DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA : AGARTALA

 

 

CASE   NO:   CC- 109 of  2021

 

Smt. Soma Saha,

W/O- Sri Sunil Saha,

Dhaleswar Road No. 16,

P.O. Dhaleswar, P.S. East Agartala,

District- West Tripura-799007. ….….....Complainant.

 

-VERSUS-

 

1. Smt. Nibedita Baidya,

W/O- Sri Samaresh Baidya,

R/O- C/O- Sri Subrata Bhattacharjee,

Near Magnet Club, Krishnanagar,

District- West Tripura- 799001.

 

2. Sri Anjan Nath,

S/O- Lt. Chittaranjan Nath,

Road No.7, P.O.- Dhaleswar,

P.S. East Agartala,  

“C R Apartment”, Dhaleswar,

Agartala, West Tripura-799007. .........Opposite Parties.

 

 

 

    __________PRESENT__________

 

 

 SRI GOUTAM DEBNATH

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

      WEST TRIPURA, AGARTALA.

 

 

SRI SAMIR GUPTA

MEMBER,

  DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA.

 

 

 

 

 

 

C O U N S E L

 

For the Complainant : Sri Bikram Paul,

  Smt. Sujata Deb(Gupta),

  Sri Saikat Rahman,

  Learned Advocates.

 

For the O.P. No.1 : Sri Subhasis De,

   Learned Advocate.

 

For the O.P. No.2 : Sri Sukanta Paul,

  Learned Advocate.

 

 

ORDER  DELIVERED  ON:  17.03.2023.

 

F I N A L    O R D E R

1. Mrs. Soma Saha, wife of Sri Sunil Saha, Dhaleswar, Agartala (here-in-after referred to as ‘the Complainant’) set the law in motion by filing a complaint petition against Smt. Nibedita Baidya wife of Sri Samaresh Baidya, Krishnanagar, West Tripura (here-in-after referred to as ‘the O.P.1’) and Sri Anjan Nath, son of Lt. Chittaranjan Nath, Dhaleswar, Agartala (here-in-after referred to as ‘the O.P.2’) u/s 35 of the Consumer Protection Act, 2019.

2. The Complainant's case, in a nutshell, is as under:

2.1 The Complainant booked one 2BHK flat along with specified area of a garage space through making an Agreement for Sale (in short ‘the Agreement’) dated 18.08.2016 with the O.P.1 and O.P.2. Value of the flat for consideration was fixed at Rs.14 lac. The O.P.1 was supposed to execute the registered sale deed and hand over the possession of the flat within 22 months in favor of the Complainant. Accordingly, a schedule for payment of installment amount had been outlined in the Agreement. The Complainant paid a booking amount of Rs. 2 lacs at the time of making the Agreement and, on subsequent stages, paid 3 installments of Rs.2 lac each up to 09.04.2018.

2.2 The O.P.1, all on a sudden, demanded Rs.96,000/- as Goods and Service Tax (in short ‘GST’).  payment @ 12%. The payment of GST was not a pre-condition as per the Agreement. On 15.03.2018, the O.P.1 expressed her inability to hand over the possession of the flat and the Complainant was requested to extend the Agreement by one year. The Complainant extended the time of the Agreement by one year through her letter dated 28.3.2018. The Complainant, by way of her series of communications, reminded and pointed out about the non-existence of any condition whatsoever in the Agreement in the matter of requiring her to pay GST. 

2.3 Thereafter, abruptly, by a letter dated 17.01.2019, the O.P.1 cancelled the Agreement arbitrarily citing reason that the Complainant did not take any initiative towards extending the lapsed Agreement. The matter got resolved subsequently with the withdrawal of the cancellation by the O.P.1 by a letter dated 26.3.2019.

2.4 The Complainant also paid the GST amount Rs. 96000/- to the O.P.1. Later on, it came to her light that excess GST amounting to Rs. 24,000 was charged over the amount of booking payment of Rs. 2 lac. The booking amount was paid by her before the GST Act coming into force. She kept on pursuing the O.P.1 to complete the unfinished works but to no avail.

2.5 Being aggrieved so, the Complainant filed this complaint petition before this Commission and prayed to direct the O.Ps to hand over the possession of the flat and complete the process of registration on receipt of balance consideration amount and refund the excess GST amount Rs. 24000 along with a compensation of Rs.2 lac. Hence, this case.  

 

3. The O.P.1 contested the case by filing written version whereby refuted and disproved the allegations. It is submitted that the causes of delay in execution of the project were due to non-receipt of necessary approvals from the appropriate authorities in respect of the project. It is also submitted that the Complainant stopped paying installment amount and the applicable GST, as demanded. It is also submitted that the Complainant did not extend the Agreement through Notary Registry. It is submitted that the O.P.1 is ready to refund the money once she gets the amount from the O.P.2 after completion of the flat.

 

4. The O.P.2, through their written version submitted that O.P.1 has violated the Agreement by not completing the project on time. It is further submitted that the O.P. 2 has no role in regards to the transactions being held between the Complainant (Buyer) and the O.P.1 (Seller). 

5. The Complainant has filed her evidence on affidavit reiterating the similar points, so being narrated by her in her complaint petition.

 

6. The O.P.1 submitted her evidence on affidavit and admitted the fact that the Complainant was ready to extend the Agreement for one year, as proposed by her. But the Agreement for extension could not be made through Notary Registry due to the negligence of the Complainant. It is also put forth that the Complainant stopped paying installment and GST amount despite sending demand notice to her. 

6.1 It is also submitted by the O.P.1 that on 01.01.2020 the O.P.2 (land-owner) took over the project as the time for project development got expired. It is also submitted that as per the instruction of the O.P.2, the flat of the Complainant has been sold to another purchaser.

 

7. The O.P.2 submitted his evidence by way of affidavit whereby he replicated the issues and points, as being raised through his written version.

8. Now, the points, in the instant case, are to be decided as under:

8.1 Whether the terms and conditions of the Agreement have been violated by the O.P.1 by not delivering the possession of the flat?

8.2 Whether the Complainant is entitled to get refund of GST amount of Rs. 24,000 which was paid on installment received by the O.P.1 prior to introduction of GST regime? 

8.3 Whether the Complainant is entitled to get the reliefs, so being sought for?

 

9. The case has been argued by the Learned Counsels of the Complainant and the O.P.2. The O.P.1 did not participate in the argument proceedings.

9.1 The Complainant argued that since the O.P.1 could not deliver the flat within 22 months from the date of making the Agreement, the O.P.1 has infringed the well-defined and explicit terms and conditions of the Agreement. 

9.2 It is submitted that it is grossly untrue to allege that the payment of installment was stopped by her. The fact of the matter is that the O.P.1 was requested to complete the fourth floor before demanding the payment of fourth installment as per the payment schedule outlined in the Agreement. But the O.P.1 did not act accordingly.

9.3 It is also argued by the Complainant that since the booking amount (Rs. 2 lac) was paid before implementation of GST regime, GST @12% is not applicable on that amount. But, an amount of Rs. 24,000 (@ 12% on Rs. 2 lac), as GST, was illegally recovered from her by the O.P.1. The O.P.1, therefore, liable to refund the amount. 

9.4 O.P.2 argued that he did not have any idea and clue in regards to the payment transactions being made between the Complainant (Buyer) and the O.P.1 (Seller). Therefore, the O.P.2, in no account, comes into the picture of the case in so far to be a part of the default, if any, committed by the O.P.1 to comply the Agreement.

10. We have intensely and scrupulously examined and evaluated the documents on record. It is an admitted fact that the Agreement was done between the parties for booking the flat, in question, for a consideration value of Rs.14 lac.  It is also admitted that the Complainant paid Rs. 8 lac (including the booking amount of Rs. 2 lac) to the O.P.1. The Agreement was to be executed within 22 months. It is open to the seller and purchaser to mutually extend the contract time (Point No.10 of the Agreement). 

10.1 It is observed that the O.P.1 flouted the relevant clause of the Agreement to complete the project on time. Later on, O.P.1 sought for an extension of time which was agreed upon, in principle, by the Complainant. On the back of it, the burden was lying with the O.P.1 to get registered the extension of the Agreement by the Notary Registry. The O.P.1 could not produce any document substantiating her taking any serious initiative to accomplish the registry process.

10.2 It transpires from record that the Complainant paid Rs. 96,000 towards GST liability and thus cooperated with O.P.1. It is also observed that the O.P.1 cancelled the Agreement initially and revoked it at a subsequent stage. 

10.3 It is observed that the O.P.1 through her written version (para-10) submitted that she will refund the money to the Complainant after completion of the flat. Conversely, the O.P.1 changed her submission on the same point in her evidence on affidavit (para-17) to declare that the flat of the Complainant had been sold to another party under instruction of the O.P.2. Such dubious statement/ declaration is an attempt to mislead the Commission and, therefore, castes serious doubt on the integrity of the O.P.1 in dealing with the case proceedings in the Commission.

11. Keeping the above points in view, it is held by us that the O.P.1 has violated agreement by not handing over the possession of the flat to the Complainant within time. In the matter of extension of the time of the lapsed agreement, the primary responsibility was lying with the O.P.1 to get the Agreement extended by the Notary Registry. But, the O.P.1 failed to complete the registry process despite the consent, in principle, given by the Complainant to carry out so.

11.1 In regards to the excess GST payment amounting to Rs. 24,000, it is viewed that with the advent of the GST regime, w.e.f. July 2017, it is obligatory on the part of an end-user to pay the applicable GST. But, in the matter of the dispute regarding excess GST payment, arising due to levying GST on an amount which paid before the introduction of the GST regime, we do not like to go into the nitty-gritty of the GST Act. Having viewed so we hold that the GST collector, i.e., the O.P.1 is liable to provide appropriate valid Tax Bill/ Invoice to the Complainant. The Complainant has the liberty to approach to the appropriate Adjudicating Authority or Forum under GST Act., 2017 for redressal of the dispute.

12. In view of the points of observation explained in the afore-gone paras, we order that the O.P.1 shall confirm the marketable tittle of the flat by completing the registry process and ensure the delivery of the possession of the flat to the Complainant within two months from the date of this order. We also order that the Complainant shall pay the balance consideration amount to the O.P.1. In case, after receiving the balance consideration amount from the Complainant, the O.P.1 fails to comply the order within the specified time then a penalty @ Rs.400 (four hundred) only per day shall have to pay by the O.P.1 from the date of this order till full compliance of this final order.

12.1 We also order that the O.P.1 shall pay Rs. 75,000 (seventy-five thousand) only as cost to the Complainant within two months from the date of this order failing which the amount shall bear an interest @ 9% P.A. from the date of this order till realization.

13. All the points are, accordingly, decided. Therefore, the case stands disposed of. Supply copy of this Final Order free of cost to the parties.

 

Announced.

 

 

 

SRI  GOUTAM DEBNATH

PRESIDENT,

DISTRICT CONSUMER  DISPUTES

REDRESSAL COMMISSION,

WEST TRIPURA: AGARTALA

 

 

 

 

SRI SAMIR  GUPTA

MEMBER,

 DISTRICT CONSUMER DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA: AGARTALA.