VINOD KUMAR KOCHHAR & ANR. vs M/S. EARTH INFRASTRUCTURE LTD. & 2 ORS.

Shri Vinod Kumar Kochhar and his wife, Smt. Karuna Kochhar, complainants No. 1 and 2, respectively, were allotted a residential unit/apartment No. 103, Vayu Tower, Group Housing Complex, known as "Earth Towne" at plot No. GH-04, Sector 1, Greater Noida, UP vide allotment letter dated 17.6.20011. The cost of the apartment was fixed at a sum of Rs.33,92,550/-. There were other charges as well in the sum of Rs.5,33,625/-, total amount being Rs.39,26,175/-. The complainants paid a sum of Rs.10,83,945/- towards part payment for the period from 19.8.2010 to 31.05.2011 to the OPs. It was represented that Ms. Deepti Sharma was a senior officer in the OPs company. The rest of the payment would be made, as per demand made by her. The complainants were assured that their apartment would be completed, within a period of three years from the date of booking. The note-2 of the payment plan runs as follows: "Note-2. The payment plan opted by the allottee(s) shall stand changed automatically, if the allottee(s) fails to pay the installments within 60 days from the due date of payment as per the Down Payment Plan or Flexi Payment Plan as opted by him.On failure of payment, the Down Payment Plan and Flexi Payment Plan shall be converted into construction Linked Payment Plan, without any notice/intimation and the allottee(s) shall be responsible to pay the installments as per the converted Construction Linked Payment Plan and the cost of the unit shall be increased and charged accordingly."

At the time of allotment, the OPs assured the complainants that after making considerable payment of a sum of Rs. 10 lakhs only, the opposite parties would provide facility for getting loan from financial institution to the parties who are interested to seek flat, financed from financial institution by taking loan for rest of the amount as the flat would be in existence and ready, within three years, from the date of allotment. It is contended that the complainants have never received any demand letter for the balance payment from the opposite parties. They are ready and willing to perform their part of contract. It is contended that the project of the opposite parties has, till now, not yet started. They have tried to contact the opposite parties, time and again, but the OP 2 put off the matter stating that she would let the complainants know as and when it is decided by opposite party No. 1. When contacted opposite parties 1 and 3, it transpired that they have not even done the digging of the earth, for construction. It appears that they had no intention to raise the construction. Legal notice dated 9.9.2013 was sent. In the reply of opposite parties dated 9.4.2014, the complainants, for the first time, were informed that the aforesaid flat of the complainants was cancelled for the reason that the complainants defaulted in making the payment to the opposite parties. Copy of their letter has been annexed as Annexure ''D''

Consequently, this complaint was filed with the following prayers: a.Cancellation of the Complainant''s flat as alleged by the opposite party in the year 2011 be cancelled/quashed.

b. Direct the opposite party to restore the membership of the complainants

c. Direct the opposite party to handover the possession of the flat allotted to the complainants in terms of the allotment letter.

d.To allow the complainants to deposit remaining 10% of the 40% of the payment to be made in terms of i.e. Rs. 339255/-.

e.Pass such other orders or further orders in favour of the petitioners and against the Respondents as this Hon''ble Commission may deem fit and proper in the facts and circumstances of the case.

Mr. Arun Arora with Ms. Preeti, Advocates, appeared for OP 1, on 19.1.2015. They were directed to file written statement, within 30 days and they were also informed that time could be extended by 15 days, as per Section 13 of the Consumer Protection Act. Notices were sent to OPs 2 and 3 with the same directions. OP 3 was served and OP 2 was reported to have left the given address, but she is a proforma OP. Vide order dated 23.7.2015, the right to file the written version in respect of opposite parties 1, 2 and 3 was forfeited.

Although, learned counsel for the opposite parties, Mr. Amit Goyal appeared on 3.8.2015 and Mr. Achit Sharma, Advocate, for Mr. Amit Goyal, appeared on 31.8.2015, yet, they did not file application for submitting the written version. None appeared on their behalf on 27.8.2015. On 30.8.2015, arguments were heard from the counsel for both the sides and they were given time to file written arguments.

The case of the complainants is supported by affidavit. Their case is supported by allotment letter CW-1. It reveals that the total cost of the premises in dispute was Rs.39,26,175/-, out of which, a sum of Rs.10,83,945/- was paid and the balance amount was shown as Rs.28,42,230/-. Clauses 16,17, 26,27,27A and 27B are relevant, which are reproduced, as under: "16. That a written intimation for completion of unit will be sent to the Allottee(s) and a "Fit Out Period" of one quarter will commence from the date of offer of possession. The said "Fit Out Period" is in order to facilitate the Allottee(s) to communicate the exact date by which he will be taking the physical possession of is own unit after complying with the requisite formalities viz. obtaining NOC from the Accounts Department of the Company, registration of Sub Lease Deed/Conveyance Deed etc. The installation of sanitary-ware, wash-basin, kitchen sink, hardware accessories, final touch of paint will be done during said "Fit Out Period" only and the intending Allottee(s) may get these installations done in his own presence, if desired so. 17. However, if there is any delay in handing over possession of unit after expiry of said ''Fit Out Period due to any reason, the Developer will pay the Allottee(s), delayed possession charges @Rs. Ten per sq. ft per month in respect of covered area of the unit for delayed period only (commencing from the date of expiry of "Fit Out Period") provided that all due installment form the concerned allottee(s) were received in time and he has complied with requisite formalities viz. obtaining NOC from the Account Department of the Company, registration of Sub Lease Deed/Conveyance Deed etc. 26. The Allottee(s) hereby expressly agrees that in case the Allottee(s) fails or neglects to take possession of the said unit within 90 days (Fit Out Period) of dispatching the notice of offer of possession by the Developer, the Allottee(s) shall be liable to pay holding charges at the rate of Rs. Six per square feet per month and the said Unit shall lie at the risk and cost of the Allottee(s) after the expiry of these

90 days as mentioned above. The holding charges shall be in addition to the Maintenance charges and the amount payable by the Allottee(s) as its share of the Government/Municipal Charges etc. 27(A) The Allottee(s) undertakes to make the payment of the Balance amount as per the schedule of payment as per ANNEXURE "A" the Allottees(s) agrees that the Developer shall be under no obligaton to send/issue demands/reminders for the payment of the due amount. The Allottee(s) specifically accepts that in case any due payment is not received by the Developer within the stipulated stages/dates indicated in the Payment Plan and/or on the due dates agreed by the Developer and Allottee(s) and/or advised by the Developer through any reminders/demand notice (due date), the Developer may issue a notice to the Allottee(s) to make the payment till the 30 day from the due date by paying an interest at the rate of twenty four th percent per annum. In the event the allottee(s) still fails to make payment even on or before 30 (thirty days from the due date, the Developer shall be entitled in its sole discretion, without giving any further notice, to cancel the Allotment and to forfeit the Earnest Money alongwith interest on the delayed period. The balance amount, after adjustment of interest payable on unpaid amount, if any, shall be refunded to the Allottee(s) without any interest after the said unit is allotted to some other Allottee(s). In case of short fall, the developer shall be entitled to recover the same from Allottee(s) (B) That if for any reason, the booking of the Unit/Apartment is cancelled by the Allottee(s) or the Developer for non-payment of any installment or breach of any terms and conditions of Allotment Letter/Application Form, then 20% of the Basic Price and other charges of Unit/Apartment will be forfeited along with interest on delayed period/non-payment of installation, and balance amount, if any, will be refunded without any interest.

We have perused the legal notice dated 9.3.2013 as well as the reply dated 9.4.2014. In the reply, the following facts are mentioned. The OPs were not under any obligation to send any allotment letter. Allottees payment plan, Annexure A was already given to Shri Vinod Kumar Kochhar. The said allotment payment plan, runs as follows:

S. No. Occasion Name Particular % age Due amount Occasion due amount

1 BOOKING BSP 10.00 339255 339255

2 WITHIN 60 DAYS OF BOOKING BSP 10.00 339255 339255

3 WITHIN 120 DAYS OF BOOKING BSP 10.00 339255 339255

4 WITHIN 180 DAYS OF BOOKING BSP 10.00 339255 339255

On the Start of 3 rd Floor Roof Casting BSP BACKUP DG

POWER

ELECTRIC

CONNECTION

CHARGES

FLOOR PLC

ONE TIME LEAST RENT

PARK FACING PLC

10.00 50.00

50.00

50.00

50.00

50.00

339255 7500

12500

125650

76288

44875

606068

6 On the Start of 7 th Floor Roof Casting BSP 10.00 339255 339255

7 On the Start of 10 th Floor Roof Casting BSP 10.00 339255 339255 8 On the Start of 14 th Floor Roof Casting BSP 10.00 339255 339255

9 On the Start of 18 th Floor Roof Casting BSP 10.00 339255 339255

10 On the Start of 19 th Floor Roof Casting BSP BACKUP DG

POWER

ELECTRIC

CONNECTION

CHARGES

FLOOR PLC

ONE TIME LEAST RENT

PARK FACING PLC

5.00 50.00

50.00

50.00

50.00

50.00

169628 7500

12500

125650

76288

44875

436440

11 ON OFFER OF POSSESSION BSP 5.00 169628 169628

However, the OPs had sent repeated reminders dated 11.5.2011, 30.5.2011, not under any duty, but only by virtue of being a customer friendly company. Clause 27 of the allotment letter clearly lays down that all payments will be made in accordance with the Schedule of payment as Annexure A of the allotment letter. The complainants have defaulted in abiding by the terms and conditions of the allotment letter. The complainants were bound to pay 40% of the payment,

within 180 days from the date of booking, under Clause 27 of the allotment letter. In case of default by the complainants in making payments, the OPs had the right to cancel the allotment and forfeit the earnest money, alongwith interest on the delayed period.

We have heard the learned counsel for the complainant. The parties are given liberty to file the written submissions. The OPs have also failed to file the written submissions. It has been mentioned here that the complainants have placed rejoinder to the reply, sent in response to their notice. The said rejoinder is dated 28.5.2014. It was sent through speed post/courier. The complainants have categorically denied having received the above mentioned demand letters. Consequently, it stands proved on record that the OPs have failed to contest this case. They have not even demanded the rest of the amount, as per the time schedule already mentioned above. Consequently, the deficiency on the part of the OPs stand established.

It must be borne in mind that in the agreement, there is no clause that the OPs will make the arrangement for loan from the financial institutions. This is an oral submission which is not supported by any cogent and plausible evidence, so we hold that the OPs were not responsible to provide financial loan from any financial institution.

It also stands admitted on record that no work in respect of the above said project has been made, except some digging has been made. The bizarre conduct of the OP is difficult to fathom. They are trying to feather their own nest, that is to make profit for themselves, often at the expenses of the others. Although, the complainants were bound to pay the amount as per the time schedule, yet, they must be made aware and a demand notice was to be sent informing them the status of construction. When the OPs have not started the work, how could they send the demand letters. Consequently, the cancellation of flat made by OPs is illegal and invalid. The OPs must prove that despite demand letters, the complainants did not pay the installments. They are entitled to cancel allotment only after that. Their condition that no demand notice would be sent, is vague, evasive and leads us nowhere. It is not acceptable. The proof of receipt of letters dated 11.5.2011 and 30.5.2011 did not see the light of the day.

The complainants have invested their hard earned money by withdrawing sums from their provident fund account. However, the OPs have adopted a Fabian Policy to lead the gullible consumers, up the garden path. The consumers are exasperated by such like senseless delays. The complainant No. 1 is due to retire from his service in May, 2017 and they have no other place to reside, except the aforesaid flat booked with the OPs, in the year 2010.

In the result, we, therefore, cancel the cancellation order of complainants'' flat. The membership of the complainants be restored forthwith. We grant six months'' time to the OPs to hand over the possession of the flat allotted to the complainants, in terms of allotment letter. In case, the OPs do not comply with the aforesaid direction to handover the flat, within a period of six months from the date of receipt of copy of this order, they will be liable to pay penalty in the sum of Rs.200/- per day, till they put the complainants in possession of the premises in dispute.

The complainants are directed to deposit the entire remaining amount, as per the agreement, before this Commission, within a period of four months, failing which, they will have to pay extra amount @ 18% p.a. and will not be entitled to possess the flat, till payment of the entire residue amount.

We would satisfy ourselves that the complainants are put in possession of the flats in dispute and, thereafter, we would release the amount with interest accrued from FDR, if any, in favour of OPs. This case pertains to the year 2010. The cause of action started, for the first time, on 19.8.2010. The allotment letter was issued on 17.6.2011. Three years'' time is adjusted for construction, that comes to end, on 16.6.2014. Grace time of six months is given. The OPs will pay interest @ 9% per annum, on the amount of Rs.10,83,945/-, till the possession is handed over to the complainants with effect from 1 January, 2015, till the complainants are put in possession st of the apartment.

The complaint stands disposed of.