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Judgment
None is present on behalf of Opposite Parties. Even on the earlier dates, none was present on behalf of Opposite Parties. Though, they have filed Written Statement, but no evidence has been filed. Opposite Parties are proceeded ex parte and their right to file the evidence is hereby closed.
Final arguments heard on behalf of the Complainants and the written synopsis filed by the Complainants have also been perused.
Brief facts of the case are that in the year 2014, on the representation by the Opposite Parties that they were going to develop a property located at Azad Nagar Cooperative Housing Society (hereinafter referred to as Society) in Village Vile Parle (West) Mumbai, the Complainants approached the Opposite Parties. Vide registered Agreement to Sell dated 30.10.2014, Flat No.202 on the 2nd floor of the society was booked in their names for a sale consideration of Rs. 2,75,00,000/-. The Complainants paid a sum of Rs. 25,00,000/- vide cheque bearing no.000089 dated 22.07.2014 drawn on HDFC Bank as advance. The balance amount of Rs. 2,50,00,000/- was paid by the Complainants vide cheque no.820801 dated 17.09.2014 drawn on Punjab National Bank. Case of the Complainants is that although the Opposite Parties had promised to give the possession of the flat after constructing it, within two years, yet they have not even started the construction. It is submitted that the site was visited on 02.09.2016 and no construction activity was found at the site. A letter on the same day was written to the Opposite Parties and the photographs of the site were also taken. The letter was sent through post. Despite repeated requests and communications and visits, the Opposite Parties were unable to give any satisfactory explanation to such delay. It is further submitted that as per clause 16 of the agreement, in case of failure to give possession of the property within stipulated period, Opposite Parties were to refund the entire money along with interest @ 24% p.a. from the date of receipt. It is submitted that despite the fact that the complete consideration amount of Rs. 2,75,00,000/- has been taken by the Opposite Parties wayback in the year 2014, yet till now there is no offer of possession from the Opposite Parties. On these contentions, it is prayed that the Opposite Parties be directed to refund the entire money along with interest @ 24% p.a. and an amount of Rs. 10,00,000/- be awarded towards mental agony and Rs. 2,00,000/- as litigation costs.
Notice of the Complaint was served upon the Opposite Parties. They have filed their Written Statement. In the Written Statement, they have admitted that the Complainants had booked flat no. 202 on the 2nd floor of the society and an Agreement to Sell was executed between the parties which was duly registered. They have also admitted that they have not been able to complete the construction at the site and could not even raise any construction due to various reasons. Their contention was that due to the change in the government policies as well as financial and legal problems, they could not raise the construction.
Opposite Parties were given an opportunity to file their affidavit of evidence, but no evidence has been led by them.
We have heard arguments of learned Counsel for the Complainants and perused the written submissions filed by him.
Complainants by way of evidence have duly proved on record the Agreement to Sell dated 30.10.2014. Opposite Parties also in their Written Statement have not specifically denied this Agreement to Sell. Their contention is that they could not raise the construction due to changes in the government policies and the financial difficulties they were facing. However, they have failed to produce any evidence to prove their contentions. Therefore, it is clear that under the Agreement to Sell, Opposite Parties had undertaken to hand over the physical possession of the subject flat within two years in terms of Clause 16. Clause 16 reads as under:
The possession of the said Premises shall be delivered to the Allottees after the said Premises is ready for use and occupation and all the relevant permissions for the same are obtained by the Developers, provided al the amounts due and payable by the Allotees under this Agreement and the Stamp Duty and Registration Charges in respect of the said Premises are duly paid by the Developers. The Developers shall give possession of the said Premises to the Allotees on or before ---- October, 2016. The Developers shall not incur any liability whatsoever if they are unable to deliver possession of the said Flat by the aforesaid date if the construction work is delayed by reason of unavailability of building materials, electric connections, water supply, or due to strike, civil commotion or any act of God such as a earthquake, flood or any other natural calamities and act of enemy or any other cause beyond the control of the Developers or due to any order or notice of the government, any tribunal/Court which affects the construction work and in such event the Developers shall be entitled to reasonable extension of time for delivery of possession of the said Flat. If the Developers fail to give possession of the said Flat to the Allottees on the aforesaid date or the extended time, then, it shall be at the option of the Allottees to terminate this Agreement in which event the Developers shall within two weeks of receiving notice to that effect from the Allottees refund to the Allottees all the monies paid by the Allottees to the Developers herein together with interest at the rate of 24% per annum from the date of receipt of the respective amounts by the Developers till the date of repayment."
From this Clause, it is apparent that the Opposite Parties were to deliver the possession within two years. From the testimony of the Complainants, it is evident that the Opposite Parties have failed to hand over the physical possession of the property till date. Opposite Parties have also failed to show any cogent reason for such delay by leading any evidence.
It, therefore, stands proved that the Opposite Parties have been deficient in providing service to the Complainants. The Opposite Parties have committed breach of the Agreement to Sell. The contention raised by the Opposite Parties in their Written Statement in para (2) is that in terms of Clause 40 of the Agreement they are entitled to return the money to the Complainants only with interest @ 9% p.a. in accordance with form 5 of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963. Learned Counsel for the Complainants argues that although in terms of Clause 16 of the agreement, the Opposite Party had agreed to pay interest @ 24% p.a., but on instructions states that the Complainants agree for interest @ 9% p.a. in terms of Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963.
In view of these submissions, we direct the Opposite Parties to refund the entire deposited amount of Rs. 2,75,00,000/- along with simple interest @ 9% p.a. from the date of deposit. We also award Rs. 5,00,000/- as compensation towards mental and physical agony and Rs. 50,000/- as costs of litigation.
With these directions, the Complaint stands disposed of.