ASHOK DEWAN Vs. HARPREET DEWAN

JUDGEMENT

(1.) The admitted facts in the present complaint are that the opposite party had floated a project called "Ireo Gurgaon Hills"?. The complainants applied for an apartment in the said project and paid booking amount of Rs.35,00,000/- and an allotment letter dated 15.05.2013 was given to them. An agreement was entered between the parties on 11.06.2013 for allotment of residential apartment no. C-15-31 on 14th Floor in Tower-C, having super area of 4786.83 sq. ft. for total consideration of Rs.5,78,62,052/-. As per the demands from the opposite party, the complainants till 01.07.2015 had paid a total sum of Rs.3,43,51,582/-. After receiving the revised payment schedule, on 09.07.2015 the complainants informed the opposite party their inability to pay the future instalments and had shown their inclination to surrender the property to the opposite party and asked for the response of the opposite party. The opposite party informed the complainants that in the event of cancellation of allotment of flat, 20% of BSP with brokerage paid and interest on account of delayed payment would be forfeited. The complainants, thereafter, requested the opposite party to refund the balance money after making the necessary deductions. Vide letter dated 13.07.2015, the opposite party after deducting 20% of BSP with brokerage and interest on account of delayed payment informed the complainant that as per the tentative calculations done by them, a sum of Rs.2,03,91,473/- was refundable and it was subject to approval. Vide email dated 23.07.2015, the complainants again asked the opposite party to consider their request for cancellation of the allotment of the premises and refund their money. Thereafter, they also sent several letters for cancellation of their allotment and for refund of their deposited money. However, the opposite party did not cancel the allotment and vide letter dated 14.09.2015 informed the complainants that their request for cancellation was rejected. Thereafter, the complainants received letter for payment of a sum of Rs.92,19,703.77/-. On 14.12.2015 the complainants sent an email to the CEO of the opposite party expressing their difficulty in making the payment of the demand and also requested for allotment of some other flat in some other project within the amount already paid by them. The contention of the complainants is that despite several requests for cancellation of allotment and refund of money with necessary deductions, the same was not done by the opposite party and that it amounted to deficiency in service. Refund of the deposited amount of Rs.3,43,51,582/- has been sought by the complainants vide the present complaint.

(2.) In the written statement, the opposite party took the stand that agreement between them never permitted the complainants to seek cancellation of the allotment. It is submitted that complainants are defaulters as they had not only shown their inability to make the further payment of instalments but had not actually made any payment even after receiving the demand letters. An amount of Rs.1,46,89,290/- is still due against them. It is submitted that since complainants are wilful defaulters, they are not entitled for any relief. It is submitted under clause 23 of the agreement that allottee only have limited right of cancellation. It can seek cancellation of agreement where there is violation of warranties by the opposite party or where contract is frustrated. In such cases, complainants are entitled for refund of their money only with interest @ 8% p.a. which is not the case here. It is prayed that complaint be dismissed.

(3.) Parties led their evidences. We have heard the arguments and perused the relevant record.