu of the flat as per schedule. 

The OP Developer resisted the complaint petition by filing written version and adducing evidence. The Developer claimed that vide their letter dated 06.09.2021 addressed to the complainant, the delay was accepted for delivery of possession of flat through executing a supplementary agreement dated 20.09.2019, being part of the previous agreement dated 09.11.2005, that the delay occurred due to COVID-19 pandemic situation, when the date of intended possession was also enquired for by complainant. In their letter dated 08.01.2022 the developer contended that the complainant did not come forward to take possession of the flat intentionally. As per the W/V filed by the Developer, it is claimed that vide page no. 7 of the Supplementary Development Agreement and page no. 8 of the same, the property as per schedule A-2 i.e. Flat no. C, 2^nd Floor, Block-1 of 1035 Sft, 3 BHK flat, be allotted in favour of the complainant along with a car parking area of 150 Sft. in Block-1. In the W/V it was also claimed that the delay in completion of the project was caused due to bonafide reason of pandemic situation since 2020. Thereafter the complainant wanted to know about the delivery of the possession of the flat when the OP replied to such letters on different dates in a categorical manner for several times to take over of possession after paying GST in terms of the supplementary development agreement dated 20.09.2019 to which the complainant refrained from making payment that was affirmed by the OP as per letter dated 18.11.2021 which was also never annexed by the complainant in their complaint. This was reiterated by the OP in their letter dated 08.01.2022 but the complainant did not comply with their part to harass the OP and to garner unlawful gain. In the point no. 3(e) of their W/V the OP intimated that they are still ready to hand over the said flat along with car parking space in terms of the Supplementary Agreement. OP raised another issue that the complainant intentionally suppressed the most important point which is categorically mentioned in the Development Agreement that the owners have to follow during taking possession of the flat and car parking space, that there is revised area which is measuring 1035 Sft. as per supplementary agreement dated 20.09.2019 instead of the flat area of 750 Sft. as per previous agreement dated 09.11.2025 and the complainant is also obliged to make payment of GST as per Page 7 of the agreement prior to taking possession of the flat and car parking space. The OP contested by pointing out the anomalies that the complainant never had any whisper about their outstanding payment of GST and did not come in clean hand by exhibiting the letter dated 08.11.2021 written to the OP regarding GST.

The case was taken up for final hearing when both sides i.e. filed their respective BNAs and advanced their arguments that were heard in full on 24.11.2023 and 01.02.2024. Records and documents were examined.

It is the admitted position of the complainant that being the co-sharer of the land, entered into a development agreement with the Developer (OP1, 1A and OP 1B) on 09.11.2005 with a sanctioned plan dated 28.06.2012 for construction of the G+4 storeyed building, initially with assurance of delivery of possession within 30 months from the date of sanctioned plan i.e. by 28.12.2014, followed by another Supplementary Development Agreement dated 20.09.2019 forming a part of the original Development Agreement dated 09.11.2005 for the property being situated at Flat no. C, 2^nd floor, Block-1, admeasuring 1035 Sft consisting a 3 BHK Flat along with a car parking space measuring 150 Sft. The complainant claimed that reminders for handing over the possession was given by letter dated 28.11.2015 and 16.02.2016 (running page 55 & 56 of complaint petition) that was not complied by developer. Further complaint alleged by letter dated 01.09.2021 (running page 57 of complaint petition) that she was supposed to get possession by 1 year of supplementary agreement i.e. by 20.09.2020 but through the replyletter dated 06.09.2021 (running page 58), the OP admitted delay due to COVID - 2019 pandemic and asked her to take possession on any day after 15.09.2021 to which she confirmed her readiness by replydated 08.11.2021 (running page 59) fixing 21.11.2021 for taking over possession which is followed by another letter dated 27.12.2021 (running page 60 of complaint petition) and 19.01.2022 (running page 63).But the complainant alleged that the developer claimed money as per their letter dated 08.01.2022 (running page 61 of complaint petition). The complainant also filed another letter dated 01.01.2022 requesting possession by the Developer. All the exhibits filed by complainant were supported by proof of despatch through IndiaPosts and track reports showing confirmed delivery on the developer. But the exhibited letters dated 08.01.2022 also depicts that the OP Developer though intimated readiness to give delivery of possession of the flat to the complainant but the complainant did not respond.In the question answer exchanged between parties, in Sl. 14 of question by OP it was asked whether the owners are under obligation to pay GST or not to which the complainant replied that she was not aware of payment of GST as a Land Owner. The complainant also denied having received the letter dated 18.11.2021 from the promoter in point no.16 and rather contested in point no.17 as to whether as a land owner she is liable to pay GST or not. In the reply by the OP to the questionnaire filed by the complainant the OP replied that in question no.7 the complainant desired the GST no. of the OP that was never replied by OP. Similarly in Question 8 it was desired that how GST is levied from a land owners to which the OP gave evasive replies.The OP also could not supply any cogent proof about showing receipt of letter dated 18.11.2021 by the complainant. The Question no.10 and 11 also deals with genuinity of claiming GST that the OP could not reply satisfactorily. 

In the Sl 7 (page 2) of the Deed of Agreement dated 09.11.2005 it is mentioned that the complainant being one of the co-sharers is entitled for a flat admeasuring 750 Sft along with a parking of 150 Sft. at the 1^st Floor on the South West side. Also as per condition stipulated in the said agreement in Sl 1(b)(v) (page 3) it is stated inter-alia that after obtaining sanctioned plan, promoters would firstly demarcate owners’ area upon discussion with them and make supplementary agreement. The said supplementary agreement was executed on 20.09.2019 with this complainant which forms a part of the original agreement dated 09.11.2005 as per para no (4) of page no 5 and para (4) page no 7. It is also stated in para (6) of page 5 of the said Supplementary agreement dated 20.09.2019 that the complainant Ms. Rupa Ghosh is allotted with a 3BHK flat of 1035 Sft, instead of 750 Sft that was originally allocated, now at Flat no C, 2^nd Floor, Block 1 plus one car parking of 150 Sft. Including Super Built up area as per Schedule A-2of supplementary agreement. Though there is no dispute on these facts from either side but the escalated quantum of allocation of floor area reinforces the logic that the landowner was comfortable with the revised allocation of owner’s share and the timeline thereof for getting possession which is 1 year from the date of supplementary agreement dated 20.09.2019 i.e. 20.09.2020.

Further the para 6, point (II) in page 7 is quoted as below : -

“that the owners herein are under obligation to pay the GST.”

From the BNA filed by both the sides it appears that the complainant was entitled for 750 Sq.ft 1^st floor, Sq.ft. flat plus a 150 Sft. car parking space as per owners allocation vide original agreement dated 09.11.2005 with a damage of 1000/- per day beyond scheduled date but the developer agreed to provide a 1035 Sft. Flat at 2^nd floor along with 150 Sft. Ground floor as per Schedule A-2 of a supplementary agreement dated 20.09.2019 within 1 year i.e. 20.09.2020. The developer failed to give possession which is reflected in the letter dated 08.01.2022 wherein developer told complainant to make payment before taking possession. But from the contested letter dated 18.11.2021 of the developer (enclosed with W/V), no amount of GST was mentioned. Neither the applicability of GST or Land owners allocation was mentioned therein. The OP agreed to the factual matter of the case and stated that the owners are under obligation to pay GST for transfer of Development right by land owner for residential project and a photo copy of an extract write up was annexed in support. The OPs in their BNA submitted that the complainant has to bear the charges for registration of the flat and the cost of GST after which the developers are agreed to get the flat registered in favour of the complainant. 

The dispute therefore centres around the moot question that whether the GST is applicable in this case and if yes, then who should bear it and quantum thereof.

In general parlance, if the landowner gives his land to developer and in return gets a constructed property, then in such a case the landowner will be liable to pay GST on applicable rate. When the construction of a property is over, the developer transfers the possession of the building to the landowner by signing an allotment letter and the landowner has to pay Goods and Services Tax (GST) on a joint development agreement. There may be certain exceptions who are exempt wholly or in part. So it will depend on the Joint Development Agreement (JDA) which is a contract between a landowner and a developer to develop a property. In a JDA, the developer agrees to provide various services, and the landowner agrees to provide the land for development. The taxpayer can also claim a credit of the GST paid if property is used for commercial purposes. Plot purchases are exempt from GST and also ready-to-move-in apartments are GST- free, which may not be a case herein. The GST on a JDA for transfer of the development rights by Landowner, for residential projects, if entered into on or after April 1, 2019. The developer is required to pay GST under reverse charge mechanism based on the value on which of development rights of residential apartments and the completion certificate is issued or the first apartment occupied, whichever earlier. For JDA entered upto 31.03.2019, the landowner is required to pay GST when the value is determined by CGST Rules & CGST Act’ 2017. Such GST has to be paid on the constructed building’s date of transfer of possession.

This commission has not dealt with the applicability of the GST in this case as there is a separate competent authority available for the same having necessary jurisdiction. Also such applicability or quantum of GST is to be determined based on the case specific as determined by the GST authorities. But it is conspicuous to note that the GST rules that became effective from 01.07.2017 and since the liability of GST changed w.e.f  01.04.2019, hence due to elapse of time delay in completing the construction, the liabilities must have traversed from one entity to the other for which the Developer cum promoters (OP1, OP1A and OP1B) are solely responsible due to delay in completing construction.

On the other hand, in a Complaint Case about delayed handover on constructed properties in the matter of 2016 CPJ 328 (NC), the Hon’ble National  Commission held that :-

              “Para 9. As far as the allottees in tower E & F are concerned, they have already sought refund as an alternative relief, along with compensation under several heads. Therefore, we have no hesitation in holding that in the facts and circumstances of the case the allottees in both the complaints are entitled to refund of the money paid by them, along with appropriate compensation in the form of interest for the financial loss suffered by them. They are also entitled to appropriate compensation for the mental agony and harassment suffered by them on account of the failure of the opposite party to deliver possession of the flats booked by them. In this regard, it is to be kept in mind that a person books a residential flat for the purpose of having a roof over his head, and in the hope that on completion of the construction within the time promised by the builder he will be able to live in a house of his own. Therefore, he is bound to feel disappointed and frustrated when the builder does not deliver upon its promise for years together”.

Again, in 2016(3) CPR 279 (NC) Hon’ble National Commission held thus –

                        “Para 10. Since the opposite party has failed to offer possession of the flat agreed to be sold to the complainants by the date stipulated in the Buyers Agreement in this regard and 5/6 years have already expired from the said committed date for delivery of possession. The complainants cannot be compelled to wait any more for the builder to deliver and they are entitled to seek refund of the money paid by them along with appropriate compensation.”

In view of the above decisions of the Hon’ble National Commission, we hold that the complainants are entitled to refund the money paid by them along with appropriate compensation for the financial loss and for mental agony and harassment suffered by him on account of the failure of the OPs to deliver possession of the flat booked by them. The facts and circumstances and materials on record in this instant case, more particularly, relying upon the evidence on record, it is palpably clear that the OP could not keep their promise. They are deficient in rendering services towards a consumer. Consequentially the OP developers are liable for the cost and compensations for the delayed completion of the services rendered to complaint under the contractual terms.

We hold that there is deficiency in service on the part of the Opposite parties in the matter of construction of flat and delivery of possession as per terms and conditions of the agreements. In the result, the Complaint case succeeds and the complainant is entitled to get relief as prayed for alongwith cost.

Thus the complaint case no. CC/ 84 / 2022 be and the same is allowed on contest against the contesting OPs.

Hence it is

                                                              ORDERED

1. That the OP no 1, OP no 1A and OP no 1B, jointly and / or severally are directed to deliver possession of the suit property as per schedule A-2 of the Supplementary agreement dated 20.09.2019 in completely habitable condition and also handover the allotment letter and the possession letter in favour of the complainant within 60 days from the date of this order.

2. The OP no 1, OP no 1A and OP no 1B, jointly and / or severally, are liable and hereby directed to make payment of compensation of Rs.1000/- (Rs. One Thousand only) per day to the complainant for the period from 20.09.2020 till the date of final realisation of the entire amount for deficiency in services, mental pain and agony suffered by the complainant.

3. The OP no 1, OP no 1A and OP no 1B, jointly and severally, are also directed to make payment of cost of Rs.25,000/- (Rs. Twenty Five thousand) to the complainant.

4. The GST amount payable by the complainant cum landowner (if applicable) as per extant GST rules or as assessed by the GST authorities, will be determined and paid by the complainant.

     Alternatively, the OP Developer can pay GST on behalf of the complainant cum landowner, and adjust the amount by deducting from the compensation payable to the complainant as per para (I) above.

However, all the above said payments in terms of this order will be made by the OPs to the complainants within 60 (Sixty) days from this day I/D a simple interest @ 12% per annum will get accrued till the date of final realisation.

If the Opposite party fails to comply with the above said direction within the period mentioned above, then the complainant is at liberty to put the entire order into execution as per due course of law.

Let a plain copy of this Order be provided to both the parties free of cost as per CPR 2005.

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

      Dictated and corrected by me

                  Member