Per Hon’ble Mr.Justice R.C.Chavan, President
[1] This appeal is directed against the order passed by the District Consumer Disputes Redressal Commission, Thane allowing the consumer complaint and directing the opponent builder to receive balance consideration and execute sale deed in respect of flat no.505 and 506 in favour of the complainant. The District Forum also directed the appellant to pay interest @6% p.a. on Rs.7,00,000/- received by the appellant from 06/11/2009 till the date of execution of sale deed.
[2] Facts which are material for deciding this appeal are as under:-
Appellant undoubtedly is builder. Appellant has constructed building called ‘Petunia’. Complainant had booked flat no.305 and 306 in the said building on payment of Rs.3,52,000/- each. Complainant sought to change the booking to flat no.505 and 506 in the building called ‘Iris’ also constructed by the opponent. Price of these two flats was Rs.26,52,000/- and Rs.25,67,000/- respectively. Complainant deposited Rs.7,10,000/- from time to time. Complainant requested the opponent to execute the agreement. However, it was alleged by the complainant that the opponent told the complainant that for the purpose of income tax complainant could purchase only one of two flats. The amount deposited was, therefore, sought to be adjusted towards flat no.505. However, appellant did not execute any agreement and therefore, on 29/08/2009, the complainant sought to withdraw his option to purchase only flat no.505 and insisted on execution of agreement in respect of both the flats. Since the opponent failed to comply, complainant filed the said consumer complaint.
[3] Opponent filed written version stating that the complainant had deposited only Rs.3,52,000/- each towards two flats booked which was 13% and 13.7% respectively of the total cost of the two flats. Opponent asked the complainant to deposit at least 15% of the cost. This was not done by the complainant. Complainant had agreed to drop purchase flat no.506. Though the appellant agreed to execute the agreement in respect of flat no.505, the complainant turned around and claimed both the flats. Appellant claims to have demanded balance amount, but the complainant did not pay the balance and therefore appellant cancelled the booking of two flats. Appellant, therefore, prayed for dismissal of the complaint.
[4] After considering rival contentions, District Forum passed impugned order. Aggrieved thereby, the appellant is before us.
[5] We have heard learned counsel for the appellant as well as for the respondent and with their help we have also gone through the entire material on record.
[6] There is no dispute that the complainant had paid about 13% and 13.7% amount of the total price of the flats. There is also no dispute that the complainant had written to the appellant on 12/08/2009 to cancel the booking of flat no.506. Learned counsel for the complainant submitted that the booking was cancelled because of misrepresentation made by the opponent that there is some income tax problem. Letter dated 12/08/2009 does not mention that there was any misrepresentation by the opponent regarding any income tax problem. Letter shows that due to some unforeseen circumstances and discussion with the opponent, complainant agreed to cancel booking of flat no.506. Letter further shows that the agreement would come in force provided the opponent confirms the allotment of flat no.505. It also mentions that money deposited for flat no.506 should be transferred to flat no.505. On 29/08/2009, the complainant withdrew this and sought both the flats. This letter seems to have sent by Speed Post on 29/08/2009 itself and report of India Post indicates that it was delivered on 01/09/2009. The appellant seems to have accepted this offer by letter which was posted on 02/09/2009, though the letter is dated 31/08/2009. The complainant replied on 07/09/2009 that the letter of 31/08/2009 posted on 02/09/2009 was received by him on 04/09/2009. The letter itself was dispatched after the opponent received the withdrawal of the letter dated 12/08/2009. According to the complainant, this acceptance was null and void since it came after the offer was withdrawn. Complainant, therefore, claimed that he was entitled to both the flats.
[7] Letters about the cancellation of booking and withdrawal of offer are the letters sent on 25/07/2009 and dated 01/08/2009 stating that the complainant was to pay balance payment failing which the provisional booking would be cancelled. Payment schedule in respect of the flat shows that token amount of Rs.51,000/- was paid towards 20% of the total cost. Learned counsel for the appellant therefore submitted since 20% of the cost had not been paid, there is no question of the complainant being entitled any of these flats. It also appears from letter dated 04/03/2009 in respect of booking the flat in building ‘Petunia’, which was subsequently cancelled by the complainant, showing that the appellant wanted 15% of the flat cost along with Home Loan sanction letter or 20% of the flat cost (in case of self financing). Thus, complainant knew that for booking he had to pay 15% of the flat cost along with Home Loan sanction letter or 20% of the flat cost if he is financing the project himself. This was admittedly not done. The amount paid is 13.7% in respect of one flat and 13% in respect of other flat.
[8] Secion 14(1) of The Maharashtra Ownership Flats (Regulation of the Promotion, Construction, Sale, Management and Transfer) Act,1963 (“the MOFA” for brevity) provides that “the builder intends to construct or constructs a block or building of flats, all or some of which are to be taken or are taken on ownership basis, shall, before, he accepts any sum of money as advance payment or deposit, which shall not be more than 20 per cent of the sale price enter into a written agreement for sale with each of such persons.” It was sought to be submitted that the amount paid by the complainant was enough compliance of provisions of MOFA Act, 1963 and that the builder could not have stipulated any other condition. Sec.4(1) of the MOFA Act, 1963 would have enabled the builder to seek advance upto 20%. Therefore, it would be wrong to conclude that 13% of the cost which was paid by the complainant entitled him to booking, particularly, in the context of previous transaction between the parties. It may be once against recalled that the complainant had initially booked flats in building called ‘Petunia’ which was later transferred to building IRIS. Complainant sought to cancel the booking of one of the flats seeking transfer of amount deposited towards the other flat, which in that case would have amounted to more than 20% i.e. stipulated 20% as contemplated under Sec.4(1) of the MOFA Act, 1963.
[9] It appears that after the complainant withdrew his offer of cancellation of booking of one of the flats, the opponent conveyed acceptance and therefore the complainant was entitled to withdraw the offer. But this would not alter the position that the complainant had not paid 20% of cost as booking amount as prescribed in the brochure as well as correspondence between the parties. Therefore, we find that the Forum is not justified in ordering the appellant to provide two flats to the complainant. Agreement is of the year 2009. Today, we are in the year 2015. Prices of the properties are not static and it would be unjust to expect the builder to provide same flat at the same rate to the complainant. In view of this, we find that the order passed by the District Forum to be inequitable apart from the fact there could be no booking for less than 20% of the price.
[10] Learned counsel for the appellant submitted that appellant has not transferred these two flats and is ready to provide two flats to the complainant at current market price by adjusting amount already paid. Considering this, we would allow the appeal and substitute the order of the District Forum as indicated below.
ORDER
1.Appeal is partly allowed.
2.Appellant shall execute sale deed and deliver possession of two flats to the complainant on complainant’s paying within a month balance of consideration as calculated below:-
Complainant shall be deemed to have paid 13% and 13.7% of the cost of two flats as reflected in today’s Ready Reckoner prices and shall be required to pay the balance. Upon such payment, the complainant shall be placed in the possession of the flats and the appellant shall execute registered sale deed in favour of the complainant.
OR
Alternatively, if the complainant declines to or does not pay balance so calculated within a month, the appellant shall refund to the complainant 13% and 13.7% of price of two flats as reflected in today’s Ready Reckoner within a period of one month of the complainant’s declining to pay the balance. This amount shall not carry out interest as the amount paid is already adjusted by being proportionately increased according to current Ready Reckoner prices.
3.Under the circumstances, parties shall bear their own costs.
Pronounced
Dated 15th January, 2015.
