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Judgment
Heard the counsel for both the parties.
Amaresh Kumar Sinha and Pratik Ranjan have filed above complaint for directing the opposite party to (i) refund entire amount deposited by them with interest @18% per annum from the date of deposit till the date of refund; (ii) pay Rs.2000000/- as compensation for mental agony and harassment; (iii) pay litigation costs; and (iv) any other relief which is deemed fit and proper in the facts of the of the case.
The complainants stated that Satya Developers Private Limited (the OP) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The OP launched a group housing project in the name of “The Hermitage” at village Daulatabad, Sector-103, Gurgaon, in the year, 2011 and made wide publicity of its amenities and facilities. Believing upon the representations of the OP, the complainants and Smt. Sheela Sinha (since deceased and represented by her husband and son respectively, the complainants) booked a flat, in the project “The Hermitage” and deposited Rs.400000/- on 23.03.2014. The OP allotted Flat No-1 at 12th floor, Tower -7, super area 3339 sq.ft., basic sale price of Rs.16611525/- and executed “Buyers Agreement” on 07.10.2014. The complainants further deposited Rs.1991729/- on 30.05.2014, Rs.1350000/- on 04.08.2014, Rs.2000000/- on 19.08.2014, Rs.495166/- on 15.10.2014 and Rs.200000/- on 03.09.2015 (total Rs.6536895/-). Annexure-3 of the agreement contains ‘payment plan’, under which, the complainants had to pay Rs.6152108/- within 120 days of booking or commencement of 6th Floor, whichever is later and balance amount of Rs.12462817/- was payable on offer of possession. Clause-6.2 of the agreement provides 36 months period with grace period of six months, from start of construction or execution of the agreement, whichever is later, for completion of the construction of the tower. For timely payment of the instalment, the complainants took loan from State Bank of India, on execution of tripartite agreement dated 10.06.2015 and the bank disbursed first instalment of Rs.200000/- on 03.09.2015 directly to the OP. The complainants inquired about the progress of the project from OP, initially on telephone and later on through email dated 19.08.2016. Then the OP issued final demand letter dated 01.09.2016, for Rs.16702786/- and asked for completion of the formalities for taking possession. In this demand letter, super area was shown as 3505 sq.ft. and electricity connection charges was shown as Rs.503844/-. The bank required details/proof of measurement of ‘super area’ for disbursement of the amount as area of Tower-7, which as initially disclosed was 104890Sq.ft. while in the “occupation certificate”, constructed area of Tower-7 was shown as 102994 sq.ft. The complainants asked the OP to supply details of measurement of ‘super area’ along with documents through emails dated 06.09.2016, 07.09.2016, 19.09.2016 and 20.09.2016 as required by the bank and also raised protest for electricity connection charges and VAT charges. On physical verification, it was also noticed that location of the flat as allotted to the complainants was also changed. The complainants gave a letter dated 19.09.2016, raising their detail grievances. The OP did not supply the details of measurement of super area, instead of it, vide email dated 17.11.2016, offered to change allotment of Flat No.1202 admeasuring 3467 sq.ft. and asked to cancel previous Buyers Agreement and execute fresh agreement. But State Bank of India, vide letter dated 25.11.2016, refused to disburse the amount of loan as against Flat No.1202 area 3467 sq.ft. as the loan was sanctioned for Flat No.1201 area 3339 sq.ft. Then the complainants, vide letter dated 09.12.2016 and emails dated 10.12.2016 and 24.12.2016, cancelled the allotment and sought for refund of their money with interest. The OP did not respond to the letter and the emails. Then this complaint was filed on 09.01.2017.
Satya Developers Private Limited (the OP) filed its written reply, in which, booking of the flat, allotment of the flat and execution of Buyers Agreement, have not been disputed. Payments are disputed. The OP stated that the complainants and Mrs. Sheela Sinha applied for allotment of the flat on 18.03.2014, which was jointly allotted to them. The complainants have not filed death and succession certificates of Mrs. Sheela Sinha as such the complaint is not maintainable. The reliefs sought for in this complaint are of the nature of recovery suit for which civil suit is liable to be filed. OP-2 and 3 are neither necessary nor proper parties and there is misjoinder of the parties in the complaint. Clause-20.1 of the Buyers Agreement contains an arbitration clause as such the dispute be referred to an Arbitrator as per Section 8 of Arbitration and Conciliation Act, 1996. The OP was a well reputed real estate developer and obtained Development Licence No.28 of 2011 dated 28.03.2011 for development of above project. Building Plan was approved on 05.10.2011. The complainants gave cheque of Rs.500000/- dated 18.03.2014, which was en-cashed. Cheque dated 18.07.2014 of Rs.1500000/- was dishonoured. Cheques of Rs.500000/- dated 18.07.2014, Rs.1000000/-, Rs.300000/-, Rs.200000/- dated 19.07.2014 were en-cashed and receipt dated 19.08.2014 was issued of these cheques. Cheque of Rs.700000/- dated 27.07.2014, cheque of Rs.650000/- dated 04.08.2014 and cheque of Rs.495166/- dated 08.10.2014, were en-cashed. Payment of instalments were delayed and interest was payable on it but the OP vide Voucher Memo dated 16.10.2014, waived interest of Rs.57329/-. The complainants approached South Indian Bank Limited, for sanction of the home loan and as asked by the bank, the OP vide email dated 16.09.2014, supplied every documents relating to the project. State Bank of India sanctioned loan of Rs.11600000/- on 16.02.2015 and disbursed Rs.200000/- on 03.08.2015 to the OP. Buyers Agreement were sent to the complainants on 06.08.2014, which were received to them as acknowledged in email dated 11.08.2014 but they signed it on 07.10.2014. Allotment of the flat was tentative. After sending Buyers Agreement, the OP asked the complainants to verify the location of the flat. Built up area of Flat No.1201 was 2505 sq.ft. and common area was 835 sq.ft. Preferential location charge of Flat No.1201 was Rs.834750/- as such its basic price was Rs.17446275/-. The OP completed the construction and applied for issue of “occupation certificate” on 02.02.2016, which was issued on 12.08.2016, thereafter the OP offered possession to the complainants vide letter dated 01.09.2016. Instead of depositing balance amount and completing formalities for taking possession, the complainants started disputes relating to change of location, increase of ‘super area’ etc. The OP fixed a meeting on 12.09.2016, in which, all the papers were shown to the complainants. Then they asked for physical measurement and verification. The complainants visited Flat No.1201 on 19.09.2016 and started saying that the location of the flat was changed and showed a computer printed layout plan supplied to them at the time of booking. At that time due to error, a wrong layout plan was printed and supplied to the complainants. On the pretext of will of late Sheela Sinha, the complainants asked to give them Flat No.1202. As Flat No.1202 was vacant, the OP agreed to give this flat to them and issued letter dated 17.11.2016. However, State Bank of India, vide letter dated 25.11.2016, refused to disburse the amount of loan as due to death of Mrs. Sheela Sinha and retirement of Amaresh Kumar Sinha from service, their income had been reduced. In the letter dated 25.11.2016, the bank has incorrectly mentioned that the builder had played foul play, for which, the OP gave letter dated 12.01.2017 and legal notice dated 11.03.2017 to State Bank of India. The OP, vide email dated 09.01.2017, replied the letter and email of the complainants and asked them to produce death and succession certificate of Mrs. Sheela Sinha. The complainants were liable to make balance payment but they failed to fulfil their obligation in the contract. The complaint is liable to be dismissed.
The complainants filed IA/8584/2023 for impleadment of Ms. Pritika Sinha as one of the heirs of late Sheela Sinha, along with her death certificate and stating that on the death of late Sheela Sinha, Ms. Pritika Sinha, being her daughter was also an heir along with the complainants. No objection/reply has been filed to this IA as such IA is allowed and name of Ms. Pritika Sinha is impleaded as complainant-3.
The complainants filed Rejoinder Reply, Affidavit of Evidence, of Amaresh Kumar Sinha and documentary evidence. The OP filed Affidavit of Evidence of Savita Vashisht and documentary evidence. The complainants filed IA/1124/2017, for filing additional evidence.
We have considered the arguments of the counsel for the complainants and examined the record. The complainants have taken the plea for not taking possession of the flat in spite of offer of possession given to them vide letter dated 21.09.2016 on the ground that initially the flat which was shown to the complainants at the time of booking was not allotted to them rather plot No.1201 was allotted which was not shown to them. The opposite party, however, stated that at the time of booking, due to inadvertent error, wrong copy of the map from the computer was printed and supplied to the complainant. When the complainants raised objection in respect of change of their flat, then the flat which according to the complainants was initially allotted to them i.e. flat No.1202 was vacant and the opposite party vide letter dated 17.11.2016 has offered for allotment as well as conveyance deed in respect of flat No.1202. There was no reason for the complainants to refuse to take possession of the flat. Opposite party has relied upon the judgment of Supreme Court in Ireo Grace Realtech Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241 as well as this Commission in Pramod Kumar Madan vs. M/s DLF Limited, CC/1162/2017 and other connected consumer complaints decided on 22.12.2021 holding that in case obtaining “occupation certificate”, possession was offered then the home buyer is obligated to take possession. The complainant, however, stated that as the loan was sanctioned by the State Bank of India in respect of flat No.1201 as such the Bank has declined to disburse the loan for flat No.1202 by its letter dated 25.11.2016. In such circumstance, it was not possible for the complainants to give the balance amount and take possession of flat No.1202. It cannot be treated as a breach of contract on the part of the complainants.
As perusal of the letter of State Bank of India dated 25.11.2016 (Annexure C-17) shows that the Bank has declined to disburse the loan on the ground that after sanction of the loan Mrs. Sheela Sinha died and Amaresh Kumar Sinha has retired, therefore, their income has been reduced and the loan as sanctioned by the letter dated 16.02.2015 could not be disbursed. Although in this letter the Bank has also written that the builder has played foul in executing the tripartite agreement in respect of flat No.1201 but there does not appear to be any foul play. As stated by the opposite party it was merely an error on the part of the employees of the opposite party in supply the copy of the layout plan at the time of initial allotment. The builder was still ready and willing to allot flat No.1202 and executing a fresh tripartite agreement but as the income of the complainants has been reduced, they were not in a position to get the loan and pay the final demand. In such circumstances, the breach on the part of the complainants is apparent and therefore earnest money is liable to be forfeited. Supreme Court in Fateh Chand Vs. Balkishan Das, AIR 1963 SC 1405, Maula Bux Vs. Union of India, (1969) 2 SCC 554 and Kailash Nath Associate Vs. Delhi Development Authority, (2015) 4 SCC 136, held that forfeiture of earnest money for 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. 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 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” (not in respect of preferential location charges).
The OP raised preliminary issue that the complainants are not a consumer, but the OP has not filed any evidence to prove that the complainants were engaged in the business and purchasing and selling the properties. As such, it cannot be said that the flat was booked for commercial purpose. Supreme Court in Emaar MGF Land Limited Vs. Aftab Singh, (2019) 12 SCC 751, held that consumer forum exercises jurisdiction in addition and not in derogation of Arbitration and Conciliation Act, 1996, as such, in spite of arbitration clause in the agreement, consumer complaint is maintainable. Preliminary objections have no merit and are rejected. Other defect in the complaint relating to non-representation of all the heirs of late Sheela Sinha (a joint allottee) has been removed by impleading complainant-3.
ORDER
In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to to refund balance amount deposited by the complainant, after deducting 10% of basic sale price (not in respect of preferential location charges) with interest @9% per annum from the respective dates of deposits till the date of refund, within a period of two months from this judgment.