Madhumita Mitra & Anr vs Anand Jhawar & 2 Ors

V.K.Jain, J

The complainants/appellants entered into an agreement with a company namely 'Shivalik Deal Mark Pvt. Ltd.' where-under they agreed to purchase a residential flat to be constructed by the said builder, for a total consideration of Rs.55 lacs. An initial payment of Rs.1 lac was made to the complainants. The learned counsel for the complainants states that as per the Vth schedule to the agreement, the balance payment of Rs.55 lacs alongwith the deposit as per the VIth Schedule was to be made by 31.03.2016. The complainants sent a legal notice to Anand Jhawar, Director of Shivalik Deal Mark Pvt. Ltd. alleging therein that they had paid Rs.17 lacs to them in cash, for which no receipt had been issued to them. The noticee Mr. Anand Jhawar responded on 07.04.2016 denying the receipt of the said amount of Rs.17 lacs and also revoking the agreement dated 31.12.2015 on account of the complainants having not paid the balance amount of Rs.54 lacs on or before 31.03.2016.

Being aggrieved from the cancellation of the agreement, the complainants approached the concerned by way of a Consumer Complaint impleading the land owner as well as Mr. Anand Jhawar, Director of Shivalik Deal Mark Pvt. Ltd. and Kolkata Municipal Corporation as the OPs in the complaint.

The complaint was resisted by the developer Mr. Anand Jhawar who denied having received any cash payment from the complainants and justified the cancellation of the allotment.

The State Commission having dismissed the complaint, the complainants are before this Commission.

It would be seen from the legal notice sent by the complainants/ appellants as well as from the Consumer Complaint filed by them before the State Commission, they had pleaded cash payment of Rs. 17 Lacs to the developer. The said payment however, was not proved by the complainants since no receipt of the alleged cash payment was produced. No justification was given by the appellants for making cash payments of Rs.17 lacs to the developer, when the initial payment of Rs.1 lac was made by cheque and the balance amount was payable by 31.03.2016. Moreover, no details of the alleged cash payment of Rs.17 lacs were given in the Consumer Complaint. The complainants did not disclose as to when the said cash payment was made and in how many installments the said cash payment was made. The complainant also did not disclose the source from which the alleged cash payment of Rs.17 lacs was arranged by them for paying to the developer. The State Commission therefore, rightly concluded that the alleged cash payment did not stand proved.

As noted earlier, as per the agreement between the parties, the balance amount of Rs.54 lacs alongwith other deposits was payable by 31.03.2016. Since the complainants/appellants failed to make the said payment, the developer, in my opinion, was entitled to cancel the agreement. A reference in this regard may be made to clause 11.4 of the agreement which reads as under:

11.4 In case of default by the Vendor herein the purchaser/s herein shall be entitled to terminate this agreement and claim for the refund of amount paid under this agreement or entitled for the 18% interest for the delayed period subject to such delay is not affected by force majeure.

The learned counsel for the appellants has drawn my attention to clause 6.3 and clause (a) of the 9th schedule which reads as under:

6.3 In the event of the purchaser/s herein not making full payment and/or not complying with any of his obligations and/or not taking possession of the said Unit/Flat/Apartment/Car Parking Space within a period of 15 (fifteen) days from the date of issue of the notice under clause 6.1 hereinabove, the purchaser/s herein shall be deemed to have committed default entitling the Vendor herein to the rights on the purchaser's/s' default and such default would entitle the Owner/Vendor to charge interest on such defaulted amount @ 18% (eighteen per cent) per annum.

a) In case of default/delay in making payment of any amount payable under this memorandum (including in particular the Fifth, Sixth and Eight Schedule hereto) or otherwise by the Purchaser/s to the Owner herein, interest shall be payable by the Purchaser/s herein at the agreed rate of 24 percent per annum from the due date till the date of payment.

On a conjoint reading of the above referred two clauses and clauses 11.4 of the agreement, I am of the considered view that in case of default on the part of the complainants/appellants in making payment of the balance amount and other deposits by 31.03.2016, the developer could in its discretion either accept the said payment with interest or it could cancel the allotment on account of the non-payment. Considering the false averment alleging cash payment of Rs.17 lacs in the legal notice sent to the developer, he, in my view, was fully justified in terminating the agreement instead of condoning the default and accepting the payment with interest.

The learned counsel for the complainants/appellants states that the loan was sanctioned by the bank only in the end of April 2016. That however, does not justify deficiency on the part of the complainants/appellants since the contract did not provide for payment by 31.03.2016 only in case the loan was sent to the complainants/appellants by the bank. It was for the complainants/appellants to arrange the loan from any source wherever the loan could be available to them. They having defaulted in the payment, the developer, in my view, was entitled to cancel the agreement on account of the said non-payment.

The appeal is therefore, dismissed with no order as to costs.

The cheques of Rs.1 lac which the respondents developer had issued to the complainants, have since expired. The developer shall replace the said cheques within two weeks.