JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)
The complainant booked a residential apartment with the OP in a project namely 'The Hutsong', which the OP was to develop in Gurgaon. The complainant had submitted an application dated 10.11.2012 enclosing therewith a cheque of Rs.7 lacs and it was pursuant to the said application that the provisional allotment was made to the complainant on 07.01.2013. The parties then executed an agreement dated 20.04.2013, incorporating their respective obligations in respect of the said transaction. The following was the payment plan agreed between the parties:
S.
No. Particulars Charge Rupees S Tax Installment
Total
1 On booking/application BSP 679,018.00 20,982.00 7,00,000.00 Within 30 days of
2 BSP 606,882.00 18,752.00 625,634.00
booking/application
1
Within 60 days of
3 BSP 964,425.00 29,801.00 994,226.00
booking/application
On start of excavation or
within 90 days of
4 BSP 1,285,900.00 39,735.00 1,521,466.00
booking/application
whichever is later
EDC 1,75,350.00 5,419.00
IDC 14,613.00 451.00
On completion of 1st
5 BSP 964,425.00 29,801.00 1,190,059.00
basement roof slab
EDC 175,350.00 5,419.00
IDC 14,613.00 451.00
On completion of 1st
6 BSP 964,425.00 29,801.00 1,190,059.00
floor roof slab
EDC 175,350.00 5,419.00
IDC 14,613.00 451.00
On completion of 3rd
7 BSP 964,425.00 29,801.00 1,190,057.00
floor roof slab
EDC 175,350.00 5,419.00
IDC 14,611.00 451.00
On completion of 5th
8 BSP 964,425.00 29,801.00 1,355,041.00
floor roof slab
2
CPUC 350,000.00 10,815.00
On completion of 7th
9 BSP 964,425.00 28,801.00 1,355,041.00
floor roof slab
CPUC 350,000.00 10,815.00
On completion of 9th
BSP 964,425.00 29,801.00 994,226.00
10 floor roof slab
On completion of top
11 BSP 964,425.00 29,801.00 994,226.00
floor roof slab
| 13 |
On completion of 80% of flooring, door and windows up to 7th floor |
SP |
42,950.00 |
9,868.00 |
662,818.00 |
| 14 |
On completion of 80% of flooring, door and windows up to top floor |
SP |
42,950.00 |
9,868.00 |
662,818.00 |
15 On offer of possession BSP 642,950.00 19,868.00 1,101,255.00
CBFC 150,000.00 4,635.00
CBSD 50,000.00
IFMSD 233,800.00
TOTAL 14,752,650.00 4,47,094.00 15,199,744.00
2. It would thus be seen that the total cost of the apartment was agreed at Rs.1,51,99,744/-, out of which, the first three installments were payable before the start of excavation. The sixth
3
installment was payable on completion of the first floor roof slab. The complainant made a total payment of Rs.40,19,586/- to the OP and failed to pay the balance amount despite repeated demands. The allotment therefore, came to be cancelled vide letter dated 10.06.2014. On the request made by the complainant, the allotment was later restored but since he did not pay despite restoration of the allotment, it was again cancelled vide letter dated 27.04.2017, forefeiting the entire amount paid by the complainant to the OP, on the ground that the amount forefeited in terms of the agreement came to Rs.55,80,139/-. Being aggrieved from the cancellation of forefeiture, the complainant is before this Commission with the following prayers:
1. That this Hon'ble Commission be pleased to direct the opposite parties to refund the sum of Rs.40,19,586/- alongwith 18% interest from the date of earnest money which was deposited to the account of the opposite parties/respondents i.e. on 17.10.2012;
2. That the Hon'ble Commission be pleased to set aside the cancellation of allotment letter dated 27.04.2017 (Annexure C-6);
3. Direct the opposite parties to pay an amount of Rs.2,00,000/- to the complainant towards mental and physical harassment;
4. Direct the opposite parties to pay interest @ 18% per annum from the date of payments made by the complainant; and
5. Direct the opposite parties to pay a compensation of Rs.1,00,000/- (Rupees One Lacs only) towards legal expenses incurred by the complainant herein;
3. The complaint has been resisted by the OP which has taken a preliminary objection that this Commission does not have the pecuniary jurisdiction to entertain the Consumer Complaint. On merits, it has been interalia stated in the written version that an amount of Rs.1,23,57,439/- was due from the complainant at the time the allotment came to be cancelled and the said amount had not been paid despite repeated reminders. The forefeiture of the entire amount paid by the complainant was sought to be justified in view of the terms of the agreements executed between the parties.
4. As far as the pecuniary jurisdiction of this Commission is concerned, in terms of Section 21 of the Consumer Protection Act, this Commission has pecuniary jurisdiction to entertain a Consumer Complaint where the value of the goods purchased or the services hired or availed as the case may be and compensation if any, claimed in the complaint, exceeds Rs.1 Crore. As held by a three-Members Bench of this Commission in CC No.97 of 2016 Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016, the value of the services in such a case would mean the sale consideration agreed to be paid by the buyer to the seller. Since the sale consideration agreed to be paid for the flat in question admittedly was more than Rs.1 Crore, this Commission would have the requisite pecuniary jurisdiction to entertain the Consumer Complaint.
5. The learned counsel for the OP submits that since the actual amount paid by the complainant was much less than Rs.1 Crore, the decision of this Commission in would not apply and this Commission would have no jurisdiction to entertain the Consumer Complaint.
4
This issue came up for consideration of this Commission in view of an order rendered by a co- ordinate Bench of this Commission on 24.05.2017 in CC No.1195 of 2017 and the following view was taken:
4. Heard the learned counsel for the complainants on the maintainability and jurisdiction. The learned counsel for the complainant stated that the total consideration of the flat was Rs.1,28,12240/- and that the complainants have already paid Rs.33,60,602/-. The learned counsel emphasized that a larger Bench of this Commission in CC No.97 of 2016 - Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd., decided on 07.10.2016 (NC) has given a finding that for pecuniary jurisdiction purposes, the total agreed consideration is to be seen. As the total consideration of the flat is more that Rs, one crore, this Commission has the pecuniary jurisdiction to decide this present complaint.
6. An appeal against the above referred order of this Commission being Civil Appeal Diary No.39429 of 2018 was dismissed by the Hon'ble Supreme Court on 19.11.2018. As a result of the dismissal of the appeal, the order passed by this Commission stood merged in the order passed by the Hon'ble Supreme Court. Therefore, I have no hesitation in holding that this Commission does have the requisite pecuniary jurisdiction to entertain the Consumer Complaint.
7. The learned counsel for the OP submits that since the above referred issue is still under consideration of a larger Bench of this Commission, the matter can be deferred till the decision is rendered by the larger Bench. I however, find no merit in deferring the matter considering the view taken by me and the Hon'ble Supreme Court having upheld that view by dismissing the Civil Appeal.
8. Coming to the merits of the case, a perusal of the application form submitted by the complainant would show that a sum of Rs.7 lacs only was submitted by him while booking the flat in question. Admittedly, the allotment letter was issued by the OP to the complainant without receiving any further payment from him. Therefore, the amount of Rs.7 lacs, in my opinion, is the amount which the complainant had paid at the time of concluding the contract with the OP. The question as to how much a builder can forefeit in case of default on the part of the allottee in making payment of the installments, came up for consideration of this Commission in DLF Vs. Bhagwanti Narula RP No.3860 of 2014, decided on 06.01.2015.
In Bhagwanti Narula (supra), the agreement between the parties stipulated that the amounts paid on registration to the extent of 20% of the sale price of the said premises, and on allotment or in instalments as the case may be, will collectively constitute the earnest money. This Commission, relying upon the decisions of the Hon'ble Supreme Court referred in the order, concluded in the last para:
For the reasons stated herein above, we hold that (i) an amount exceeding 10% of the total price cannot be forfeited by the seller, since forfeiture beyond 10% of the sale price would be unreasonable and (ii) only the amount, which is paid at the time of concluding the contract can be said to be the earnest money. The Petitioner Company, therefore, was entitled to forfeit only the sum of Rs.63,469/-, which the complainant had deposited with them at the time of booking of the apartment. We, therefore, direct the Petitioner Company to pay the balance amount of Rs.81,534/- to the complainant within 4 weeks from today, failing which, the said amount shall carry interest @ 12% p.a. from the date of this order till payment.
5
9. Relying upon the decision of this Commission in Bhagwanti Narula (supra), I have no hesitation in holding that since the amount paid by the complainant at the time of concluding the contract was Rs.7 lacs, only that amount will constitute earnest money and can be forefeited by the OP irrespective of the stipulations contrary in the agreement executed between the parties.
10. The learned counsel for the OP states that EDC and brokerage was also paid by the OP in respect of the flat allotted to the complainant and that should also be allowed to be forefeited. I however, find myself unable to accept the contention in view of the decision in Bhagwanti Narula (supra). As far as EDC is concerned, it is paid in respect of the entire project and the OP shall be entitled to charge it from the buyer to whom the flat in question is eventually sold. As far as the brokerage alleged to have been paid to the broker is concerned, that is an expense which the OP has to adjust out of the earnest money which it is allowed to forefeit.
11. For the reasons stated hereinabove, the OP is directed to refund the amount of Rs.33,19,586/- to the complainant alongwith simple interest on that amount @ 10% per annum w.e.f. the date on which the first default was committed by the complainant after restoration of the allotment. The payment in terms of this order shall be made within three months from today. In the fact and circumstances of the case, there shall be no order as to costs.
......................J
V.K. JAIN
PRESIDING MEMBER
6