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Judgment
V.K. Jain, J
The complainants/respondents who are husband and wife, booked a 2-BHK flat with the appellant paying an amount of Rs.5 lacs for the purpose. Their case is that the project in which booking was made by them, did not take its possession and therefore, the appellant allotted two 1-BHK flats to them in the project namely 'CHD Resortico' in Sector-34 of Sohna. Both of them were allotted 1-BHK flat each at the price of Rs.3900 per sq. ft. in addition to other charges. The following was the payment plan annexed to the allotment letters issued to the complainants:
S. No.
MILESTONE DESCRIPTION
BSP
PLC
EDC/IDC
TOTAL
1
On Allotment
553,020.00
553,020.00
2
Within 60 days of booking
276,510.00
276,510.00
3
On Comm. of Excavation
276,510.00
276,510.00
4
On Comm. of Lower Podium Roof Slab
207,382.50
57,606.25
85,328.15
350,316.90
5
On Comm. of 1stFloor Roof Slab
207,382.50
57,606.25
85,328.15
350,316.90
6
On Comm. of 4thFloor Roof Slab
207,382.50
57,606.25
85,328.15
350,316.90
7
On Comm. of 8thFloor Roof Slab
207,382.50
57,606.25
85,328.15
350,316.90
8
On Comm. of Top Floor Roof Slab
207,382.50
207,382.50
9
On Comm. of Brick Work of Tower
138,255.00
138,255.00
10
On Comm. of External Plaster of Tower
138,255.00
138,255.00
11
On Comm. of Internal Finishing
138,255.00
138,255.00
12
Offer for Internal Fit-outs
138,255.00
138,255.00
13
At the time of Offer of Possession
69,127.50
69,127.50
2,765,100.00
230,425.00
341,312.60
3,336,837.60
The allotment made to the complainants was cancelled by the appellant on account of non-payment of the installments. Being aggrieved, they filed two separate Consumer Complaints before the concerned State Commission which treated those individual complaints as a common complaint and asked them to file an amended complaint in respect of both the flats. Accordingly, an amended Consumer Complaint was filed by them in respect of both the 1-BHK flats. The order so passed by the State Commission having not been challenged by either party, became final. The complainants, in the amended complaint, filed before the District Forum, sought refund of the amount paid by them to the appellant along with compensation etc.
The State Commission having allowed the Consumer Complaint and having directed the appellant to refund the entire amount received from the complainants along with 18% interest and Rs.2 lacs as compensation, the appellant is before this Commission.
It is evident from a bare perusal of the payment plan agreed between the parties that for each flat, the complainants were to pay first installment of Rs.5,53,020/- which was payable on allotment. The second installment was of Rs.2,76,510/- each and was payable within 60 days of the booking. The first two installments had absolutely no linkage with the construction of the flats, the first being payable on allotment itself and the second being payable within 60 days thereafter. The amount of the first two installments comes to more than Rs.8 lacs for each flat. Admittedly, the complainants did not pay that much amount to the petitioner the entire payment being Rs.11,40,220/-. They thus, defaulted in making payment of the second installment which was payable within 60 days of the booking.
The case of the complainants is that there was no construction work on the site and that was the reason they did not pay the installments demanded by the appellant. As noted earlier, the second installment was payable within 60 days of booking and had no linkage with the construction. It was only the third installment and subsequent installments which were linked with construction. Therefore, as far as the first two installments were concerned, the complainants were under an obligation to pay the same, the first being payable on allotment and the second being payable within 60 days of the allotment/booking. Since the second installment was not paid, the appellant, in my opinion, was justified in cancelling the allotment.
The learned counsel for the appellant states on instructions that they having already complied with the interim order of this Commission dated 13.11.2018, requiring them to refund the entire amount of Rs.11,40,220/-, they have no objection to the complainants retaining the said amount . If the appellant is permitted to forfeit 10% of the sale price of the flat as earnest money, the balance amount payable to the complainants even with reasonable interest, will be much less than the amount already paid to them in compliance of the interim order dated 13.11.2018. The appeal is therefore, disposed of with the following directions:
(i) The complainants are permitted to retain the principal amount of Rs.11,40,220/- which the appellant has already paid to them.
(ii) The complaint filed and the appeal stand disposed of accordingly.