Tripura

StateCommission

A/22/2023

Smt. Nibedita Baidya - Complainant(s)

Versus

Smt. Saptamita Saha - Opp.Party(s)

Mr. D. Datta

03 Jul 2023

ORDER

J U D G M E N T [ORAL]

 

None appears for the appellant. Heard Mrs. Sujata Deb (Gupta), learned counsel appearing on behalf of the respondent-complainant. None also appears for the opposite party no.2, the respondent no.2 herein. This Commission has waited for a considerable period of time, but ultimately, none appears for the appellant as well as for respondent no.2 and as such, this Commission has no option but to pass the necessary order for the ends of justice.   

2. This is an appeal preferred by the appellant against the judgment and order dated 17.03.2023 passed by the learned District Commission, West Tripura, Agartala in connection with Case No.CC.92 of 2021.
3. The facts relevant to decide the instant appeal are narrated here-in-below:-

The complainant, Smt. Saptamita Saha booked a 2BHK flat with certain area of a garage space by entering into an agreement for sale with the opposite parties nos.1 and 2 on 18.08.2016. The price of the flat was fixed at Rs.17.00 lakh. The appellant-opposite no.1 was supposed to execute the registered sale deed and hand over the possession of the flat within 22 months in favour of the complainant. Accordingly, a schedule for payment of instalments was specified in the agreement. The complainant paid a booking amount of Rs.2.00 lakh at the time of signing the agreement and subsequently paid three instalments of Rs.2.00 lakh each till 09.04.2018.

It is the case of the complainant that the appellant-opposite party no.1, suddenly claimed Rs.96,000/- as payment of Goods and Services Tax (in short ‘GST’) @12%, but the payment of GST was not a prerequisite condition as per the agreement. On 15.03.2018, the appellant-opposite party no.1 expressed her inability to hand over the possession of the flat within the agreed time-frame and requested the complainant to extend the agreement by one year. Accordingly, the complainant gave her consent to extend the agreement by one year through a letter dated 06.04.2018. In the said communication, the complainant reminded the appellant-opposite party no.1 that there was no stipulation exists in the agreement to compel her to pay GST.

It has also been stated that suddenly, by a letter dated 17.01.2019, the appellant-opposite party no.1 cancelled the agreement indiscriminately on the ground that the complainant did not take any initiative to extend the term of the agreement by one year. In response, the complainant requested the appellant-opposite party no.1 to withdraw the cancellation and complete the unfinished part of the construction, but no response was received from the appellant-opposite party no.1.

It is alleged by the complainant that the appellant-opposite party no.1 violated the terms and conditions of the agreement by not handing over the possession of the flat within 22 months and thereafter unilaterally and arbitrarily canceled the agreement.

Being aggrieved by the conduct of the appellant-opposite party no.1, the complainant filed a complaint before the learned District Commission and prayed for directing the opposite parties to hand over the possession of the flat and complete the process of registration on receipt of balance consideration amount excluding GST along with compensation of Rs.2.00 lakh.

4. The appellant-opposite party no.1 contested the case by filing written statement denying the allegations. It is submitted that the cause of delay in execution was 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, but now the appellant-opposite party no.1 is ready to refund the amount along with interest.
5. The opposite party no.2, by submitting written statement has stated that appellant-opposite party no.1 had breached the agreement by not completing the project on time. It is further stated that the opposite party no.2 has no role in the transactions between the complainant (Buyer) and the appellant-opposite party no.1 (Seller). So, he has no liability in respect of the complaint petition.
6. The appellant-opposite party no.1 submitted her evidence on affidavit admitting that the complainant was ready to extend the agreement, as proposed by her through letter dated 06.04.2018, but the agreement for extension of time could not be made through Notary Registry due to the negligence of the complainant.
7. It is also stated that the complainant stopped paying installment amount despite sending demand notice on 05.04.2018 to her. The appellant-opposite no.1 informed that they are now ready to return the money with interest.
8. It is further stated that the project was handed over to the land owner as the development period of the project had expired on 01.01.2020. Therefore, the appellant-opposite party no.1 is, now, not in a position to hand over the possession of the flat to the complainant. Since the complainant did not renew the agreement through Notary Registry, the agreement lost its legal validity.
9. On consideration of evidence and having heard the pleadings of the parties, the learned District Commission passed the impugned judgment and order, operative portion of which is reproduced here-in-below:-

 “……………….it is held by us that the O.P.1 cannot escape by turning his attention away from the points of the Agreement mentioned here-in-above. His unilateral action to cancel the agreement is a downright breaching the above-referred points of the Agreement.

1. Notwithstanding the expiry of the time-line, as provided in the Agreement, on completion of 22 months and subsequent consent given by the Complainant to extend the same for a further period of 1 year, the O.P.1 terribly failed to confirm the marketable title and deliver possession of the flat. This is construed as willful violation of the Agreement driven by ill-motivated objective and such act is tantamount to deficiency in service.
2. In regards to the GST payment, we are of the view that it was an unforeseen expense which burdened the O.P.1 (Seller) in a subsequent stage during execution of the project. The GST regime came into being during the period of the project execution. In 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. As per the GST Act, the GST would be realized by the seller from the purchaser. Therefore, the Complainant shall require to pay GST liability, as being applicable on the consideration value of the flat.

12.        In view of the points of observations explained in the afore-gone paras, we order that the O.P.1 shall confirm the marketable title of the flat by completing the registry process in favor of the Complainant 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 along with GST liability of Rs. 96,000 (ninety-six thousand) only to the O.P.1. The O.P.1 shall issue appropriate tax invoice/ bills against collection of the GST amount from the Complainant. In case, after receiving the balance consideration amount and the GST payment from the Complainant, the O.P.1 fails to comply the order within the time, as specified by the Commission, a penalty @ Rs.500 (five 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.

1. We also order that the O.P.1 shall pay Rs.75,000/-(Rupees 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……….”

10. Feeling aggrieved and dissatisfied with the impugned judgment, the appellant-opposite party no.1 has preferred the instant appeal before this Commission.
11. Mrs. Deb (Gupta), learned counsel appearing for the complainant-respondent no.1 has submitted that since the appellant-opposite party no.1 could not deliver the flat within the agreed time-frame, the appellant-opposite party no.1 violated the specific and evident terms of the agreement. Mrs. Deb (Gupta), learned counsel also contended that though there is no such condition regarding payment of GST available in the agreement, yet the appellant-opposite party no.1 sent a demand letter for payment of GST @12% amounting to Rs.96,000/-, which is totally absurd and taking action contrary to and disobedient to the treaty. She has further stated that the judgment passed by the learned District Commission is proper, legal and justifiable.
12. We have considered the submission advanced by Mrs. Deb (Gupta), the learned counsel appearing for the complainant and having gone through the impugned judgment we are in full agreement with the findings of the learned District Commission that the appellant-opposite party no.1 committed breach of contract by not handing over the possession of the flat to the complainant within the time stipulated in the agreement and later, appellant-opposite party no.1 asked for an extension of time which was also agreed to by the complainant through her letter dated 06.04.2018, but the appellant-opposite party no.1 repudiated the contract denying the rights of the complainant conferred in the agreement. In respect of extending the lapsed agreement, the primary onus was on appellant-opposite no.1 to extend the contract by the Notary Registry, but the appellant-opposite party no.1 failed to do so.
13. Situated thus, and in the light of above discussions, we are unable to form a different opinion than that of the opinion as held and opined by the District Commission while awarding compensation in favour of the complainant. Accordingly, we are of the view that the learned District Commission considered all the aspects of the matters and rightly arrived at the conclusion and passed the impugned judgment which, according to us, calls for no interference by this Commission. 

Accordingly, the judgment passed by learned District Commission stands affirmed and upheld and consequent thereto, the instant appeal stands dismissed and disposed of.