West Tripura


Mrs. Saptamita Saha. Represented by Sri Sunil Saha. - Complainant(s)


Smt. Nibedita Baidya - Opp.Party(s)

Mrs.S.Deb(Gupta), Mr.B.Paul, Miss.K.Ghosh

17 Mar 2023


CASE   NO:   CC- 92 of  2021
Smt. Saptamita Saha,
D/O- Sri Sunil Saha,
W/O- Sri Chiranjeeb Mohanty,
Dhaleswar Road No. 16,
P.O. Dhaleswar, P.S. East Agartala,
District- West Tripura-799007.
Represented by her Attorney:
Sri Sunil Saha,
S/O- Lt. Dhirendra Ch.Saha. ….....Complainant.
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, “C R Apartment”, Dhaleswar,
Agartala, West Tripura-799007. ............Opposite Parties.
For the Complainant : Sri Bikram Paul,
  Smt. Sujata Deb(Gupta),
  Smt. Koyel Ghosh,
  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. Saptamita Saha, daughter 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 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.17 lac. The O.P.1 was supposed to execute the registered sale deed and hand over the possession of the flat within 22 months. 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 within the agreed time-frame. The Complainant was requested to extend the Agreement by one year. The Complainant in her reply dated 06.04.2018 gave consent to extend the agreement by one year. In the same letter, the Complainant reminded the O.P.1 about the non-existence of any condition whatsoever in the Agreement in the matter of requiring her to pay GST. Thereafter, abruptly, by a letter dated 17.01.2019, the O.P.1 canceled the Agreement arbitrarily citing reason that the Complainant was negligent in extending the Agreement by one year. In response, the Complainant requested the O.P.1 on 22.01.2019 to revoke the cancellation and complete the unfinished part of the construction. But no response received from O.P.1.
2.3 It is alleged by the Complainant that the O.P.1 has violated the terms and conditions of the Agreement by not handing over the possession of the flat within 22 months and thereafter canceling the agreement unilaterally and arbitrarily.
2.4 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 excluding GST along with a compensation of Rs.2 lac. Hence, this case.  
3. The O.P.1 contested the case by filing written version whereby she refuted and disproved the allegations. It is submitted that the causes of delay in execution 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. Hence, the O.P.1 is now ready to refund the amount along with interest.
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), Therefore, O.P.2 does have no liability in respect of the complaint petition filed.
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 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. 
6.1 It is also put forth that the Complainant stopped paying installment amount despite sending demand notice on 05.04.2018 to her. It is expressed by the O.P.1 that they are now ready to refund the money with interest.
6.2 It is also submitted that on 01.01.2020, as being the project development time got expired, the project had been handed over to the land owner. Therefore, O.P.1 is, now, not in a position to hand over the possession of the flat to the Complainant.
6.3 As the extension of the Agreement was not made through Notary Registry by the Complainant, the Agreement, thus, lost its legal validity thereafter.
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 liable to pay the GST as per the demand placed by the O.P.1?  
8.3 Whether the Complainant is entitled to get the reliefs, to the extent 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 also argued by the Complainant that though not being any such condition regarding payment of GST available in the Agreement, yet the O.P.1 sent a demand letter for payment of GST @12% amounting to Rs.96,000/-, which is completely unwarranted and an action being taken opposing and disobeying the Agreement.
9.3 It is argued by the O.P.2 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 defaults, if any, done 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.17 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 for mutually extend the contract time (Point No.10 of the Agreement).  
10.1 It is observed that the O.P.1 failed to deliver the possession of the flat within the time-line, as scheduled in the Agreement. Later on, O.P.1 sought for an extension of time which was agreed upon by the Complainant through her letter dated 06.04.2018. On the back of it, we consider that the burden to get the process of time extension of the Agreement completed through Notary Registry was primarily lying with the O.P.1. 
10.2 The contention of the O.P.1 regarding ceasing of payment of installment amount by the Complainant despite demand letter sent on 05.04.2018 is not borne out by the facts, as the money receipt of Rs.2 lac issued on 09.04.2018 by the O.P.1 speaks otherwise. The money receipt unequivocally suggests that the O.P.1 received installment amount of Rs. 2 lac from the Complainant on 09.4.2018. Therefore, such contention is fictitious and premised upon incorrect notion. 
10.3 It is also observed that the O.P.1 cancelled the Agreement on 17.01.2019 by utter disregarding and defying the Point No.4 of the Agreement. The Point No.4 bestows the right to cancel the Agreement and demand for refund only to the Complainant (Buyer) and not to the O.P.1 (Seller).
10.4 The contention pertains to handing over the project to the land-owner, on expiry of agreed time-line of construction by the O.P.1 and thereby making the land-owner as liable to refund the money to the Complainant is a weak and indefensible submission. As per Point No.9 of the Agreement, the Seller i.e., the O.P.1 cannot sell the scheduled flat to any other party. Therefore, we consider that such contention is untenable and, has been made in deception and in bad faith.
11. Keeping the above points in view, it is held by us that the O.P.1 can not 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.
11.1 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. 
11.2 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 tittle 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.
12.1 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.
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.

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