JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL) The complainant booked a residential apartment with the OP in a project namely Cape Town which the OP is developing in Sector-74 of Noida and flat no.0104 in CCI Tower in the aforesaid project was allotted to the complainant, at an agreed sale price of Rs.1,11,40,120.62/-. An allotment letter was issued to the complainant in respect of the aforesaid flat and as per clause
20 of the terms and conditions of allotment, the possession was to be delivered by October 2013. The OP was also entitled to a grace period of six months in order to cover any unforeseen circumstances. The grievance of the complainant is that despite he already having paid Rs.96,38,647/- to the OP, the possession of the flat was not offered to him. The complainant is therefore, before this Commission seeking refund of the aforesaid amount alongwith interest on that amount.
2. The complaint has been resisted by the OP which has admitted the allotment made to the complainant as well as the terms and conditions of allotment. It has been stated in para 7 of the written version that the project could not be completed due to unforeseen circumstances beyond the control of the OP which has suffered huge monetary loss on account of increase in cost of construction and cost of labour etc. It is also stated in the written version filed by the OP that the parties have already agreed to a mechanism for payment of compensation for the delay in delivery of possession.
3. As noted earlier, the possession of the flat allotted to the complainant was required to be delivered as far as possible by October 2013. It was only to cover the unforeseen circumstances that the OP was entitled to a grace period of six months. Even adding a grace period of six months, the OP was under a contractual obligation to deliver possession of the flat to the complainant by April 2014. Admittedly, that was not done.
4. The learned counsel for the OP states that they have already obtained part completion certificate and are in a position to deliver possession to the complainant within six months from today after completing the construction of the flat in all respects. The complainant however, is not agreeable to accept possession of the flat after six months and insists upon refund of the entire amount paid by him alongwith compensation. This is also his plea that the OP as now compromised even on the quality of the construction. The allegation however, is refuted by the learned counsel for the OP.
5. The learned counsel for the OP also submits that the complainant defaulted in making timely payment of the installments which were linked to the pace of construction. Attention of the Commission is drawn to para 5.5 of the written version filed by the OP where a reference is made to the demand cum cancellation notice dated 14.05.2014 whereby a sum of Rs.11,44,265/- was demanded from the complainant. However, no details of the alleged delay in payment of installments has been given in the reply. A perusal of the payment plan which is referred in the complaint itself, would show that the first installment was payable at the time of booking and second installment within sixty days thereafter. Five installments were linked with the pace of construction and the last installment was payable on offer of possession. Admittedly, the complainant has paid more than Rs.96 lacs out of the agreed consideration of Rs.1,11,40,121/- which would mean that if there has been a default, it would be in payment of the second last installment which was payable on casting of 12 floor roof slab on 16.11.2012. There is noth evidence or even allegation of the 12 floor roof slab having been cast by 16.11.2012. If the 12 th floor roof slab was not cast on or before 16.11.2012, the amount of Rs.11,07,718/- did notth become payable on that date. The learned counsel appearing for the OP states that in fact there was delay even in payment of other installments. If that was so, nothing prevented the OP from adjusting the interest for the delayed period out of the amount paid to it by the complainant. What is more important in this regard is that in the event of default on the part of the complainant in making timely payment of the installments, the OP was entitled to cancel the allotment itself and forfeit part of the money paid by the complainant as per the terms of the allotment. That having not been done, the OP cannot, at this stage, deny refund of the amount paid to it by the complainant on account of the aforesaid alleged delay. A perusal of the letter dated 14.05.2014 which the OP, issued to the complainant after the deadline stipulated in the allotment letter for delivery of possession had expired shows that it was conveyed to the complainant that in case of default on his part in paying interest on account of delayed payment, the allotment would be cancelled. Admittedly, no such cancelation was actually made by the OP. Having not cancelled the allotment on account of the delay in making payment, the OP cannot now deny refund of the amount paid to it by the complainant on account of the aforesaid alleged delay. For the reasons stated hereinabove, I hold that the complainant is entitled to refund of the amount which he had paid to the OP.
6. The learned counsel for the OP states that the complainant cannot claim more than the agreed compensation of Rs.5/- per sq. feet per month, which is the quantum of compensation stipulated in the terms and condition of allotment. It has earlier been held by this Commission that the aforesaid clause would apply only to a case where the allottee is seeking possession of the flat and not to a case where he is seeking refund of the amount paid by him. It has also been held by this Commission that such a clause in the allotment letter or Buyers Agreements amounts to an unfair trade practice and despite such a term in the agreement, the flat buyer is entitled to appropriate compensation.
7. The next question which arises for consideration is as to what should be the quantum of compensation to be awarded to the complainant. Though the complainant has claimed interest @ 24% per annum, his counsel states, on instructions from him, that in order to avoid any further litigation in the matter, the complainant is ready to accept compensation in the form of simple interest @ 10% per annum on the amount paid by him, from the date of each payment till the date on which the refund alongwith compensation in the form of interest is paid. He also states that the complainant had raised a loan of more than Rs.79 lacs, for making payment to the OP and he has been paying interest at a higher rate on the loan taken by him.
8. For the reasons stated hereinabove, the complaint is disposed of with the following directions:
1) The OP shall refund the entire principal amount of Rs.96,38,647/- to the complainant alongwith compensation in the form of simple interest @ 10% per annum from the date of each payment till the date on which the aforesaid payment alongwith interest is made.
2) Since the complainant has taken a loan on the basis of the mortgage permitted by the OP, the OP shall first discharge the liability of the bank/NBFC to which the loan amount is payable and after discharging the said liability, the balance amount if any shall be paid to the complainant.
3) The complainant shall inform the OP within two weeks as to how much is the amount payable to the bank/NBFC to whom the loan amount is payable.
4) The payment to the bank/NBFC will be made within three months of receiving the aforesaid intimation and the balance amount if any, shall simultaneously be paid to the complainant.
5) In the facts and circumstances of the case, there shall be no order as to costs. ......................J
V.K. JAIN PRESIDING MEMBER