Consumer Disputes:
Cancellation of allotment of housing apartment – By developer of the property – On the ground that the allottee had failed to pay 25% of the total cost of the flat – Complaint before State Consumer Commission – Dismissed – Order affirmed by National Consumer Commission – On appeal, held: It is evident from the records that the booking amount was reduced to 15% from 25% of the agreed sale consideration – The allottee had paid the amount which was in excess of 15% of the booking amount – Hence the termination of allotment was misconceived – Section 4 of Karnataka Ownership Flats Act also casts an obligation on the developer, while receiving advance payment, to enter into a written agreement for sale – Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 – s. 4.
Allowing the appeal, the Court
HELD : 1. Though initially the booking amount was to be 25% of the agreed sale consideration, the correspondence between the parties indicates that there was an agreement to reduce this to 15%. This is reflected in the email addressed by the appellant following a personal meeting on 21 February 2008 and the categoric acceptance of this position in response, by the developer on 22 February 2008. That apart, the subsequent email of the developer dated 26 May 2008 clearly indicates that 15% represented the booking amount payable for the flat. It is not in dispute that if the booking amount is computed at the rate of 15% of the agreed sale consideration, what was paid by the appellant (Rs 6,50,000) was in fact in excess of the booking amount. Hence the entire basis on which the termination of the allotment took place was misconceived. [Para 15] [160-B-C]
2. That apart, the appellants had all along been insisting on the execution of the agreement to sell so as to facilitate the disbursement of the loan which had been sanctioned by the bank. Section 4 of the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 casts an obligation on the developer, while receiving advance payment, to enter into a written agreement for sale. The insistence of the appellants on the developer doing so was, therefore, consistent with the statutory obligation cast on the respondent. This cannot be regarded as unreasonable or as a breach of the contractual obligations. In this background, the SCDRC and the NCDRC were not justified in rejecting the primary relief which was sought by the appellants in terms of the fulfillment of the agreement. [Paras 16 and 17] [160-D-E; H; 161-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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