DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 116 of 2021.

 

1. Smt. Rama Chakraborty,

W/O. Sri Kajal Chakraborty,

Resident of Kaberi Valencia, Shibnagar,

College Road Extension,

P.O.-Agartala College, P.S.-East Agartala,

Dist. West Tripura, Pin-799004...................…....…........Complainant.

 

 

 

 

-VERSUS-

 

 

 

 

1. Sri Gobinda Chandra Kar,

S/O.- Late Hem Chandra Kar,

Resident of Kar Valencia, Shibnagar,

College Road Extension,

P.O.-Agartala College, P.S.-East Agartala,

Dist. West Tripura, Pin-799004 …...............................Opposite Party.

 

 

              __________PRESENT__________

 

         SRI GOUTAM DEBNATH

             PRESIDENT,

            DISTRICT CONSUMER  

       DISPUTES REDRESSAL COMMISSION,

         WEST TRIPURA, AGARTALA.

 

          DR (SMT) BINDU PAL

          MEMBER,

          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 O.P. : Sri Paramartha Datta,

 

F I N A L     O R D E R

The present complaint has been filed by Smt. Rama Chakraborty, wife of Sri Kajal Chakraborty, Shibnagar, Agartala (here-in-after referred to as ‘the Complainant’) against Sri Gobinda Chandra Kar, son of Late Hem Chandra Kar, Shibnagar, Agartala (here-in-after referred to as ‘the O.P.’) under Section 35 of the Consumer Protection Act, 2019.

 

2. The facts of the complaint petition is epitomized as under:

 

The Complainant (Land Owner) entered into an Agreement with the O.P. (Developer) for development of her property by constructing a multi-storied building (G+3) with the O.P. through a Notarized Development Agreement dated 27/09/2016 (in short ‘the Agreement-1’), a Registered General Power of Attorney dated 05/11/2016 (in short ‘the Agreement-2’) & a Registered Development Agreement dated 05/11/2016 (in short ‘the Agreement-3’).

 

2.2 According to such Agreements, the O.P. was liable to provide 40% of the proportionate share i.e., 2.4 Flats out of 6 Flats constructed in the project. As per the Agreement-2, the Complainant constituted/ nominated/ appointed the O.P. as attorney to sale 1.4 Flats to O.P (clause-7).  As per the Agreement-1, the O.P. was required to pay Rs. 60 lac to the Complainant (clause-2) against the sale of 1.4 flats.  Rs.50 lac was to be paid on the date of the Agreement-1 and the remaining amount of Rs.10 lac to be paid on completion of the project.

 

On taking possession of the allotted flat, the Complainant noted few discrepancies/ shortcomings/ deviations in respect of completion of the project and, which are as follows:

 

2.3.1 Office space as per Clause-(d) of the Agreement-3 not provided

 

Proportionate car Parking area for 1.4 Flats not allocated to the Complainant. Rather, a space measuring 39 sq. ft. was sold out to someone else

 

Water Harvesting Unit was not set up as per the building plan approved by the Agartala Municipal Council (in short ‘the AMC’),

 

Common charges were not paid by the O.P. till formation of the Flat Owner Association,

 

Balance Rs.10 lac is yet to be paid on completion of the project by the O.P.

 

Non-removable of the errors in the Sale Deed dated 24.4.2019, executed in connection with the selling of the flat no.301 to one Sri Gour Gopal Saha.

Furthermore, it is alleged that on account of selling the 1.4 flats by the O.P. at an increased price by an amount of Rs. 7 lac in contrast to the price fixed for payment to the Complainant as per the clause-2 of the Agreement-1, the Complainant had to pay 1,45,000/- as capital gain tax (@ 20% on the increased sale value).

 

2.5 Despite several requests and persuasions being made, the O.P. took no action towards taking any remedial measure whatsoever.  Being dissatisfied, the Complainant filed this complaint.

                                                 

The O.P. contested the case and submitted written version whereby the O.P. disproved and refuted all the allegations being leveled against him.

 

The Complainant filed her evidence on affidavit as PW-I. Sri Kajal Chakraborty, wife of the Complainant also submitted his evidence on affidavit as PW-2. The O.P. also submitted his evidence on affidavit.

 

Now, the following points fall on for consideration in the instant case:

 

Whether the O.P. has provided deficient service to the Complainant?

 

Whether the Commission is qualified to adjudicate on the alleged issue of non-payment of the balance amount of Rs.10 lac as per clause-2 of the Agreement -1 to the Complainant?

 

5.3 On deciding the points 5.1 and 5.2 above in the affirmative (fully or partially) then what would be the reasonable compensation?                                 

The case has been argued by both the parties. Predominantly, their points of arguments were in consonant with the submissions made in the complaint petition and written version.

 

We have meticulously traveled over the materials available on record and gave thoughtful examination of them. Our findings are as under :

 

As per the Agreement-3, the common area and the car parking space for one flat shall be available to the Complainant. In case of the remaining share of the 1.4 flats, the Complainant has constituted/ appointed the O.P. as Attorney to sell the same. The common area and the car parking space can not be considered in isolation of a flat. Rather, such components constitute as the necessary incidental facilities/ amenities being provided in respect of the individual flats as a whole. The subsequent occupier/ purchaser of the flats shall be entitled to enjoy these incidental facilities. Therefore, the Complainant is not entitled the right to enjoy the proportionate common area and car parking space of 1.4 flat.

 

As per the Agreement-3, an office space be provided by the O.P. to the flat owners. Admittedly, office space was provided but a water pump has been kept therein, as installed. As per the Agreement-3, a separate motor shed with Grill cover has to be provided (Sl. No.-3 under the heading ‘Common Features’ as per the Fifth Schedule). Therefore, the O.P. is obligated, as per the Agreement, to provide a separate motor shed.

 

In respect of setting up Water Harvesting Unit, is its observed that nothing has been suggested as such in the Agreements. However, as per the approved site building plan of AMC, a mention for a Water Harvesting Unit does appear. In the matter, we are of the opinion that AMC is the Appropriate Authority to throw light on the matter.  But, here in the instant case, the AMC was not impleaded to be a party. Therefore, it would not be proper for us to decide the matter without taking the views of the AMC into consideration.

 

In respect of payment of common charges by the O.P.  till constitution of the Flat Owner Association, no concrete and substantial evidence or documents have been submitted by the Complainant specifying the amount of payment due, date since when the payment is pending, non-constitution of the Flats Owner Association etc. Therefore, the Commission is unable to decide the issue.

 

7.5 In respect of capital gain tax, it appears from the sale deed dated 24.4.2019 that the entire consideration value for selling the flat has been received by the O.P. The O.P., in his written version, also disclosed regarding receiving Rs. 67 lac, due to being the proceeds of selling the flats, in his Bank A/c. The capital gain tax is leviable to the assessee who receives the transacted amount. Therefore, the contention of the Complainant of being burdened with the liability of payment of the capital gain tax does not hold good. Further, the Complainant could not provide any document of making payment of such tax by him. Therefore, the Complainant could not establish his position confirming his liability for payment of such tax.

 

In respect of the errors in the sale deed dated 24.4.2019, the O.P. was lackadaisical and negligent in his approach to correct or amend these errors and provided an excuse of COVID Pandemic situation for his inaction. We consider that the O.P. caused default by not amending the errors even after elapsing a considerable period of time since restoring normalcy aftermath of the COVID Pandemic situation.

 

In respect of payment of balance of Rs.10 lac by the O.P. to the Complainant as per clause-2 of the Agreement-1, we consider that this Commission does not require to interfere on the alleged issue as the matter is essentially Civil in nature due to being a breach of contract by way of defaulting committed payment. However, it would be open to the Complainant to approach to the appropriate court for remedy of her grievance on this issue.

 

Keeping the above points of observations in view, we are of the opinion that the complaint petition succeeds to the extent of para-7.2 and para-7.6 above in proving the deficiency of service. For the other remaining points, the complaint petition fails.

 

9. Now, we order as follows:

The O.P. shall construct a separate motor shed with grill. The water pump installed in the office space of the building shall be shifted to the motor shed. The entire work shall have to be executed/ completed within 45 days from this date.

 

The errors as pointed out by the Complainant in sale deed dated 24.4.2019 shall be corrected and amended by the O.P within 45 days from this date.

 

The O.P. shall pay a compensation of Rs.10,000/- to the Complainant, which includes the litigation cost, within 45 days from the date of this order. Non-payment of the amount within the specified time shall attract interest @ 9% P.A. on the amount from this date till realization.

 

Non-compliance of the orders given in Para-9.1 and Para-9.2 above within the specified time shall make the O.P. liable to pay a penalty @ Rs.200/- per day from this date till compliance.

 

10.  All the points are, accordingly, decided. Supply copy of this final order to both the parties free of cost.                                                                                                        

 Announced.

 

 

SRI  GOUTAM DEBNATH

PRESIDENT,

DISTRICT CONSUMER  DISPUTES

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

 

 

DR (SMT)  BINDU  PAL

MEMBER,

DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA

 

 

SRI SAMIR  GUPTA

MEMBER,

 DISTRICT CONSUMER  DISPUTES  

REDRESSAL COMMISSION,

WEST TRIPURA,  AGARTALA.