Mohana R. Bhardwaj vs M/s Suadela Constructions Pvt. Ltd

Heard Mr. D.P. Chaturvedi, Advocate, for the complainant and Mr. Shekhar G. Devasa, Advocate, for the opposite party.

Smt. Mohana R. Bharadwaj has filed above complaint for directing the opposite party to (i) refund Rs.15532283/- with interest @18% per annum from the date of respective deposit till the date of refund; (ii) pay Rs.11837666/- with interests @24% per annum, from September, 2018 till the date of realization; (iii) pay Rs.100000/-, as the costs of litigation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that M/s. Suadela Constructions Private Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project and selling its unit to the prospective buyers. The opposite party launched a group housing project, in the name of “House of Hiranandani- Lake Verandahs” at Bannarghatta, Bengaluru, in the year 2015 and made wide publicity of its facilities and amenities. The complainant made inquiries regarding details of 3BHK flat. The opposite party supplied sale quotation letter dated 08.01.2016, quoting total sale price of Rs.19098887/- for a 3BHK flat, payable in 5 equal instalments. Believing upon the representations of the opposite party, the complainant booked a 3BHK Apartment No. B-2404, saleable area 1826 sq.ft. on 08.01.2016 and deposited booking amount. The opposite party allotted above flat and executed Memorandum of Understanding 18.01.2016. Annexure-A of the Memorandum of Understanding provides payment plan, under which 4 equal instalments had to be paid till 07.05.2016. The opposite party assured that possession would be handed over within one year. As per demand, the complainant deposited total Rs.15532283/- till 30.12.2017 and 20% amount i.e last instalment was payable on offer of possession. The opposite party, vide letter dated 28.02.2018 (Pre-intimation Final Notice), demanded Rs.5540272/ towards principal and Rs.383543.39 as interest as on 28.02.2018, alleging that instalments were due. The opposite party neither executed an agreement for sale and a construction agreement as provided under Memorandum of Understanding nor completed the construction on due date. In spite payment of instalment as per payment plan, the complainant was shown as defaulter. Due to delay in handing over possession, the complainant has suffered financial loss. The complainant gave legal notices dated 01.07.2018, 03.07.2018 and 05.07.2018, to the opposite party, requesting to refund her money with interest. In spite of service of notice, the opposite party did not respond. Then this complaint was filed on 17.08.2018.

The opposite party filed its written reply on 15.03.2019, in which, material facts relating to the booking of the flat, allotment of the flat, execution of Memorandum of Understanding and payment made by the complainant, have not been denied. The opposite party stated that vide letter dated 16.04.2016 and emails dated 10.07.2017 and 22.08.2017, they called upon the complainant to deposit the expenses of stamp duty and registration charges for execution of the agreement for sale and construction agreement but she did not turn up. The construction was completed and Bruhat Bangalore Mahanagar Palike issued “occupation certificate” on 13.03.2017. The opposite party, vide emails dated 17.05.2017 and 20.07.2017, intimated the complainant for taking possession after deposit of balance amount and completing documentation. The opposite party gave emails dated 22.08.2017 and 05.03.2018, for deposit of balance amount and take possession. This complaint has been filed concealing the material facts except letter dated 28.02.2018. The opposite party replied legal notice on 11.09.2018. Admittedly the complainant booked two more flats in the project of the opposite party. From which it is proved that the complainant booked the flat for speculative purpose and not for personal use. The complainant is not a consumer and the complaint is not maintainable. There is no deficiency in service on their part.

The complainant filed Affidavit of Evidence, Affidavit of Admission/Denial of the documents of Mohana R. Bharadwaj and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of the documents of Chethan B.S. and documentary evidence. Both the parties have filed written submission.

We have considered the arguments of the counsel for parties and examined the record. Due date of possession was December, 2016. The opposite party obtained “occupation certificate” on 13.03.2017 and offered possession on 17.05.2017 as such there was no unreasonable delay in offer of possession. The opposite party gave reminders dated 20.07.2017, 22.08.2017, 28.02.2018 and 05.03.2018, for taking possession after deposit of balance amount but the complainant did not turn up. There is no deficiency in service on the part of the opposite party. Supreme Court, in Ireo Grace Realteck Private Limited Vs. Abhishek Khanna, (2021) 3 SCC 241, held that once possession was offered after obtaining “occupation certificate” then the home buyer is obligated to take possession after deposit of balance amount.

The complainant is claiming refund of money as such she is committing breach of contract and her earnest money is liable to be forfeited. As per clause-6 of Memorandum of Understanding, 20% of the sale price is liquidated damage. However, Supreme Court, in Maula Bux Vs. Union of India, (1970) 1 SCR 928 and Sirdar K.B. Ram Chandra Raj Urs Vs. Sarah C. Urs, (2015) 4 SCC 136, held that forfeiture of the amount in case of breach of contract must be reasonable and if forfeiture is in the nature of penalty, then provisions of Section-74 of Contract Act, 1872 are attracted and the party so forfeiting must prove actual damage. After cancellation of allotment, the flat remains with the developer as such there is hardly any actual damage. This Commission in CC/438/2019 Ramesh Malhotra Vs.EMAAR MGF Land Ltd. (decided on 29.06.2020), CC/3328/2017 Mrs. Prerana Banerjee Vs. Puri Construction Ltd. (decided on 07.02.2022) and CC/730/2017 Mr. Saurav Sanyal Vs. M/s. IREO Grace Pvt. Ltd. (decided on 13.04.2022) held that 10% of basic sale price is reasonable amount to be forfeited as “earnest money”.

ORDER

In view of the aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of refund, after forfeiting 10% of the sale price as earnest money, within a period of two months from the date of this judgment.