SANDEEP OMPRAKASH KOYATE vs M/S. KUMAR SINEW DEVELOPERS PVT. LTD.

The facts of the case as per the learned counsel for the complainant are that the opposite party had introduced a scheme of residential flats/ tenements known as 45 Nirvana Hills in the City of Pune. On 04.06.2008 the complainant booked a residential flat (3 BHK) in the said scheme and the total consideration/ price was fixed at Rs.1,01,57,685/- only. The stamp duty, registration charges and other miscellaneous charges and maintenance were to be paid over and above the said amount and the overall and total amount was Rs.1,12,67,285/- including all expenses, charges, maintenance fund etc. On 04.06.2008 itself the complainant paid Rs.5.00 lakh to the opposite party through demand draft bearing no. 122365 drawn on Vishweshwar Bank, Vijaynagar Branch, Pune, for flat no. C 2 - 1402.

On receiving the payment of the above-mentioned amount, the opposite party had given a document to the complainant namely "Guidelines of Booking to Possession" on 28.03.2009.

He was further informed by the opposite party that the complainant will be contacted by the opposite party for further payment and for execution and registration of the agreement to sale but till the month of June 2010 the complainant was not contacted by the opposite party or by their staff. However, on 14.06.2010, the opposite party sent an e mail to the complainant and asked the complainant to pay Rs.14,95,779/-. After receipt of the said e mail the complainant contacted one of the staff members of the opposite party who was handling the overall issues at that particular time, i.e., Smt Hema Madam, and enquired as to how the said amount was being asked to be paid by the opposite party when the construction itself had not commenced. At that time, the complainant was informed by Smt Hema Madam that due to some legal and technical formalities the work has been held up and it will start very soon and also assured the complainant that the complainant will be informed after commencing the work. However, the construction work did not start even by 2011-2012.

On many occasions the complainant enquired and visited the actual site but there was no material progress in the construction and therefore, the complainant did not pay Rs.14,95,779/- which were demanded by the opposite party as the construction was held up at the very initial stage.

To utter shock and surprise of the complainant in the month of November 2013, the complainant was informed that the allotment for the flat of the complainant has been cancelled. However, the initial amount of Rs.5.00 lakh, which was paid to the opposite party, was with the opposite party and there was no mention of refund/ return the said amount and/ as also the reason/s behind such alleged cancellation were also not informed to the complainant. On 30.11.2013 the complainant issued a letter to the opposite party and narrated all the facts in the said letter right from the booking up to the alleged cancellation. There was no reply from the opposite party to the said letter of the complainant.

The complainant received undated letter from the opposite party along with a demand draft of Rs.5.00 lakh in the name of the complainant. Surprisingly, it was mentioned in the said letter that "as per books of accounts a sum of Rs.5.00/- lakh only is standing to the credit of your account. We are clearing your account by sending you/ the complainant a sum of Rs.5.00 lakh only be a demand draft bearing no. 084709 drawn on ICICI Bank in settlement of the said account".

The complainant states that he was and is always ready and willing to pay the remaining amount of consideration and also to get executed and registered the agreement to sale from the opposite party in favour of the complainant but it is the opposite party who has absolutely failed and neglected to perform its duties and responsibilities as per the provisions of the Maharashtra Ownership Flats Act.

The market value of the said flat has increased tremendously as compared to the rates prevailing in the year 2008. As on today the total market value of the said flat was about Rs.2,10,00,000/- and therefore, the complainant cannot purchase any other flat in the vicinity of the said flat as the rates have gone up to a very high stage and the complainant cannot afford to bear/ pay the same. Therefore, it was the legal and moral duty and responsibility of the opponent to execute and register the agreement to sale in favour of the registered agreement to sale in favour of the complainant in respect of the said flat no. C 2/ 1402 in the project known as "45 Nirvana Hills" in favour of the complainant, as per the chart which was given by the opposite party to the complainant at the total consideration value/ agreement of Rs.1,01,57,685/-. The complainant, though, will have to pay/ bear the payment and huge expenses than of the year 2008 towards the stamp duty, registration and other incidental expenses. The complainant states that the complainant was ready and willing to bear the said expenses at actual without asking for any reimbursement from the opposite party for the execution and registration of agreement to sale. He made the following prayer:

The opposite party may be ordered/ directed to execute and register agreement to sale of the said flat property, more particularly described in the schedule mentioned above, in favour of and in the name of the complainant, at the cost of the complainant, without a period of four weeks from the date of the order of this Commission;

If at all the opposite party is not in a position to execute and register the agreement to sale of the said flat in favour of the complainant then in that circumstances the opposite party may be ordered/ directed to pay Rs.2,10,00,000/- to the complainant, which is the prevailing market value of the said flat property, together with 18% interest per annum, from the date of filing of the present complaint till its realisation, please;

The opposite party may be ordered/ directed not to create any third party interest in respect of the said flat property more particularly described in the schedule mentioned hereinabove in favour of any third person/s, institution/s or in respect of any third party, at least till the disposal of the present complaint for which a separate application is being filed herewith, please;

The opposite party may be ordered/ directed to pay Rs.25,00,000/- to the complainant towards the compensation for causing deficiency in service as well as for indulging into unfair trade practice and also for mental agony and mental harassment to the complainant, as contemplated as per the Consumer Protection Act, 1986, please;

The complainant may be ordered/ directed to pay Rs.5.00 lakh towards the cost of the present complaint, please;

Punitive damages to the tune of Rs.10.00 lakh may kindly be awarded to the complainant from the opposite party as per the provisions of section 14 of the C P Act, 1986.

We have carefully gone through the record. The complainant has placed on record the Guidelines of Booking to Possession which were sent and signed on 28.05.2009. With regard to the payment for the flat the following instructions are relevant:

"In case the purchaser does not want to avail a loan, the purchases will have to pay the entire amount within 15 days and execute the agreement which is _________ %, i.e., Rs._________.

Time being the essence of the contract, the purchaser is requested to clear the dues within 15 days from the date of booking. Failing which simple interest @ 24% shall be charged on instalments falling due from the date of default till the date of payment is realised which is no circumstances shall be waived off.

In case the customer fails to execute the agreement within 15 days from the date of booking the amount received shall be refunded without any interest and without prior intimation. The said booking shall be deemed to be cancelled.

In case of cancellation of the property by the purchaser, all the amount paid in respect to the property will be refunded without interest, within fifteen days from the date of the re-sale of the said cancelled property by the purchaser".

Admittedly, the complainant has signed these guidelines after certifying that " I have read and accepted all the terms and conditions mentioned above and shall abide with the same. I have also received a copy of the same for my record ".

Thereafter, it is apparent from the record that after paying Rs.5.00 lakh on 04.06.2008 the complainant made no further payment. This is supported by the e mail from Hema Dhruv of the opposite party to the complainant on 14.06.2010 which reads as under:

"This is regarding your flat in 45 Nirvana Hills Building C 2 Flat no. 1402 for the purchase of the mentioned unit.

We are pleased to inform you that First Slab Work of 45 Nirvana Hills is complete.

As per the payment terms, following amount has become due from you:

Agreement value Rs.99,78,895/-

Due as per progress (upto 20% first slab) Rs.19,95,779/-

Received (upto 14.06.2010) Rs. 5,00,000/-

Total due Rs.14,95,779/-

Please issue the cheque in favour of Kumar Sinew Developers Limited.

This is to bring to your kind attention that we have started with the process of registration and execution of the 45 Nirwana Hills Project.

I would like you to confirm few details as follows so that we can prepare the agreement of your flat C 2 - 1402.

Names to be included in the agreement also their date of birth;

Address to be mentioned in the agreement.

Please confirm me the same as early as possible."

From the letter of the complainant dated 30.11.2013 it is clear that the complainant has failed to pay Rs.14,95,779/- as also any further amount and also failed to enter into an agreement with the opposite party. In November 2013, the complainant was informed that the allotment of the complainant has been cancelled. Thereafter, the opposite party refunded Rs.5.00 lakh vide demand draft no. 084709 drawn on ICICI Bank as settlement of the said account.

As the complainant has failed to adhere to the terms and conditions of "Guidelines of taking the possession" which had been accepted and signed by him and failed to make the full payment within the specified time as also sign the agreement. In our view, we find that the opposite party was justified in cancelling the allotment and refunding the amount paid by the complainant.

Hence, the complaint is dismissed.