JATINDER KAUR Vs. OMAXE LTD
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C.Viswanath, J. -
(1.) According to the Complaint, on 27.02.2008, the Complainant booked a Flat measuring 4,150 sq./ft. under down payment plan costing (BSP) Rs. 1,18,27,500/- in "Omaxe Royal Residence Royal Retreat" in Pakhowal Road, Ludhiana (Punjab) by paying Rs.9,12,000/- and Rs.2,28,000/- vide receipt No. 296231 dated 28.02.2008 and No.300227 dated 26.03.2008. Thereafter, the Complainant paid upto 95% of the BSP totalling to Rs.1,04,99,512/- as per the payment plan of the Opposite Party, including 50% of other miscellaneous charges by the due date of 23rd May 2008 for the subject Flat. This required 3 or 4 visits to the site and the Opposite Party being fully paid, allotted Flat no. 301 at the 3rd floor of the Tower called Royal Retreat-2. On 21.03.2008, the Opposite Party started construction of the project, performing Bhoomi Pujan, where the Complainant was also present. However, due to slow progress of the construction work the deadline to deliver possession of the flat i.e. 21 September 2010 expired. Due to this delay on the part of the Opposite Party, the Complainant suffered a huge loss. The Complainant alleged that in April, 2008, the Opposite Party called the Complainant at the site office in Ludhiana and threatened the Complainant to sign an Application form lest 15% amount of BSP already paid would be forfeited. There was no mention of 30 months period for delivery of the possession of the flat as was mentioned in the two page catalogue shown at the time of getting the booking form the Complainant. Such kind of stipulation/terms in the subsequent documents is against public policy attracting section 24 of the Indian Contract Act. The Complainant having no option, except to bow down to the mischievous demands of the Opposite Party, signed the said application form under grave duress and protest which was even against the basic commitments of the Opposite Party made at the time of booking of the flat and taking part consideration amount. On 19.09.2008 i.e. six months later when Opposite Party had received 95% of the BSP, the Complainant received a booklet containing Agreement/Terms and Conditions from the Opposite Party for signatures within 30 days, in token of acceptance of detailed Terms and Conditions therein. In the detailed Agreement, the relevant Clause regarding delivery period of Flat, read as follows:-
"28. (a) that the company shall complete the development/construction of the Flat within a period of Thirty months from the date of signing of this Agreement by the Buyer(s) or within an extended period of six months, subject to force majeure conditions and subject to other Flat Buyer(s) making timely payments or subject to other reasons beyond the control of the Company. No claim by way of damages/compensation shall lie against the Company in case of delay in handing over the possession on account of any of the aforesaid reasons and the Company shall be entitled to a reasonable extension of time for the delivery of possession of the said Flat to the Buyer(s)".
(2.) The clause regarding compensation payable by the Company for delay on its part, read as follows:-
"28(f) In case of delay in construction of the said Flat attributable to delay of Company subject clause (a) & (b) herein above, the Company would pay a sum at the rate of Rs. 5/- per sq. ft. of Super Area per month for the period of delay to the Buyer(s), provided however that the Buyer(s) has made payment of all installments towards the sale consideration amount of the said Flat in time and without making any delay to the Company."
(3.) It may be appreciated that all the terms and conditions of the Agreement were crafted fully in favour the Opposite Party and against the Complainant.
i. for delay in payment on the part of Complainant, the Opposite Party would charge 24% interest on delayed payment.
ii. for delay on the part of Opposite Party in delivering the Flat, it would pay less than 2.5% as per above formula of Rs. 5 per sq. ft. per month.
iii. Possession within 30 days of offer will automatically mean that the Opposite Party has fulfilled all its obligations under the Agreement.
iv. if the Opposite Party abandons the Project for any reason, it would refund the payment with negligible compensation to Complainant.;
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