Date of filing: 18.03.2021

Judgment date: 17.11.2022

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by the complainant namely Ashim Kr. Biswas U/s. 35 of the Consumer Protection Act, 2019 against opposite party namely Uma Shankar Singh (referred as O.P. hereinafter) alleging deficiency in service on the part of the O.P.

Case of the complainant in short is that he being the absolute owner in respect of the premises 1315/1, Nayabad, Ward No. 109, Kolkata – 700 099 entered into a development agreement with the O.P. who is proprietor of Griha Nirman on 14/01/2011 to raise a multi story building and a power of attorney was also executed by the complainant in favour of the O.P., on 14/01/2011. The possession of owner’s allocation was delivered on 08/02/2016 by the O.P. But after taking the possession of the flat and car parking space as per agreement, complainant received the letter of intimation from Assessment Collection Department, Kolkata Municipal Corporation and it was learnt that Rs. 46,864/- is outstanding dues pending against complainant tax bill being Assessee No. 311090827149, 311090883153 and 31109883141. So complainant asked the opposite party regarding the payment of pending tax bill of Kolkata Municipal Corporation during the construction period of the building. But the O.P. refused to pay the pending taxes. Due to non-payment of pending taxes to the Kolkata Municipal Corporation by the O.P. complainant finding no alternative way to solve the problem, paid an amount of Rs. 54,288/- to the Kolkata Municipal Corporation. So as complainant has suffered physical and mental harassment, the present complaint is filed by the complainant praying for directing the opposite party to pay the said amount of Rs. 54,288/- and to pay Rs. 50,000/- as compensation.

On perusal of the record it appears that in spite of service of notice, no step was taken by the O.P. So the case has been heard exparte.

The only point requires determination is, whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASON

In support of his claim, complainant has filed the copy of the general power of attorney executed by the complainant, copy of the development agreement and also the copy of possession letter as well as the Kolkata Municipal Corporation taxes bills. Complainant has also filed a letter sent by him to O.P. asking him regarding the payment of the taxes against the Kolkata Municipal Corporation bills. It appears from the recital in the general power of attorney that the O.P. was to deposit the taxes of the property at Kolkata Municipal Corporation. The possession letter further reflects that the possession of the owner’s allocation was delivered to the owners on 08.02.2016. The other owners’ as stated in the development agreement appears to be son and daughter of the present complainant. It is categorically stated in the possession letter that the owner shall pay the necessary maintenance and property taxes in respect of owners’ allocation since the date of possession of the owner’s allocation. So it is evident that the O.P. being the developer was liable to pay the taxes in respect of the building during the construction and till before the possession was delivered. The Annexure E, F and G indicates dues to be paid to the Kolkata Municipal Corporation was also of the year 2015 and the amount to be paid therein are Rs. 12,397/-, Rs. 9,618/- and further Rs. 9,618/-. However, it may be mentioned here that the other dues stated therein in the bills of the Kolkata Municipal Corporation are for the period of 2017 and 2019 respectively. So since the possession was delivered to the complainant in February 2016 O.P. was liable to pay the dues / the taxes for the period 2015 to the Kolkata Municipal Corporation. In such a situation in the said period of 2015 as referred to above the total amount would be Rs. 31,633/- which was to be paid by the O.P. developer as per the terms of the agreement between the parties. So the complainant is entitled to the said sum along with penalty if, any, towards the delayed payment and thus in our view it would be approximately 35,000/- and not Rs. 54,000/- as claimed by the complainant. So the complainant is entitled to the said sum especially when before this Commission, no contrary material is forthcoming to counter the claim of the complainant. Complainant is also entitled to compensation of Rs. 8,000/- for harassment and mental agony and Rs. 6,000/- as litigation cost.

Hence

            ORDERED

CC/159/2021 is allowed exparte. O.P. is directed to refund Rs. 35,000/- and to pay Rs. 8,000/- as compensation and Rs. 6,000/- as litigation cost within two months from this date in default the entire sum shall carry interest @ 8% p.a. till its realization.