Per Hon’ble Mr. Justice R.C. Chavan – President:
1. This complaint by a builder questions the action of CIDCO in refusing to provide necessary physical infrastructure and on the other hand forfeiting the earnest money deposit made by the Complainant with CIDCO.
2. Facts about which there is no dispute or there can be no dispute are as under:
Opponent CIDCO sought offers for sale of plot No.12 situated in Sector 6, Airoli Navi Mumbai. Accordingly, the Complainant tendered an offer and paid a sum of `10,00,000/- towards earnest money deposit. The plot was allotted to the Complainant by an allotment letter dated 19th May, 1998. According to Complainant junk of debris was lying on the said plot. The plot was not developed as per the requirement. There was South North slope of more than 5 feet, the north end of the plot was 4 ft above road level, storm water drain was 2/3 feet above the plot level, sewage line was also above the plot level. Since the Complainant found that the Opponent CIDCO had failed and neglected to provide essential services, the Complainant informed the Opponent by letters dated 5 and 10th June, 1998 asking the Opponent to execute necessary work. Opponent, however, instead of executing the necessary work, by letter dated 12th May, 1999 informed the Complainant that it was necessary for the Complainant to inspect the plot before making any offer and ultimately forfeited the earnest money deposit. The Complainant therefore approached this Commission by filing the present complaint.
4. The complaint has been opposed by the Opponent, which has filed written version. By this written version the Opponent denied the allegations made. It is stated that it was necessary for the Complainant to inspect the site before making offer and having inspected the site, the Complainant should have no grievance. It was stated that necessary action had already been taken by CIDCO to level plot and had provided necessary services. It was stated that since the Complainant had not paid further sums as per the letter of allotment, earnest money deposit was forfeited and that the Complainant cannot claim refund of the earnest money deposit. They, therefore, prayed for dismissal of the complaint.
5. The contentions raised give rise to following points for our determination:
| Points | | Findings |
(i) | Whether the Complainant shows that the Opponents were not justified in forfeiting the earnest money deposit? | : | No. |
(ii) | Whether the Complainant shows that there was deficiency in service on the part of the Opponents in not providing necessary physical infrastructure before the Complainant was required to pay further installments in terms of allotment letter? | : | No. |
(iii) | What order? | : | Complainant stands dismissed. |
REASONS:
Point No.(i) & (ii)
The Complainant itself filed the general terms and conditions for disposal of plots which shows that before making an offer the Complainant should have inspected the site of the plot and the Complainant had made the offer accordingly. The Complainant alleges that after offer was made the condition of the plot was changed and relies on report of an Architect – P.S. Govindarajan. We take the Architect’s report to be true for the sake of arguments, but it does not alter the condition that the allotment was made to the Complainant. Clause 3 of the allotment letter specifically states that the Complainant was supposed to pay a sum of `1,17,46,034/- towards consideration of lease premium in respect of the plot. After paying the earnest money deposit, the Complainant had to pay the balance in two installments of `53,73,017/- each on 23rd June, 1998 and on 22nd July, 1998 respectively. There is no dispute that none of these installments have been paid. Clause 3 of the allotment letter further reads that “Non-availability for physical infrastructure for the time being will not be considered as an excuse for non-payment of lease premium on due dates or for submission of plot. Infrastructure will be developed in suitable phase in due course.”
Thus, there was absolutely no reason for the Complainant for non-payment of these two installments due. Clause 3 also stipulates that if there was any default in payment of the first installment of the premium, the earnest money would stand forfeited. Therefore, deficiency in not providing physical infrastructure cannot be raised by the Complainant as an excuse for non-payment of installments on time and therefore, there was nothing wrong in forfeiture of earnest money. Point Nos.(i) and (ii) are answered in negative.
The complaint is dismissed.
Pronounced on 2nd December, 2013.
