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7. The Apartment Buyers vide letter dated 25.03.2014 received a copy of the Apartment Buyer‘s Agreement with a construction linked payment plan, which is extracted hereunder :

INSTALLMENT PAYMENT PLAN S. No. LINKED STAGES % TOTAL 1 AT THE TIME OF 10% OF BASIC 1727851.60 BOOKING 2 WITHIN 45 DAYS OF 10% OF BASIC 1727851.60 BOOKING 3 COMMENCEMENT OF 10% OF BASIC+50% 2029223.85 EXCAVATION OF DEVELOPMENT CHARGES 4 CASTING OF LOWER 10% OF BASIC+50% 2029223.85 BASEMENT ROOF OF DEVELOPMENT SLAB CHARGES ND 5 CASTING OF 2 10% OF BASIC 1727851.60 FLOOR ROOF SLAB TH 6 CASTING OF 5 10% OF BASIC 1727851.60 FLOOR ROOF SLAB TH 7 CASTING OF 8 10% OF BASIC+50% 1852851.60 FLOOR ROOF SLAB OF CLUB MEMBERSHIP TH 8 CASTING OF 11 10% OF BASIC 1727851.60 FLOOR ROOF SLAB 9 CASTING OF TOP 10% OF BASIC 1727851.60 FLOOR ROOF SLAB 10 ON COMPLETION OF 50% OF BASIC+50% 988925.80 STONE/TILE OF CLUB FLOORING IN MEMBERSHIP APARTMENT 11 ON OFFER OF 50% OF BASIC+100% 1139646.80 POSSESSION OF IFMS+100% OF IBRF TOTAL 18406981.50

8. On 12.05.2014, the Developer executed the Apartment Buyer‘s Agreement in favour of Respondent No.1 – Apartment Buyer for a total consideration of Rs.1,45,22,006/-.

The relevant terms of the Apartment Buyer‘s Agreement are set-out hereinbelow :

Clause 6 pertains to payment of Earnest Money, and reads as :
―6. EARNEST MONEY The Company and the Allottee hereby agree that 20% (Twenty percent) of the Sale Consideration of the Apartment shall be deemed to constitute the ―Earnest Money‖.‖ (emphasis supplied) Clause 7 pertains to payment of instalments, and provides that : ―7. PAYMENT OF INSTALLMENTS 7.1 The Allottee has opted for the Payment Plan annexed herewith as Annexure-IV. The Allottee understands that it shall always remain responsible for making timely payments in accordance with the Payment Plan Annexure-IV. Only in the case of a construction linked Payment Plan, the Company shall be obliged to send demand notices for installments on or about the completion of the respective stages of construction. The demand notices shall be sent by registered post/courier and shall be deemed to have been received by the Allottee within 05 (five) days of dispatch by the Company or receipt thereof, whichever is earlier. 7.2 It shall not be obligatory on the part of the Company to send any reminders for any payments whatsoever. Although the Company shall not be obliged to send demand notices other than for the construction linked Payment Plan, or any reminders whatsoever for payments of the instalment, in the event that any such notices or reminders are sent by the Company to the Allottee, as a gesture of courtesy, these shall not, under any circumstances, be construed or deemed to be a waiver of the obligations and responsibility of the Allottee to itself make timely payments in accordance with the Payment Plan or in response to such demand notices in the case of a construction linked Payment Plan. 7.3 If the Allottee prepays any installments(s) or part thereof to the Company before it falls due for payment, the Allottee shall be entitled to pre-payment rebate on such prepaid amounts at the interest rate declared by the Company for this purpose from time to time. The interest on such prepaid installment(s) shall be calculated from the date of prepayment uptill the date when such amount would actually have become due. The credit due to the Allottee on account of such pre-payment rebate shall however be adjusted/paid only at the time of final instalment for the said Apartment. 7.4 The Allottee shall be liable to pay simple interest on every delayed payment, at the rate of 20% per annum from the date that it is due for payment till the date of actual payment thereof. In case the Allottee defaults in making payment of the due installment (including partial default) beyond a period of 90 days from the due date, the Company shall be entitled, though not obliged, to cancel the Allotment and terminate this Agreement at any time thereafter in accordance herewith. However, the Company may alternatively, in its sole discretion, instead decide to enforce the payment of all its dues from the Allottee by seeking Specific Performance of this Agreement. Further, in every such case of delayed payment, irrespective of the type of Payment Plan, the subsequent credit of such delayed installments(s)/payments along with delayed interest in the account of the Company shall not however constitute waiver of the right of termination reserved herein and shall always be without prejudice to the rights of the Company to terminate this Agreement in the manner provided herein. 7.5 Save and except in the case of any bank, financial institution or company with whom a tripartite agreement has been separately executed for financing the said Apartment, or where the Company has given its permission to mortgage to any bank, financial institution or company for extending a loan to the Allottee against the said Apartment, the Company shall not be responsible towards any other third party, who has made payments or remittances to the Company on behalf of the Allottee and any such third party shall not have any right against the said Apartment or under this Agreement whatsoever. The Company shall issue the payment receipts only in favour of the Allottee. Notwithstanding the above, the Allottee is and shall remain solely and absolutely responsible for ensuring and making all the payments due under this Agreement on time. 7.6 The Allottee may obtain finance/loan from any financial institution, bank or any other source, but the Allottee‘s obligation to purchase the said Apartment pursuant to this Agreement shall not be contingent on the Allottee‘s ability or competency to obtain such finance. The Allottee would remain bound under this Agreement whether or not it has been able to obtain finance for the purchase of the said Apartment. The Allottee agrees and has fully understood that the Company shall not be under any obligation whatsoever to make any arrangement for the finance/loan facilities to the Allottee from any bank/financial institution. The Allottee shall not omit, ignore, delay, withhold, or fail to make timely payments due to the Company in accordance with the Payment Plan opted by the Allottee in terms of this Agreement on the grounds of the non-availability of bank loan or finance from any bank/financial institution for any reason whatsoever and if the Allottee fails to make the due payment to the Company within the time agreed herein, then the Company shall have right to terminate this Agreement in accordance herewith.

(g) It was further submitted that the National Commission was not justified in passing the impugned order by directing a full refund of the principal amount with interest @ 10% S.I. p.a. as compensation from 10.07.2017 till the refund was made within four weeks, failing which, interest would be payable from the date of each deposit to the Developer, till the entire amount was refunded.

(h) It was submitted that the Respondents in Civil Appeals No.7615, 7975, 8454, 8480, 8482, 8785-8794, 9139, 9216 and 9638 of 2019; and the Appellant in Civil Appeal No.3064 of 2020, are defaulters since they had paid only between 30 to 40% of the total consideration. These buyers had breached their obligation to make payments as per the construction linked payment plan. Despite this, the Developer had made an alternate offer of similar units in the completed towers in Phase 1 of the project where the Occupation Certificate had been granted, before the expiry of the Extended Delay Period.

a) Under the construction-linked plan, Clause 6 provided that the apartment buyers would be required to deposit 20% of the sale consideration within 45 days of booking of the apartment.
b) Clause 7.4 of the Agreement provides that if there is a delay in payment of an instalment, the apartment buyer would be required to pay Interest on every delayed payment of such instalment @ 20% S.I. p.a.