1. Heard Mr. Aditya Parolia, Advocate, for the complainant and Mr. Rajeev Agarwal, Advocate, for the opposite party. 2. Mr. Gurpreet Singh Nagpal has filed above complaint for directing the opposite party to (i) refund Rs.10232840/- with interest @18% per annum from the date of respective deposit till the date of payment, (ii) pay Rs.500000/- as compensation for mental agony and harassment, (iii) pay Rs.100000/- as litigation costs and (iv) any other relief, which is deemed fit and proper in the facts of the case. 3. The complainant stated that M/s. Emaar MGF Land Limited (the opposite party) was a company, registered under the Companies Act, 1956 and is engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of ‘Imperial Gardens’, at village Kherki Majra Dhankot, Sector-102, Gurgaon in the year 2012 and made wide publicity of its facilities and amenities. Believing upon the representations of the opposite party, the complainant booked a flat in November 2012 and deposited booking amount of Rs.1000000/-. The opposite party allotted Unit no. IG-09-1502, super area 2025 sq.ft. vide allotment letter dated 27.02.2013 and executed Buyers Agreement dated 29.04.2013 in favour of the complainant, in which Basic Sale Price of Rs.12700800/- has been mentioned. Annexure-III of the agreement provides payment plan as “construction linked payment plan”. As per demand, the complainant regularly deposited the instalments till October 2014. The complainant took loan of Rs.9000000/- from Housing Development Finance Corporation Ltd., for payment of the instalments. The opposite party, vide letter of January 2015, raised a demand of next instalment. At that stage, the complainant, vide letter dated 08.01.2015 requested for rescheduling of remaining instalments, showing his willingness to deposit that demand. The opposite party, vide letter dated 20.01.2015, accepted demand of the complainant. Thereafter, the complainant deposited the demanded amount on 20.01.2015 and 21.01.2015. The complainant asked the opposite party to share the construction status of the project but the opposite party did not respond. Then the complaint visited the site and found that the construction of the tower in which the complainant was allotted unit, was not complete. The complainant, therefore, stopped payment of subsequent instalments. Clause 10 (a) of the agreement provides 42 months’ period from the ‘start of construction’ for handing over possession with grace period of three months. From the statement of account as supplied by the opposite party, the construction was started on 11.11.2013 and 42 months’ period expired on 10.05.2017 and grace period also expired on 10.08.2017 but the opposite party did not offer possession of the flat. The complainant, vide e-mail dated 23.08.2018, inquired about the reasons for delay in completing the project. The opposite party, by e-mail dated 24.08.2018, apologized for delay in completing the project. Since the project was unreasonably delayed hence the complainant filed this complaint for refund of the amount on 20.09.2018. 4. The opposite party filed its written reply on 13.11.2018, in which, the facts of booking application, allotment of unit on 27.02.2013, execution of Buyers Agreement on 29.04.2013 and deposits made by the complainant, have not been disputed. The opposite party stated that the complainant had committed default in paying the instalment demanded in October 2014. Then, the opposite party issued reminders dated 04.12.2014 and 06.01.2015. Then, the complainant, vide letter dated 08.01.2015, requested for rescheduling of remaining instalments as he was facing with financial constraints. The opposite party took a sympathetic view and rescheduled remaining instalments and informed the complainant vide letter dated 20.01.2015. Thereafter, the complainant deposited the instalment payable in October 2014 on 21.01.2015 and 22.01.2015. However, subsequent instalments as rescheduled vide letter dated 20.01.2015, were not deposited by the complainant inspite of notice dated 03.06.2015 as well as reminders dated 06.07.2015, 05.08.2015, 08.09.2015, 14.10.2015, 13.11.2015, 14.12.2015, 15.01.2016, 16.02.2016, 17.03.2016, 08.02.2018, 28.03.2018, 02.05.2018 and 25.06.2018. It has been denied that the construction was not proceeding on the spot. The construction was completed and the opposite party applied for issue of “occupation certificate” on 21.03.2018 which was issued by the statutory authority on 17.10.2018. As the complainant has committed default in payment of instalment, he cannot complain for small delay in completion of the project. The complaint has been filed concealing all these material facts as well as on false allegations and is liable to be dismissed. 5. The complainant filed rejoinder reply on 25.11.2019, affidavit of evidence of Gurpreet Singh Nagpal. The opposite party filed affidavit of evidence of Rajendra Prasad. Through IA/9694/2022, the opposite party has filed additional evidence i.e. letter dated 31.10.2018 offering possession to the complainant along with final statement of account showing that net payable was Rs.7230954/-. Both the parties have filed their written submissions. 6. I have considered the arguments of the counsel for the parties and examined the record. Statement of Account of the complainant (Annexure-OP/22) shows that the complainant has deposited instalment payable on 30.10.2014, i.e. “on casting of 8th Floor Roof Slab” on 21.01.2015 and 22.01.2015. As per original payment plan (Annexure-III of the agreement), six instalments remained to be paid. By letter dated 20.01.2015, these six instalments were merged into three instalments i.e. (i) on completion of structure, (ii) on application of occupation certificate and (iii) on intimation of possession. According to the opposite party next instalment as rescheduled was payable in June, 2015. The opposite party issued demand notice dated 03.06.2015 as well as reminders dated 06.07.2015, 05.08.2015, 08.09.2015, 14.10.2015, 13.11.2015, 14.12.2015, 15.01.2016, 16.02.2016, 17.03.2016, 08.02.2018, 28.03.2018, 02.05.2018 and 25.06.2018. The opposite party applied for issue of “occupation certificate” on 21.03.2018 that instalment had also become due. The complainant has not paid any amount after 22.01.2015. Although the complainant has alleged that he had visited the spot and found that construction of the tower in which the complainant was allotted flat, was not complete. But this is a vague allegation and no evidence has been filed in this respect nor the complainant had ever raised any protest that the demands were raised without completing status of instalment. The occupation certificate shows that the construction was completed and opposite party has applied for issue of occupation certificate on 21.03.2018 which was issued on 17.10.2018. As per clause 10(a) of the Buyers Agreement, due date of possession was 10.08.2017. As such, it cannot be said that there was an unreasonable delay. Clause-10(a) is subject to timely payment of instalments. Inspite of several demand notices as well as reminders issued by the opposite party after 03.06.2015, the complainant has failed to deposit instalments. The complainant has committed breach of fulfilling its obligations under the contract. His earnest money is liable to be forfeited under Clause-1.2(i) of the agreement. The opposite party, vide letter dated 31.10.2018, offered possession to the complainant, but he is not willing to take possession and seek for refund. 7. The counsel for the complainant, relying upon the judgments of Supreme Court in CC/7108-7109/2022 M/s Chintels India Ltd. Vs. Sangeeta Agarwal & Anr. decided on 10.10.2022 and Civil Appeal No.341 of 2023 M/s Pivotal Infrastructure Pvt. Ltd. Vs. Priya Sareen & Anr. decided on 16.01.2023 and judgment of this Commission in CC/977/2019 Aashu Gandhi & Anr. Vs. M/s Emaar MGF Land Ltd. decided on 23.06.2022, submitted that since the construction was unreasonably delayed, the opposite party is not entitled to forfeit the earnest money. A perusal of these judgments does not indicate that there is any finding either of this Commission or of Supreme Court that inspite of breach of contract being committed by the home buyer, his earnest money is not liable for forfeited. As per clause 10(a) of the Buyers Agreement, due date of possession was 10.08.2017, while the complainant committed defaults from June 2016. There is no unreasonable delay on the part of opposite party. Above case laws have no application in the present case. 8. In clause 1.2 (i), the earnest money has been provided as 15% of total consideration paid by the allottee as per payment plan attached herewith as Annexure-3. But Supreme Court in Maula Bux Vs. Union of India, (1970) 1 SCR 928 and Kailash Nath Associates Vs. Delhi Development Authority, (2015) 4 SCC 136 held that forfeiture of earnest money must be reasonable otherwise provisions of Section 74 of Contract Act, 1872 would be attracted. This Commission, in CC/438/2019 Ramesh Malhotra Vs. EMAAR MGF Land Ltd. (decided on 29.06.2020), CC/3328/2017 Mrs. Prerana Banejee Vs. Puri Construction Ltd., (decided on 07.02.2022) and CC/730/2017 Mr. Saurav Sanyal Vs. M/s Ireo Grace Pvt. Ltd. (decided on 13.04.2022) held that forfeiture of 10% of basic sale price as the earnest money would be reasonable. ORDER In the result, the complaint is partly allowed. The opposite party is directed to refund the entire amount deposited by the complainant with interest @9% per annum from the date of respective deposit till the date of payment after deducting 10% of the basic sale price within a period of two months. |
