PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Opposite Party No.1 M/s. RNA Builders (NG) is the Promoter and Developers and Opposite Party No.2 is the Proprietor/Managing Director of Opposite Party No.1. It is averred in the complaint that the Complainant was in need of residential premises for his personal use therefore, he approached Opposite Parties in the month of June, 2009 for purchase of the flat in the Opposite Parties proposed building “N.G. Sterling” at Mira Road (E). Relying upon representation made by the sales staff of the Opposite Party the Complainant booked Flat No.804, A-Wing, 8th Floor of the proposed building “N.G. Sterling” admeasuring 630 Sq. ft. built up area (378 sq. ft. carpet area) @Rs.2,550/-per sq.ft. The total consideration amount was calculated at Rs.16,06,500/- The Complainant has paid an amount of Rs.51,000/- by cheque bearing No.972930, dtd.14/06/2009 at the time of booking of aforesaid flat as the earnest money. Balance consideration amount of Rs.15,55,500/- was to be paid on demand as per the progress of construction and upon production of the architects certificate certifying the completion of the concerned slab. The Complainant was also issued allotment letter dtd.16/06/2009.
2) It is submitted by the Complainant that after 14/06/2009 onwards the Complainant had paid an amount of Rs.2,40,975/- by cheque to the Opposite Party. Alongwith complaint the Complainant has produced copy of earnest money receipt, copy of allotment letter and copies of receipt of payment of Rs.1,89,975/-. On 07/07/2009, the Complainant entered into Article of Agreement with the Opposite Party. The said Agreement is duly registered in the office of Sub-Registrar of Assurance Thane. The Complainant has produced copy of aforesaid Agreement dtd.07/07/2009 alongwith complaint at Exh.‘D’. In the aforesaid Agreement on page no.4 payment of schedule is given. As per the Article of Agreement, total payment due on or before completion of Plinth was Rs.1,54,115/- and till November, 2009 itself the Complainant had already paid an amount of Rs.2,40,975/- i.e. excess amount of Rs.86,860/- even when only digging work was in progress.
3) It is submitted that in the month of October, 2009 onwards the work at site of the building was stopped for about 7 months for the reasons best known to the Opposite Parties. In or about April, 2010 the construction was resumed by the Opposite Parties. On 23/04/2010, the Complainant received letter dtd.21/04/2010 from the Opposite Parties demanding payment of Rs.1,03,115/- towards plinth work. The said demand letter was not supported by the Architect Certificate. In fact the Complainant had already made excess payment towards the plinth work. However, to avoid confrontation with the Opposite Parties the Complainant decided to make payment as per demand letter dtd.21/04/2010. Copy of demand letter dtd.21/04/2010 is produced alongwith complaint at Exh. ‘E’. On 5th May, 2010, the Complainant visited office of the Opposite Parties and offered to give the cheque, however, staff members of the Opposite Parties refused to accept the cheque. When the Complainant asked the staff as to why they have sent demand letter, if they do not want payment. The Complainant was informed by Ms. Komal that demand letter was sent by mistake and the MD has directed them not to accept payment from any of the flat purchasers of NG Sterling Building. The Complainant also assured to pay interest, if any. The Complainant made several efforts to make payment to the Opposite Party but they refused to accept from the Complainant.
4) Thereafter, the Complainant sent the cheque bearing No.069845 dtd.05/05/2010 drawn on Bank of Baroda for Rs.53,115/- and Cheque No.078983 dtd.05/05/2010 drawn on Axis Bank for Rs.50,000/- alongwith covering letter dtd.13/05/2010 to the Opposite Parties, by speed post. The Complainant had also showed willingness to pay interest, if any, for late payment, as provided in the Agreement dtd.25/09/2009.
5) It is submitted that the Complainant was shocked and surprised after receipt of letter dtd.05/05/2010 from the Opposite Parties wherein it was stated that by the Opposite Parties that in the absence of non payment received, under the agreement, the flat stands cancelled. The Complainant has produced copy of the letter at Exh. ‘G’. It is submitted that aforesaid two cheques sent to the Opposite Parties alongwith the letter dtd.13/05/2010 were returned by the Opposite Parties to the Complainant. After receipt of the aforesaid cheque the Complainant was informed by the Opposite Parties that since November, 2009 the property prices have been increased substantially, therefore, they have decided to cancel the bookings made prior to November, 2009. It was further informed to the Complainant, if he want to save booking of the Flat No.804 then he should either make payment of entire consideration amount of Rs.13,65,525/- within 15 days or enter into fresh Agreement at prevalent property rate. The Complainant showed his inability to do the same.
6) The Complainant has realized that Opposite Parties had made false representation about to the payment schedule in order to lure him to book the flat in their project when property market was slump and property rates was quite low. Thereafter, the Complainant made written complaint to Mira Road Police Station on 25/05/2010 against the Opposite Parties. Copy of complaint is produced at Exh. ‘I’. According to the Complainant, Opposite Parties have issued similar letters to several other flat purchasers of the NG Sterling Building. Inspite of repeated requests the Opposite Parties have refused to concede to the request of the Complainant to accept payment from the Complainant. According to the Complainant, he has made all the payments as per schedule mentioned in the Article of Agreement dtd.07/07/2009. It is alleged that Opposite Parties have indulged in the unfair trade practices and incorporated several illegal clauses in the Agreement dtd.07/07/2009. It is contended that when property prices were much lower than today’s market price the Complainant has booked flat in NG Sterling Building of the Opposite Parties. It is beyond the Complainant’s financial capacity to purchase flat at today’s prevailing property rate. The Complainant was also not in financial condition to pay entire consideration amount at one stroke. Therefore, he had booked the flat in a under construction project of Opposite Parties. It is alleged that the prices of the property have shot up, therefore, the Opposite Parties with malafide intention wants to cancel the Agreement dtd.07/07/09 under one pretext or other and it is cheating & unfair trade practice on the part of Opposite Parties. The Complainant is ready to make payment as per schedule mentioned in the Registered Agreement dtd.07/07/09 and do not wish to cancel the booking of the flat No.A/804, N.G. Sterling, Mira Road (E). There is deficiency in service on the part of Opposite Parties and thereby the Complainant has been suffering from anxiety, high blood pressure and not able to concentrate on the work. He has requested to declare that the letter dtd.21/04/2010 issued by Opposite Parties as illegal and bad in law. It is further requested to declare that letter dtd.05/05/2010 & 19/05/2010 of the Opposite Parties are illegal and bad in law. The Complainant has expressed apprehension that Opposite Party may allot his Flat No.A/804 in NG Sterling Building to third party and in that case he will suffer irreparable loss, hardship which cannot be compensated in terms and money. He has requested to restrain the Opposite Parties and their servants, agents, officers and all the persons coming through under or by them be permanently restrained by an order and injection of this Hon’ble Court from creating third party interest in respect of flat No.A/804 N.G. Sterling, Mira Road. The Complainant has further requested to direct Opposite Parties to pay an amount of Rs.16 Lacs jointly and/or severally as a special damages towards mental agony, trauma and medical expenses incurred by the Complainant for medical treatment. Further he has requested to direct Opposite Parties to accept the payment from the Complainant as per the schedule of payment given in the Agreement of Article dtd.07/07/2009. The Complainant has requested to restrain Opposite Parties from creating third party interest in Flat No.A/804, N.G. Sterling, Mira Road (E). The Complainant has also requested for cost of this complaint.
7) Alongwith complaint the Complainant has produced copy of documents including copy of agreement, payment receipt, etc. at Exh. ‘A’ to ‘I’.
8) Alongwith complaint the Complainant had filed application for interim relief. Show-cause Notice of this application was issued to the Opposite Parties. Opposite Parties have filed say to the application for interim relief injection. After hearing Ld.Advocates for both the parties, Opposite Party No.1 & 2 are directed not to create any third party interest in respect of Flat No.804, A-Wing, 8th Floor, NG Sterling, Mira Road (E) till final disposal of this complaint.
9) Opposite Parties No.1 & 2 have filed their common written statement and thereby resisted claim of the Complainant contending interalia that complaint is frivolous and therefore, deserves to be dismissed. It is contended that reliefs sought by the Complainant are beyond the scope of the Hon’ble Forum. The complaint is not maintainable in the present Forum and the Complainant has abused process of law. According to the Opposite Parties, there is no deficiency in service nor they have committed any unfair trade practice and therefore, complaint is liable to be dismissed. It is alleged that in fact the Complainant has committed breach of the terms and conditions of the Agreement for Sale and therefore, as per Clause 8 of the said agreement the Opposite Parties are entitled to terminate the contract of development for want of payment of installment by the Complainant. It is submitted that the Complainant as per clause 3 of the agreement for sale was under obligation to make payment as per completion of slab. Reminders were sent by the Opposite Parties at regular intervals but Complainant failed and neglected to comply with the demand letter and therefore, Opposite Parties have terminated the agreement for sale.
10) Opposite Parties have admitted the fact that the Complainant had booked flat in their proposed building for total consideration for sum of Rs.16,06,500/-. On 14/06/09 out of total consideration of Rs.16,06,500/- the Complainant has paid Rs.51,000/- against which EMR receipt was duly issued to the Complainant. According to the Opposite Parties as per office practice welcome letter was sent to the Complainant wherein the Complainant was called upon to deposit sum of Rs.1,89,975/- alongwith sum of Rs.63,010/-for stamp duty as per the terms and conditions agreed upon between the Complainant and Opposite Parties. It is alleged by the Opposite Parties that the Complainant had committed breach of contract at the very first installment amount to be paid as sum of Rs.1,89,975/- was paid by the Complainant in two installments Rs.1,20,000/- on 07/08/09 delayed by 37 days and Rs.69,975/- on 21/11/09 delayed by 145 days. It is submitted that as per Clause 3 of the Agreement of Sale, the Complainant was under obligation to pay the installment on the execution of Agreement i.e. 07/07/09. Further, the Complainant was also under obligation to make payment as per the progress of work. It is pointed out that as per Clause 6 of the Agreement for Sale the Complainant was at liberty to take inspection of the Architect Certificate in order to satisfy and/or verify that work which is claimed by the Opposite Party is completed or not. It is alleged that the Complainant has failed to choose the option with malafide intension to avoid payment as per the terms and conditions of Agreement.
11) According to the Opposite Parties, total payment due on completion of plinth was Rs.1,54,115/-. The Opposite Party has vide their letter dtd.21/04/2010 informed the Complainant that plinth work is completed and as per the terms and conditions of Agreement called upon the Complainant to deposit Rs.1,03,115/- within 15 days from the date of letter. Said amount was not deposited by the Complainant. The Complainant is under wrong impression that he has paid excess amount when only digging work was in progress. The Opposite Party has denied allegations that construction work was stopped for about 7 months. It is submitted vide letter dtd.21/04/2010,the Complainant was informed that plinth work is completed and called upon deposit sum of Rs.1,03,115/- within 15 days. By letter dtd.05/05/2010, it was brought to the notice of the Complainant that failure on his part to pay the payment as per the terms and conditions of agreement the flat stands cancelled. Even thereafter, the Complainant has not bothered to make payment. After cancellation of Agreement for Sale, vide letter dtd.05/05/2010, the Complainant alongwith his letter dtd.13/05/2010 had sent two cheques for sum of Rs.50,000/- and Rs.53,115/- both dtd.05/05/2010 as installment which the Complainant was under obligation to make payment after completion of plinth work. Both the cheques were duly returned to the Complainant alongwith letter dtd.19/05/2010.
12) It is submitted that as per Agreement Clause No.3, the Complainant was under obligation to make payment as per completion of the slab. Opposite Parties sent reminders to the Complainant at regular intervals but the Complainant has totally failed to comply with the demand letter of the Opposite Party and therefore, the Agreement was terminated by the Opposite Party. It is contended that that as per Clause No.9 of the Agreement, Opposite Party was at liberty to terminate the Agreement in case of default in payment of consideration on due dates.
13) The Opposite Parties have denied allegations in complaint para No.13 that since property prices has substantially increased therefore, it has been decided by the Opposite Party to cancel booking prior to November, 2009 and called upon the Complainant to make entire payment of the consideration within 15 days or enter into a fresh Agreement at the prevalent property rate. It is alleged that the Complainant had approached to this Forum with unclean hands and therefore, complaint deserves to be dismissed. The Opposite Parties has denied allegations made by the Complainant and submitted that since the Agreement has been terminated, there is no question of acceptance of amount as per schedule of Article of Agreement for Sale dtd.07/07/09. As per Sec.12 of MOFA, the Complainant was under obligation to make payment as per scheduled of Agreement of Sale dtd.07/07/09. The Complainant has committed default in payment of installment.
14) It is submitted by the Opposite Parties that prayer made in the complaint are beyond the ambit of this Forum and it is settle law that Forum can grant only those reliefs which are enumerated in Sec.14(1) of the Consumer Protection Act, 1986 and not beyond that. It is contended that Opposite Parties are not liable to pay an amount of Rs.16 Lacs towards special damage as claimed by the Complainant. It is alleged that complaint filed by the Complainant is an abuse of process of law. There is no deficiency in service on the part of Opposite Parties. Consumer Forum has no power to entertain the suit for breach of contract. Complaint is not maintainable in the present Forum. Therefore, complaint is liable to be dismissed with heavy cost.
15) The Complainant has filed rejoinder and thereby denied allegation made in the written statement of Opposite Parties. Opposite Party has filed application thereby raised preliminary objection of maintainability of the complaint contending that complaint is misconceived, misplaced and does not disclose any cause of action that would constitute the deficiency in service or unfair trade practice against the Opposite Parties and therefore, complaint should be dismissed. It is further submitted that medical expenses claimed by the Complainant does not fall within the four corner of “Consumer Disputes.” It is further contended that dispute mentioned in the complaint is not a “Consumer Dispute” as the Complainant has neither asked for possession of flat or refund of money. Opposite Party No.1 & 2 have filed affidavit of evidence. The Complainant has also filed affidavit of evidence. The Complainant has filed written argument. Opposite Parties have filed written argument in which they have raised contention that reliefs claimed by the Complainant is exceeding pecuniary jurisdiction of this Hon’ble Forum and therefore, this Forum cannot try and decide this complaint.
16) Thereafter, the Complainant made an application for amendment of complaint. By the proposed amendment the Complainant has requested to direct Opposite Parties to handover vacant and peaceful possession of the flat No.A/804, 8th Floor, N.G. Sterling, Mira Road (E) to the Complainant. After hearing Ld.Advocate for both the advocates application for amendment is allowed and accordingly, the Complainant carried out amendment in the complaint and its prayer clause.
17) Heard Ld.Advocate Ms. Shaila Pandey for the Complainant and Ld.Advocate Mr. Wavikar for the Opposite Parties. Ld.Advocate Mr. Wavikar has vehemently submitted that this Forum has no pecuniary jurisdiction to entertain and try this complaint as reliefs claimed by the Complainant are beyond the pecuniary jurisdiction of this Forum. On the contrary it is submitted on behalf of Complainant that complaint is well with the pecuniary jurisdiction of this Forum.
18) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether this Forum has pecuniary jurisdiction to entertain and try this complaint ?
Findings : Yes.
Point No.2 : Whether the Complainant has proved deficiency in service on the part of Opposite Party No.1 to 2 ?
Findings : Yes.
Point No.3 : Whether the Complainant is entitled for reliefs as prayed for ?
Findings : As per final order.
Reasons
Point No.1 :- As the Opposite Parties has raised contention that this Forum has no pecuniary jurisdiction to take decision. It is necessary to consider whether this Forum has pecuniary jurisdiction to decide this complaint. As per provisions of Section 11- Jurisdiction of the District Forum – (1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints whether the value of goods or services and the compensation, if any, claimed [does not exceeds Rs.20 Lacs].
In the instant case, it is admitted fact that in the month of June, 2009, the Complainant went to the site of the Opposite Parties proposed building “N.G. Sterling” at Mira Road (E). He booked flat No.804, A-Wing, 8th Floor, admeasuring 603 sq.ft. built-up area @ Rs.2,550/- per sq.ft. i.e. for total consideration of rs.16,06,500/-. The Complainant paid Rs.51,000/- as an earnest amount by cheque dtd.14/06/09. This fact is admitted by the Opposite Parties. Further it is fact that on 07/07/09, the Opposite Parties have executed registered Agreement for Sale of aforesaid flat No.804, A-Wing, 8th Floor, admeasuring778 sq ft for total consideration of Rs.16,06,500/-. Copy of the registered Agreement of Schedule is produced on record by the Complainant at Exh.‘D’. In the registered agreement total consideration of flat in question bearing No.A/804, N.G. Sterling is stated as Rs.16,06,500/-.
In the complaint as per Clause No.37, the Complainant has prayed for vacant and peaceful possession of Flat No.A/804 on 8th Floor of N.G. Sterling Building situated at Mira Road (E). Further the Complainant prayed for Rs.16 Lacs as a special damages from the Opposite Parties towards sever headache, mental trauma with interest @ 24% and Rs.10,000/- towards expenses incurred by the Complainant on medicine and for filing the matter against the Opposite Parties. Ld.Advocate Shri. Wavikar for the Opposite Parties has referred to above cited provision of Section in the Consumer Protection Act and submitted that value of the flat in question of which possession is prayed by the Complainant is stated as Rs.16,06,500/- in the Registered Agreement and further the Complainant has prayed for recovery of Rs.16 Lacs as a special damages from the Opposite Party and therefore, Complainant’s total claim exceeds pecuniary jurisdiction of this Forum.
Ld.Advocate for the Complainant has submitted that in the complaint initially the Complainant has prayed for special damages of Rs.16 Lacs from the Opposite Parties. However, when the Opposite Party has raised objection regarding jurisdiction the Complainant has reduced his claim of special damages from Rs.16 Lacs to Rs.3,85,000/- and Rs.10,000/- as cost of this proceeding, therefore this Forum has pecuniary jurisdiction to try and decide this complaint. In the alternative it is submitted that as per the provision of MOFA, 1960, the value of Flat cannot be taken into consideration. The Complainant has filed affidavit alongwith affidavit of evidence on 29/06/2012. It is submitted on behalf of Complainant that it is well settled that the Complainant can give up this claim or part of claim at any time.
As mentioned above the Complainant has entered into an Agreement for Sale of Flat No.A/804 on the 8th floor of NG Sterling building of the Opposite Party and accordingly Registered Agreement was executed between Complainant and the Opposite Parties in respect of the said flat on 07/07/09. In the Registered Agreement value of the flat is stated as Rs.16,06,500/-. Initially in the complaint the Complainant has prayed for recovery of special damages of Rs.16 Lacs from the Opposite Parties. On 29/06/2012, the Complainant has filed his affidavit and thereby he has restricted his claim for special damages from Rs.16 Lacs to Rs.38,500/-, so total claim comes to Rs.19,91,500/-. As per the provision of Section 11, this Forum can entertain and try complaint whether value of goods and services & compensation claim does not exceed Rs.20 Lacs. Therefore, we hold that this Forum has pecuniary jurisdiction to try and decide this complaint. Hence, we answer point no.1 in the affirmative.
Point No.2 :- Following facts are undisputed facts – in the month of June,2009, the Complainant went to the site of Opposite Parties project of proposed building “N.G. Sterling” at Mira Road (E), Mumbai and after making necessary inquiries booked Flat No.804, A-Wing, 8th Floor of the proposed N.G. Sterling building, admeasuring 630 Sq.ft. built up area @ Rs.2,550/-per sq.ft. for total consideration of Rs.16,06,500/-. That time the Complainant had paid an amount of Rs.51,000/- by cheque dtd.14/06/09 to the Opposite Party as an earnest money. The Complainant has produced earnest money receipt issued by the Opposite Party alongwith complaint at Exh. ‘A’. Opposite Party has admitted the fact that on 14/06/09, the Complainant had paid at the earnest amount of Rs.51,000/- for purchase of Flat No.A/804 in their proposed N.G. Sterling Building. The Complainant has produced allotment letter issued by Opposite Party at Exh.‘B’. In the said letter Opposite Party has stated “We are pleased to inform you that you have been provisionally allotted Flat No.804 on 8th Floor in building Wing –A at N.G. Sterling project and by the said letter the Complainant was called upon to pay Rs.2,04,150/- on or before 01/07/09. It was further informed that stamp duty is Rs.63,010/- to be paid in favour of the Kopal Co-operative Bank Ltd., ‘A/c stamp duty’ (Pay Order/Demand Draft) within 15 days from the booking date 14/06/09.” According to the Complainant, he has paid Rs.2,40,975/- to the Opposite Party. The Complainant has produced receipts of payment of Rs.1,20,000/- dtd.01/08/09 & Rs.69,975/- dtd.21/11/09 issued by the Opposite Parties. It is not in dispute that on 07/07/09 Opposite Party has executed registered Articles of Agreement in favour of Complainant in respect of Flat No.804, A-Wing on the 8th floor of the proposed building, N.G. Sterling for total price of Rs.16,06,500/-. In the Agreement on page 22 & 23 schedule of payment is stated. In Agreement Clause No.4 there are recitals regarding payment of interest at 21% p.a. in case of delay in payment of installment without prejudice to the rights of the promoters. The Complainant as well as Opposite Parties have admitted execution of the aforesaid registered Agreement dtd.07/07/2009.
It is submitted on behalf of the Complainant, as per Agreement dtd.07/07/09 total payment due on or before completion of plinth was Rs.1,54,115/-. However, till November, 2009 itself the Complainant had already paid an amount of Rs.2,40,975/- i.e. the Complainant had paid an excess amount of Rs.88,860/- due towards plinth even when only digging work was in progress. It is submitted that from October, 09 onwards construction work at site was stopped for 7 months for the reasons best known to the Opposite Party. The construction work was resumed in the month of April, 2010. On 23rd April, 2010, the Complainant received letter dtd.21/04/2010 from the Opposite Parties demanding payment of Rs.1,03,115/- towards plinth work. The said letter was not supported by the Architects Certificate. In fact the Complainant had already made excess payment till the stage of plinth work but in order to avoid confrontation with Opposite Party the Complainant decided to make payment as per demand letter dtd.19/04/2010 and on 05/05/2010 the Complainant visited office of Opposite Party and offered to give cheque but staff members of Opposite Party refused to accept the cheque. On inquiry with the staff member of Opposite Party No.1, Ms. Komal informed the Complainant that demand letter was sent to the Complainant by mistake and the M.D. has directed them not to accept payment from any of the flat purchaser of the N.G. Sterling building. That time the Complainant assured to pay interest, if any but Opposite Parties staff refused to accept the cheque. Then the Complainant send two cheques one for Rs.53,115/- and second for Rs.50,000/- both dtd.05/05/2010. In the covering letter Complainant showed willingness to pay interest, if any. But the Opposite Party vide their letter dtd.05/05/2010 informed the Complainant that in the absence of payment received under agreement, the flat stands cancelled. Ld.Advocate for the Complainant has referred to the letter which is produced at Exh.‘G’, submitting that alongwith said letter Opposite Party had returned aforesaid two cheques to the Complainant. It submitted that Complainant was informed by the Opposite Party that since November, 2009, the property prices have increased sustainably therefore, they have decided to cancel booking made prior to November, 2009. Proposal was given by the Opposite Party to the Complainant if he wants to save booking of the said flat, the Complainant should either made payment of entire consideration amount of Rs.13,60,525/- within 15 days or entered into fresh agreement at prevalent property rate. It is submitted that the Complainant was unable to do so.
Opposite Party No.1 & 2 in their common written statement para no.9 have stated that the flat was booked by the Complainant for total consideration of Rs.16,06,500/- on 14/06/09. The Complainant had paid sum of Rs.51,000/- against which EMI receipt was issued. As per office practice Opposite Party had sent welcome letter to the Complainant wherein the Complainant was called upon to deposit Rs.1,89,975/- alongwith sum of Rs.63,010/- for stamp duty as per the terms and conditions agreed upon between the parties. It is alleged that the Complainant has committed breach of contract at the time of payment of installment amount of Rs.1,89,975/-. The Complainant paid two installments one of Rs.1,20,000/- on 07/08/09 and second of Rs.69,975/- on 23/11/09 and therefore, there was delay of 145 days. Ld.Advocate Shri. Wavikar for the Opposite Party has submitted that as per clause 3 of the Sale Agreement the Complainant was under obligation to pay installment on execution of the Agreement as per progress of work. As per Clause 6 of the said Agreement the Complainant was liberty to inspect Architect Certificate in order to verify progress of work. The Complainant has failed to choose the option with malafide intention to avoid payment as per term and condition of the Agreement. By letter dtd.21/04/2010, the Opposite Party had informed the Opposite Party that the plinth work was completed and called upon the Complainant to deposit Rs.1,03,115/- within 15 days from the date of letter. The said amount was not deposited by the Complainant. The Complainant failed to deposit amount demanded by welcome letter. According to the Opposite Party, it is wrongly alleged by the Complainant that he had paid excess amount when the digging work is in progress. It is denied by the Opposite Party that construction work was stopped for about 7 months. It is submitted that the Complainant has failed and neglected to make payment of Rs.1,03,115/- demanded by letter dtd.21/04/2010 and so by letter dtd.05/05/2010 was brought to the notice of the Complainant that failure on his part to pay an amount as per terms and condition of the agreement that booking of flat stands cancelled. Even thereafter the Complainant failed and neglected to make payment and therefore, by letter dtd.05/05/2010, the Opposite Party cancelled the Agreement for Sale of flat to the Complainant. Two cheques sent by the Complainant alongwith letter dtd.13/05/2010 were returned back to the Complainant alongwith letter dtd.19/05/2010. Ld.Advocate for the Opposite Party has referred Clause 9 and submitted that as per provision of Clause 9, Opposite Party was at liberty to terminate Agreement in case of non-payment of Agreement and accordingly Opposite Party has terminated Agreement. It is submitted that since the Agreement has been terminated by the Opposite Party there was no question of acceptance of amount send by the Complainant.
It appears from the documents on record that at the time of booking of Flat No.A/804, A-Wing, 8th Floor, N.G. Sterling Building, the Complainant had paid an amount of Rs.51,000/- by cheque dtd.24/06/09. The earnest money receipt dtd.14/06/09 issued by the Opposite Party for Rs.51,000/- is produced at Exh.‘A’. Opposite Party vide letter dtd.16/06/09 called upon the Complainant to make payment of Rs.2,04,150/- on or before 01/07/09 and stamp duty amount Rs.63,010/-. The Complainant has paid Rs.1,20,000/- on 01/08/09 and Rs.69,975/- vide receipt dtd.21/11/09 produced at Exh. ‘C’ colly. In the complaint para no.5 the Complainant averred that 14/06/09 onwards he has paid an amount of Rs.2,40,975/- by cheque to the Complainant and his aforesaid contention is supported by receipts at Exh. ‘A’ and receipts produced at Exh. ‘C’ colly.
As per the provisions of Sec.4 of the Maharashtra Ownership of Flats and Apartments Act, Promoters are under legal obligation to enter into an agreement as per Section 4 of the MOFA, 1963, before he accept money as payment or deposit towards sale price of the flat which shall not be more than 20% to enter into written agreement for sale of the flat and shall register the agreement in accordance with the provisions of Registration Act. Further as per provisions of Section 4A, the Agreement prescribed under Sub-section 1 shall contain the particulars stated in Sub-Clause A of Clause (1A) of Section 4. The Promoter is under legal obligation to mention in the agreement the date on which the possession of flat is to be handed over to the purchaser, proportionate price of the common as facility which should be shown separately to be paid by the purchaser and the intervals at which installment thereon may paid etc. In this case Opposite Parties have executed an Agreement for Sale in respect of Flat No.804, A-Wing on the 8th Floor of the proposed N.G. Sterling Building in favour of the Complainant on 07/07/2009. Further, it appears that said agreement was registered in the office of Sub-Registrar, Thane, on 12/04/2009. We have carefully perused the terms and conditions stated in the aforesaid agreement dtd.07/07/09. It appears that terms and conditions stipulated in the Agreement are not only arbitrarily and illegal but are drafted with a sole intention to protect the interest of Promoter only. Ld.Advocate for the Complainant has submitted that the Complainant being needy person and the position of Opposite Party was dominating position and therefore, the Complainant singed the Agreement. It is pointed out that in the agreement it is stated that payment of various installment mention in the agreement on due date without fail and without any delay or default as in. It is submitted that arbitrary and illegal conditions are stipulated in the agreement. Condition authorizing promoter to charge exorbitant interest on delayed payment and at the same time he has given so called discretion to cancel the agreement are illegal and against principles of natural justice. In agreement Clause No.4 there is provision of charging interest at the rate of 21% p.a. compounding monthly on delayed payment. Under Clause No.9 in case of any breach of condition by purchaser, promoter is entitled to terminate agreement by giving 14 days prior notice. It is stated in Clause 11A, promoter is authorized to amend or modify and/or very building plans. In Clause 11B, it is stated that Promoter being entitle to consume such FSI as may be available in respect of the said property. As per condition stipulated in Clause B, Promoter shall be entitled to consume as per balance FSI now available or hereafter become available. It is stated in sub-clause (F) that terrace upon the topmost floor of the said building shall continue till remain the property of the Promoters and the position or amendment thereby shall not waste in the society or continuum. In the agreement specific date of delivery or possession of flat is not stated. As mentioned above number of terms and conditions stated in the Agreement of Sale dtd.07/07/09 are not only arbitrarily but illegal and against the provision of MOFA.
In the Agreement schedule of payment of total agreed consideration amount of Rs.16,06,500/- is stated as under -
a)Rs.51,000/- (Rupees Fifty One Thousand Only) on or before the execution of these premises.
b)Rs.1,03,115/- (Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the ----- on or before completion of the Plinth.
c)Rs.1,03,115/-(Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the ---- on or before completion of the 1st Slab.
d)Rs.1,03,115/-(Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the ---- day of – to be paid on or before completion of the 2nd Slab.
e)Rs.1,03,115/- (Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the---- day of--on or before completion of the 3rd Slab.
f)Rs.1,03,115/-(Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the ---- day of -- on or before completion of the 4th Slab.
g)Rs.1,03,115/-(Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the ---- day of -- on or before completion of the 5th Slab.
h)Rs.1,03,115/-(Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the ---- day of --- on or before completion of the 6th Slab.
i)Rs.1,03,115/-(Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the ---- day of --- on or before completion of the 7th Slab.
j)Rs.1,03,115/-(Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the ---- day of --- on or before completion of the 8th Slab.
k)Rs.1,03,115/-(Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the ---- day of --- on or before completion of the 9th Slab.
l)Rs.1,03,115/-(Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the completion of the Plumbing.
m)Rs.1,03,115/-(Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the completion of the construction of the Electrical.
n)Rs.1,03,115/-(Rupees One Lac Three Thousand One Hundred Fifteen Only) to be paid on or before the completion of the flooring.
o)Rs.25,030/-(Rupees Twenty Five Thousand Thirty Only) being the balance amount of the purchase price to be paid by the Purchaser/s to the promoters on or before the Promoters handling over possession to Purchaser/s of the Unit hereby agreed to be allotted to the Purchaser/s Each of the aforesaid installments of the purchase price shall be paid duly and punctually without any claim of deduction, time being essence of the contract in respect of each such installment or payment. The Purchaser/s confirm that no interest in the said unit, is intended to pass or shall be deemed to have passed, in favour of the Purchasers, until the full payment of the purchase price and all other amounts due under this agreement, shall have been fully paid up, by the Purchasers.
It is admitted fact that at the time of booking of Flat No.804, ‘A’ Wing, 8th Floor in the proposed building of N.G. Sterling of Opposite Party on 14/06/2009, the Complainant paid Rs.50,000/- as an earnest money in accordance with the schedule of payment stated in the Agreement. As per the schedule, second installment of Rs.1,03,115/- was to be paid by the purchasers on or about completion of plinth. In the instant case as per the Opposite Party after booking of flat as per their office practice the Opposite Party had sent to their welcome letter to the Complainant and thereby called upon the Complainant to deposit Rs.1,89,975/- alongwith sum of Rs.63,010/- for stamp duty. The Complainant has produced copy of welcome letter dtd.16/06/2009 received from the Opposite Party alongwith complaint at Exh. ‘B’. It appears from the contents of letter that Opposite Party informed the Complainant that they have provisionally allotted Flat No.804 on 8th floor in ‘A’ wing of N.G. Sterling project situated at Mira Road (E) and called upon to make payment of Rs.2,04,150/- on or before 01/07/2009 and to proceed to make Sales Agreement. By the said letter it was advised to pay stamp duty amount of Rs.63,010/- in favour of the “The Kapol Co-op. Bank Ltd., A/c Stamp Duty” (by Pay Order or Demand Draft). Demand of Rs.2,04,150/- made by the Opposite Party in their letter dtd.16/06/09 is not consistent with the terms and conditions of the agreement and payment of schedule stated therein. It is alleged by the Opposite Party that the Complainant has breached the terms and conditions of agreement at the time of payment of first installment amount of Rs.1,89,975/- submitting that the Complainant paid said amount in two installments first installment of Rs.1,20,000/- on 07/08/09 and second installment of Rs.69,975/- on 23/11/2009 which was delayed by 145 days. As stated above the Opposite Party has admitted payment of Rs.51,000/-, Rs.120,000/- & Rs.69,975/- made by the Complainant. Ld.Advocate for the Complainant has submitted that the Complainant paid excess amount of Rs.86,160/- before completion of plinth work when digging work was in progress.
On the contrary it is alleged by the Opposite Party that the Complainant has committed breach of terms and conditions at the time of payment of very first installment as said sum of Rs.1,89,975/- was paid in two installments. Considering the payment of schedule in the agreement we do not find any substance in the allegations made by the Opposite Party that Complainant has committed breach of agreement at the time of payment of first installment. As in the payment schedule there is no mention of payment of installment of Rs.1,89,975/- or Rs.2,04,150/- stated in the welcome letter dtd.16/06/2009.
Ld.Advocate Shri. Wavikar for the Opposite Party has submitted that total payment due on completion of plinth was Rs.1,54,115/- therefore, Opposite Party vide their letter dtd.21/04/2010 informed the Complainant that plinth work is completed and called upon to deposit Rs.1,03,115/- within 15 days. However, the said amount was not deposited by the Complainant. Therefore, vide letter dtd.05/05/2010, Opposite Party brought to the notice of the Complainant that failure on his part to pay the amount as per terms and conditions of the agreement the flat stands cancelled. It is submitted that even thereafter the Complainant has not bothered to make payment. It appears that the Complainant while digging work was in progress paid total amount of Rs.2,40,975/-to the Opposite Party. Opposite Party’s letter dtd.21/04/2010 demanding Rs.1,03,115/- alleging completion of plinth work was not supported by Architects Certificate. It is submitted on behalf of Complainant that in fact, the Complainant had made excess payment even then in order to avoid confrontation with the Opposite Parties the Complainant decided to make payment as demanded by letter dtd.21/04/2010 and visited office of the Opposite Party to give cheque. However, staff members of the Opposite Parties refused to accept the cheque. On inquiry, Ms. Komal, employee of the Opposite Party informed the Complainant that demand letter was send by mistake and M.D. has directed them not to accept payment from any of the flat purchaser of N.G. Sterling Building. It is admitted fact thereafter alongwith letter dtd.05/05/2010, the Complainant had sent one cheque for Rs.53,115/- and another cheque for Rs.50,000/- alongwith covering letter dtd.13/05/2010. However, Opposite Parties returned both the cheques to the Complainant and informed the Complainant that in the absence of nonpayment received under the agreement the flat stands cancelled. Opposite Parties has not adduced any evidence before this Forum to prove that till 23/04/2010 plinth work was completed. As per payment of schedule stated in the Registered Agreement first installment of Rs.51,000 was paid as an earnest amount and second installment of Rs.1,03,115/- was paid to be on or before completion of plinth work. The Opposite Party even after receipt of amount of Rs.2,40,975/- from the Complainant demanded second installment of Rs.1,03,115/- towards plinth work. It appears that the Complainant went to the office of Opposite Parties and tendered cheque of said amount but staff of Opposite Parties refused to accept the cheque. Therefore he had sent two cheques by Speed Post alongwith covering letter. The Complainant has produced on record and copy of handwritten letter dtd.13/05/2010 addressed to Opposite Party in which he has specifically stated that about his visit to the office of Opposite Party on 05/05/2012 to submit cheque but payment was not accepted by staff members of the Opposite Parties. Hence, he is sending the amount through Speed Post by showing his willingness to pay interest, if any. The Opposite Party instead of accepting aforesaid two cheques informed the Complainant that on the ground of non-payment of installment agreement stands cancelled. Ld.Advocate Shri. Wavikar for the Opposite Party has submitted that as per the provisions of Clause 9 in case of breach of terms and conditions of agreement the Promoter is entitled to terminate the agreement. It is alleged that the Complainant has committed breach of the terms & conditions of the agreement, so his agreement is terminated by the Opposite Parties.
It is to be noted that as per provision of Clause 9 of the said agreement if the promoter comes to the conclusion to terminate the agreement then he has required to give 14 days prior notice in writing and during the said period if the purchaser fail to remedy the breach then promoter is entitled to terminate the agreement. Further it is stated that after the termination of agreement the Promoter shall refund to the Purchasers all the amounts, received by them, from the Purchasers after deducting therefrom, the earnest paid herein upon the execution hereof, including further 25% of the subsequent installment/s paid by the Purchaser.In this case Opposite Party/Promoter has not given 14 days prior notice to the Complainant/Purchaser before terminating his agreement. First letter dtd.21/04/2010 demanding installment of Rs.1,03,115/- towards plinth work was sent to the Complainant. It is clear from the evidence that after receipt of notice the Complainant had went to the office of Opposite Party and tendered cheque of the said amount but staff members of the Opposite Party refused to accept the amount and therefore, the Complainant alongwith letter dtd.13/05/2010 had sent two cheques one for Rs.53,115/- and second for Rs.50,000/- and in the said letter he has shown willingness to pay interest, if any. Even then the Opposite Party has returned aforesaid both the cheques and informed the Complainant that his agreement is terminated. As discussed above, so called termination of agreement is also not consistent the terms & conditions of the Clause 9 of the Agreement. Considering evidence on record it appears that in view of increase in the prices of the real estate, deliberately with malafide intention the Opposite Parties have cancelled the agreement on false ground and it amounts to unfair trade practice as well as deficiency in service on the part of Opposite Parties. Therefore, we answer point no.2 in the affirmative.
The Complainant has prayed to declare that the letters dtd.21/04/2010, 05/05/2010 & 19/05/2010 issued by the Opposite Parties as illegal, bad in law and not binding on the Complainant. As discussed the aforesaid letters sent by the Opposite Parties are not consistent with the Registered Agreement dtd.07/07/2009 executed between the Complainant and Opposite Parties and as such, the letters are bad in law and not binding on the Complainant. By the amendment of complaint the Complainant has prayed for vacant and peaceful possession of Flat No.804 on the 8th floor, A-Wing of N.G. Sterling Building. It is submitted on behalf of Complainant that construction of building is completed and Opposite Party is intending to sale the said flat to third party. As mentioned above interim injunction application filed by the Complainant was allowed and the Opposite Parties are restrained from creating third party interest in aforesaid flat till disposal of complaint. The Complainant has showed willingness to pay balance amount as per the agreement. As per Registered Agreement dtd.07/07/09, agreed price of the Flat No.804 is Rs.16,06,500/-. Out of the total consideration amount Complainant has paid Rs.2,40,975/- to the Opposite Party. Therefore, balance amount is remained is Rs.13,65,525/-. As mentioned above, the Complainant was ready and willing to pay installment as per the schedule as payment mentioned in the agreement but Opposite Parties have deliberately refused to accept the amount alleging that the Complainant’s agreement is terminated. Considering facts of this case, we think it just to direct Opposite Parties to handover vacant possession of Flat No.804 on 8th floor of A-wing of N.G. Sterling Building, Mira Road (E) to the Complainant on accepting balance payment of Rs.13,65,525/- from the Complainant. Initially the Complainant has claimed compensation of Rs.16 Lacs towards special damages. At the time of hearing of this application the Complainant has reduce his claim of compensation from Rs.16 Lacs to Rs.3,85,000/-. Considering the facts of the circumstances of the case, we think it just to direct Opposite Party No.1 & 2 to pay to the Complainant Rs.10,000/- as compensation for mental agony and inconvenience. The Complainant has prayed for cost of Rs.10,000/-. We think it just to direct Opposite Party No.1 & 2 to pay Rs.5,000/- as cost of this proceedings to the Complainant. Hence, we pass following order –
O R D E R
i.Complaint No.192/2010 is partly allowed.
ii.It is hereby declared that the Opposite Party No.1 & 2 have adopted unfair trade practice by issuing letters
dtd.21/04/2010, 05/05/2010 & 19/05/2010 to the Complainant for terminating Registered Agreement
dtd.07/07/2009. The said letters sent by the Opposite Parties are inconsistent with the terms & conditions of
Registered Agreement dtd.07/07/09, illegal & void, therefore, not binding on the Complainant.
iii.The Opposite Party No.1 & 2 are directed to accept balance amount of Rs.13,65,525/- (Rs. Thirteen Lacs Sixty
Five Thousand Five Hundred Twenty Five Only) from the Complainant and after accepting the said amount
shall handover vacant and peaceful possession of Flat No.804, A-Wing on the 8th floor of N.G. Sterling
Building, situated at Mira Road (E) to the Complainant.
iv.The Complainant shall pay aforesaid amount of Rs.13,65,525/- (Rs. Thirteen Lacs Sixty Five Thousand Five
Hundred Twenty Five Only) to the Opposite Parties within 2 months from the date of this order and after receipt
of aforesaid balance amount the Opposite Parties shall within period of one month handover vacant and
peaceful possession of aforesaid Flat No.804, A-Wing to the Complainant.
v.Opposite Parties shall pay Rs.10,000/- (Rs. Ten Thousand Only) as compensation for mental agony and
inconvenience and Rs.5,000/- (Rs. Five Thousand Only) as cost of this proceedings to the Complainant.
vi. Certified copies of this order be furnished to the parties.
