Back
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
J.M. Malik, Presiding Member, Dr. S.M. Kantikar, Member
M.K. Developers —Petitioner
versus
Ashok Kumar & Anr. —Respondents
Revision Petition No. 1520 of 2010
(Against the Order dated 07/12/2009 in Appeal No. 1065/2007 of the State Commission Maharastra)
Decided on 16.4.2015
For the Petitioner:Mr. Vinay Navare & Mr. Satyajeet Kumar, Advocates
For the Respondents:Ms. Neela Gokhale, Advocate.
IMPORTANT POINT
Notice of cancellation must be accompanied by cheque towards amount paid by buyer of flat.
Headnote:Consumer Protection Act, 1986—Sections 15, 17, 19 and 21—Real estate—Booking of flat—Cancellation of agreement for non-payment of advance amount—Notice of cancellation was not accompanied by cheque in sum of Rs.25,000/- or cheque after deducting office expenses—It is desirable that complainants must get flat during their life time—District Forum directed to release amount which was deposited with it by complainants/respondents, to complainants/respondents along with interest accrued thereon—Complainants shall pay balance amount to petitioner/OP within 90 days from date of receipt of copy of order and OP shall put complainants in possession of the flat and execute Sale Deed within the 90 days’ after receipt of copy of order—If needful is not done by OP/petitioner within 90 days, after expiry of 90 days petitioner / OP will have to pay further penalty in sum of Rs.1,000/- per day, to complainants till flat is given to them. (Paras 11 and 12)
Result: Revision Petition allowed.
J.M. Malik, Presiding Member —Counsel for the parties, heard. Sh.Ashok Kumar and Smt.Anupama S. Swamy, the respondents/ complainants, booked a flat from M/s. M.K. Developers, petitioner/OP. They paid a sum of Rs. 25,000/- on 23.01.2006, as booking amount. The total cost of the flat was Rs.7,80,000/- plus other expenses for light¸ parking, registration, lift, etc. The total consideration was in the sum of Rs.9,00,000/-, inclusive of all expenses. The counsel for the petitioner/OP has frankly stated at Bar that no agreement was arrived at between the parties till now and that is why they were in a position to cancel the flat. He further submits that it is mandatory under the Maharashtra Ownership Flat Act that 25% of the amount must be paid before the agreement is executed. The counsel has also invited our attention towards the demand notice dated 19.07.2006. However, that demand was not made by the complainants and, therefore, the petitioner/ OP cancelled the booking vide letter dated 28.10.2006. The above said demand and cancellation was made without any agreement. The OP was asked to enter into the agreement, but it avoided the same, on one pretext or the other, as per the complainants’ case. Thereafter, without making any further payment, except, Rs.25,000/-, the complainant wanted the flat.
2. The Fora below have decided the case against the OP. The District Forum passed the following order:
“1. Complaint is allowed. Opponent is directed to enter into an agreement to sale towards flat No.204, admeasuring 1192 sq.ft building No.8, Second Floor, in Indraprabha Building with the complainants, within 6 weeks from the receipt of copy of this order.
2. The opponent further is directed to pay an amount of Rs.5,000/- (Rupees five thousand only) to the complainants towards cost and compensation within six weeks from the receipt of copy of this order.
3. Copies of this order be sent to the parties, free of cost”.
3. We have heard the counsel for the parties. Counsel for the petitioner has reiterated that according to Maharashtra Ownership Flat Act, the petitioner was not supposed to execute the agreement, unless 25% of the money was received by it and that the District Forum has no jurisdiction to ask him to execute the agreement.
4. We are not impressed by the arguments of the counsel for the petitioner. We have already decided this question, in the case of Samarth Associates Engineers & Builders & Ors. Vs. Ramesh Ramchandra Lokhande, RP No.4729 of 2012, decided on 10.09.2013, where, the facts were almost similar.
5. Against the said order dated 10.09.2013, a Special Leave to Appeal (Civil) No.36667-68 of 2013 was filed before the Hon’ble Supreme Court, which was dismissed. In the said case, we have made the following observations :-
“7. The following deficiencies are apparent on the face of the record. First of all, it is not understood why the agreement was not executed at or about the execution of receipt of Rs.25,000/-. In Belaire Owners’ Association Vs. DLF Ltd. & Ors., Case No.19/2010, vide supplementary order dated 03.01.2013, the Competition Commission of India, held:-
“31. The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment. These terms and conditions of the agreement were prepared and framed by the company unilaterally without consulting the buyer. Once the company had already received considerable amount from the applicants/buyers, this agreement was forced upon the allottees and the allottee had no option but to sign the agreement, as otherwise the agreement provided for heavy penalties and deduction from the money already deposited by the allottees with the company, which itself was an abuse of dominance. The appropriate procedure would have been that a copy of the agreement which DLF proposed to enter with the allottee should have been made available to the applicants at the time of inviting applications”.
6. There is a magic in t
