BAL KRISHNA SAXENA & ANR. vs M/S. VATIKA LTD.

The complainants applied to the opposite party for allotment of a residential apartment on 25.3.2014, depositing a sum of Rs.10,00,000/- towards registration of his Expression of Interest for a residential apartment. An allotment letter dated 23.9.2014 was issued by the opposite party to the complainants, allotting unit No.804 in the Project "Tranquil Heights - Vatika India Next" to him. The copies of the Apartment Buyers Agreement were thereafter sent to the complainants, requiring them to sign the same in the presence of the witnesses and return to the opposite party. The case of the complainants is that the terms and conditions of the Buyers Agreement were not acceptable to them and therefore they applied to the opposite party to cancel the allotment and refund the amount paid by them. That amount having not been paid, they are before this Commission.

The application which the complainants had submitted to the opposite party, while registering their Expression of Interest for a residential apartment, to the extent it is relevant, reads as under:

"(c) I/We agree that in case, I / We are not able to execute the requisite Application Form / Builder Buyer Agreement as and when required by the company, I/We shall be left with no claim, right, interest etc. in the amount paid by me / us and the company shall be entitled to forfeit the aforesaid amount without further notice.

(d) I/We agree that the cancellation of the booking / withdrawal of the application form is not permitted within the period of six (6) months from the date of booking / signing the Application Form. Thereafter, I / We shall be entitled to cancel my / our booking, however in that eventuality; the company shall be entitled to forfeit the earnest money paid by me / us along with the non-refundable amounts.

On such cancellation, it shall be presumed that the I/We have given my / our consent and have authorized the company to forfeit the Earnest Money along with nonrefundable amounts. Consequent to such cancellation, I / We shall be left with no lien, right, title, interest or any claim of whatsoever nature in the said booking / allotment".

It would thus be seen that withdrawal of the application and cancellation of the booking was not permitted within six months from the submission of the application. Thereafter, the cancellation was permitted but the opposite party was entitled to forfeit the earnest money paid by the applicants. Admittedly, the complainants sought cancellation of the allotment after more than six months from the date of the application. Therefore, though the cancellation was permitted, the opposite party was entitled to forfeit the earnest money. The complainants expressly agreed with the opposite party that in the event of their not executing the builder Buyer Agreement, the opposite party shall be entitled to forfeit the amount of Rs.10,00,000/- paid by them towards registration without further notice. Therefore, the opposite party was entitled to forfeit the entire amount of Rs.10,00,000/- paid to it by the complainants, in terms of Clause (c) of the application submitted by them.

Though, the case of the complainants is that they sought cancellation of the allotment, on account of the terms of the builders buyer agreement not being acceptable to them, the letter seeking cancellation of the allotment speaks to the contrary. The aforesaid letter dated 28.8.2015 to the extent it is relevant reads as under:

"Further it is requested that we do not intend to buy the said apartment and request that the sum paid by us towards booking may please be refunded to us as early as possible. We have been requesting you through your broker Shri Tarun Agarwal / Sh. Rajinder Agarwal who are pursuing the matter for the last four / five months but nothing tangible has come out.

We do hope that this time also we will not be disappointed and you will be kind enough to grant us the refund at the earliest as we need the finances very urgently".

After sending the aforesaid dated letter dated 28.8.2015, the complainants sent another letter dated 08.9.2015. Even in the second letter they did not claim that they were seeking refund on account of the terms of the Buyers Agreement not being acceptable to them. The aforesaid letter to the extent it is relevant reads as under:

"Regarding our refund, it is most humbly requested that no deduction may please be made from the amount paid by us along with the expression of interest. The deductions, if made, will be a matter of big concern for us and will cause us a great hardship. Please consider our case keeping in view the fact that we are your old and established customers and will patronize you again in near future as we view your organization in high esteem. It is pertinent to mention that we already have invested in one of your projects and are fully satisfied with the progress.

It is hoped that our request will be entertained at the earliest and you will be kind enough to grant the refund of our earnest money without making any deduction".

A reminder dated 11.12.2015 was thereafter sent by the complainants to the opposite party. It was in this letter dated 11.12.2015, the complainants for the first time claimed that the Buyers Agreement was heavily loaded against the flat buyers and was not acceptable to them. Since no such claim was made either in the letter dated 28.8.2015 or in the letter dated 08.9.2015, obviously the plea taken in the letter dated 11.12.2015 was just an afterthought. Moreover, no specific term in the Buyers Agreement was alleged to be unacceptable to the complainants, which in turn, indicates that the alleged loading of the terms of the Buyers Agreement in favour of the opposite party was not the true reason for seeking refund of the amount paid by the complainants to the opposite party.

The learned counsel for the complainants submits that the amount of the earnest money cannot be ascertained from the application submitted by the complainants. As noted earlier, Clause (c) of the application form expressly referred to the amount paid along with the application and entitled the opposite party to forfeit the said amount in the event of the buyer not executing the builder buyer agreement. Therefore, as far as the aforesaid amount of Rs.10,00,000/- is concerned, they had agreed to its forfeiture in the event of their not executing the Builder Buyers Agreement. Even otherwise, since the value of the flat is stated to be more than Rs.1,70,00,000/- there can be no legal objection to the forfeiture of Rs.10,00,000/- which constitutes less than 10% of the sale consideration.

For the reasons stated hereinabove I hold that no case of deficiency on the part of the opposite party in rendering services to the complainants is made out. The complaint is therefore dismissed with no order as to costs.