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Judgment
Dr Inder Jit Singh, Presiding Member
The present Revision Petition (RP) has been filed by the Petitioners against Respondent as detailed above, under section 21(1)(b) of Consumer Protection Act, 1986, against the order dated 06.02.2019 of the State Consumer Disputes Redressal Commission, Karnataka (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No. 1922/2017 in which order dated 22.08.2017 of District Consumer Disputes Redressal Forum, Shanthinagar, Bangalore (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 1301/2016 was challenged, inter alia praying for setting aside the order dated 06.02.2019 passed by the State Commission in Appeal No. 1922/2017 and/or upholding and affirming the order dated 22.08.2017 passed by District Forum in CC/1301/2016 and/or dismissing the complaint.
While the Revision Petitioners (hereinafter also referred to as Petitioners/OPs) was Respondent and the Respondent (hereinafter also referred to as Respondent/Complainant) were Appellant in the said FA/1922/2017 before the State Commission, the Revision Petitioner was Complainant and Respondents were Opposite Parties (OPs) before the District Forum in the CC No.1301/2016. Notice was issued to the Respondents on 21.05.2019. Parties filed Written Arguments/Synopsis on 06.10.2022 and 24.03.2023 respectively.
Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Forum and other case records are that the complainant has purchased a flat from the OP vide agreement of sale dated 06.08.2007 for a sum of Rs.32.00 lakhs. It is the case of the complainant that as per the agreement, the total consideration is inclusive of registration expenses and taxes, hence the OPs have to bear such expenses, but on account of OPs’ refusal to bear such expenses, the registration and execution of sale deed was delayed and the complainant got the registered sale deed in the year 2015 by bearing an amount of Rs.3,17,000/- towards registration/stamp duty charges. This, according to complainant, amounts to deficiency on the part of the OPs for which the complainant filed a consumer complaint before the District Forum.
Vide Order dated 22.08.2017, the District Forum dismissed the complaint. Aggrieved by the said Order dated 22.08.2017 of District Forum, complainant appealed in State Commission and the State Commission vide order dated 06.02.2019 in FA No. 1922/2017 allowed the Appeal, set aside the order passed by the District Forum and directed the OPs to pay a sum of Rs.3,17,000/- to the complainant alongwith costs within 60 days from the date of order, failing which, the said amount shall carry interest @12% p.a. from the date of complaint till the date of actual realization.
Petitioners have challenged the said Order dated 06.02.2019 of the State Commission inter alia on following grounds:
(i) Stamp duty was not payable by the Petitioners (OPs) as per the agreement of sale entered into between the parties.
(ii) The consideration of the agreement of sale only mentions about registration expenses and not about the stamp duty.
(iii) Complainant/respondent is liable to pay the stamp duty in view of Section 30 of the Karnataka Stamp Act, 1957.
(iv) Complainant had not proved that she was ready to register the property since 31.08.2008.
(v) Petitioners were not bound to prove that there was any intentional delay on the part of the complainant.
Heard counsel of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
The main issue raised in the Case are with respect to respective liabilities of the parties relating to payment of stamp duty and registration charges. While the Petitioners admit that payment of registration is their responsibility, they contend that the stamp duty has to be paid by the Allottee, i.e. the Respondent. The Petitioners state that they paid an amount of Rs.84,400/- (Rs.71,600/- + Rs.12,800/-) to the Sub-Registrar towards registration charges although it was stated that the registration charges are only Rs.47,600/-. It was also contended by the Petitioners that though the Agreement for allotment of the Unit is silent about stamp duty, as per Karnataka Stamp Act, 1957 the stamp duty is payable by the Allottee. At the same time, the Respondent contends that she has paid an amount of Rs.3,17,000/- towards stamp duty/registration charges although it was contended that the stamp duty amount was Rs.2,66,500/- only. The Respondent also contends that stamp duty is payable by the Petitioners, as agreement says all taxes included, and stamp duty is a kind of tax only. In view of the above, both sides were asked to file Affidavit within two weeks from 30.06.2023 (date of reserving the order) with respect to actual amount paid towards registration charges and/or stamp duty (separately for each item) along with mode and dates of payment and requisite documentary proof, evidencing such payment.
In compliance of order dated 30.06.2023, the Petitioner filed an Affidavit stating that they have paid an amount of Rs.84,400/- (Rs.71,600/- +Rs.12,800/-) by way of DDs dated 16.06.2015 in favour of the Sub-Registrar, towards registration charges and other allied miscellaneous expenses for registration of the unit in question. It is further stated that the Registration Charges/ fee for Registration of the property in question was Rs.61,355/- (Rs.60,900+Rs.455). The Petitioner further states that he paid an amount of Rs.84,400/- only on the humanitarian grounds. The Petitioner reiterates that as per the agreement, payment of registration charges is the obligation of builder but as per Karnataka Stamp Act, the stamp duty is payable by the allottee/purchaser, therefore, Respondent was/has to pay stamp duty for the purposes of registration of the property in question. The Respondent in her affidavit dated 10.07.2023 states that she has paid total amount of Rs.3,17,000/-, out of which Rs.2,66,500/- has been paid through DD towards part of Stamp Duty of Rs.3,41,000/-, Rs.2900/- in cash towards Part of Stamp duty of Rs.3,41,000/- and Rs.47,600/- through DD towards Part of Registration Charges of Rs.61,395/-.
We have gone through the Agreement of Sale dated 06.08.2007, which states that the total consideration is inclusive of KEB, BWSSB, Registration Expenses and Taxes for Schedule ‘B’ Property is Rs.32 lakhs. The said consideration is inclusive of Rs.2 lakhs towards cost of one car parking space in the basement of the building. While the complainant contends that stamp duty is a type of tax only and hence payable by the OPs, the OPs contend that stamp duty is different from the tax and hence not liability of OPs as per the agreement. The OPs rely upon the provisions of Karnataka Stamp Act, 1957 to contend that stamp duty is payable by the allottee.
We have also gone through the relevant provisions of the Karnataka Stamp Act, 1957, which state that “In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne in the case of agreement for sale of immovable property by the purchaser”. As is evident this Section itself states “in the absence of any agreement to the contrary”, which means, it is permissible for the parties to the agreement to have an arrangement under which the stamp duty is paid by seller of the immovable property rather than the purchaser and the same would be a valid agreement. Hence, the only issue for consideration remains whether stamp duty is a tax or not. If it is a kind of tax, then certainly as per agreement, it is to be borne by the OPs in the instant case as the agreement clearly states that the consideration is inclusive of registration expenses and taxes. The Government levies various kinds of taxes, both direct and indirect. Most common indirect taxes are Goods and Services Tax (GST)/ Sales Tax/ Value Added Tax (VAT) etc. It is seen that some of the indirect taxes are named as ‘duties’ for example, Excise Duty, Custom Duty, Import Duty etc. Considering that in many cases the terminologies of tax and duties are used inter-changeably and the agreement in question provides that the tax will also be payable by the builder, in our opinion, the Respondent/Complainant was justified in interpreting the Agreement to mean that the builder will bear costs towards not only the registration charges but other taxes as well, including the stamp duty. In any case of ambiguity the benefit of doubt needs to go to the allottee/consumer.
In view of this, we find no infirmity or material irregularity in the order of the State Commission, whereby OPs (Petitioners herein) have been directed to pay a sum of Rs.3,17,000/- to the complainant. Accordingly, the order of the State Commission is upheld and the Revision Petition is dismissed. Parties to bear their respective costs.
The pending IAs in the case, if any, also stand disposed off.