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Judgment
V.K. Jain, J
The complainants / respondents booked a residential flat with the petitioner in a project namely "Sanghvi Hills", which the petitioners were to develop in Aravali. Flat No.C-301 in the aforesaid project was allotted to them for consideration of Rs.8,45,300/-. The parties then executed an agreement on 21.1.2005, incorporating their respective obligations in respect of the aforesaid transaction. The complainants had also got a loan of Rs.8.28,000/- sanctioned from ICICI Bank for making payment of the aforesaid flats to the petitioners. The complainants made a total payment of Rs.3,37,000/- to the petitioners. No payment was made thereafter. The possession of the flats having not been delivered to them, they approached the concerned District Forum by way of a consumer complaint.
The complaint was resisted by the petitioners, which inter-alia stated that in their reply that the complainants had not paid the balance amount as per the payment schedule contained in the Agreement and therefore the agreement had been terminated.
The District Forum having allowed the consumer complaint, the petitioners approached the concerned State Commission by way of an appeal. The said appeal also having been dismissed, the petitioners are before this Commission by way of this revision petition.
As per the payment plan contained in the agreement, the payment was to be made in the following manner:
(ii) On agreement Rs.1,96,325/-
(iii) On piling Rs.1,26,795/-
(iv) On Plinth Rs.84,530/-
(v) 1st slab Rs.42,265/-
(vi) 2nd slab Rs.42,265/-
(vii) 3rd slab Rs.42,265/-
(viii) 4th slab Rs.42,265/-
(ix) 5th slab Rs.42,265/-
(x) 6th slab Rs.42,265/-
(xi) 7th slab Rs.42,265/-
(xii) 8th slab Rs.42,265/-
(xiii) Brick WorkRs.42,265/-
(xiv) On intimation that the said flat
Is ready for occupation
Irrespective of the date on
Which the purchaser takes
Possession thereof Rs.42,265/-
It is an admitted position that the complainants have made payment only of Rs.3,37,000/- to the petitioners. This would mean that the installments No. 4, 5, 6, 7 and 8, which were payable upto 4th slab were not paid. Admittedly, the petitioners sent a letter dated 26.10.2005 to the complainants, which to the extent it is relevant reads as under:
"This is with reference to the above mentioned flat No. C-301, allotted to you in our project "Sanghvi Hills", situate at Ghodbunder Road, Thane (W).
The said flat was allotted to you on some terms and conditions of payment which has not been fulfilled by you favourably. There is an amount of Rs.2,56,710/- due and payable by you along with the accumulated interest upto the stage of 4th slab.
With regard to the same, you are requested to come to our Head Office at Fort and meet Mr. Rakesh Sanghvi within three days of receipt of this letter between 3 p.m. and 6 p.m. with prior appointment."
No payment to the petitioners was made even after the aforesaid letter dated 26.10.2005. Though the petitioners claim to have cancelled the allotment vide letter dated 7.11.2005, the said letter has not been placed on record and therefore the cancellation does not stand proved.
The contention of the complainants in nut shell is that though they had received the letter dated 26.10.2005 wherein an amount of Rs.2,56,710/- was shown payable by them upto the stage of 4th slab, their bank did not release the loan amount since the bank wanted certificates from the Architects in order to satisfy itself that the construction had reached the required level but the petitioners did not provide the said certificates of the Architect to the complainants.
The learned counsel for the petitioners has drawn my attention to Clause 4 of the agreement, which to the extent it is relevant in this regard reads as under:
"The promoter will forward to the purchaser /s intimation of the promoters having carried out / commenced the aforesaid work at the address given by the purchase/s under this Agreement and the purchaser/s will be bound to pay the amount of instalment within eight days of promoters dispatching such intimation under certificate of posting at the address of the purchasers as given in these presents. The promoters will keep certificate of their architects certifying that the promoters have carried out / commence given item of work and such certificate will be open for inspection by the purchaser/s at the office of the promoters and such certificate shall be valid and binding upon the purchaser/s and the purchaser/s agree/s not to dispute the same."
It would thus be seen that the petitioners were not required to annex the certificate of the Architect along with the demand letters sent to the complainants. Therefore, it was not necessary for them to enclose the said certificates, with the letter dated 26.10.2005. If the complainants wanted to have inspection of the certificates they ought to have visited the office of the petitioners for such an inspection. This is not their case that they had visited the office of the complainants for inspection of the certificates but the inspection was not given to them.
More importantly, there is not documentary evidence of the banker to the complainants having asked them to produce the certificate from the architect in order to satisfy the bankers that the construction had reached the required level. No bank official was examined before the District Forum to prove that the bank had insisted upon such a certificate. Therefore, the alleged requirement of bank does not stand substantiated.
Had the bank which sanctioned the loan to the complainants asked them to produce the certificate from the architect, the complainants in the normal course of human conduct would have written to the petitioners asking them provide the said certificate so that they could pass them on to the bank in order to facilitate the release of the loan. Admittedly, no letter was written by the complainants to the petitioners requiring them to provide the certificate of the architect to them. In these circumstances, it is difficult to accept that the complainants could not make payment to the petitioners on account of the failure of the petitioners to produce the certificate from the architect.
By not making payment in terms of the payment schedule contained in the agreement, the complainants failed to perform their part of the contract. Therefore, they cannot insist upon the petitioners performing their part of the contract by delivering possession of the allotted flats to them. A reference in this regard may be made to Section 55 of the Indian Contract Act, which to the extent it is relevant reads as under:
"55. Effect of failure to perform at a fixed time, in contract in which time is essential - when a party to a contract promises to do a certain things at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promise, if the intention of the parties was that time should be of the essence of the contract."
For the reasons stated hereinabove, I have no hesitation in holding that the complainants having failed to make payment in terms of the payment schedule contained in the Agreement, they are not entitled to possession of the flats, which the petitioners had allotted to them.
The learned counsel for the petitioners states on instructions that the petitioners are ready to refund the entire amount received from the complainants to them along with simple interest @ 12% per annum with effect from the date of each payment till the date of refund.
Ordered accordingly.
The payment in terms of this statement shall be made within two months from today.
On petitioners making payment in terms of this order, the complainants will have no right, title or interest left in the subject flat and the petitioners shall be entitled to get their registered agreement executed between the parties cancelled, in accordance with law.
The revision petition stands disposed of accordingly.