National Consumer Disputes Redressal
M/S. Lodha Dwellers Pvt. Ltd. vs Ashita Agrawal on 28 January, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 2273 OF 2018 (Against the Order dated 25/10/2018 in Complaint No. 326/2012 of the State Commission Maharashtra) 1. M/S. LODHA DWELLERS PVT. LTD. LODHA EXCELUS N.M. JOSHI MARG MUMABI 400 011 ...........Appellant(s) Versus 1. ASHITA AGRAWAL THROUGH C.A. MR SHRAVAN KUMAR AGARWAL D-1204, NEEL SHIDHI ATLANTSIS SECTOR 9-A, NERUL EAST NAVI MUMBAI 400 706 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Appellant : Mr. Rahul Kripalani, Advocate
Ms. Rea Bhalla, Advocate. For the Respondent : Mr. S. Dave, Advocate with
Mr. Sarad Singhania, Advocate.
Dated : 28 Jan 2020 ORDER
JUSTICE V.K.JAIN (ORAL)
The complainant/respondent applied to the appellant on 10.12.2018 for allotment of a residential apartment in a project namely Casa Bella Gold, Dombivali East for a consideration of ₹41,739,84/-. The following was the payment plan recorded in the application which the Complainant had submitted to the appellant for allotment:- "Sl. No. Stage Payment Cumulative (as % of CV) 1. On booking 19.9% 19.9% 2. On initiation of Registration 5% 24.9% 3. On initiation of Plinth 20% 44.9% 4. On initiation of 1st Slab 5.1% 50.0% 5. On initiation of 2nd Slab 5% 55.0% 6. On initiation of 3rd Slab 5% 60.0% 7. On initiation of 4th Slab 5% 65.0% 8. On initiation of 5th Slab 5% 70.0% 9. On initiation of 6th Slab 5% 75.0% 10. On initiation of 7th Slab 5% 80.0% 11. On initiation of 8th Slab 5% 85.0% 12. On initiation of 9th Slab 5% 90.0% 13. On initiation of Brickwork 5% 95.0% 14. On initiation of plastering 2.5% 97.5% 15. Possession 2.5% 100.0%."
2. It was also stated in the application that considering the stage of construction at that time, 92.5% of the value of the flat had become payable which would be paid in two instalments first instalment being payable within 21 days of the application and constituting 20% of the cost of the flat and the second instalment being due within 42 days of the application and constituting 72.5% of the cost of the flat. The complainant made payment of ₹19,19,935/- to the appellant. Thereafter, the allotment was cancelled by the appellant vide its letter dated 06.04.2012 which, to the extent it is relevant, reads as under:-
1. We refer to your captioned Application Form whereby you had applied for allotment in respect of the subject Residential Flat. We confirm that at the time of the aforesaid Application, you had paid a sum of ₹45000/- (Rupees Forty Five Thousand Only) towards Booking Amount and ₹1970497/- (Rupees Nineteen Lakhs Seventy Thousand Four Hundred and Ninety Seven Only) towards first, second, On registration, Plinth and Part payment of Slab 1. In terms of the aforesaid Application you were required to pay a sum of ₹2099135/ (Rupees Twenty Lakhs Ninety tine Thousand One Hundred and Thirty Five Only) towards the due instalment for "Slab 1 to Slab 18".
2. We have already informed you by our demand letters and Interest Letters for the payment of the aforesaid sum of ₹2099135/- (Rupees Twenty Lakhs Ninety Nine Thousand One Hundred and Thirty Five Only). Despite repeated requests and reminders, you have failed and neglected to pay the said dues instalment payments of ₹20,99,135/- (Rupees Twenty Lakhs Ninety Nine Thousand One Hundred and Thirty Five Only). Accordingly, we have to inform you that your Application for Allotment of the subject Residential Flat is and hereby stands rejected with Immediate effect and in terms of the captioned Application Form, the Booking Amount paid by you is and hereby stands forfeited."
3. Complainant sent a legal notice to the appellant on 16.07.2012 which the appellant responded on 07.09.2012. While responding to the legal notice of the complainant, the appellant also called upon the complainant to collect the cheque of ₹19,25,497/- on return of the original document and papers through her authorized representative. It was also informed to the complainant that the appellant had already created third party interest in the flat which it had allotted to the complainant.
4. Being aggrieved, the complainant approached the concerned state commission by way of a consumer complaint seeking compensation of the allotted flat with compensation.
5. The complaint was resisted by the appellant primarily on the ground that the complainant having failed to make balance payment, it was justified in cancelling the allotment and forfeiting the sum of ₹45,000/- out of the money which the complainant had deposited.
6. During the course of hearing before the State Commission, the complainant expressed her willingness to take refund of the amount which she had paid to the appellant along-with 18% interest. The State Commission thereupon directed refund of the amount of ₹1919935/- to the complainant along with 18% interest, compensation quantified at ₹2,00,000/- and the cost of litigation quantified at ₹25,000/-. Being aggrieved from the order passed by the State Commission, the appellant is before this Commission by way of this appeal.
7. It would be seen from a perual of the application form itself that the complainant knew, at the time of booking itself, that 92.5% of the cost of the apartment had become due and will have to be paid by him within 42 days of the application in two instalments, the first instalment being payable within 21 days of the application. It is an admitted position that 92.5% of the cost of the flat was not paid by the complainant within 42 days of the application. Therefore, it cannot be disputed that the complainant had defaulted in making payments in terms of the payment which she had agreed with the appellant.
8. The submission of the learned Counsel for the complainant is that in view of the provisions of Section 4 of Maharashtra Ownership of Flats Act, the appellant could not have taken more than 20% of the cost of the flat without first executing the agreement with the complainant. Admittedly, the complainant had paid more than 20% of the cost of the flat to the appellant. Admittedly, the agreement in terms of Section 4 of MoFA was not executed by the appellant even after receiving more than 20% of the sale consideration. The appellant, therefore, clearly committed breach of Section 4 of MOFA by accepting more than 20% of the sale consideration from the Complainant without executing agreement with her.
9. Thus, we are faced with a situation where the developer is at fault on accunt of its having not executed agreement in terms of Section 4 of MOFA with the flat buyer and the flat buyer is also in default, she having not paid 92.5% of the cost of the flat in terms of the payment plan which she had agreed with the builder. Considering that the appellant was prohibited by law from accepting more than 20% of the sale consideration without executing agreement of the Complainant, I am of the view that forfeiture of Rs. 45,000/- out of the payment made by the complainant to the appellant was not justified. Therefore, the appellant has rightly been directed to refund the entire principal amount of ₹1919935/- to the complainant.
10. It is submitted by the learned Counsel for the appellant that they having offered payment to the complainant way back on 07.09.2012, there will be no justification for directing the appellant to pay interest to the complainant. However, the fact remains that the money which the appellant was seeking to refund to the complainant remained with the appellant and continued to be utilized by it. Moreover, there is breach of Section 4 of MOFA on the part of the appellant. Considering these factors, the appellant, in my opinion, must compensate the complainant by paying appropriate interest to her.
11. Coming to the quantum of interest the submission of the learned Counsel for the Complainant is that since as per the terms of the transaction the builder could have recovered interest @ 18% p.a. from the complainant in the event of default, interest at the same rate should be awarded to the complainant. However, I find no merit in this submission. The compensation under the Consumer Protection Act is to commensurate with the loss suffered by the consumer on account of deficiency on the part of the service provider in rendering services to him. No evidence was led by the complainant before the State Commission to prove the actual loss suffered by her on account of the appellant having not executed the agreement in terms of Section 4 of MOFA and having accepted more than 20% of the sale consideration from her without executing such an agreement. No evidence was led by the complainant to prove the market value of flat in question on the date the allotment came to be cancelled, in order to prove her actual loss, if any, on account of appreciation, in the market value of such flats. In the absence of such an evidence, the State Commission in my opinion was not justified in awarding interest @ 18% p.a. to the complainant/respondent.
12. For the reasons stated hereinabove, the appeal is disposed of with the following directions:-
(i) The appellant shall refund the entire principal amount of ₹19,19,935/- to the complainant/respondent along with compensation in the form of simple interest @ 10% p.a. w.e.f. date of each payment.
(ii) The amount payable to the complainant in terms of this order shall be released to her out of the amount which the appellant had deposited with the State Commission. The balance amount will be refunded to the appellant by the State Commission. The interest @ 10% p.a. on the principal amount of ₹19,19,935/- shall be paid to the Complainant till the date on which the said amount was deposited with the State Commission. Thereafter the complainant will be entitled to such interest which the said principal amount, deposited with the State Commission had earned.
(iii) The appellant shall pay sum of ₹20,000/- as the cost of litigation to the complainant/respondent.
(iv) Payment in terms of this order shall be made within two months from today.
13. Conveyance charges have not been paid to the respondent/complainant and shall be sent to her by way of a cheque within one week from today.
......................J V.K. JAIN PRESIDING MEMBER