The court clarified that it cannot grant specific performance of the agreement and emphasized the importance of adhering to the terms of the agreement for refund of the deposited amount.

ORDER :

Mr. Justice G.S. Singhvi, Chairman-The complainant, who was then serving in Oman (Mascat), submitted an application dated 8.7.1991 for allotment of Residential Apartment bearing No. C-3, measuring 720 sq. ft. situated on 6th floor of Pushpa Akash Apartment (Saraswati Block) being constructed by Respondent No. 1 inVaishali, District Ghaziabad. After five months, Respondent No. 1 sent letter dated 18.12.1991 to the complainant informing him that the total area of the apartment is 760 sq. ft. and not 720 sq. ft. and price thereof was Rs. 3,49,000/-. Respondent No. 1 also directed the complainant to pay the balance amount of Rs. 49,680/-. A message wasalso sent to the complainant at Muscat vide cable dated 3.1.1992 requiring him to pay the balance price. The complainant sent reply dated 12.01.1992 by which he refused to make further payment stating that construction of the apartment had not been completed within the stipulated period. Similar communications were exchanged between the parties in May-June, 1992.

2. After about one month, the Public Relations Officer of Respondent No. 1 sent letter dated 18.7.1992 to the complainant and informed him that construction of the apartments in Kaveri Block has been completed and construction in Saraswati block is progressing fast.

3. Although the complainant had not paid full price, the parties (the complainant and Respondent No. 1) signed agreement dated 27.12.1993 by which Apartment No. C-4, measuring 760 sq. ft. situated on 8th floor of Kaveri Block was sold to the complainant for a total price of Rs. 3,49,600/-. The relevant extracts of the agreement are reproduced below:

“AGREEMENT

BETWEEN

Pushpa Builders Limited

AND

MR. INDER MEHTA

………………………………………..

AGREEMENT

ARTICLES OF AGREEMENT made at Ghaziabad this 27th day of Dec. One Thousand Nine Hundred and Ninty Three BETWEEN M/s. PUSHPA BUILDERS LIMITED, a Company Limited by shares, registered under the Companies Act, 1956 and having its Registered office at Unit No. 3, Lower Ground Floor, DDA Building, Nehru Place, New Delhi- 110019, referred to as “THE PROMOTER’ which expression (hereinafter shall, unless it be repugnant to the context of meaning thereof, mean and include its successors and assigns) of the ONE PART AND…..

MR. INDER MEHTA

P.O. BOX 1030, SEEB AIRPORT SULTANATE OF OMAN MASCAT

……….(hereinafter called ‘THE BUYER’ which expression unless it be repugnant to the context or meaning thereof shall be deemed and include his/her/their or each of their heirs, executors, administrators and assigns) of the OTHER PART :

AND WHEREAS the Buyer has examined the Building Plans, designs and specifications of the proposed residential buildings and has approved the same and has agreed that the Promoter may make therein such variations, modifications or additions, as may be required by the Ghaziabad Authority or any other authority or as the Promoter in his sole discretion may think fir, proper and necessary;

AND WHEREAS the Company shall have the right to effect suitable and necessary alterations in the layout plan, when found necessary alterations which may involve all or any of the changes, viz. change in the position of the flat, or change in the number of the flat or change in its boundaries or to implement any or all of the above changes. If proposed super area differs at the time of occupation, the cost will be adjusted proportionately. If for any reason the Company is not in a position to give possession of the flat allotted, the Company shall be responsible only to consider for any alternative property or refund of amount deposited with the simple interest at the rate of 12% p.a.

AND WHEREAS the Buyer having already been satisfied with the stated facts, applied for allotment of space in the building on ownership basis and the Buyer was allotted the Apartment No. C-4 on Floor 8th in building Block Kaveri in the said Complex on the basis of application of the Buyer dated 8.7.1991 and which has been duly signed by him as token of his having accepte