Delhi

StateCommission

CC/11/217

VIRENDER KR. YADAV - Complainant(s)

Versus

UNITECH LTD. - Opp.Party(s)

09 Sep 2015

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                 Date of Decision: 09.09.2015

Complaint Case No. 217/2011

In the matter of:

Virender Kumar Yadav

S/o Late Sh. Bhag Mal

R/o 126, V.P.O. Nakhrola

Tehsil-Gurgaon

District-Gurgaon (HRY)                                       Complainant

 

Versus

 

M/s Unitech Limited

6, Community Centre

Saket, New Delhi-17                                 Opposite Party

                                                               

CORAM

 

N P KAUSHIK                                -                       Member (Judicial)

S C JAIN                                         -                       Member

 

1.     Whether reporters of local newspaper be allowed to see the judgment? Yes

2.     To be referred to the reporter or not? Yes

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGEMENT

1.      Admitted facts of the complaint are that the complainant Sh. Virender Kumar Yadav was allotted a flat bearing No. 1202, HBTN-Tower-5, Unitech Habitat, Plot No. 9, Sector Pi-II, Greater Noida, Distt. Gautam Budh Nagar, Uttar Pradesh, vide Letter of allotment dt. 15.09.2006. Prior to this the complainant had paid an amount of Rs. 5 lacs to the Unitech Ltd. (OP) on 15.06.2006. As per ‘flat buyers agreement’ dt. 15.09.2006, possession of the flat was to be handed over to the complainant within a period of thirty six months w.e.f. 15.09.2006. In other words possession was required to be delivered to the complainant on or before September 2009. Complainant made a payment of an amount of Rs. 23,44,610/- to the OP uptil June 2007. The total price of the flat was Rs. 61,18,520/-. Finding no progress at the site, complainant stopped making further payments. The complainant vide its letter dt. 28.02.2010 called upon the OP to refund the amount deposited by him. OP vide its reply dt. 27.09.2010 informed the complainant that the possession of the flat was likely to be delivered by 2^nd quarter of 2011. Plumbing work and marble flooring of the flat was under progress. OP referred to clause 2G of the flat buyers agreement, in response to the request of the complainant for refund of the amount deposited. Admittedly no letter was written by the OP to the complainant thereafter. Legal notice dt. 14.03.2011 was sent by the complainant calling upon the OP to refund the amount of Rs. 23,44,610/- alongwith interest and penalty. Costs of the legal notice of Rs. 5000/- were also demanded. Rate of interest and the quantum of penalty was not indicated. In response to the legal notice, the OP stated that the construction at the site was in full swing. Possession could be handed over by the end of 2011. OP however, advised the complainant to make timely payments of his dues. No specific demand for the payment of outstanding dues was ever made. The complainant thereafter filed the present complaint disclosing the facts referred to above.
2.      In its written version to the complaint, OP reiterated its stand that the construction at the site was still in full swing. Written version was filed by the OP on 28.08.2012. In other words, the flat in question was not ready for possession even in the month of August 2012.
3.      Arguments have been addressed at length by Sh. Yashpal Gandhi, Counsel for the Complainant and Sh. S.K.Dubey, Counsel for the OP.
4.      Sole defence raised by the OP is that the complainant is entitled to the refund of the amount deposited subject to the forfeiture of the earnest money. OP relies upon clause 2.g of the ‘flat buyers agreement’ which is reproduced below:

 

 

“2.g     Failure/Delay in Payment:

In the event Allottee(s) fails to pay any instalment(s) with interest within 90 days, from due date, the Developer shall have the right to cancel the allotment and forfeit the entire amount of Earnest/Registration Money deposited by the Allottee(s) and the Allottee(s) shall be left with no right or lien on the said Apartment and the Developer shall be free to sell the same. The amount paid, if any, over and above the Earnest/Registration money shall be refunded by the Developer without interest after adjustment of interest accrued on the delayed payment(s), if any, due from the Allottee(s).”

 

5.      Perusal of the clause 2.g of the flat buyer’s agreement shows that the same comes into play only when the developer cancels the allotment in the event of the failure of the allottee(s) to pay instalment(s) alongwith interest within a period of ninety days from the due date. Admittedly the OP in the present case never cancelled the allotment of the flat in favour of the complainant. OP however had demanded the payment of the outstanding amount. In the absence of any cancellation of allotment, we are of the considered opinion that the developer/OP is not entitled to forfeit any amount as earnest money.
6.      Clearly the complainant did not make any payment of any amount after depositing the amount of Rs. 23,44,610/- by March 2007. On the contrary, OP was required to handover the physical possession of the flat by September 2009. He did not complete the construction even on 28.08.2012. It is not the case of the OP that he failed to give the possession of the flat on time due to non payment of the outstanding dues by the complainant. Complainant stopped making payment after March 2007 finding no progress at the site. Ld. Counsel for the OP has relied upon the case of Pittar Chand Mittal Vs Unitech Limited Real Estate Division and Ors. Paras 10 and 11 of the judgement are reproduced below:

 

 

 

Para 10

As per condition No. 7 of the General Terms and Conditions of the Registration, the earnest money was deemed to be 20% of the basic sale price. In terms of condition No. 6 of the General Terms and Conditions for registration of provisional allotment of a plot duly signed by the Appellant, Respondent Builder was at its discretion to forfeit the booking/registration amount or the earnest money in case of the Allottee seeking cancellation of the allotment or refund of the amount deposited by him. Admittedly, Appellant was a defaulter in making the payment of the instalments of the balance sale consideration. Appellant prayed for refund of the deposited amount in the complaint. Under the circumstances, State Commission directed the Respondent builder to refund the deposited amount after deduction of 20% of the Basic Sale Price towards earnest money.

 

Para 11

        The question as to “whether the seller is entitled to forfeit the earnest money deposit where the sale of immoveable property falls through by reason of the fault or failure of the purchaser” came up for consideration before the Hon’ble Supreme Court in the case of Satish Batra v. Sudhir Rawal-MANU/SC/0887/2012 : (2013) 1 SCC 345. The Hon’ble Supreme Court after taking into consideration the entire case law answered the question as under:-

        “19. We are, therefore, of the view that the seller was justified in forfeiting the amount of Rs. 7,00,000/- as per the relevant clause, since the earnest money was primarily a security for the due performance of the agreement and, consequently, the seller is entitled to forfeit the entire deposit. The High Court has, therefore, committed an error in reversing the judgment of the trial court.”

 

7.      In the case relied upon by the OP and referred to above, the developer sought forfeiture of the earnest money on the grounds that the allottee therein was a defaulter in making payments of the instalments. In the present case it has not been the case of the OP in the correspondence relied upon by him that he was entitled to forfeit the earnest money. Even in its reply dt. 25.03.2011 to the legal notice, OP has not contended that he was entitled to forfeit the earnest money. The case thus relied upon by the OP is not applicable to the case in hand. In the facts and circumstances, we direct the OP to pay to the complainant as under:

 

1. to refund an amount of Rs. 23,44,610/- alongwith interest @ 9% p.a. from the date of deposit till date.
2. to pay compensation to the tune of Rs. 50,000/- for inconvenience and harassment caused to the complainant.
3. to pay litigation charges of Rs. 20,000/-.

 

The abovesaid amounts shall be paid by the OP to the complainant within a period of ninety days from today failing which the OP shall be liable to pay interest @ 18% p.a. on the amount accruing after the expiry of a period of ninety days from today. Complaint is accordingly disposed of.

8.      Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

 

(N P KAUSHIK)

MEMBER (JUDICIAL)

 

 

(S C JAIN)

144616126. MEMBER