CC. 34/2007
The Complaint is filed against the opp. party seeking direction to accept and recieve balance sale consideration of Rs. 26,18,017/- and deliver possession of flat No. 512C Miyapur village Serilingampally Mandal, R.R. District and to execute sale deed in respec of the flat and also to pay Rs 50, 000/- towards compensation for mental agony and hardship.
The brief averments of the complaint are...
The opposite party has filed counter stating....
(I simply haven't the patience to put it all down. Half these judgements are just ripped off from the pleadings. Its boooorrring)
The points for consideration are:
1) Whether there was any deficiency on the part of the opposite party?
2) To what relief?
Point No.1: The facts not in dispute are that the opposite party allotted flat No.... for a consideration of Rs 3, 80, 000/- inclusive of amenities charge, VAT, Service Tax and Corpus Fund and the Complainant No. 1 paid in advance of Rs 20,000/- through cheque bearing No. 335415 dated 28.12.2005. Both parties have relied upon the terms and conditions mentioned in the receipt and agreement of sale. A perusal of the receipt Ex A1 dated 28.12.2005 shows the mode of payment of the sale consideration by the complainants and it runs as follows:
Payment conditions:
50% from 20 days date of permission
10% after casting respective flat slab
25% after brick work for respective flat
10% after plastering for respective flat
5% after flooring for respective flat
2.5% is charged on default payment
There is also no dispute that the terms and conditions mentioned in Ex A1 are modified when it came to the agreement of sale which was marked as Ex A5. The mode of payment of the balance consideration as mentioned in the agreement of sale as follows:
2(c) The balance sale consideration of Rs 26, 18, 017/- shall be paid by the Purchaser in installments to the Developer as detailed below:
i) 50% of the total flat cost including the Token advance amount and part payment should be paid by the Purchaser within 15 days from the date of this agreement i.e. Rs 15, 40, 010/-.
ii) 10% of the total flat cost should be paid after completion of the slab work of the schedule B property i.e. Rs 3,08,002/-
iii) 25% of the total flat cost should be paid after completion of the brick work of schedule B property i.e. Rs 7,70,0005/-
iv) 10% of the total flat cost should be paid after completion of Plastering of Schedule B property i.e. Rs 3, 08,002/-
v) 5% of the total flat cost should be paid after completion of Flooring of the Schedule B property i.e. Rs 1,54,001/-
vi) The purchaser shall pay the amount equivalent to 50% of the total flat cost within 15 days from the date of the Agreement, failing which, the developer reserves the right to cancel the sale agreement at the option of the Developer or new price will be applicable or the interest @ 2.5% per month will be levied on overdue amount.
The legal notice got issued by the complainants under Ex. A6 also contained the terms and conditions mentioned in Ex A1. Therefore, there is no hesitation in stating that the payment schedule in regard to the payment of balance sale consideration has been modified from the time of execution of Ex A1 to the time Ex A5 issued. The opposite party contends that the modification of the terms was in favour of the interest of the complainants and other allottees and the modification was to be carried out only at the request of the allottees. The complainants also under Ex A5 acquiesced to the modification of the terms and conditions and in token of their consent thereof, they paid an amount of Rs 4,42,002/- on 7.10.2006 through cheque drawn on HSBC Bank. Therefore so far as the modification of the terms of the contract is concerned, there cannot be any dispute between the parties in regard to mode of payment of balance sale consideration. In fact Ex A5 was executed by the complainants and the opposite party as well.
The question to be considered now is in regard to the execution of tripartite agreement and payment of balance sale consideration by the complainants to the opposite party and also the plea of cancellation of allotment of flat by the opposite party. The complainants had paid an amount of Rs. 4,42,003/- till 7.10.2006. The counsel for the complainants had submitted that the tripartite agreement was executed by the complainants, the opposite party and IDBI Bank. Whereas the learned counsel for the opposite party has not agreed and submitted that the tripartite agreement was executed only between the complainants and the IDBI Bank even though the name of the opposite party was mentioned therein. However, a perusal of the counter filed by the opposite party shows that tripartite agreement was executed by the complainants and the opposite party and the IDBI Bank. The original tripartite agreement lying with the bank has not been called for either by the Complainant or by the Opposite Party. In light of the admission in their counter by the opposite party that they signed tripartite agreement it is held that the tripartite agreement was executed by all the three parties, the complainants, opposite party and the IDBI Bank.
It is the contention of the complainants that in view of the tripartite agreement, they were under the impression that the Bank will directly release the amount in installments according to the payment schedule. It is the contention of the complainants that payment schedule was to be furnished by the opposite party to the bank and the opposite party denies the same. A perusal of the conditions of the tripartite agreement Ex A4 does not show any responsibility cast on the opposite party to furnish the schedule to the bank. The complainants submitted that the sanction letter was issued by the IDBI Bank and hence they felt they need not do anything more in procession payment of the loan amount to the opposite party. IDBI Bank issued revised sanction letter under Ex A3 requiring the complainant to execture Home Loan Agreement and other documentation, create security and disbursement of the loan would be made against the registration of the property and a period of 60 days was stipulated from the date of Ex A3 stating that the offer in Ex A3 would stand cancelled within 60 days provided conditions therein are not fulfilled by the complainants. In terms of the revised sanction letter complainants were required to produce the documents as mentioned therein. Therefore, it cannot be said that the opposite party was responsible for non-release of the amount by the IDBI Bank. This fact further established by the admission of the complainants that due to interdepartmental administrative orders, IDBI Bank sought the registered sale deed. The bank had insisted on requirement of production of registered sale deed by the complainants. In the circumstances it cannot be said that there was violation of the terms and conditions on the part of the opposite party as far as the tripartite agreement is concerned. Unfortunately the IDBI Bank which is one of the parties to the tripartite agreement was not made party to the proceedings. However, in light of the admission by the complainants, it was incumbent on them to fulfill the formalities for release of the loan amount by the IDBI Bank which the complainants had not done.
By virtue of the tripartite agreement, the opposite party cannot contend that on default of the complainants in making payment of the balance sale consideration, within a stipulated time it had cancelled the allotment of their flat. It is clearly mentioned in Ex A4 that cancellation of the flat cannot be done without obtaining 'no objection' certificate from the IDBI Bank. There was no no objection certificate obtained by the opposite party before raising the plea of cancellation of the flat. So far as the payment of balance sale consideration in respect of the flat is concerned, admittedly the complainant failed to pay the amount within the time fixed there for by the opposite party. As aforesaid, the default committed by the complainants in payment of the balance sale consideration does not entitle the opposite party to cancel the allotment of theflat. Therefore the opposite party is liable to deliver possession of the flat No.... and execute registered sale deed in favour of the complainants and at the same time the complainants cannot shred their liability for not having paid the balance sale consideration in time as stipulated in the schedule which certainly caused loss and hardship to the opposite party. Therefore, the opposite party is entitled to the interest @ 9% p.a. on the balance sale consideration of Rs. 26,18,017/- from the date of default committed by the complainant, i.e. 28.11.2006.
In the result, the complaint is allowed directing the opposite party to deliver possession of the flat No... and arrange for execution of a registered sale deed conveying the undivided share of 79.32. sq yards of the said flat within one month from the date of receipt of amount of Rs 26, 18, 017/- with interest at 9% p.a. from the date of default i.e. 28.11.2006 till payment by the complainant. In the circumstances there shall be no order as to costs.
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