State Consumer Disputes Redressal Commission
M/S. Bga Realtors. vs Tanmay Halder on 31 July, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/406/2014 (Arisen out of Order Dated 25/02/2014 in Case No. Complaint Case No. CC/148/2012 of District Burdwan) 1. M/s. BGA Realtors. P-399, Hemanta Mukhopadhyay Sarani, Kolkata-700 029 & also at 3/7, Urvasi Housing Complex, City Centre, Durgapur, Dist. 713 216, represented by its partner Sri Rajib Ghose. ...........Appellant(s) Versus 1. Tanmay Halder S/o Late Ramesh Halder, Qtr. No.DS-9B, NIT Campus, Mahatma Gandhi Avenue, Durgapore-9, Dist. Burdwan, West Bengal. 2. The Manager, BGA Realtors (Sparklin) 3/7, Urvasi Housing Complex, City Centre, Durgapur, Dist. 713 216. 3. Mr. Joydeep Majumder, Project in Charge, Sparklin Durgapur, executed by M/s BGA Realtors, 4, Hindustan Park, Kolkata-700 029. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Triptimoy Talukder Mr. Arun Kumar Das, Advocate For the Respondent: Mr. Asutosh Das, Advocate ORDER Date of Hearing: 24.7.2015 Date of Judgment: Friday, 31.7.2015 JUDGMENT
The instant Appeal u/s. 15 of the Consumer Protection Act, 1986 (herein after referred to as the 'Act') is at the instance of the Opposite Party No.1, M/s. B.G.A. Realtors to impeach the judgement dated 25.2.2014 passed by Ld. District Consumer Disputes Redressal Forum (DCDRF), Muchipara, Burdwan in D.F. Case No.148/2012 whereby the Respondents No.1, Sri Tanmoy Haldar's application u/s. 12 of the Act was allowed ex-parte.
The Respondent herein being Complainant and by virtue of an agreement dated 30.1.2010 entered into an agreement with the Appellant to purchase a flat being No.4/C, Block No.07 of super built area of 809 sq. ft. in the project, 'Sparkling' at Durgapur, Burdwan including car parking space for consideration of Rs.15,35,000/-. Thereafter, the supplementary agreement for sale was executed on 16.7.2010 wherein the previous agreement was revised and consideration amount was finalised at Rs.14,14,000/- subject to fulfilment of schedule of payment. On different dates the Complainant paid part consideration amount and in this way he has paid the total amount of Rs.13,57,350/- which was duly acknowledged by the Opposite Party. It has been alleged by the Complainant that the Opposite Parties agreed to complete the construction of the flat in question within a period of 18 (eighteen) months in between December, 2009 and May, 2011. The Complainant has also alleged that he was ready to pay the balance amount as per the schedule of payment but the Opposite Party issued a letter to him on 13.12.2011 asking him to pay Rs.1,76,213/- instead of legitimate claim of Rs.56,650/-. Hence, the case with the following prayers - (a) directing Opposite Parties to give delivery/possession of the flat in question to him; (b) directing the Opposite Party to pay compensation of Rs.22,500/- towards deficiency of service and unfair trade practice; (c) an Order directing to make payme of Rs.1,00.000/- on account of mental agony and for delay in delivery; (d) litigation cost of Rs.5,000/- etc. The Opposite Parties did not contest the case.
On consideration of evidence of Affidavit submitted by the Complainant and the documents and further, considering the submission advanced by the Ld. Advocate for the Complainant, the Ld. DCDRF allowed the application ex-parte directing to Complainant to pay through Demand Draft the total amount of Rs.1,23,720/- to the Opposite Party within 45 (forty five) days from the date of the Order and also directed the Opposite Parties to execute Deed of Conveyance after purchasing stamp duties within 15 (fifteen) days of such payment failing which the Complainant is entitled to get compensation of Rs.1,00,000/- and entire cost of flat in full of Rs.14,14,000/- including interest @ 10% per annum from the date of said amount etc. which prompted the Opposite Party No.1 to prefer this appeal.
The point arises for consideration in this appeal as to whether or not the Ld. DCDRF was justified in passing the Order impugned.
D E C I S I O N It remains undisputed that the Opposite Party No.1 represented by one Sri Bimalendu Ghosh has entered into an agreement with the Complainant No.1 on 30.1.2010 for sale of one flat being No.4/C, Block No.07 (Super Built area 809 sq. ft.) in the project, 'Sparkling', within Durgapur Municipal Corporation in district Burdwan for consideration amount of Rs.15,35,000/-. Thereafter, by supplementary agreement for sale dated the 16.7.2010 the amount of consideration was reduced to Rs.14,14,000/- from Rs.15,35,000/-. It was agreed that the Appellant would complete the construction within a period of 18 (eighteen) months starting from the month of December, 2002 and ending on May, 2011. It has also come to surface that in terms of the agreement dated 16.7.2010 the Respondent No.1/Complainant has paid Rs.13,57,350/- on different dates and the same was duly acknowledged in writing by the Opposite Parties.
The trouble between Appellant and Respondent No.1 started as soon as Opposite Party No.1/Appellant by a letter dated 13.12.2011 claimed a sum of Rs.1,76,213/- on different heads including (i) documentation fees of Rs.7,070/-; (ii) transformer installation and power distribution charges; (iii) maintenance charges in one time for 5 (five) years Rs.35,000/-; (iv) Durgapur Municipal Corporation Water Tax for first instalment (i.e. 25% on Rs.45,000/-) is Rs.11,250/-; (v) service tax against flat value @ 3.4% being Rs.37,638/- and (vi) service tax against maintenance charge @ 10.3% equivalent Rs.3,605/-.
There is no ambiguity that on payment of Rs.13,57,350/- out of total consideration amount of Rs.14,14,000/- the sum of Rs.56,650/- is due and payable by the Respondent No.1 to the Appellant. Ld. DCDRF on perusal of Clause 12(a), 12(d) and Clause 14(a) of the agreement has observed that Complainant is liable to pay transformer installation charges; non-refundable maintenance charges, processing and documentation fees and cost, charges, and exercise including stamp duty and registration fees. However, the Ld. DCDRF did not find that the Complainant/Respondent No.1 have to bear Durgapur Municipal Corporation Water Tax (1st Instalment i.e. 25% of Rs.45,000/-), Service Tax against flat value @ 3.4.% and Service Tax against Maintenance Charge @ 10.3% and as such, Ld. DCDRF have come to the conclusion that the Opposite Party demanded extra charges from the Consumer/Complainant by imposing water tax, service charges not specifically mentioned in the agreement itself. Accordingly, Ld. DCDRF directed the Complainant to make payment of Rs.1,23,720/- instead of Rs.1,76,213/- as claimed by the Opposite Parties in their letter dated 13.12.2011.
Ld. Advocate appearing for the Appellant at the outset has submitted since there is an arbitration clause being No.24 in the agreement dated 30.1.2010 the dispute should be referred to the Arbitrator in accordance with Arbitration and Conciliation Act, 1996. Such submission could not inspire us at all. The matter in this point is very clear. In 2013 (2) C.P.R. 756 (DLF Ltd. and Others vs. Mridul Estate Pvt. Ltd. and Others) the Hon'ble National Consumer Commission has made it clear that Consumer Forum are not bound to refer the dispute to Arbitral Tribunal in terms of valid arbitration clause in agreement. Therefore, although in Clause 24 of the agreement there was stipulation to refer the matter to the Arbitrary Tribunal but remedy is optional and there is sufficient scope to resolve the dispute in question before the Fora. Therefore, there is no occasion to refer the matter before the Arbitral Tribunal.
We have gone through the Brief Notes of Argument filed on behalf of the Parties. We have also gone through Clause 12(c) of the agreement dated 30.1.2010 which postulates that proportionate part of betterment fees, development fees and other levies and charges including Sale Deeds fee imposed or to be imposed by the Government, Municipality and Statutory Authority in respect of the said premises shall be liable to pay by the vendor. The record reveals that on 9.12.2011 Durgapur Municipal Corporation issued a notice upon the Opposite Party asking them to make payment of total contribution of Rs.47,25,000/- in respect of 105 flats i.e. Rs.45,000/- per flat for supply of drinking water. Clause 12 (c) does not indicate that for supply of drinking water the Complainant has to be paid a sum of Rs.45,000/-. According to terms of the agreement the construction should have been completed by May, 2011. The letter issued by Durgapur Municipal Corporation dated 9.12.2011 indicates that several correspondence had been made by the Durgapur Municipal Corporation but the Opposite Parties did not take any proper steps for which no fruitful action could be taken. The Opposite Parties did not inform the Complainant earlier on any occasion claiming any amount for supply of water. Therefore, Ld. DCDRF has rightly observed that no liability can be attributed upon the Complainant for payment of Durgapur Municipal Corporation Water Tax. Equally, we do not find any terms and conditions that in accordance with 12(c) of the agreement the Complainant was liable to pay Service Tax against flat value @ 3.4.%.
Therefore, having look to the relevant agreement and document placed before the Ld. DCDRF. Ld. DCDRF has rightly came to the conclusion that the Opposite Parties/Appellant is only entitled to get remaining flat value of Rs.56,650/-, documentation fees being Rs.7,070/-, transformer installation and power distribution charges of Rs.25,000/- and maintenance charge one time for 5 years Rs.35,000/- aggregating Rs.1,23,720/- and as such the Complainant is not liable to pay Rs.1,76,213/- demanded by the Opposite Parties in their letter dated 13.12.2011.
For the reasons aforesaid, the appeal being meritless deserves dismissal. However, we do not make any cost in this appeal.
Accordingly, the instant appeal is dismissed on contest but without any order as to cost in this appeal. The Judgement dated 25.2.2014 passed by Ld. DCDRF, Muchipara, Burdwan in DF Case No.148/2012 is hereby affirmed. Since payment of Rs.1,23,720/- has already been made by D.D. dt.6.3.2014 to the Appellant/Opposite Party No.1 is directed to execute and register the Deed in favour of the Respondent/Complainant No.1 within 30 days from the date of Order otherwise the Complainant shall be at liberty to get it executed after invoking provisions of section 25 & 27 of the Act before Ld. DCDRF, Muchipara, Burdwan. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER