Rna Builders (Ng) & Anr vs Dinesh J. Singh

V.K.Jain, J

The complainant/respondent booked a residential flat with the appellant in a building namely N.G. Sterling, which the appellant was proposing to construct. An agreement between the parties was executed and registered on 25.09.2009 incorporating their respective obligations in respect of the said transaction. The total sale consideration for the flat was agreed at Rs. 18,20,000/- and the same was payable in the following manner:

"The said price of Rs. 18,20,000/- (rupees eighteen lacs twenty thousand only) shall be paid by the Purchaser to the Promoters in the following manner:

a) Rs. 51,000/- (rupees fifty one thousand only) on or before the execution of these premises.

b) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the ___ day of ___ on or before completion of the Plinth.

c) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the ___ day of ___ on or before completion of the 1st slab.

d) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the ___ day of ___ on or before completion of the 2nd slab.

e) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the ___ day of ___ on or before completion of the 3rd slab.

f) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the ___ day of ___ on or before completion of the 4th slab.

g) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the ___ day of ___ on or before completion of the 5th slab.

h) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the ___ day of ___ on or before completion of the 6th slab.

i) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the ___ day of ___ on or before completion of the 7th slab.

j) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the ___ day of ___ on or before completion of the 8th slab.

Balance amount Rs. 2,21,997/- (two lacs twenty one thousand nine hundred ninety seven only) will be charged with interest @ 21% from 24.09.2009 to the day of receipt.

k) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the ___ day of ___ on or before completion of the 9th slab.

l) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the completion of the construction of the Plumbing.

m) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the completion of the construction of the Electrical.

n) Rs.1,15,150/- (rupees one lac fifteen thousand one hundred fifty only) to be paid on or before the completion of the flooring.

o) Rs. 50,053/- (rupees fifty thousand fifty three only) being the balance amount.

It would thus be seen that in addition to initial amount of Rs. 2,21,997/-, the complainant was required to pay Rs. 51,000/- on or before the execution of the agreement followed by payment of Rs. 1,15,150/- on completion of the plinth level. Admittedly the complainant paid a sum of Rs. 2,72,997/-, comprising the initial amount of Rs. 2,21,997/- and the amount of Rs. 51,000/-, which was payable on execution of the agreement.

Vide letter dated 21.04.2010, the appellant demanded a sum of Rs. 1,15,150/- from the complainant within 15 days, while informing him that the plinth work had been completed. Thus, the payment in terms of the said demand letter could be made on or before 06.05.2010. Though the case of the complainant is that he had offered the said payment to the appellants on 06.05.2010 and the same was refused by the appellant, there is no documentary proof of such tender. However, vide letter dated 11.05.2010 sent by registered post, the complainant enclosed a cheque of Rs. 1,15,150/- pursuant to the demand letter dated 21.04.2010. He also expressed his willingness to pay interest on the late payment. However, the aforesaid cheque was not encashed by the appellants who vide letter dated 05.05.2010 had already cancelled the allotment. On receipt of the letter dated 11.05.2010 from the complainant, the appellant vide letter dated 17.05.2010 informed him that since he had not made full payment, the flat stood cancelled.

Being aggrieved from the cancellation of the allotment, the complainant approached the concerned State Commission by way of a consumer complaint.

The complaint was resisted by the appellants primarily on the ground that the complainant had committed default in payment of the instalment which was payable on completion of the plinth level.

The State Commission, vide order dated 06.03.2013, directed as under:-

The Complainant is hereby directed to deposit with the Opponents, balance consideration amount of `15,47,003/- within a period of two months from the date of this order and if, the Opponents refuse to accept this amount then in a such case, within a period of eight days thereafter, the Complainant shall deposit said amount with the State Commission.

Opponents are jointly and severally directed to hand-over to the Complainant, vacant and peaceful possession of flat bearing Nos.603, admeasuring 558 sq. ft. in carpet area, situated on the sixth floor of 'A' Wing of the building known as 'NG Sterling', more particularly described in the registered agreement dated 25th September, 2009 within a period of fifteen days from deposit of the amount by the Complainant, as ordered here-in-above.

The Opponents are jointly and severally directed to pay to the Complainant an amount of `2,00,000/- by way of compensation towards mental agony and harassment.

The Opponents are jointly and severally directed to pay costs of `25,000/- to the Complainant.

The Opponents shall pay the amounts, as ordered here-in-above, to the Complainant within a period of forty-five days and failing which the Complainant shall be entitled to recover these amounts from the Opponents together with interest thereon @ 12% p.a., as from the date of expiry of stipulated period of forty-five days till realization of the amounts.

Rest of the claims of the Complainant stands rejected."

Being aggrieved from the order passed by the State Commission, the appellant is before this Commission by way of this appeal.

The question involved in this appeal is as to whether there was default on the part of the complainant in making timely payment of the instalments and if so, whether the appellants were justified in cancelling the allotment on account of the said default. It can hardly be disputed that on receipt of the letter dated 21.04.2010, the complainant ought to have made payment of Rs. 1,15,150/- on or before 06.05.2010. Since there is no documentary proof of the said payment having been tendered to the appellants on or before 06.05.2010, we hold that the complainant had defaulted in payment of the instalments payable on completion of the plinth level.

Clause 9 of the agreement reads as under:-

"Without prejudice to the aforesaid, on the Purchasers committing any default, in payment of any instalment/s, on their due dates, to the Promoters, under this Agreement (including his/her proportionate share of taxes levied by the concerned local Authorities and other outgoings) or on the Purchasers committing breach of any of the terms and conditions herein contained on giving fourteen days prior notice in writing, the Promoters shall be entitled to terminate this agreement provided during the said period the Purchasers fail to ......the breach committed by them. In such an event, the Purchaser will not have rights of any nature whatsoever, either in the said unit and/or under this agreement, and/or against the Promoters on otherwise. Provided further that in such an event the Promoters shall refund to the Purchasers, all the amounts received by them from the Purchasers after deducting the.........the earnest paid herein upon the execution hereof, including further 25% of the subsequent instalment/s paid by the Purchasers to be treated as a liquidated damages, which the Promoters are entitled to receive on account of the failure of the Purchasers to comply with terms of this agreement. Provided further that if the Purchasers have only paid the earnest and/or deposit upon the execution hereof, than in that event, the said entire earnest and/or deposit shall stand forfeited in favour of the Promoters as a liquidated damages.

The said liquidated damages calculated in the manner mentioned herein is agreed upon and decided between the parties hereto in advance. The Purchasers shall accept the said refund if any, without raising disputes of any nature whatsoever and on failure and/or refusal to accept the said refund, If any, the same shall be deposited in a Nationalised Bank, in names of the Promoters, which shall be a good, proper and valid discharge for the same to the Promoters, which the Purchasers hereby agree and confirm. Provided further that the Promoters shall refund if any, the said amount/s mentioned herein, out of Sale proceeds, which may be available only out of new sell and transfer of the said Unit, to any other perspective Purchasers thereof. However on the expiry period of fourteen days, from the Issue of the notice mentioned herein, the Promoters shall have an absolute tight to sell and transfer the said Unit to any third party, without any reference and/ or recourse to the Purchasers which the Purchasers hereby agree and confirm."

Thus, the appellants were required to give 14 days prior notice before terminating the agreement in case of any breach of the terms and conditions of the agreement on the part of the complainant. If the complainant had defaulted in the payment of the instalment, which was payable on completion of the plinth level, the appellants were under a contractual obligation to give 14 days' notice to him requiring him to make payment of said instalment within 14 days of the said notice. No such notice was even given to the complainant. Therefore, cancellation of the allotment was not in consonance with the terms and conditions of the agreement executed between the parties. Hence, the cancellation of the allotment cannot be upheld.

However, since the complainant utilised the balance amount which he would have paid to the appellants had the allotment not been cancelled, he must have, in all fairness, pay adequate interest to the appellants on the balance amount. The interest should be paid from the date on which each instalment became payable till the date on which the balance sale consideration in terms of the order of the State Commission is actually paid. In the facts and circumstances of the case, the complainant is directed to pay interest @ 10% per annum on the amount of each instalment, w.e.f. the date on which the instalment fell due till the date on which the payment in terms of the order of the State Commission is made. The appellants shall convey the amount of interest payable in terms of this order to the complainant within four weeks from today alongwith certificates from his Architect, certifying the dates on which the construction had reached the level specified in the agreement between the parties. On receipt of such intimation alongwith certificate from the Architect, the complainant shall pay the balance amount with interest in terms of this order within four weeks of receiving the said intimation. The possession of the flat in question in terms of the order of the State Commission shall be delivered to the complainant within six weeks thereafter.

In the facts and circumstances of the case, no compensation or cost of litigation would be payable to the complainant.

The appeal stands disposed of.