1. Heard Mr. Arav Kapoor, Advocate, for the complainant and Mr. Gaurav Sharma, Advocate, for the opposite party.
2. Rahul Gupta has filed above complaint, for setting aside letter dated 01.09.2016, cancelling his allotment and forfeiting Rs.5343415/- and directing the opposite party to (i) convert and treat the booking of the complainant of Apartment No.CD-B-3-01-104, in the project “The Corridors” under “possession link payment plan” i.e. 30 : 70 without any extra charge and handover possession of the apartment after taking balance consideration; or in alternative (ii) refund Rs.5343415/- with interest @20% per annum from the date of respective deposit till the date of payment; (iii) pay Rs.25/- lacs, as compensation for mental agony and harassment; and (iii) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. The complainant stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “The Corridors” at villages Dhumaspur and Maidwas, Golf Course Extension Road, Sector-67-A, Gurgaon, in the year 2012 and made wide publicity of its facilities and amenities. The opposite party advertised that “The Corridors” would be a landmark project having various facilities such as club, piped gas supply, modular kitchen, 100% power back-up, R.O. plant for drinking water, various other facilities and possession would be handed over within 42 months. Believing upon the representation of the opposite party, the complainant booked a residential apartment on 14.03.2013 and deposited booking amount of Rs.1700000/-. The complainant deposited Rs.1646485/- on 21.05.2013. The opposite party issued Allotment Offer. Letter on 07.08.2013, allotting Apartment No. CD-B3-01-104, super area 1726.69 sq.ft. As per demand, the complainant deposited Rs.1000000/- on 09.05.2014 and Rs.996930/- on 15.09.2014. The opposite party sent three copies of Apartment Buyer’s Agreement along with letter dated 27.03.2014, asking the complainant to sign and return. Various places in Apartment Buyer’s Agreement were blank. The complainant signed Apartment Buyer’s Agreement, affixed his photograph and sent back to the opposite party through letter dated 09.05.2014. The opposite party sent one copy of Apartment Buyer’s Agreement to the complainant on 12.05.2014. The complainant came across a notice published in the newspaper “Indian Express” dated 02.04.2015, by Sroha & Company, Advocates, New Delhi that the opposite party did not have necessary approvals and clearance from the statutory authority. The complainant, by sending copy of notice as published in the newspaper, through letter dated 07.04.2015, sough for clarification from the opposite party. The opposite party instead of replying the letter dated 07.04.2015, through email dated 16.04.2015, gave an option for three payment plans i.e. (i) “construction link payment plan” with timely payment rebate; (ii) “construction link payment plan” with relaxed payment milestones and no price enhancement; and (iii) “subvention payment plan” under which 40% of the consideration had to be made immediately and 60% had to be arranged through loan. Three months period from 15.04.2015 was given for exercising option. The opposite party issued another email dated 27.04.2015, also in this respect. The opposite party, through email dated 30.04.2015, announced another payment plan i.e. “possession link payment plan” under which 40% consideration had to be deposited within 45 days and balance 60% at the time of possession. The complainant, who had deposited about 33% consideration by that time, wrote an emails dated 07.05.2015, 28.05.2015, 02.07.2015, 15.07.2015 and 06.10.2015 to the opposite party to treat “possession link payment plan” as 30 : 70 for him and balance consideration be taken at the time of offer of possession. The opposite party through email dared 06.07.2015, informed that “possession link payment plan” was not for existing customers. However, “possession link payment plan” was continuously printed in emails dated 07.07.2015, 11.07.2015 and 13.07.2015. The opposite party, vide email dated 09.10.2015, agreed for 30 : 70 plan but demanded upfront payment @Rs.1400/- per sq.ft. as an incremental cost. The opposite party issued Reminder-II dated 19.10.2015, with notice of cancellation. The complainant, through email dated 20.11.2015, asked for details of “subvention plan”. The complainant wrote emails dated 29.10.2015, 17.11.2015, 17.03.2016 and letters dated 29.10.2015, 17.11.2015, 17.03.2016 requesting to convert payment plan as 30 : 70. The opposite party continued to write for payment of the instalments. The opposite party gave final notice dated 01.08.2016 through email, demanding Rs.10578096/- within 30 days. The complainant through email and letter dated 10.08.2016, requested to return his money of Rs.5343415/- with suitable interest. This complaint was filed on 26.08.2016, alleging deficiency in service. The opposite party, vide letter dated 01.09.2016, cancelled the allotment of the complainant and forfeited entire amount deposited by him.
4. The opposite parties filed its written reply on 28.04.2017 and contested the matter. The material facts relating to the project, allotment of the apartment to the complainant, execution of ABA in his favour and payments made by him, have not been disputed. The opposite party stated that the complainant booked the apartment through a real estate broker namely M/s. Akanksha Enterprises. It has been denied that the opposite party made any representation to the complainant. All the terms and conditions have been mentioned in the booking application. The opposite party obtained Development Licence No.05 of 2013 dated 21.02.2013 and applied for approval of building plan on 26.02.2013, which was approved on 23.07.2013. As per payment plan, total cost of the apartment was Rs.17306088.42. 20% of it had to be deposited with 45 days of the booking. Third instalment of “commencement of excavation” of Rs.19969930/- was raised through letter dated 18.03.2014 and due on 09.04.2014. The complainant deposited Rs.1000000/- on 09.05.2014 and Rs.996930/- on 15.09.2014. The complainant through email dated 15.09.2014, requested for waiving interest for delayed payment. As per booking application and Apartment Buyer’s Agreement, payment plan was “construction link payment plan”. The opposite party applied for “No Objection Certificate” from Fire Department on 24.10.2013, which was issued on 27.11.2014. The opposite party raised demand of fourth instalment of “casting lower basement roof slab” on 27.01.2015 and issued Reminder-I dated 28.02.2015, Reminder-II dated 24.03.2015. Fifth instalment of “casting second floor roof slab” was due on 22.07.2015. The opposite party issued Reminder-I dated 21.08.2015. Sixth instalment of “casting 5th floor roof slab” was due on 04.09.2015. The opposite party issued Reminder-I dated 28.09.2015 and Reminder-II dated 19.10.2015. 7th instalment of “casting of 8th floor roof slab” was due on 23.10.2015. The opposite party issued Reminder-I dated 05.11.2015 and Reminder-II dated 12.11.2015. 8th instalment of “casting of 11th floor roof slab” was due on 04.12.2015. The opposite party issued Reminder-I dated 07.01.2016 and Reminder-II dated 16.02.2016. 9th instalment of “casting of top floor roof slab” was due on 25.02.2016. The opposite party issued Reminder-I dated 01.03.2016 and Reminder-II dated 23.03.2016. The complainant stopped payment after 3rd instalment. The notice as published in the newspaper “Indian Express” dated 02.04.2015, by Sroha & Company, Advocates, New Delhi was based upon false facts. The opposite, through email dated 16.04.2015, gave options for three payment plans i.e. (i) “construction link payment plan” with timely payment rebate; (ii) “construction link payment plan” with relaxed payment milestones and no price enhancement; and (iii) “subvention payment plan” under which 40% of the consideration had to be paid immediately and 60% had to be arranged through loan. Three months period from 15.04.2015 was given for exercising option. The complainant did not opt for any of above plans rather began to demand for 30 : 70 plan. The opposite party through email dared 06.07.2015, informed that “possession link payment plan” was not for existing customers. The opposite party, vide email dated 09.10.2015, agreed for 30 : 70 plan but demanded upfront payment @Rs.1400/- per sq.ft. as an incremental cost but it was not agreed by the complainant. The opposite party through email dated 19.11.2015, offered to avail “subvention plan” till 28.11.2015 but the complainant did not agree for this also. The opposite party gave final notice dated 01.08.2016 through email, demanding Rs.10578096/- within 30 days. The complainant did not respond. The opposite party, vide letter dated 01.09.2016, cancelled the allotment of the complainant and forfeited entire amount deposited by him. The period of 42 months is liable to be counted from 27.11.2014 and due date of possession including grace period would be 26.11.2018. The construction of first phase of the project, which consisted 700 apartments was completed and finishing work was in progress. Various preliminary objections have also been raised. There was no deficiency in service on part of the opposite party nor any unfair trade practice was committed and the complaint is liable to be dismissed.
5. The complainant filed Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Rahul Gupta and documentary evidence. The complaint through IA/9545/2016 filed cancellation letter dated 01.09.2016. The opposite party filed Affidavit of Evidence and Affidavit of Admission/Denial of documentary evidence of Subhashis Lahiri and documentary evidence. The opposite party filed Additional Document through IA/3231/2021. The complainant has filed written synopsis of arguments.
6. We have considered the arguments of the counsel for the parties and examined the record. The complainant deposited booking amount of Rs.1700000/- on 14.03.2013 and thereafter Rs.1646485/- on 21.05.2013, Rs.1000000/- on 09.05.2014 and Rs.996930/- on 15.09.2014. The complainant stopped payment after 3rd instalment. The opposite party raised demand of fourth instalment of “casting lower basement roof slab” on 27.01.2015. Thereafter, demands of other instalments including 9th instalment of “casting of top floor roof slab”, which was due on 25.02.2016, were made. The opposite party issued Reminder-I and Reminder-II time to time but the complainant did not deposit any instalment. The opposite party gave final notice dated 01.08.2016 through email, demanding Rs.10578096/- within 30 days. The complainant did not respond. The opposite party, vide letter dated 01.09.2016, cancelled the allotment of the complainant and forfeited entire amount deposited by him. From above facts it is proved that the complainant was a defaulter in payment of the instalment. The letter dated 01.09.2016, cancelling the allotment of the complainant does not suffer from any illegality.
7. The complainant claimed for converting payment plan in to “possession link payment plan” i.e. 30 : 70 without any extra charge. The opposite party through email dated 06.07.2015, informed that “possession link payment plan” was for new customers and not for existing customers. In Booking Application and in Apartment Buyer’s Agreement dated 12.05.2014, payment plan was “construction link payment plan”. The opposite, through email dated 16.04.2015, gave options for three payment plans i.e. (i) “construction link payment plan” with timely payment rebate; (ii) “construction link payment plan” with relaxed payment milestones and no price enhancement; and (iii) “subvention payment plan” under which 40% of the consideration had to be paid immediately and 60% had to be arranged through loan. But the complainant did not opt for any of it within stipulated period. Rights of the parties are governed by the contract. The opposite party cannot be forced to convert payment plan under “possession link payment plan” i.e. 30 : 70 without any extra charge.
8. Relying upon the judgment of this Commission in CC/1539/2016 Ashok Dewan Vs. IREO Private Limited, (decided on 22.10.2019), which was affirmed by Supreme Court in Civil Appeal Diary No.6347 of 2020 (decided on 15.06.2020), the counsel for the opposite party submitted that as the complainant has committed breach of contract as such 20% earnest money as mentioned in clause-6 of the agreement together with interest on delayed payments, brokerage and service tax are liable to be forfeited under clause-21.3 of the agreement. So far as Ashok Dewan’s case (supra) is concerned, in that case, the complainant had agreed for forfeiture of 20% of consideration. Supreme Court, in Maula Bux Vs. Union of India, (1970) 1 SCR 928 and Sirdar K.B. Ram Chandra Raj Urs Vs. Sarah C. Urs, (2015) 4 SCC 136, held that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of Section-74 of Contract Act, 1872 are attracted and the party so forfeiting must prove actual damage. After cancellation of allotment, the flat remains with the developer as such there is hardly any actual damage. This Commission in CC/438/2019 Ramesh Malhotra Vs.EMAAR MGF Land Ltd. (decided on 29.06.2020), CC/3328/2017 Mrs. Prerana Banerjee Vs. Puri Construction Ltd. (decided on 07.02.2022) and CC/730/2017 Mr. Saurav Sanyal Vs. M/s. IREO Grace Pvt. Ltd. (decided on 13.04.2022) held that 10% of basic sale price is reasonable amount to be forfeited as “earnest money”. In this case, the complainant booked the flat through real estate broker, namely M/s. Akanksha Enterprises as such as per clause-21.3 of the agreement, the opposite party is entitled to deduct brokerage also.
ORDER
ln view of aforesaid discussions, the complaint is partly allowed. IREO Grace Realtech Private Limited is directed to refund balance amount deposited by the complainant, after deducting 10% of basic sale price, brokerage and service tax paid, with interest @9% per annum from 01.09.2016 till the date of refund, within a period of two months from this judgment.
