06-02-2015 - The reasons for delay in disposal of this appeal can be seen from the order sheet.
Heard Mr. V.K. Sinha, learned counsel appearing on behalf of the Complainant and Mr. Deepak Roshan, learned Counsel appearing on behalf of the O.Ps.
2. Mr. Sinha submitted as follows. The Complainant/ flat purchaser is not liable to pay service tax, which is beyond the total consideration fixed in the agreement. Secondly the Opposite parties/ builder has rented out the flat in in question and therefore the Complainant is entitled to possession of the flat in as good as new condition and also return of the rent realized.
3. On the other hand, Mr. Deepak submitted as follows. In view of Clause 9 (iii) of the agreement, the service tax being the legal liability is payable by the Complainant. Regarding the second submission, he submitted that the builder’s men are using the flat and it has not been rented out. He also raised objection to the pecuniary jurisdiction of this Forum.
4. In reply, Mr. Sinha, submitted that it should have been specified in the agreement whether the builder will pay or the Complainant will pay the service tax and the builder cannot rely on the vague and general Clause 9 (iii) .
Regarding pecuniary jurisdiction he submitted that the Complainant has not been given the flat, the value of which is more than Rs. 30 Lacs and thus this Forum has got jurisdiction. He also submitted that this case has remained pending before this Forum for a long time. He relied on the judgement of Hon’ble Supreme Court reported in (2007) 7 SCC 668 Charan Singh etc.
5. Regarding the objection to the pecuniary jurisdiction it appears that the Complainant has also prayed for a direction to the builder to- give possession and register the flat, the value of which is more than Rs. 30 Lacs. Moreover, this case was filed on 16.4.2013. The builder have filed written notes of arguments and their evidence. The parties were heard at length. At this stage, it will not be proper to throw this case on the ground of pecuniary jurisdiction.
6. It is true that the builder should have clearly indicated about the liability and the amount of service tax in the agreement, instead of relying on the said Clause 9(iii) which is general in nature, but it is also true that the service tax being a legal liability, has to be paid.
On this Mr. Sinha submitted that if the flat is handover, in as good as new condition, without any further delay, the Complainant will pay the service tax and will not persue his claim of return of rent.
7. In the result, the Complainant is directed to pay the amount of service tax and also the balance amount as per the agreement, to the builder within four weeks. Within four weeks, from the receipt of the said amount, the builder will hand over possession of the flat in question in as good as new condition to the Complainant. Within four weeks thereafter the parties will comply with their obligations as per the agreement, regarding registration of the flat in question.
With these observations and directions this appeal is disposed off.
Issue free copy of this order to all concerned for information and needful.
Ranchi,
Dated: 06-02-2015
