National Consumer Disputes Redressal
Promila Johnson vs Jasmine Buildmart Pvt. Ltd. & 2 Ors. on 8 January, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 653 OF 2016 1. PROMILA JOHNSON B-91/92, NOIDA PHASE-2, GAUTAM BUDH NAGAR, NOIDA,U.P.-201305. ...........Complainant(s) Versus 1. JASMINE BUILDMART PVT. LTD. & 2 ORS. (THROUGH ITS MD/ AUTHRISED SIGNATORY) 406, 4TH FLOOR, ELEGANCE TOWER, 8, JASOLA DISTRICT CENTRE, NEW DELHI-110015 2. JASMINE BUILDMART PVT. LTD. PEGAUS ONE, GROUND FLOOR, BEHIND IBIS HOTEL, GOLF COURSE ROAD, DLF PHASE 5, SECTOR-53, GURGAON, HARYANA. 3. AMBAWATTA BUILDWELL PVT. LTD., (THROUGH ITS MD/AR) REGD. OFFICE AT 267, HUNDRED FEET ROAD, OPPOSITE SYNDICATE BANK, CHATTARPUR, MEHRAULI, NEW DELHI. ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Ms. Charu Ambwani, Advocate Ms. Manisha Ambwani, Advocate For the Opp.Party : Mr. Jayant K. Metha, Advocate Mr. Ranjit Raut, Advocate Ms. Surbhi Kapoor, Advocate Dated : 08 Jan 2018 ORDER JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) One Mrs. Vasudha Gupta booked a residential flat bearing
No. C-1202 admeasuring 5880 sq. ft. with the opposite party in a project namely, 'Krrish Provence Estate', which the opposite party was developing in Gurgaon. The aforesaid flat was purchased by the complainant from Mrs. Vasudha Gupta and the said transfer was duly approved by the opposite party, vide its endorsement dated 20.12.2011. The parties then entered into a Buyers Agreement dated 24.3.2012, incorporating their respective obligations, including the payment plan agreed between them. The following was the payment plan agreed between the parties:
Construction Stage Payment Schedule Within 15 days of booking 10% of BSP (less booking amount) Within 60 days of booking 10% of BSP On commencement of excavation 10% of BSP On casting of basement slab 7.5% of BSP On casting of 5th floor slab 7.5% of BSP On casting of 10th floor slab 7.5% of BSP plus IFMS On casting of 15th floor slab 7.5% of BSP plus 50% of EDC and IDC On casting of 20th floor slab 7.5% of BSP plus 50% of EDC and IDC On casting 24th floor slab 7.5% of BSP plus overhead expenses On commencement of internal finishing and flooring 7.5% of BSP plus PLC On completion of internal finishing and flooring 7.5% of BSP plus club Membership On offer of possession 10% of BSP plus Stamp Duty plus registration fees plus miscellaneous charges The complainant and her predecessor in interest made a total payment of Rs.1,88,78,153/- to the opposite party, in installments, though the total sale consideration agreed for the aforesaid flat was more than Rs.3.00 crores. Subject to timely payment of the installments, the possession was agreed to be delivered to the complainant within thirty-six months from the commencement of the construction or execution of the agreement, whichever was later. A grace period of six months was also available to the opposite party for applying and obtaining the Occupancy Certificate. The allotment however, was cancelled vide letter dated 29.7.2015 on the ground that the complainant had failed to pay the outstanding amount of Rs.1,33,83,418/-. It was further stated in the said letter that after deducting the Earnest Money and other charges, a sum of Rs.41,30,356/- shall be refunded to the complainant. However, the aforesaid amount of Rs.41,30,356/- was never actually refunded to the complainant. Being aggrieved, the complainant is before this Commission, seeking refund of the entire amount of Rs.1,88,78,153/- paid by her and her predecessor in interest to the opposite party along with interest and compensation etc.
2. The complaint has been resisted by the opposite party which has admitted the agreement with the complainant as well as the payment received from her. It is stated in the written version filed by the opposite party that around 20.3.2013, the complainant started defaulting in payment of construction-linked-installment and did not pay several installments, despite reminders sent to her. The allotment was therefore cancelled vide letter dated 29.7.2015.
3. As would be seen form the payment plan agreed between the parties, the complainant was required to pay the 7th installment on casting of 15th floor slab, 8th installment on 20th floor slab, 9th installment on casting of 24th floor slab and 10th installment on commencement of the internal finishing and flooring. It is an admitted position that the aforesaid installment have not been paid. The case of the complainant is that though the aforesaid installments were demanded, the work had not actually been done and therefore, she did not pay those installments. According to her she had visited the property and had found that the construction had not reached the appropriate level at the time the demand was raised. The demand payable on casting of 15th floor slab, 20th floor slab and 24th floor slab was payable on 20.3.2013, 5.7.2013 and 12.11.2013 respectively, whereas the demand on commencement of the internal finishing and flooring was payable on 14.01.2015. The opposite party has filed the affidavit of Mr. Suresh Chand Pandey, authorized signatory of the opposite party along with a certificate from Ms. Afsheen Khan, Architect, certifying therein that the slab work in respect of 15th floor, 20th floor and 24th floor commenced on 25.02.2013, 10.6.2013 and 01.10.2013 respectively. She has further certified that Part-2 of the casting of slabs was done on 15.3.2013, 27.6.2013 and 19.10.2013 in respect of 15th floor, 20th floor and 24th floor respectively. In view of the certificate of the Architect, it cannot be accepted that the construction had not reached the stipulated level by the time the complainant was called upon to pay the above referred installments. Though she claims that she had inspected the property and found that the construction had not reached the prescribed level. Admittedly, no letter was sent by her to the opposite party, stating therein that she was not making payment as the construction had not reached the level of casting of the 15th floor, 20th floor and 24th floor. In the absence of such a letter, the plea taken by the complainant cannot be accepted. This is more so, when this Architect had duly certified the actual date on which the slab work actually commenced and the date on which the slab was actually cast. It is therefore, evident that the complainant has defaulted in payment of the installments which were payable on casting of the 15th floor slab, 20th floor slab and 24th floor slab. The opposite party therefore was entitled to cancel the allotment made to the complainant, on this ground.
4. As per Clause 2.21 of the Buyers Agreement, timely payment of each instalment was the essence of the agreement and in case of default, the opposite party in its sole option could forfeit the Earnest Money from the amount already paid by the purchaser, along with other charges, including late payment charges and interest deposited by the purchaser and in such an event, the allotment was to stand cancelled and the agreement was to stand terminated. Though, as per the Buyers Agreement 15% of the basic sale price constituted the Earnest Money, it has been held by this Commission in DLF Ltd. Vs. Bhagwanti Narula, Revision Petition No. 3860 of 2014 decided on 06.1.2015 that the amount of Earnest Money cannot exceed 10% of the total sale consideration of the flat. The opposite party therefore, was entitled to deduct only a sum of Rs.36,56,000/-, the total agreed sale consideration being Rs.3,65,60,000/-. The opposite party therefore should refund a sum of Rs.1,52,22,153/- to the complainant along with appropriate interest it having utilized the money received from the complainant. The complaint is therefore disposed of with the following directions:
(i) The opposite party shall refund the amount of Rs.1,52,22,153/-, to the complainant along with compensation in the form of simple interest @ 10% per annum on that amount, with effect from 21.3.2013 when the allotment could have been first cancelled on account of non- payment of the installment payable on the casting of 15th floor slab. If the opposite party has delayed the cancellation of the allotment, either on the request of the complainant or otherwise, it cannot deprive the complainant of the interest after 21.3.2013, since it was not bound to grant any extension to the complainant and would have been very much entitled to cancel the agreement with effect from 21.3.2013.
(ii) The payment in terms of this order shall be made within three months from today.
(iii) There shall be no order as to costs. ......................J V.K. JAIN PRESIDING MEMBER