Heard Mr N.B.Das, learned counsel for the appellant on V.C. None appears for the respondent.
2. Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.
3. The case of the complainant in nutshell is that the complainant being interested to purchase a flat from the OP applied for the same. The Flat HIG 12/2 was allotted in favour of the complainant and an agreement for sale was registered on 4.9.1985 between the parties. Complainant alleged inter alia that OP delivered the possession of the house in question to the complainant. As per the agreement the complainant paid the entire consideration but “No Dues Certificate” was not issued. When the complainant sought for reason, he was asked to pay the entire stamp duty so as to register the sale deed. Complainant alleged that demanding of stamp duty for registration of the sale deed and non-issue of the “No Dues Certificate” amounts to deficiency of service on the part of the OP. So complaint was filed.
4. OP filed written version admitting that the flat in question has been allotted to the complainant and the complainant has paid the consideration of the house but has not paid the stamp duty. Since stamp duty has not been paid the registration of the sale deed could not be made. The OP further averred that the “No Dues Certificate” only could be issued after the entire cost of the registration including payment of stamp duty is realised. OP has taken plea that in spite of several letters, the complainant did not pay the stamp duty alleging that he is not liable to pay the stamp duty.
5. Learned District Forum after hearing both sides finding no deficiency of service on the part of the OP dismissed the complaint.
6. Learned counsel for the appellant submitted that the learned District Forum has erred in law by not considering the complaint case properly. According to him the complainant has already complied all the formalities including payment of entire dues but the OP failed to execute the registered sale deed for which the complainant sustained mental agony. He further submitted that the stamp duty is to be only payable as per the minutes of discussion held on 21.11.1998 in the Chamber of Chairman of OP. He further submitted that the stamp duty is to be payable on the cost of proportionate land value but not on consideration value of the flat. Since the OP has demanded the stamp duty on the entire sale value of flat, there is deficiency of service on the part of the OP. However, he submitted that in the meantime, on 30.10.2019 the sale deed in question has been registered. According to him even if the registration has been made and stamp duty has been paid, there is considerable delay in completion of the formalities because unless the registration of the documents is made, the ownership was not transferred to the complainant. Therefore, for long years of delay the compensation is also payable by the OP.
7. Considered the submission of learned counsel for the appellant and perused the DFR including the impugned order.
8. It is admitted fact that the complainant has purchased a flat from the OP for consideration of Rs.1,39,695/-. It is also not in dispute that the complainant got the possession of the flat after payment of entire cost. It is not also in dispute that the OP has asked the complainant to pay the stamp duty.
9. It is settled in law that the complainant has to prove the deficiency of service or unfair trade practice on the part of the OP.
10. In the instant case, three questions raised by the complainant. One question with regard to non-issue of “No Dues Certificate”, 2nd issue with regard to the demand of stamp duty violating the deciosn of the OP itself and third that extra demand money for the ground rent paid by OP to Tahasildar. All these issues have been dealt with by the learned District Forum.
11. The complainant has not at all averred in the complaint that what should be the stamp duty payable by him because the stamp duty has to be paid by the allottees as per the decision dated 21.11.1998 relied upon by the complainant. Apart from this, once the registration not complete the “No Dues Certificate” is hardly to be issued. However, in the meantime, registration of the sale deed has already been made in 2018 as stated above. Now “No Dues Certificate” should be issued.
12. Be that as it may, for the ground rent the complainant has no case because the ground rent is leviable by the Tahasildar from the OP. When the ground rent is being payable, on that issue the complainant has to bear it because the ground rent is not at all part of the consideration. In view of the fact that complainant failed to prove the actual stamp duty payable it cannot be said that complainant succeeded to prove the deficiency of service on the part of the OP to the full extent. However, it is a matter of 2005 and the registration is made only in 2018, for considerable delay in execution of sale deed the deficiency of service on the part of the OP cannot be ruled out. In the recent decision, the Hon’ble Apex Court have taken seriously delay in handing over possession of the house by the builder to the allottees. Once the sale deed is delayed, the mental agony is automatically increased. In the facts and circumstances of the case, it is deemed proper to observe that the complainant has proved the deficiency of service on the part of the OP so far delay in registration of the sale deed. But rest part of the allegations are not proved for the reasons stated above.
13. In view of above discussion, the finding of the learned District Forum with regard to dismissal of the complaint is not concurred herewith. Hence, the complaint is allowed in part and the OP is directed to pay compensation of Rs.20,000/- to the complainant within 45 days from today failing which it will carry interest at the rate of 12% per annum from the date of impugned order till payment made.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties.
