Decided on January 17,2020

Morzaria Products Llp Appellant
Marvel Omega Builders Pvt. Ltd. Respondents


R.K.AGRAWAL,J. - (1.) For the purpose of residence of its Director and his family, the Complainant had entered into an Agreement to Sell (Annexure-A) and a Construction Agreement (Annexure-B), both dated 01.05.2014, with one Marvel Ultra Realtors and Developers (Pune) Pvt. Ltd. (hereinafter referred to as Marvel Ultra Realtors and Developers), which, along with two other Companies (i) Zony Realtors and Developers Pvt. Ltd. and (ii) Windshield Developers Pvt. Ltd., was amalgamated with Marvel Omega Builders Pvt. Ltd., i.e. Opposite Party No.1 herein, vide an order dated 04.03.2016 passed by the Hon'ble High Court of Bombay. While Opposite Party No.1 is the absolute owner of Plot No.7 (Old Plot No. 5B), situated at Primrose Road, Bangalore, admeasuring 888.52 sq. meters, Opposite Party No.2 is the Chief Executive Officer of Marvel Ultra Realtors and Developers.
(2.) As per the Agreement to Sell, an undivided interest admeasuring 1261.95 sq. ft. (hereinafter referred to as Schedule-B Property), along with Apartment bearing No. 001, having a total built up area of 4280 sq. ft. (hereinafter referred to as Schedule-C Property) in the building known as "Marvel Orial", was to be transferred to the Complainant for an agreed sale consideration of Rs.6,79,95,255/-. The Construction Agreement entered into between the Complainant and Opposite Party No.1 specifies the terms and conditions in respect of the construction of the scheduled property, including the stipulation that the Complainant was required to pay a sum of Rs.1,71,20,000/- towards the cost of construction. Though as per Clause 5.1 of the Construction Agreement, Opposite Party No.1 was required to complete the construction of the Apartment and deliver possession of the same to the Complainant on or before 30.12.2016, or within a penalty free grace period of six months, in view of requirement of the Complainant, it was an oral understanding between the parties that the possession would be delivered to the Complainant within a year from the date of execution of the aforesaid Agreements.
(3.) The Complainant paid a total amount of Rs.5,76,00,000/- towards the sale and cost of construction of the Apartment, between the period 12.07.2014 and 04.03.2015, in support of which the Complainant has placed on record the bank statement (Annexure-C colly.). As the pace of construction was very slow, the Complainant made repeated requests to Opposite Party No.1 to expedite the process of construction but the progress was unsatisfactory. The correspondence exchanged between the parties in this behalf is annexed as Annexure-D. As there was inordinate delay in the completion of the construction work and Opposite Party No.1 was not able to adhere to the promised deadline to deliver possession of the Apartment booked, the Complainant vide letter dated 03.08.2015 (Annexure-E) sought refund of the amount of Rs.5,76,00,000/-, to which it was replied to by Opposite Party No.1 vide letter dated 04.08.2015 (Annexure-F) that the booking stood cancelled and the amount would be refunded to the Complainant. While Clause 7.4.1 of the Agreement to Sell provides that there will be no forfeiture of any amount of the sale consideration or any money payable under the Construction Agreement and that the Complainant will be entitled to refund of the entire amount paid under both the Agreements, Clause 7.4.2 provides that the refund will be made by the Seller only after it has resold the scheduled property.;

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