Biswajit Deka vs Ireo Grace Realtech Pvt. Ltd

A. P. Sahi, President Member

Heard leaned counsel for the complainant and the learned counsel for the opposite party. This complaint is for refund after a request for cancellation of the booking of an apartment was declined by the opposite party.

The complainant had approached the Delhi State Consumer Disputes Redressal Commission, New Delhi in 2014 by filing a complaint but the same was not pursued there on account of the pecuniary jurisdiction involved as per the relief claimed whereafter in the matter the present complaint was filed. The same was admitted and has been contested on merits before this forum.

The contention is that a booking was made for a residential apartment (2 BHK+Study) on the promise made by the opposite party to deliver the same in the project known as “Corridors”. The proposal/ application form for allotment has been filed as annexure C-1, where the disclosure is about the non-refundable booking amount in clause 7, which is extracted herein under:-

“07. I/We understand that the Booking Amount is non-refundable and in the event  I/we withdraw our Application or if I/we  do not accept the allotment made by the Company on my/our Application or I/we do not execute the Apartment Buyers Agreement within the time stipulated by the Company for this purpose or I/we fail to make the payment of the due instalment as per the Payment Plan, then my/ our entire Booking Amount shall be forfeited to the Company and I/we shall be left with no right, interest, claim or lien on the said proposed Apartment or its booking or otherwise on the Company in any other manner whatsoever.”

Further in clause 10 and 11 there is a reference to the forfeiture of earnest money as defined in schedule 1 of the booking form. Clause 10 and 11 are extracted herein under:-

“10. I/ We have sought detailed explanations and clarifications from the Company prior to making this Application and the company has readily provided such explanations and clarifications to us and after giving careful consideration to all the facts, terms and conditions, I/we have signed this Application and paid the Booking Amount for allotment. I/ we further undertake and assure the Company that in the event of rejection of my/ our Application for booking by the Company, or in the eventuality of forfeiture of my/ our Earnest Money (as defined in Schedule-1 hereinafter) in accordance herewith, i/we shall be left with no right, title, interest or lien under this Application or against any apartment in relation to The Corridors project.

I/we understand and agree that if I/we fail to execute the Apartment Buyer’s Agreement or fail to return all the copies duly executed to the Company within 30 days from the date of the communication by the Company in this regard, then this Application is liable to be treated as cancelled/ terminated at the sole discretion of the Company and the Earnest Money shall stand forfeited and I/we shall be left with no rights or interest or claims in the said Application/ Apartment. No compensation or interest or any charges shall be paid by the Company to me/us.”

Learned counsel for the complainant states that the application form was not appended by any such schedule-1 nor was the complainant given a copy thereof as mentioned in Clause 10 and 11. The said schedule is also not part of the written version of the opposite party nor it has been filed on record as evidence. Consequently, it is only on the basis of the evidence filed by the complainant that the written version has been filed answering the allegations in the complaint.

The complaint in paragraph 4 alleges as follows:

“That in early 2013, the complainant booked an apartment (2BHK+study) with the Opposite Party. At the time of filling the application form, the Opposite Party categorically stated that they are not in a position to mention in writing  the per square feet rate, preferential location charges and other miscellaneous charges, etc at that time. However, it was orally informed to the Complainant that the total sale price of the said apartment would be around Rs. 80 lakh +/- 5%. The Complainant paid booking charge of Rs. 5 lakh initially. Subsequently, the Opposite Party demanded a further deposit of Rs.7.5 lakhs to complete the booking process. Thus, at the time of booking of the flat, there was no binding agreement between the Complainant and the Opposite Party, as even the consideration was undecided. Such an uncertain agreement is not legally binding on the Complainant,  and the Opposite Party’s attempts to refuse refund by relying on certain terms and conditions of the buyer’s agreement which was never signed by the Complainant are illegal. The Application form which was provided to the Complainant, did not disclose the consideration involved, and is thus unenforceable on account of uncertainty as also because of failure to specify the consideration.”

There is no effective denial of the said facts in the written version. It is therefore taken to be admitted that the complainant had paid booking charges of Rs.5,00,000/- initially and on a subsequent demand a sum of Rs.7,50,000/- was deposited by the complainant towards the booking process.

However, the complainant has stated in paragraph 5 that the total deposit made by the complainant including the aforesaid amount is Rs.28,14,538/-. This amount is also not disputed by the opposite party.

The complainant vide email dated 24.04.2014 expressed his desire that he wanted to surrender his unit as he did not intend to further go on with the deal. This had been suggested on the ground that after having received the copy of the proposed builder-buyer agreement and a notice for the third instalment, the complainant was not in a position to go on with the deal because the demand was an enhanced amount more than what was disclosed at the time of booking and he had also lost his job.

The complainant received a response thereto through an email on the same date, where it was stated that the opposite party regrets its inability to consider the request for refund and rather indicated forfeiture of 20% of the total sale consideration.

The complainant gave a reply which is contained in the email dated 25.04.2014 that he understands from the proposal form that only the booking amount which is non-refundable and therefore there is no question of any acceptance of forfeiture of 20% of the Sale price as per the builder-buyer agreement or the clauses  pertaining thereto.

The aforesaid facts therefore clearly demonstrate that the complainant had expressed his desire to part with the deal on the understanding of the clauses referred to in the proposal form. It is admitted to the parties that no builder-buyer agreement was entered into. Consequently, the non-refundable part is only referable to clause 7 of the proposal form, which clearly demonstrates that it is the said amount which can be withheld by the opposite party. The fact that the schedule-1 mentioned in the form was never supplied has not been denied in the written version.

So far as the question of forfeiture is concerned, against the earnest money, there is no disclosure as to what was the basic sale price agreed upon between the parties and there is no mention of it in the allotment letter as well. Thus, the only inference that can be drawn on the facts of this case is that there is no disclosure of basic sale price and even before the agreement could be entered into, the complainant had expressed his desire to forsake the deal as there was an enhanced demand which the complainant was unable to pay because of having lost his job.

In this background, the allegation of the complainant that he was not informed about the terms and conditions and the schedule has not been denied in the written version. It is evident that the only transaction which has been entered into between the parties at the time of proposal was the offer of the booking amount and then payment of some more amount which obviously was not part of the booking amount. Consequently, the only calculation that can be arrived at from the facts narrated above is that a sum of Rs.28,14,538/- had been paid in total by the complainant to the opposite party out of which the undisputed amount of Rs.12,50,000/-was towards booking process as alleged in paragraph 4 of the complaint and not denied in the written version. This amount of Rs.12,50,000/-, therefore, can be concluded as the booking amount which needs to be deducted from the amount paid by the complainant.

The opposite party was under a commitment, as per the aforesaid facts on record, to refund the amount on a request for cancellation of the booking. The complainant expressed his inability to pay the enhanced demand as it was unaffordable in the circumstances he was placed, and this request was made well before any agreement was entered into. The representation by the builder to deduct the booking amount was therefore binding which in the present case was wilfully not honoured by the opposite party and it was consciously declined inspite of the recital in Clause 7 of the document extracted hereinabove. This was a deficiency on the part of the opposite party as the refund after deducting the booking amount could not have been refused. The complaint therefore would be maintainable and the relief to the extent above deserves to be granted.

Consequently, after deducting the said amount, balance of the payment that has been received by the opposite party shall be refundable to the complainant with 9% interest from the date of such deposit made by the complainant. The opposite party shall disburse the payments within a period of one month from today. In the event of any default in making the payment the interest shall stands enhanced to 12%per annum. The complaint is allowed accordingly.