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Judgment
A complaint in FORM-M was filed on 05.09.2023 by Mr. Gaurav Parashar (Complainant No.1) and Mr. Manish Sharma (Complainant No.2) (hereinafter collectively referred to as the “Complainants”) under Section 31 read with Sections 11 and 18 of the Real Estate (Regulation and Development) Act, 2016 (hereinafter referred to as the “Act”) before this Authority against DLF Urban Private Limited (hereinafter referred to as the “Respondent or Respondent Company”), having its registered office at 15 Shivaji Marg, Moti Nagar, New Delhi – 110015.
The subject matter of the present complaint relates to the allotment of a residential apartment bearing Unit No. OMCO501 on the 5th Floor of Tower C, admeasuring 1,222.200 sq. ft. (super area), in the housing project styled „One Midtown‟ (hereinafter referred to as the “Project”) situated at 15 Shivaji Marg, Moti Nagar, New Delhi – 110015, promoted by the Respondents and registered with this Authority vide Registration No. DLRERA2021P007 dated 20.12.2021 (hereinafter referred to as the “Unit”).
The facts of the case, as set out in the complaint and the pleadings filed by the Complainants, are as follows:
a. They in the year 2022, were looking to purchase a residential property. The Respondents approached the Complainants for purchase of a unit in the subject project. Based on various representations made by them, including representations as to the quality of construction, timeline of completion, and facilities to be offered in the project, the Complainants decided to book a unit in the project.
b. They submitted a Booking Application Form dated 14.02.2022 to the Respondents for allotment of the Unit. Along with the said Application Form, the Complainants paid a sum of Rs. 10,00,000/- (Rupees Ten Lakhs Only) towards the booking amount. Pursuant to submission of the Application Form and the initial payment, the Respondents issued an Allotment Letter in favour of the Complainants, allotting Unit No. OMCO501 in Tower C, 5th Floor of the project, along with two covered car parking spaces.
c. The Respondents executed a Developer Buyer‟s Agreement dated 06.06.2022 (hereinafter referred to as the “Agreement”) in favour of the Complainants. The Agreement was duly registered with the Sub-Registrar, Basai Darapur, Delhi bearing Registration No. 1324 in Book No. 4, Volume 13828, on pages 50 to 98. The total sale consideration of the Unit was agreed at Rs. 5,75,80,678.60/- (Rupees Five Crores Seventy-Five Lakhs Eighty Thousand Six Hundred Seventy-Eight and Sixty Paisa Only). The Agreement contained a payment schedule (Schedule C) setting out various instalments payable by the Complainants and the milestones/dates against which the same were payable. The agreed date for delivery of possession of the Unit was 12.07.2026.
d. They made the following payments to the Respondents towards the purchase of the Unit:
| S. No. | Date of Payment | Amount Paid |
|---|---|---|
| 1. | 14.02.2022 | Rs. 10,00,000/- |
| 2. | 02.04.2022 | Rs. 47,58,068.72/- |
| 3. | 18.07.2022 | Rs. 50,45,787/- |
| 4. | 31.01.2023 Total: | Rs. 50,00,000/-Rs. 1,58,03,855.72/- |
e. They have complied with each and every payment demand raised by the Respondents and were in regular contact with their office regarding the progress of the project.
f. They had attended several meetings with the representatives of the Respondents and were orally assured that the project was proceeding as per schedule and that possession would be offered within the time stipulated in the Agreement.
g. After execution and registration of the Agreement, the office bearers of Respondent Company gave an oral assurance that given Complainants existing association with the Respondents since 2016, the Respondents would be flexible in the payment schedule and would accommodate payment of the larger instalments in a phased manner.
h. They received a cancellation letter dated 05.08.2023 from the Respondents, which was received by them on 09.08.2023 purported to cancel and terminate the allotment of the Unit. In the letter it has been alleged that the Respondents had previously sent a Final Demand Notice dated 23.12.2022 demanding payment of outstanding dues, and since the Complainants failed to pay any amount in response thereto, they have right of cancellation under Clause 9.3 of the Agreement.
The allegation in the Cancellation Letter that no payment was made after the Final Demand Notice dated 23.12.2022 is wholly incorrect and is contrary to the records of Respondents. The Complainants had made a payment of Rs. 50,00,000/- (Rupees Fifty Lakhs Only) on 31.01.2023, which was duly accepted by the Respondents and a receipt/acknowledgement was issued for the same.
j. The Respondents cancelled the allotment without verifying its their books of accounts and without following the procedure mandated under the Agreement.
k. The Cancellation Letter effected a massive deduction of Rs. 96,53,794.70/-(Rupees Ninety-Six Lakhs Fifty-Three Thousand Seven Hundred Ninety-Four and Seventy Paisa Only) from the total sum of Rs. 1,58,03,858/- paid by the Complainants, under various heads including what the Respondents characterised as booking amount forfeiture, brokerage charges, delayed payment interest and other charges. The Complainants have alleged that such deduction is wholly arbitrary, grossly disproportionate and contrary to both the express terms of the Agreement and the provisions of the Act. The Respondents, thereafter, issued two post-dated cheques of Kotak Mahindra Bank to the Complainants towards the residual refund amount after such deductions.
l. After receiving the Cancellation Letter, the Complainants visited the office of the Respondents but were not given any satisfactory response by the representatives of Respondents. The Complainants, thereafter, sent an email dated 09.08.2023 to the Respondents and their representatives, but received no reply. The Complainants further caused a legal notice dated 25.08.2023 (posted on 28.08.2023) to be sent to the Respondents, demanding return of the amount of Rs. 96,53,794.70/- wrongfully deducted by them. No response was received to the legal notice either.
m. In this factual backdrop, the Complainants have preferred the present complaint before this Authority and have prayed for the following reliefs:
i.Direct the Respondents to refund a sum of Rs. 96,53,794.70/- (Rupees Ninety-Six Lakhs Fifty-Three Thousand Seven Hundred Ninety-Four and Seventy Paisa Only) along with interest at the rate of 10% per annum on the amount deposited by the Complainants from the date of termination till the date of actual payment;
ii.Direct the Respondents to pay a sum of Rs. 10,00,000/- (Rupees Ten Lakhs Only) towards compensation for mental agony caused to the Complainants by reason of illegal and arbitrary conduct of the Respondents.
iii.Direct the Respondents to pay a sum of Rs. 4,00,000/- (Rupees Four Lakhs Only) towards the litigation costs incurred by the Complainants; and
iv.Any other relief(s) as this Hon‟ble Authority may deem fit and proper in the facts and circumstances of the case.
A notice of complaint was issued to the Respondents by this Authority. The Respondents filed their reply to the complaint. The Complainants, thereafter, filed their re-joinder to the reply of the Respondents. The matter was heard on merits.
The Respondents have denied all the allegations made in the complaint and contended, inter alia, as follows:
a. The project „One Midtown‟ was launched and is being developed by them at Shivaji Marg, New Delhi-110015. The project was registered with this Authority prior to its launch vide Registration No. DLRERA2021P007 dated 20.12.2021. The project is a Residential Group Housing Project comprising 4 towers (Towers A, B, C and D) with 40 storeys each and a total of 1,159 apartments.
b. The Complainants approached the Respondents through a broker and submitted an Application Form dated 14.02.2022 for allotment of an apartment. Consequent to the receipt of the initial booking amount, the Respondents vide Allotment Letter dated 08.03.2022 allotted Unit No. OMC0501 in Tower C, 5th Floor to the Complainants along with a schedule of payments.
c. The Complainants are habitual defaulters in making timely payment of instalments from the very outset. Specifically:
The second instalment of Rs. 47,58,068.37/- was due and payable by 28.03.2022 as per the payment schedule, but the Complainants failed to pay the same on the due date. Only after the Respondents issued a reminder letter dated 02.04.2022 did the Complainants make the payment on 07.04.2022, thereby causing a delay of approximately 10 days.
The third instalment of Rs. 50,45,787.80/- was due and payable by 22.06.2022, but again the Complainants delayed payment and paid the same only on 19.07.2022, after the Respondents issued multiple reminder letters dated 24.06.2022 and 11.07.2022, thereby causing a delay of approximately 27 days.
The fourth instalment of Rs. 1,72,58,202.01/- was due and payable by 21.10.2022. The Complainants once again defaulted entirely in making payment of this substantial instalment.
d. In light of the continuing default in payment of the fourth instalment, the Respondents were constrained to issue reminder letters dated 31.10.2022 and 14.11.2022. As the Complainants failed to respond to these reminders as well, the Respondents issued a Final Demand Notice dated 23.12.2022 to the Complainants at their registered address. The said Final Demand Notice was also sent to the Complainants via email on 24.12.2022 at the email address provided by them for company records. The Final Demand Notice clearly set out the outstanding dues of Rs. 1,72,58,202.01/- (along with accrued interest thereon) and called upon the Complainants to clear the same within 7 days from the date of receipt thereof, failing which the Respondents would be entitled to cancel the allotment of the Unit.
e. Even after the expiry of the 7-day period specified in the Final Demand Notice, the Complainants did not make any payment. It was only on 25.01.2023 the Complainants, on their own and without any prior communication, made part payment of Rs. 50,00,000/- by way of cheques. This amount of Rs. 50,00,000/- represented barely 29% of the outstanding amount of Rs. 1,72,58,202.01/-. The Respondents issued a receipt dated 27.01.2023 acknowledging receipt of this amount. The Complainants however, furnished no explanation, undertaking or communication as to when the balance of Rs. 1,22,58,202.01/- would be paid. Despite this, the Respondents did not immediately proceed to cancel the allotment.
f. They in a further act of forbearance and in order to provide the Complainants with yet another opportunity, sent an email dated 02.05.2023 reminding the Complainants of the outstanding dues on the fourth instalment and requested them to make the payment at the earliest in order to avoid cancellation of their allotment. The Complainants did not respond to this email and made no payment.
g. They having waited for approximately 7.5 months from the date of the Final Demand Notice, and having provided the Complainants with multiple opportunities to clear their dues, issued the Cancellation Letter dated 05.08.2023 cancelling the allotment of Unit No. OMC0501 in favour of the Complainants on account of their continuing and persistent default in payment. The Cancellation Letter also enclosed demand drafts/cheques for the refundable amount calculated in accordance with the terms of the Agreement.
h. Upon conducting an audit of the transaction after cancellation, the Respondents discovered that an amount had been inadvertently debited to the Complainants‟ account on account of brokerage charges, which was not a permissible deduction. As a corrective measure, the Respondents vide letter dated 08.02.2024 intimated the Complainants of this inadvertent error and enclosed cheques for Rs. 18,20,209/- (Rupees Eighteen Lakhs Twenty Thousand Two Hundred and Nine Only) towards refund of the said amount. The said letter along with the cheques was duly received by the Complainants on 10.02.2024.
They also raised preliminary objections to the maintainability of the complaint, contending that the Complainants have invoked Sections 12, 14, 18 and 19 of the Act, none of which are attracted on the facts. Section 12 deals with loss sustained on the basis of information in advertisements/prospectus, which is not the grievance here. Section 14 deals with adherence to sanctioned plans and project specifications, which is not an issue. Section 18 deals with failure to give possession or inability to complete the project, which has not occurred. Section 19 deals with rights of allottees to claim refund only when the promoter has failed to give the possession in promised state.
j. They are developing the project in due compliance with all their obligations under the Act, the Agreement and the Rules, and that the Complainants have failed to make out any violation of the Act on the part of the Respondents.
In short, the Respondents have contended that:
the Complainants were habitual and persistent defaulters in payment;
the cancellation was done strictly in accordance with the terms and conditions of Clause 9.3 of the Agreement and in compliance with the provisions of Section 11(5) of the Act;
the Complainants were given repeated and adequate opportunities far in excess of the contractual requirements before cancellation was eventually resorted to;
the deductions made upon cancellation are in accordance with the Agreement; and;
the complaint is, therefore, liable to be dismissed in its entirety.
We have heard the Ld. Counsel for both the parties at length and have carefully perused the complaint, reply, rejoinder and the documentary evidences placed on record by both sides.
Analysis and Considerations
At the outset, the Complainants have claimed compensation, litigation cost and sought refund as well. At the very outset, it is pertinent to shed light on the issue whether compensation can be granted by the Authority. The Hon'ble Apex Court in case of M/s. Newtech Promoters and Developers Pvt. Ltd vs. State of UP & Ors. (CIVIL APPEAL NO(S). 6745 6749 OF 2021) have categorically held, "when it comes to a question of seeking the relief of adjudging compensation, the adjudicating officer exclusively has the power to determine, keeping in view the collective reading of Section 71 read with Section 72 of the Act." It is, thus, clear that the Authority does not have the power to grant the relief of compensation under the Act. The Complainants may approach the Adjudicating Officer as per Section 71 of the Act for grant of compensation. In view, we are not considering the relief on account of compensation.
Having regard to the pleadings and submissions of the parties, the following issues arise for determination before this Authority:
a. Issue No. 1: Whether the cancellation of allotment of Unit No. OMCO501, Tower C in the project „One Midtown‟ by the Respondents was legally justified in light of the contractual terms and the provisions of the Act.
b. Issue No. 2: Whether the deduction of delayed payment interest by the Respondents is legally justified and whether the quantum and period for which such interest has been charged is proportionate and appropriate considering the facts of the case.
Issue No. 1: Whether the cancellation of allotment was legally justified.
The resolution of this issue requires an examination of:
the payment obligations of the Complainants as per the Agreement;
whether the Complainants were in default under the Agreement;
whether the procedure prescribed under Clause 9.3 of the Agreement and Section 11(5) of the Act was followed by the Respondents prior to cancellation; and
whether any of the defences raised by the Complainants have merit.
The Agreement for Sale dated 06.06.2022, registered between the parties, is the fundamental document governing the rights and obligations of the Complainants and the Respondents. The payment plan (Schedule C of the Agreement) clearly sets out date / milestone, against instalments became which payable by the Complainants. In the instant case the total sale consideration was fixed at Rs. 5,75,80,678.60/-.
Clause 9.3 of the Agreement, which provides for the consequence of default in payment by the Allottee, reads as under:
"9.3The Allottee shall be considered under a condition of Default, on the occurrence of the following events:
(i)In case the Allottee fails to make payments of any instalment due as per the Payment Plan annexed hereto as Schedule C, the Allottee shall be liable to pay interest to the Promoter on the unpaid amount from the due date of such instalment at the rate prescribed in the Rules;
(ii)In case of Default by Allottee under the condition listed above continues for a period beyond 2 (two) consecutive months after notice from the Promoter in this regard, the Promoter may cancel the allotment of the Apartment in favour of the Allottee and refund the money paid to him by the Allottee by deducting the Booking Amount, and the interest liabilities and this Agreement shall thereupon stand terminated. Provided that the Promoter shall intimate the Allottee about such termination at least 30 (thirty) days prior to such termination."
The statutory framework is equally clear. Section 11(5) of the Act, which governs the Promoter‟s right to cancel an allotment, provides as under:
"(5)The promoter may cancel the allotment only in terms of the ‘Agreement for sale’:
Provided that the allottee may approach the Authority for relief, if he is aggrieved by such cancellation and such cancellation is not in accordance with the terms of the ‘Agreement for Sale’, unilateral and without any sufficient cause."
A plain reading of Clause 9.3 of the Agreement, which mirrors the Model Agreement prescribed under the NCT of Delhi Real Estate (Regulation and Development) (Agreement for Sale) Rules, 2016, makes it evident that the Promoter‟s right to cancel arises when:
the Allottee is in default in making payment of any instalment;
such default continues for a period beyond two consecutive months after a notice from the Promoter; and
the Promoter issues a termination notice at least 30 days prior to such termination.
A holistic reading of the above Clause makes it clear that three distinct steps are envisaged: first, default in payment; and second, a further period of two consecutive months of continuing default after such notice; and third, a notice from the Promoter to the defaulting allottee;
Turning to the facts of the present case, it is an admitted position that the fourth instalment of Rs. 1,72,58,202.01/- fell due on 21.10.2022. The Respondents issued reminders on 31.10.2022 and 14.11.2022, followed by the Final Demand Notice dated 23.12.2022, which was also communicated by email on 24.12.2022. The Final Demand Notice clearly spelt out the outstanding dues and gave the Complainants seven days to make payment, failing which the allotment would be liable to be cancelled. Even after the expiry of this period, the Complainants did not make full payment of the outstanding dues. Instead, on 27.01.2023, a part payment of Rs. 50,00,000/-was made – representing less than 30% of the outstanding instalment of Rs. 1,72,58,202.01/-. Despite this, the Respondents did not cancel the allotment immediately. A further reminder email was sent on 02.05.2023. As no payment followed. The allotment was finally cancelled on 05.08.2023.
The Respondents had thus waited for a period of approximately 7.5 months from the date of the Final Demand Notice, and approximately 10 months from the date of the first reminder letter dated 31.10.2022, before finally resorting to cancellation. This extended period of forbearance clearly establishes that the Respondents have nor acted in haste or with malafide intention, but on the contrary, provided the Complainants with every reasonable opportunity to remedy their default. The procedure followed by the Respondents, demand letters, reminder letters, final demand notice, post-part-payment reminder, and eventual cancellation, amply satisfies the requirements of Clause 9.3 of the Agreement and Section 11(5) of the Act. Therefore, the cancellation cannot, be characterised as unilateral, arbitrary or without sufficient cause.
The Complainants have raised the following specific grounds to challenge the cancellation, each of which is addressed hereunder:
a. Non-receipt of the Final Demand Notice dated 23.12.2022: The Complainants have denied having received the Final Demand Notice dated 23.12.2022 and have accordingly contended that the precondition for cancellation under Clause 9.3 was not satisfied. This contention does not merit acceptance for the following reasons:
first, the Respondents have placed on record documentary evidence of the Final Demand Notice dated 23.12.2022 and the email communication dated 24.12.2022, both sent to the address and email provided by the Complainants in the Agreement and company records.
second, the Complainants themselves admitted to having received the earlier demand letters and reminders, which establishes that the communication channels between the parties were fully operational.
third, and most significantly, the fact that the Complainants, who had been in complete default since October 2022, suddenly made a part payment of Rs. 50,00,000/- on 27.01.2023 barely a month after the Final Demand Notice of 23.12.2022 speaks eloquently against the plea of non-receipt. No innocent purchaser who claims ignorance of a demand notice would coincidentally make a payment of Rs. 50,00,000/- within a month of that very notice without any communication or explanation.
b. Oral assurance of flexibility in payment: The Complainants have alleged that the office bearers of Respondent Company gave them oral assurances that the Respondents would be flexible in the payment schedule, given their long association with them since 2016, and therefore, they made the part payment of Rs. 50,00,000/- on the faith of such oral assurances. The Agreement dated 06.06.2022 is a registered document. Its terms are clear and unambiguous. An oral assurance, even if made, cannot override or vary the express terms of a registered Agreement. Moreover, the Complainants, having signed and registered the Agreement with full knowledge of its terms, cannot say that they were operating on the basis of an oral understanding inconsistent with those terms. This plea is therefore rejected.
c. Malafide and arbitrary nature of cancellation: The Complainants have characterised the cancellation as malafide and designed to grab the Complainants‟ hard-earned money. As noted above, the Respondent had issued multiple demand notices and reminders over a period of nearly 10 months before eventually cancelling the allotment. The Respondents accepted the part payment of Rs. 50,00,000/- made in January 2023, sent a further reminder in May 2023, and cancelled the allotment only in August 2023. This conduct is wholly inconsistent with malafide intent. On the contrary, it demonstrates patience and forbearance on the part of the Respondents. The allegation of malafide is accordingly rejected.
d. Non-compliance with the 30-day prior notice requirement: Clause 9.3(ii) of the Agreement requires the Promoter to intimate the Allottee about termination at least 30 days prior to such termination. The Final Demand Notice dated 23.12.2022, by its own terms, gave the Complainants seven days to make payment. The Complainants have argued that the Cancellation Letter dated 05.08.2023 itself should have given 30 days‟ prior notice. However, it is to be noted that the Final Demand Notice itself constituted notice of the Respondents intention to cancel if payment was not made. Subsequent seven-month period between the Final Demand Notice and the Cancellation Letter more than satisfies the requirement of prior notice under Clause 9.3(ii). The Complainants had ample opportunity far more than 30 days to make the outstanding payment after receipt of the Final Demand Notice and before the actual cancellation. While Promoters cannot take allottees for granted similarly allottees should also not take Promoters for granted. This contention is, therefore, rejected.
For all the foregoing reasons, this Authority holds that the cancellation of allotment of Unit No. OMCO501 in Tower C of project „One Midtown‟ by the Respondents vide Cancellation Letter dated 05.08.2023 was legal, justified and in accordance with Clause 9.3 of the Agreement read with Section 11(5) of the Act. The request of the Complainants for setting aside the cancellation of allotment is accordingly dismissed.
Thus, in view of the aforesaid, the Respondents can forfeit an amount of Rs. 57,58,067.77 (Rupees Fifty Seven Lakh Fifty Eight Thousand Sixty Seven and Seventy Seven Paisa Only) which is shown as booking amount in the Agreement for Sale.
Issue No. 2: Whether the deduction of delayed payment interest is legally justified, and for what period such interest is permissible.
The Respondents have charged and deducted interest on the delayed payments calculated from the respective due dates of the defaulted instalments up to the date of actual cancellation on 05.08.2023. The Complainants have challenged this deduction as excessive and legally unjustified, contending that charging interest for the entire period up to cancellation is disproportionate, particularly given that a part payment of Rs. 50,00,000/- was made by them in January 2023.
The contractual position on interest is clear. Clause 9.3(i) of the Agreement provides that in case of default in payment of any instalment by the Allottee, the Allottee shall be liable to pay interest on the unpaid amount from the due date of such instalment at the rate prescribed under the Rules. This provision entitles the Respondents to charge interest on delayed payments from the respective due dates of the defaulted instalments.
However, the question that arises is: for what period can such interest be charged? The Respondents have charged interest from the due dates of the defaulted instalments right up to 05.08.2023 (the date of cancellation). The issue, therefore, is whether the Respondents can charge interest for the entire period from the due dates until the actual date of cancellation, particularly when the Respondents themselves had the contractual right to cancel much earlier but voluntarily deferred the exercise of that right for a prolonged period.
To address this issue, it is necessary to examine the contractual framework for cancellation. Clause 9.3(ii) of the Agreement provides that in case of default continuing for a period beyond two consecutive months after notice from the Promoter, the Promoter may cancel the allotment. The proviso to Clause 9.3(ii) mandates that the Promoter shall intimate the Allottee about such termination at least 30 days prior to such termination. In the present case, the Final Demand Notice was issued on 23.12.2022. Following the contractual requirement of 30 days‟ prior notice, the Respondents could legitimately cancelled the allotment with effect from 23.01.2023. However, the Respondents chose to defer the cancellation for a further period of over 6 months, finally cancelling the allotment on 05.08.2023.
From the perspective of fairness and equity, it would be unjust to permit the Respondents to charge interest on the delayed payments for the entire period including the 6-month period during which the Respondents, having accrued the contractual right to cancel, voluntarily abstained from exercising that right. During this extended period, the Respondents were in possession of the Complainants‟ monies (the part payment of Rs. 50,00,000/- having been accepted) and was simultaneously retaining full rights over the Unit. To permit the Respondents to charge interest for this extended period of voluntary forbearance would amount to permitting the Respondents to benefit from their own decision not to exercise its accrued right, at the expense of the Complainants. This would be contrary to the principle against unjust enrichment and the overarching remedial objectives of the Act, which seek to maintain a fair equilibrium between the rights and obligations of promoters and allottees.
This Authority, in the Kartik Goyal order dated 26.06.2025, had addressed an identical issue in the same project and had held that the calculation of interest payable by the Complainants must cease on the expiry of 30 days from the Final Demand Notice in that case (i.e., on 19.03.2023), being the date on which cancellation could have legitimately occurred. This Authority has held that allowing the Respondents to claim interest for the entire period up to actual cancellation would disproportionately benefit the Respondents for a period during which it voluntarily chose not to exercise its contractual right, and would be contrary to the principle of equity underlying the Act.
Significantly, the Hon‟ble Tribunal in Appeal No. 191/REAT/2025 filed by the allottees (Kartik Goyal & Tarun Goyal) against the order of the Authority has re-affirmed this aspect of the Authority‟s finding. The Hon‟ble Tribunal, while modifying the Kartik Goyal order on the issue of the quantum of the Booking Amount, did not disturb the finding on interest to be calculated on delayed payment of instalment and described it as a reasoned order that does not call for any interference. This finding has thus been affirmed by the Hon‟ble Tribunal and represents settled law on this point.
Applying the same principle in the present matter, this Authority holds as follows: In the present case, the Final Demand Notice was issued on 23.12.2022. Adding the contractual period of 30 days‟ prior notice before cancellation, the date by which the Respondents could have legitimately cancelled the allotment was 23.01.2023. The Respondents are, therefore, entitled to charge and deduct interest on delayed payments only up to 23.01.2023. Any delayed payment interest charged or deducted by the Respondents for any period after 23.01.2023 shall not be permissible and shall be refunded to the Complainants. The rate of interest shall be at MCLR+2% i.e. 10.75% as prescribed under the Act at the relevant point of time.
This Authority is also conscious of the fact that the Complainants had made a part payment of Rs. 50,00,000/- on 31.01.2023 (i.e., after 23.01.2023). This part payment, having been made after the date up to which interest is to be calculated, shall be taken into account in the final recalculation of the refund amount. The Respondents shall give due credit for this payment in computing the balance refundable to the Complainants.
In light of the foregoing findings on Issues 1, and 2, this Authority hereby orders as follows:
a. The cancellation of allotment of Unit No. OMCO501, Tower C, 5th Floor in the project „One Midtown‟ at 15 Shivaji Marg, Moti Nagar, New Delhi – 110015, in favour of the Complainants, effected by the Respondents vide Cancellation Letter dated 05.08.2023, on account of non-payment of due instalments by the Complainants as per the payment schedule under the Agreement dated 06.06.2022, is held to be legal and justified. The request of the Complainants seeking setting aside of the cancellation of allotment of the subject Unit is accordingly dismissed.
b. The Respondents shall be entitled to forfeit the „Booking Amount‟ which is Rs. 57,58,067.77 (Rupees Fifty-Seven Lakh Fifty-Eight Thousand Sixty-Seven and Seventy-Seven Paisa Only) as defined and quantified in the Developer Buyer‟s Agreement dated 06.06.2022 executed between the parties. No amount beyond the „Booking Amount‟ as so defined in the Agreement and the permissible interest on delayed payment of instalment as directed below shall be deducted.
c. The Respondents shall be entitled to charge and deduct on account of interest on delayed payments only up to 23.01.2023, being 30 days from the date of the Final Demand Notice dated 23.12.2022, at the rate of 10.75% as prescribed under the Act (being MCLR+2%). Any delayed payment interest charged, deducted or retained by the Respondents for any period after 23.01.2023 is not legally justified and shall be refunded to the Complainants.
d. The Respondents are directed to recalculate the total amount payable/refundable to the Complainants in strict accordance with clauses (b) and (c) above. In making such recalculation: (i) deductions shall be confined exclusively to the Booking Amount as contractually defined in the Agreement; and (ii) interest on delayed payments (of instalments) up to 23.01.2023 at the prescribed rate of 10.75% per annum. No deduction on account of brokerage, penalty or any other head not expressly authorised under the Agreement shall be included.
e. The Respondents shall refund the balance amount to the Complainants after making the recalculation as directed above and taking into account all amounts already refunded. The said refund shall be made within 45 (forty-five) days from the date of this order.
f. In the event of failure on the part of the Respondents to make the refund as directed in clause (e) above within the stipulated period of 45 days, the Respondents shall be liable to pay interest on the total amount due and refundable to the Complainants at the rate of 10.75% per annum from the date of this order until the date of actual payment.
The case is disposed of accordingly.
No order as to costs.
File be consigned to record room.