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Judgment
V.K. Jain, J
The complainant/appellant entered into an agreement with the respondents for purchase of a residential flat which the respondents were to construct in Kolkata. They executed an agreement dated 29.07.2008 incorporating their respective obligations in respect of the said transaction. As per clause 1.21 of the agreement, the respondents were to deliver possession of the flat and car parking space to the complainant/appellant within 24 months from the date of execution of the agreement. This would mean that the possession of the flat was to be delivered by 29.07.2010.
The payment plan incorporated in the agreement reads as under:
Payment Schedule
On or before execution of this agreement ..Rs.10,00,000/-
< >< >4. .. Rs.4,00,000/-
Upon delivery of possession .. Rs.1,50,000/-
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Total = Rs.24,50,000/-
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The complainant paid a total sum of Rs.13 lacs to the respondents but did not make any payment thereafter, despite the demand alleged to have been raised by the respondents. The respondents claim to have sent a letter dated 02.01.2010 to the complainant demanding a total sum of Rs.3 lacs from him. They have also placed on record a letter dated 15.11.2010 purporting to have been written to them by the complainant. But, the said letter dated 15.11.2010 contains no reference to the letter dated 02.01.2010. This becomes important in view of the case of the appellant /complainant that the letter dated 02.01.2010 was never sent to him. The case of the respondents is that the said letter was sent under Certificate of Posting. There is no explanation as to why the letter was not sent by Registered Post or was not delivered by hand.
The respondents have also placed on record a letter dated 05.12.2010 purporting to have been sent to the complainant in response to his letter dated 15.11.2010. This letter also is stated to have been sent under Certificate of Posting and its receipt is denied by the complainant. There is no explanation from the respondents as to why this letter was not sent by Registered Post.
5 The respondents have placed on record a letter dated 28.12.2010 from the complainant. Even this letter has no reference either to the letter dated 02.01.2010 or to the letter dated 05.12.2010 alleged to have been sent by the respondents to the complainant. This is yet another indication that the letters dated 02.01.2010 and 05.12.2010 were not received by the complainant. Had he received the said letters, he would, in the normal course of human conduct, have referred to those letters in his letter dated 28.12.2010.
The case of the respondents is that in terms of clause 7.2 of the agreement, they had cancelled the agreement on account of non-payment of the amount demanded rom the complainant. A perusal of the payment plan contained in the agreement, as reproduced hereinabove, would show that no particular time for payment of the 2nd, 3rd, 4th and 5th installments was stipulated in the said agreement. In the absence of such a stipulation, it cannot be ascertained by which date, the aforesaid installments were to be paid to the respondents, though it cannot be disputed that those installments were to be paid before offer of possession. Since the possession of the flat was not offered to the complainant, it cannot be said that he had defaulted in making payment to the respondents.
For the reasons stated hereinabove, I am satisfied that the alleged cancellation of the allotment was not justified and therefore, the petitioner/complainant is entitled to possession of the allotted flat with appropriate compensation.
The order passed by the State Commission is therefore, modified in the following terms:
(i) The respondents shall deliver vacant and peaceful possession of the allotted flat complete in all respects, alongwith car parking to the complainant within eight weeks from today.
(ii) The respondents shall pay compensation in the form of simple interest @ 8% per annum to the complainant on the amount which he had paid to the respondents w.e.f. 30.09.2010 till the date on which the possession is offered in terms of this order.
(iii) The balance amount payable by the complainant to the respondents shall be adjusted out of the compensation payable to the complainant in terms of this order and if any amount still remains payable by him to the respondents, that shall be paid by the complainant within four weeks from today.
The appeal stands disposed of.