State Consumer Disputes Redressal Commission
Prakash Shah & Others vs Pacifica(Ahm-Projects) Developers ... on 4 October, 2021
Details DD MM YY
Date of Judgment 04 10 2021
Date of filling 17 09 2010
Duration 17 00 11
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,
GUJARAT STATE AT AHMEDABAD.
Court-3
Complaint NO. 56 of 2010 Dt: 04.10.2021
1. Prakash Chandra Shah
2. Smt. Sarita Shah
3. Mr. Sourabh Khandelwal ...Complainants
Common address:
81, Park Land Association,
Opp. Law Garden,
Ahmedabad.
Vs.
1. Pacifica (Ahmedabad Projects) Developers Pvt. Ltd.
The Managing Director,
408-A, Iscon Mall, Satellite Road,
Ahmedabad.
2. Pacifica Companies
(Through its Sr. Executive - Sales)
408-A, Iscon Mall, Satellite Road,
Ahmedabad. ...Opponents
Appearance: Mr. Rajiv Mehta, representative for the Complainants
Mr. M. B. Gohil, Ld. Advocate for the Opponents
Coram: (Shri S. N. Vakil, Judicial Member)
(Smt. J. Y. Shukla, Member)
Order by Shri S. N. Vakil, Judicial Member
1. This is for possession of flats with legal title.
2. Case of the complainant is that the complainant No. 1 Prakash Chandra Shah booked under Opponent‟s project Flat No. B-3/402, for himself, in joint name of himself and his wife the complainant No.2, for Rs. K.S.P CC-10-56 Page 1 of 19 47,28,125/- with 5% booking amount Rs. 2,27,344/- paid, and Flat No. B-1/201 for his son, in joint name of himself and his son the complainant No.3, for the same price and booking amount. It was objected to the draft agreement of sale that construction of 2nd phase has not started yet, hence full payment cannot be insisted and payment schedule therein and essence of the agreement is not agreeable to them, but were explained that opponents would consider specific request on case to case base and overall payment would be looked into rather than regular plan, as they have booked two flats, on the basis thereof got agreement of sale executed on 2.06.2008 with payment 20% of agreed price Rs. 12.50.389/- (3 installment of Rs. 3,41,015.62/-) insisted for execution of sale-agreement and upon re-confirmation that construction of the project would be completed and possession thereof be given by Mach 2009. Based on these clear-cut assurances the complainants paid 4 more installments of Rs. 3,41,15.62 i.e. Rs. 13,64,060/- per flat, but upon visiting the site it was observed that still there was no development especially where Flat No. 402 was proposed to be constructed, the delay was explained for wide spread economic recession for which project implementation has been put on slow space. For there being no development, the complainants then stopped making regular payment but paid certain amount towards symbolic payment, another payment of Rs. 3,41,015.62/- towards each flat was made in 2009 and waited for the development at site, waited for 3-4 months; but then could not visit the site being busy with his schedule at Gandhinagar for about 6 months. There was no development at site in 2009, but during 1st quarter of 2010, complainant No.1 came to know that opponent has stated construction K.S.P CC-10-56 Page 2 of 19 at full suring, as the real estate market is crossing high peaks every day. He verified it in April, 2010, found that earlier phase has been completed whereas the other parts are still under construction or development. He inquired of the tentative date of possession and was given understanding at site that the member who will make payment will be given priority and given possession without any further delay as soon as the flat is ready for occupation after fitting minor indoor accessories. Therefore, he paid another Rs. 10,23,045/- towards the total payable amount in both flats and also informed the company that he is in a position to pay entire amount at a stroke as SBI, a banker of opponent company has agreed in terms to advance subject to required papers submitted by the developer. Formal letter to that effect was sent to the opponent company which voluntarily not choose to encash the amount of loan for reasons best known to them. On receipt of aforesaid amount the opponent issued receipts. The complainant also then handed over 4 post dated cheque of Rs. 3,41,015.62/- each to complete their obligation of payment so far it relates to payment before possession, with instruction that all the cheque would be honored if presented on or after the date. The opponent accepted all the 4 cheques but presented only 2 cheques, the reason whereof is not known to the complainants. The opponent only a day after by their letter dated 02.06.2010 cancelled the booking of both the flats, arbitrarily, though substantial amount was paid and cheques were with them. The notices are far from truth. At no point of time, any reminder or call for demand of payment was made. Surprisingly the opponent company, ever after the said letters, has not only accepted further payments and majority of them have been realized too. As on today the K.S.P CC-10-56 Page 3 of 19 complainants have tendered cheque for the full amount payable towards his part of obligation and specifically instructed the opponent company that it can realize the same at its will. The cheque and demand draft are sufficient to satisfy all payments that were payable even at the time of possession. However, the opponent company has with ulterior motive, voluntarily not presented it for clearing and tried to extract money from the complainants just to encash the benefits of prices prevailing in the market, through unfair means, malafidely, under false and fabricated story of alleged non-payment even after repeated reminders. There was non-development of project at site. The opponent had no valid reason to cancel the booking of flats. The payments have been completed to the fullest extent, yet by declaring that they are open for sale, have tried to ruin reputation of the complainants for which they are liable to pay Rs.5 lakhs towards mental pain. The complainants at the very point objected as aforesaid to insertion of the clause and promised that the company will not act upon it, and then only the complainant executed the sale- agreement, the opponent cannot take its disadvantage. It shows that there was no meeting of mind. After the notice of the complainant served, the opponent show their willingness to execute sale deed of flat B-1/201, which was executed on 30.03.2011; the possession of the flat followed 2- 3 days thereafter, suggestive of the fact that the opponent willingly withheld the possession. The flat was then found that it was without paint, with glass broken and plumbering material used found leaking from all joints, was given with 2 sets of keys, than 3 sets given to all, saying that the 3rd set is lost. As against the promise to given parking on ground floor, compelling the complainant to take it in basement, saying K.S.P CC-10-56 Page 4 of 19 that they were sold out. For these deficiency in services unfair trade practice etc. the complainants claim (1) execution of sale deed with possession of the flat No. B-3/402, Green Acres, Ahmedabad, accepting the remaining consideration, (2) Rs. 5 lakhs towards mental pain, harassment, agony, indulgence in unfair trade practice and spoiling complainants reputation by deliberate false advertisement and (3) costs.
3. The defence, vide affidavit in reply, Ext-7 and additional reply to amended para, reserving the rights to file detailed reply, is of denial. There is suppression of material fact. The application, (? Complaint) itself has become infructuous. The payment of one flat is fully paid and the opponent is ready and willing to execute the sale deed and also give possession, but no one has come from complainants‟ side to take the possession. However, the full payment of the second flat was not done in time as per terms and conditions of the contract agreed and entered upon between the parties. It is denied that the payment was infact completed in time and complainant was well aware of that fact but actually there was a delay in payment as per the agreement of sale deed. The complainant came to the respondent and asked for some time for the payment and apologized for the delay in payment in both flats. Respondent gave some time to complainant but after giving some time to him there wasn't any response from the complainant. Complainant asked for few more months to pay the payment. As decided between complainant and opponent, the complainant did not pay any payment. The opponent send written reminder more than enough time to the complainant for delaying the payment. Again there was no response from the complainant. The opponent called the complainant but instead of K.S.P CC-10-56 Page 5 of 19 payment he gave promises for more than ten times. After all the promises it seems like complainant does not have interest in making payment of the flats which he has booked. The complainant did not make the payment in time and thus as per the clause 6 of basic terms and condition of the booking form the timely payment of installment of basic sale price is the essence of the terms of the booking / allotment. The complainant agreed to this clause that the delay up to 3 months would attract interest 18% and beyond 3 months interest a 24% p.a. will be charged and outstanding dues from the respective due dates. In spite of the above clause of charging the interest at 18%, the opponent company has calculated interest 12% p.a. only. It is not true that the opponent is not execute the sale deed. The reason is that the complainant has not yet made the full payment including the interest due towards the late payment charges. The opponents were ready to give possession and ready to execute the sale deed but as mentioned in clause 6 in booking form, the complainant was never regular in making the payment as mention in the application. The opponents have to remind complainant every time for the payment for more than 3 times but none came to respondent to give the payment. The amount outstanding was also incurring the interest thereon and therefore the complainant was asked to pay that as well. The complainant thereafter agreed for the balance of payment with interest payment which was paid on 06-09-2010, but again the payment was only made for Flat No. B-1/201 and not any further payment was made for Flat No. B-3/402. The Complainant was well aware of the interest policy at the time booking the flat and knowing full well, the complainant have signed the agreement. The entire scheme consists of K.S.P CC-10-56 Page 6 of 19 total 323 units of flats. That everyone have booked the flat with an intention to get the possession in time. Furthermore, the booking are made by N.R.I.s an well, looking to the name and fame of the company and an assurance that they will get the possession well in time. Thus to ensure that the members who have booked their units, make the payment in time and the delay on their part is not suffered by the other members, the clause of Interest on delayed payment was added. Thus, it is not isolated case that the clause is entered with the complaint, but is for all the members. When the complainant came to see the progress in the construction, at that time the complainant raised querries about some ongoing work. The opponent assured that the work will be complete shortly and also called upon the complainant to pay the rest of amount. The Complainant assured that he is going to pay the full amount with interest in less than a one month but there wasn't any follow up by the complainant. Since no payment was made in spite of the repeated reminders the respondent company was forced to cancel the booking of both the flats vide their letter dated 21.06.2010. After the notice, they have made payment of Ra. 3,41,015/- on very next day, but thereafter have cleared payment for only one flat and not for the other which makes it clear that the complainant is not interested in making the payment for Flat No. B-3/402 for the simple reason the complainant had already made full and final payment of other Flat via. Rs. 48,20,624.74/-, whereas for present case, out of the total amount of Rs. 47,28,125/- to be paid for the Flat No. B-3/402, the complainant had only paid Rs. 26,14,453.34/-. The complainant has thus confirmed the step of the respondent company of cancelation by the booking of the above flat and K.S.P CC-10-56 Page 7 of 19 also intimated the same by letter to the complainant. However, the complainants have refused to accept any further letters. He was in fact called upon to collect the payment he had made towards the Flat No. B3- 402 from the office and or provide the bank details for the payment to be refunded. In spite of the repeated inquiry the complainant did not give any reply as to bank details about where and how to refund the amount. The respondent company was left with no other alternative remedy but to deposit the said amount on 19.11.2010 in the same account of the complainant from where the payment was received. The said full amount is already credited to the account for which certificate has been issued by the bank Officer. The opponents has charged interest from all the customers without any exception, the case has thus become infructuous. The opponent cannot wait for all times to come for the complainant to make the payment as and when he feels like. It is not true that possession of flat No. B-1/201 even after the sale deed was willingly withheld. The sale deed was executed only in light of statement that was made before this Hon‟ble Court. However, as on date the issue of interest due on the above flat No. B-1/201 is pending. That was very reason that the sale deed was not executed as the outstanding amount of Rs. 2,17,278/- was not paid by the complainant and the same is still pending. The promise was for allotment of one free parking space to all the members. However, it is never a case that allotment must be made on the ground floor and not in the basement. The complainant may be put to strict proof for the above such statement. While taking the possession, the complainants have verified the entire situation of the flat unit and after finding everything in order, the possession was handed over to him. K.S.P CC-10-56 Page 8 of 19 Had it been the same was not found in order he ought to have complained at the very same time. That after taking possession immediately, the grievances are raised after almost 3 months, which is not acceptable. When the entire possession of the flat is handed over after executing the sale deed, there is no point in retaining a key. Had it been the case as alleged that only 2 keys were found the 3rd must have been misplaced. Even for flat No. B-3/402 an amount of Rs. 6,02,728/- was due towards interest. There was no unfair trade practice.
4. Heard Shri Rajiv Mehta, representative for the complainants and Shri Mayursingh B. Gohil for the opponents.
5. The opponent has given only affidavit and additional affidavit in reply, with reservation of right to reply later. We do not allow this practice. Vide Section 13 (2) (A), the opponent is required to give his version of the case within the period of 30 days and such extended period, not exceeding 15 days as may be granted by the Forum. Therefore, the opponent has no right to split any such reply, more particularly when is entire version of the case is required to be completed within time limit. Under the recent judgment of the Supreme Court even the Forum/ Commission has no right to accept the version of the case after expiry of the limitation in this regard.
6. The agreement to sale for the flat No. B-3/402 dated 02.06.2008 provides for the price of Rs. 47,28,125/- of which Rs. 2,27,344/-, and Rs. 3,41,015.62/- by cheques dated 26.01.2008, 18.03.2008 and 21.04.2008 are recorder to have been received at the time of execution. Complainants account with the opponent vide ledger account show that this three cheques were in fact cleared on 02.02.2008, 26.03.2008 and 28.04.2008 K.S.P CC-10-56 Page 9 of 19 and not at the time of execution of the agreement on 02.06.2008. Balance-75% (Rs. 34,10,156/-) were to be paid by 10 installments of Rs. 3,41,015.62/- each with first due date of payment on 24.05.2008 and the rests on 24th of each the consecutive month with the last on 24.02.2009, the balance amount of Rs. 4,08,594/- for 5% with maintenance deposit regarding maintenance charge, AEC, AUDA and legal to be paid against handing of the possession. Thus, totaling in all to Rs. 47,28,125/-. It further provides that the purchaser shall not be entitled of any running or final bill or estimate of loan construction or any other separate details particulars of the said amount to be paid under this agreement; that the time for payment of each of the aforesaid installment shall be the essence of this agreement. In the event of the buyer making any default in payment of any one installment or any other amount due under this Agreement whether formally demanded or not, the Developer shall be entitled to recover the delayed installments / payments with interest at the rate of 24% per-annum or at the Developer's option to cancel the reservation of the Said Premises and to forfeit all the amounts paid under this Agreement and to dispose of the premises reserved for the buyer to any other party as the Developer may determine and the buyer will have no claim of any nature whatsoever against the Developer; it is without prejudice to other rights and remedies of the Developer. The Developer agrees to give possession of the Flat to the buyer and legally vest it in favour of buyer by execution and registration of appropriate legal documents on/or around 24 months, subject to the availability of cement, steel, water for construction or other building materials and subject to strike, shortage of laborers, electrical faults civil commotion or K.S.P CC-10-56 Page 10 of 19 any act of God such as earth-quake, flood or any other natural calamities and subject to the consequences of any notice, order, rule or notification of the Government and/or any other public or local authorities or other cause beyond control of the Developer and subject to regular payments to be made by the prospective purchasers under various clauses herein and subject to due and proper observance of the terms and conditions herein. Under no circumstances, possession of the Said Flat shall be given by the Developer to the buyer until all payments required to be made under this agreement by the buyer have been made to the Developer and the buyer has duly and properly observed and performed his obligation, terms and conditions hereof; soon the said flat is notified by the Developer as complete, each buyers shall pay the respective arrears of the amount payable by them within seven days of such notice served individually or to be put at any prominent place in the said scheme; If any of the buyer failed to pay the arrears as aforesaid the Developer will be entitled to terminate the Agreement with such buyer and to forfeit all the installments paid or any other amounts paid by such prospective purchaser till then; the project is expected to be completed on or around 24 months from start of its construction, and will start incurring common expenses of the nature aforesaid; the buyers hereby agrees to pay all the amounts payable under the terms of this agreement as and when they become due and payable; time in this respect being the essence of the contract. Further the Developer is not bound to give notice requiring payment to be made, time for payment of which is specifically agreed upon herein and the failure thereof shall not be placed as an K.S.P CC-10-56 Page 11 of 19 excuse for non-payment of any amount or amounts on the respective due dates. ... ... ....
7. Now, it is clear that when the terms of contract, grant or of any other disposition of property have been reduced to the form of document and in all case in which any matter is required by law to be reduced to the form of document have been reduced to the Form of a documents, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, except the document itself; and no evidence of any oral agreement or the statement shall be admitted in the purpose of contradicting, varying, adding to, or substracting from its terms (vide the principles in this regard as in Section 91 and 92 of the Evidence Act), though the Evidence Act does not strictly applied to the Consumer Forum or the Commission, as the principles as embodied in Section 91 and 92 do as aforesaid apply, it being a matter of admissibility and evaluation of the evidence. Therefore, the complainant‟s pleading that he objected to and informed that it is not agreeable to the Clause were it mentioned that payment schedule mentioned in the agreement would be an essence of agreement since the construction of the second phase has yet not started or that it was explained that the complainants had book 2 flats it would be considered on case to case basis as to the payment would be looked into rather than regular plan, cannot be tendered in evidence since the complainants cannot thereby be allowed to contradict, vary or add to or substract from the terms of the contract. As the agreement does not give any such liberty, till the 10th i.e. last installment due on 24.02.2009. The buyer can reserve payment of Rs. 4,08,594/- to be paid at the time of possession only. The aforesaid term is clear that the complainant was K.S.P CC-10-56 Page 12 of 19 required to pay the amounts due under installments without any formal demand, failing which, in default of payment of anyone installment or any other amount due under the agreement, the developer is entitled to claim interest at 24% and at its option to cancel the reservation of the flat, to forfeit the amount paid by the buyer and to disposition of the flat to other prospective buyers.
8. Record of the case does show notices dated 20.01.2008 for amount of Rs. 2,27,344/- before 02.02.2008; dated 27.02.2008 for amount of Rs. 3,41,016/- before 13.03.2008; dated 27.03.2008 for amount of Rs. 3,41,016/- before 13.04.2008; dated 10.05.2008 for amount of Rs. 3,41,016/- before 24.05.2008; dated 10.06.2008 for amount of Rs. 3,41,016/- before 24.06.2008; dated 10.07.2008 for amount of Rs. 3,41,016/- before 24.07.2008; dated 10.08.2008 for amount of Rs. 3,41,016/- before 24.08.2008; dated 10.09.2008 for amount of Rs. 3,41,016/- before 24.09.2008; dated 10.10.2008 for amount of Rs. 3,41,016/- before 24.10.2008; dated 10.11.2008 for amount of Rs. 3,41,016/- before 24.11.2008; dated 10.12.2008 for amount of Rs. 3,41,016/- before 21.12.2008; dated 10.01.2009 for amount of Rs. 3,41,016/- before 24.01.2009; and notice dated 10.02.2009 for amount of Rs. 3,41,016/- before 24.02.2009. This proves that the complainant was given notices for payment of installments on due date, though the complainants were required to make payments even without notice of demand. The seller may be liberal in receiving payments after due dates but that does not give the complainant any right to take liberty. The opponent gave notice dated 21.06.2010 for cancellation of unit No. B- 3/402 saying, "We are sorry to say that after giving several payment K.S.P CC-10-56 Page 13 of 19 reminders, you have not paid the amount demanded till date. So we are forced to cancel his unit. The amount received would be refunded as and when the booked unit is sold to some other customer after deducting cancelation charges." This notice, for the reason stated above is within the rights of the seller and does not show any deficiency in service as for non-payment of installments.
9. The seller on 23.06.2010 gives further notice referring the cancellation of the above flat vide letter dated 21.06.2010, "surprisingly it is found that we have received payment in the same account on very next day i.e. 22.06.2010 of Rs. 3,41,015/-. We wonder how has this happened as the last payment received from the your side was on 14.10.2008 and till the date of issuing letter of cancellation, no payment was received in spite of the number of reminder letters issued to you. It seems that the you have deposited one installment to show that payment is made. You are therefore, as a last opportunity called to make the full and final payment as per the books of account immediately on or before 30.06.2010, otherwise the cancellation would be confirmed and the flat will be sold in open market and the amount paid by you will be returned to you as soon as the amount is received from new purchaser."
10. The complainant replies to the said letter dated 21.06.2010 saying that he it was received by his family member on 22.06.2010 who give the same to him on 25.06.25010 as he was not in town on the 22.06.2010; the contents thereof are not admitted; he has already submitted all payments and no amount is outstanding as on date; he was never informed by the seller that his unit is ready for possession as understood; the project is still not completed; asked for inspection of the K.S.P CC-10-56 Page 14 of 19 unit if ready for possession; and that the amount payable at the time of possession to settle the account in will be paid within 7 days as stated in the agreement; the seller has no right to cancel the booking and in any case, the seller have again deposited the cheque No. 820816 for Rs. 3,41,015/- on 22.06.2010 which has been enchshed in complainant‟s bank on 23.06.2010. Then the seller gives said notice dated 23.06.2010 to make full and final payment on or before 30.06.2010 failing which the cancellation would be confirmed as aforesaid, stating that last payment from buyer‟s side way on 14.10.2008 and till the date of issuing letter of cancellation, no payment was received.
11. The complainants by amendment in para 9-B allege that the cheque No. 173162 dated 24.09.2008 of HDFC Bank for Rs. 3,41,015.60/-; cheque No. 395787 dated 24.09.2008 thererof for Rs. 3,41,015.62/-; cheque No. 820817 dated 18.06.2010 of ICICI Bank for Rs. 3,41,015.62/-; cheque No. 737743 dated 18.06.2010 of HDFC Bank for Rs. 3,41,015/-; cheque No. 367643 dated 01.09.2010 of ICICI Bank for Rs. 57,344/-; cheque No. 820818 dated 20.06.2010 of ICICI Bank for Rs. 50,000/- towards maintenance deposit; cheque No. 820819 dated 20.06.2010 of ICICI Bank for Rs. 56,250/- towards maintenance deposit; cheque No. 820820 dated 20.06.2010 of ICICI Bank for Rs. 75,000/- towards development charges; DD No. 319136 dated 09.09.2010 of PNB for Rs. 2,22,850/- towards stamp duty; cheque No. 820821 for Aadani Gas of ICICI Bank for Rs. 10,000/-; cheque No. 820822 for DG Change of ICICI Bank for Rs. 18,750/-; towards the payment for flat No. B-3/402 given have been in opponents hand, but they are not presented for clearing and now falsely claims that the complainants have not made payment in time, and to K.S.P CC-10-56 Page 15 of 19 earn profits, have booked the flat on 25.08.2010 in favour of Nitesh Gawri and Disha Gawri for Rs. 54,84,375/- adding thereto for preferential location charges Rs. 1,40,625/- and others Rs. 2,10,000/- totalling to Rs. 58,35,000/- and did actually made deed of conveyance dated 08.02.2011 and that this amounts to unfair trade practice as keeping the cheques on hand without clearing them and in turn sold it for profit of almost 10 lakhs. This has been denied by further affidavit in reply. Kaushik G. Patel, Legal Manager of the opponent was cross- examined who denied that cheque given in advance by the complainant are with them. Now, the complainant has produced final statement (page-
112) showing receipts number against payments made by him, which final statement for flat B-3/402 does not show any receipts for cheque No. 395787 dated 24.09.2008; cheque No. 173162 dated 24.09.2008; cheque No. 820817 dated 18.06.2010; cheque No. 737743 dated 18.06.2010 all for Rs. 3,41,015.62/-, or any other as alleged in complainant para 9 B as aforesaid. The statement does show receipt No. 3059 against the payment of Rs. 3,41,015.62/- for the ICICI bank, cheque No. 820816 also dated 18.06.2010. This is the very cheque reflecting in opponent‟s notice dated 23.06.2010 giving last chance to pay. The complainant has produced receipts No. 3059 dated 25.06.2010 of the said cheque bearing No. 820816 dated 18.06.2010 towards flat No. B-3/402, it was entered into opponent‟s ledger account on 22.06.2010, whereas its said receipt No. 3059 is dated 25.06.2010. If the complainant could obtain receipt of cheque No. 820816 dated 18.06.2010 on 25.06.2010 he could very well have obtained receipts of Cheques dated 18.06.2010, 20.06.2010 and so on. None of the 11 cheques alleged have K.S.P CC-10-56 Page 16 of 19 to been given any Receipts thereof. It is no answer that the aforesaid cheque No. 820816 dated 18.06.2010 was realized and therefore the receipt was given and for the remaining cheques no such receipts could be asked for or given; it is for the reason that the receipts of the cheque or DD are being given irrespective of their realization as is clear from the fact that the Receipt of cheques are always subject to realization. In this case the receipts at the bottom does read "cheque subject to realization". Besides, pursuant to notice of cancellation of flat No. B-3/402, dated 21.06.2010, in reply dated 25.06.2010, none of these cheques dated earlier than 21.06.2010, are at all alleged to have been as lying with the opponent uncahsed, and instead it only says „no amount is outstanding as on date‟. Opponent‟s notice dated 23.06.2010 asking as a last chance to make full payment by 30.06.2010, there is no reply, much less any allegation that the cheques are already lying with the opponent uncahsed. There is no letter of SBI Bank or any is produced to show that loan was sanctioned, or any evidence to show that the opponent was instructed to present for encashment in view of alleged loan, or that the complainants did have credit balance for clearance of the said cheques. All these collectively, and individually also, they being against natural conduct, disprove complainants every allegations of cheques given in advance. That besides the cheques dated 24.09.2008 could not have been realized even if presented after the notice dated 21.06.2010 of cancellation and notice dated 23.06.2010 giving further chance to pay the amount by 30.06.2010. There is nothing to show that the complainants issued cheques, for there first 2 cheques dated 24.09.2008. Therefore the complainants have failed to prove the case for cheques K.S.P CC-10-56 Page 17 of 19 given in advance but not presented for clearing and thereby full payment for the flat.
12. For the allegations that flat No. B-1/201 was given possession without paint, with broken glass and plumbing material used in the flat are leaking from all joints; and although there is promises for parking to each flat at ground floor, he was compelled to accept parking in the basement; and that all the members were given 3 sets of keys whereas given only 2 sets that one sets is lost somewhere, as contained in para 9 A of the complaint. With respect to these the opponent in his affidavit states that there was premises to give allotment of 1 free parking spaces to all the members but it is never a case that allotment must be made in the ground floor and not in the basement; the complainant have verified entire situation of the flat unit and after finding everything in order, the possession was handed over to him, and that had it not been in order the complainant ought to have complained at the very same time whereas he is raising grievances after 3 months, which is not acceptable by the company, the allegations are not true and absolutely false; and that there are in all 330 flats units and thus there are chances of mistakes - the 3rd sets have been misplaced after the flat is handed over after executing the sale deed, there is no point retaining the key. There is no evidence as against this version in defence to contradict it and to hold complainants case is proved. Accordingly, we tend to agree to the version in defence in this regard. Accordingly, no deficiency could be found of the seller.
13. The amount received for flat No. B-3/402 have been returned to the complainant.
K.S.P CC-10-56 Page 18 of 19
14. For the reason stated the complaint deserves to be dismissed, for which following order is passed.
FINAL ORDER
i) Complaint No. 56 of 2010 is dismissed.
ii) No order as to costs.
iii) Copy of the judgment be provided to the parties free of charge.
Pronounced in the open Court today on 4th day of October, 2021.
(J.Y.Shukla) (S.N.Vakil)
Member Judicial Member
K.S.P CC-10-56 Page 19 of 19