National consumer disputes redressalcommission new delhi



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Dated:  17.07.2014

ORDER

JUSTICE V. K. JAIN, PRESIDING MEMBER (ORAL)

          This revision petition is directed against the order of the State Commission dated 12.06.2007, whereby the said Commission dismissed three appeals filed by the petitioner against the orders of the District Forum dated 25.10.2006.  The dispute between the parties rests in a narrow compass.  The complainants had entered into an agreement with the petitioner to purchase one apartment each in a building constructed by the petitioner in Bangalore.  The sale deed of the apartment was executed in favour of the complainant on 30.11.2005 in one case, on 07.11.2005 in the second case and on 16.08.2005 in the third case. However, the possession of the apartment was not given to the complainants.  The case of the complainants is that the petitioner coerced them to pay a sum ofRs. 3,84,786/- in one case, Rs. 3,18,379/- in second case and Rs. 3,57,578/- in third case, claiming the same to be towards payment of VAT and other taxes. The aforesaid payment was made by the complainant on 04.03.2006 in one case, on 04.02.2006 in the second case and on 16.08.2005 in the third case.  The possession was given to the complainants, immediately thereafter.  Alleging deficiency in service on the part of the petitioner, the complainants filed three separate complaints before the District Consumer Disputes Redressal Forum, Bangalore. 

(2)     Vide order dated 25.10.2006, the District Forum directed the petitioner to pay Rs. 50,000/- towards compensation and Rs. 10,000/- as litigation in one case,Rs. 50,000/- towards compensation and 

Rs. 15,000/- for repairs and Rs. 10,000/- as cost of litigation in the second case and Rs. 50,000/- as compensation and Rs. 30,750/- towards rent paid by the complainant and Rs. 10,000/- as cost of litigation in the third case.

(3)     Being aggrieved from the order of the District Forum, the petitioner preferred three separate appeals before the Karnataka State Consumer DisputesRedressal Commission.  The appeals were dismissed with the following common order:-

            “All these appeals are by the OP challenging the order of the DF awarding compensation in favour of the complainants for the delay in delivery of possession of the flats.

          Admittedly the OPs are required to handover the possession of flats and execute the sale deeds within the period specified in the agreement. But in the instant cases there is a delay of five months in some cases and six months in some cases even though the complainants have paid the full consideration.

          Therefore taking into account the cost of the flats and the delay in handing over the possession of the flats in our view the compensation awarded in all these cases is just and reasonable.  In the result, we pass the following:

ORDER

Appeals are dismissed.”

          Being aggrieved from the dismissal of its appeals and that too by a rather cryptic order, the petitioner is before us by way of this revision petition.

(4)     The case of the petitioner is that under the agreement between the parties, complainants were liable to pay VAT and the amount which they paid after registration of the sale deed representing the amount of the VAT.  The first question which, therefore arises for consideration is as to whether VAT was payable by the complainant or by the petitioner?  The learned counsel for the petitioner has drawn our attention to clause 5 of the agreement for sale, which clearly stipulates that sale tax or any other statutory levies not mentioned and if applicable will be borne by the purchaser.  Since the VAT (Value Added Tax) is in lieu of the sales tax only, it is obvious that the complainants were liable to pay VAT in terms of clause 5 of the agreement between the parties. 

(5)     The learned counsel for the complainant submits that the amount of VAT was included in the price which they had paid to the petitioner, prior to execution of the sale deed and therefore there was no occasion for the petitioner to demand VAT before handing over the possession of the apartment to the complainant. The learned counsel for the petitioner on the other hand submits that the amount of VAT was not included in the price, which the complainants had paid to the petitioners till the time of registration of the sale deed.  We notice that there is no finding of either of the District Forum or of the State Commission on the question as to whether the amount which the complainant had paid to the petitioner upto the registration of the sale deed included the amount of VAT or not.  The documents available on our files do not enable us to decide the question as to whether VAT was included in the price which the complainant had paid to the petitioner upto the date of the registration of the sale deed or not, the necessary documents having not been filed by either party.  It, therefore, becomes necessary for us to remand the matter back to the State Commission, to permit the parties to file documents on this aspect and then return a finding as to whether price which the complainants had paid to the petitioner upto the date of registration of the sale deed included the VAT or not. 

(6)     The learned counsel for the complainant has drawn our attention to clause 31 of the sale deed whereby the petitioner had undertaken to put the purchaser in possession by the end of November, 2005.  The submission of the learned counsel is that even if the complainants had not paid the amount of VAT, the petitioner could not have withheld the possession alongwith the aforesaid clause and the only option available to them was to demand the said amount from the complainant after handing over the possession to them.  He, further submits that in case, the complainant did not pay the aforesaid VAT, the petitioner could have taken legal action to recover the amount, but in no case, it could have withheld the apartment from them.  We, however, find no merit in the contention. Since, VAT was payable by the complainant, the petitioner was definitely entitled to recover the same from the complainant before handing over the possession to them in case the amount of the VAT had already not been paid to it.  Even if inadvertently, the petitioner did not refer to the amount of VAT for the sale from the purchaser in the sale deed, that would be of no consequence if the said amount had not been paid.  In our opinion, if VAT had not been paid by the complainants to the petitioner on or before the date of registration of the sale deed, the petitioner could have withheld possession till the time the said amount was paid and consequently, there would be no deficiency in the service provided by the petitioner, in case, the possession was withheld on account of failure of the complainant to pay the amount of VAT.

(7)     For the reasons stated herein above, the impugned order dated 12.06.2007, passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore is set aside and the matter is remanded back to the said Commission for rendering a fresh decision in Appeals no. 2643, 2644 and 2645 of 2006 after giving an opportunity to the parties to file documents, which would enable the said Commission to decide whether the amount of VAT was included in the price paid to the petitioner on or before the date of registration of the sale deed or not.  After the necessary documents are filed by the parties within four weeks of the parties appearing before the State Commission, a fresh decision would be rendered within eight weeks thereafter, in consonance with the view taken in this order.

(8)     The parties are directed to appear before the State Commission at 11.00am on 19.08.2014.

         



..…………………..……

V. K. JAIN, J PRESIDING MEMBER

……………….…………



DR. B. C. GUPTA MEMBER

PSM/17


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 




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