Costs paid. Builder- opposite party launched a project called “Adarsh Palm Retreat” Tower 1 and 2 situated at Bhoganhalli Village, Varthur Hobli, Bangalore East Taluk, Bangalore in the month of October 2004. Complainants jointly booked an apartment No.X-903 (A) & 903 (B) on 12.02.2005. They paid advance amount of Rs.1,00,000/- towards booking through cheque to the respondent on 12.02.2005. Respondent intimated that the total area of the apartment booked by the Complainants was 1846 sq.ft. and a car parking space in the basement and the total cost of the apartment including car parking space was Rs.40,95,801/- excluding the maintenance deposit, BESCOM/BWSSB charges, stamp duty and registration charges. -3- Complainants/appellants paid a sum of Rs.3,00,000/- to the respondent as booking amount. However, respondent neither executed the agreement of sale nor issued any demand letter for the balance payment for a long period of three years even after repeated requests from the complainants. In January 2008 on the asking of Mr. P. B. Hari, Vice President (Marketing) complainants further deposited a sum of Rs.2,50,000/-. Complainants got a home loan of Rs.40,00,000/- which was to be disbursed by the bank to the respondent on receipt of the duly executed agreement of sale and other necessary documents. Respondent then sent demand notice for payment of Rs.26,69,836/- and Rs.9,01,493/-. In the letter dated 30.03.2008 respondent threatened that if there was any delay in payment it would attract penalty in terms of the interest and it may lead to cancellation at the discretion of the management. The complainants requested the respondent to execute the agreement for sale and to provide other necessary documents for making payment of Rs.35,71,329/- as asked by the respondent in its letter dated 20.03.2008. Respondent informed the complainants through email dated 12.03.2008 that the agreement of sale was in the process of -4- execution and it would be executed in a day or two. Thereafter, complainants sent e-mails and letters/reminders on 12.07.2008, 01.09.2008 and 03.10.2008 requesting to respondent to execute the agreement and for other necessary documents. Respondent on being served entered appearance and controverted the averments made in the complaint. It was stated that the appellants had not paid even the booking amount of Rs.8,05,537/- and Rs.2,17,907/- for the two flats No.X-903 (a) and 903 (b); since the appellants did not pay the booking amount agreement of sale could not be executed in their favour; that since the appellants did not make the payment as per schedule given to them, the booking made to them was cancelled and the amount was refunded. State Commission after taking into consideration the entire pleadings and the evidence produced on record came to the conclusion that the appellant had not paid even the booking amount for the flats No.X-903 (a) and 903 (b); that in the absence of booking amount, respondent was not obliged to execute the agreement of -5- sale; that there was no concluded agreement between the parties. Para 8, 9 & 10 of the order of the State Commission read as under: “8. From Ex.C-3 and 4 it is clear that on booking the apartment the complainants were required to make payment of Rs.8,05,513/- and Rs.2,17,907/- in respect of apartment No.903 (a) and 903 (b) respectively. Since the complainants have not made the initial payment as per Ex.C3 and C4 it cannot be said that there was any lapses on the part of OP in executing the agreement of sale as claimed by the complainants in the complaint. The liability of the OP to execute the agreement and providing the necessary documents arise only if the complainants make the payment. The complainants throughout the complaint have only stated that after the initial payment in the year 2005 the OP did not communicate them demanding payment of the balance payment. When in Ex.C-3 and 4 it has been specifically stated the payments to be made on booking, it was the duty of the complainants to make the said payment. If even after the payment of the said amounts, the OP did not execute the agreement and failed to handover the relevant documents to the complainants, then the case of the complainants could have been accepted. But since the complainants themselves committed default in not making the entire payment on booking, it is not possible -6- to conclude that the OP has committed deficiency of service. It is not the case of the complainants that there are any other agreements, either oral or writing between the parties for booking the apartment with the OP. No doubt the complainants have produced Ex.C-33 to show that home loan of Rs.40,00,000/- was sanctioned by the ICICI Bank which is dated 24.04.2008. But it is not the case of the complainants themselves that they have made any payment to the OP apart from Rs.6,50,000/- as stated above. If that is so, there is force in the contention of the OP that there is no concluded contract between the complainants and the OP. In view of the above facts, the case of the OP that the complainants are not ‘consumers’ as defined U/s 2 (1) (D) of the C.P. Act is an acceptable one. 9. As per Ex.C-3 and 4 the total consideration of the apartment booked by the complainants was Rs.32,22,052/- and Rs.8,73,749/- respectively. In Ex.C-3 and 4 itself the complainants were informed to arrange balance payment of Rs.7,05,513/- and Rs.2,17,907/- in respect of apartment No.903 (a) and 903 (b) within 10th March, 2005 failing which the booking of the apartment is subject to availability and prevailing rates at the time of payment. Subsequent to this intimation, the complainants have made payment of Rs.3,00,000/- on 24.03.2005. But thereafter they did not make any -7- payment either towards the payment to be made on booking and subsequent installments as mentioned therein. Even according to the complainants after the year 2005, the OP did not demand the balance payment to be made by them. But to complete the booking they ought to have made the payments as claimed in Ex.C-3 and 4. There are several other correspondences between the complainants and the OP but they are all subsequent to year 2008. The payments of Rs.2,50,000/- was also on 28.02.2008. The complainants have produced Ex.C-8 and 9 which are dated 28.02.2008 which show that the OP has given the breakup of the cost of the apartment. Ex.C-10 and 11 shows that the OP has demanded payment of Rs.26,69,836/- towards apartment No.X-903 (a) and Rs.9,01,493/- towards apartment No.X-903 (b). In these documents the OP has intimated the complainants that if any delay is made in payment it will attract penalty in terms of interest and also lead to cancellation at the discretion of the management. If that is so, even if the complainants could not have made the payment in the year 2005 pursuant to the letter Ex.C-3 and 4 they ought to have made the payments at least after 20th March 2008. It is not the case of the complainants that they were strangers to OP builder. In fact, as noted above the complainants have booked apartment No.F-703 and they -8- are making payments in respect of the said apartment. In that event, unless the complainants got the agreement executed by the OP by paying the balance booking amount it is not possible to conclude that the complainants are entitled for a direction to the OP to execute the documents as claimed by them the complaint. Since the complainants themselves were at fault, their case that the OP is deficient in service in not executing the agreement for sale and furnishing the necessary documents also is not acceptable. 10. Admittedly the complainants have made a payment of Rs.6,50,000/- towards allotment of the apartment to them. But as noted above, the facts revealed that after making the initial payment, the complainants have not even paid the amount to be paid at the time of booking. Therefore, the complainants themselves were in fault in not paying the amount. However, it is not the case of the complainants that the OP has cancelled the booking of the apartment by the complainants. If that is so, the remedy left open to the complainants is to seek allotment of the apartment by paying the amount payable to the OP towards the allotment of the apartment etc., as per the procedure of the OP. In the alternatives, the complainants are at liberty to seek refund of the amount paid by them from OP and if the OP fail to pay the amount they are at liberty to institute appropriate -9- proceedings before the court of law. However, no relief can be granted to the complainants in this complaint on the basis of the facts of the case.” We agree with the view taken by the State Commission. Since the appellants had not paid the booking amount as per schedule given to them, the respondent was not obliged to execute the agreement of sale. Since the appellant did not pay the booking amount/consideration amount for a number of years, respondent could cancel the allotment made in favour of the appellants. No ground for interference is made out. Dismissed. Appellants had deposited Rs.5 Lac in pursuance to the order passed by this Commission dated 26.05.2010. Office is directed to refund the aforesaid sum of Rs.5 Lac deposited by the appellant with accrued interest thereon. |
