Last Updated on February 12, 2021 by Satish Mishra
DELAY IN PAYMENT TO BUILDER RERA CASE.
Summary- In this post we will discuss about rights and duties of allottees and the procedure to file a case when there is a dispute for the breach of contract between the both the parties.
Deciding Member and Authority
Sanjeev Gupta… Member
GCNo.10722018
PBRERA-SAS80-PR0277
Date of Decision: 01.04.2019
Complainant:
Sushil Kumar
Respondent:
Pankaj Sood
Important Section included in the case:
- Rights and duties of allottees – (6) Every allottee, who has entered into an agreement for sale to take an apartment, plot or building as the case may be, under section 13, shall be responsible to make necessary payments in the manner and within the time as specified in the said agreement for sale and shall pay at the proper time and place, the share of the registration charges, municipal taxes, water and electricity charges, maintenance charges, ground rent, and other charges, if any.
Orders and Judgement of the Case:
The complainant filed complaint on 14.11.2018 against the respondent regarding the dispute in the breach of contract between the both the parties. The Complainant claims that he has booked a 3 BHK flat No. 357/1, 1st floor approx. 1350 sq. Ft. in the month of April, 2016. The flat was booked under the project named Land Twister Homes, Kharar Landra Road, Sector 116, Mohali. He alleged that as per the contract the respondent promised to deliver the flat on due given date i.e., 17.12.2017, but the respondent has failed to offer the possession so far. He has appealed in the court for getting back all the money which he has deposited to the Respondent with the interest as per the provision mentioned under Real Estate (Regulation & Development) Act, 2016 and also under the Punjab State Real Estate (Regulation & Development) Rules, 2017.
As per the allegation made by the complainant against the respondent was asked to file a reply. The respondent also filed the reply alleged contraventions, which was duly filed by him on 08.03.2019 before this bench of authority along with a copy of the same to the complainant. The case came up for arguments on 26.03.2019. On the said date, the complainant argued for the refund of a total sum of Rs 5,64,300/- paid between 17.04.2016 till 07.10.2016. He also wanted interest from the dates the amounts were paid to the respondent till the date of refund.
ALSO READ- DELAY IN POSSESSION JUDGMENTS
The Counsel have also in responded the complainant that he has failed to make the payment as per the schedule of payments mentioned in Article (Sale Consideration) Clause 3 of the Agreement to sell executed between both the parties. The entire construction work has been completed according the estimated period of time. The entire construction is linked to the timely payments by the buyers of the respective flats. By this own admittance, the complainant did not pay any amount after 07.10.2016 although as per the instalment plan, a total sum of Rs 29,98,750/- + Service Tax + 37,500/- (half of ECD) was required to be paid by 17.11.2017 and the balance amount of Rs 3,51,250/- + Service Tax + 37,500/- (half of ECD) were to be paid at the time of delivery of the possession.
The counsel of the respondent further referred to Article 4 (Possession) Clause 4 of the Agreement to sell for delivery of possession of the flat, by 17.12.2017, subject to timely payment of the amounts due and payable by the purchaser. The Counsel made an assertion that flat No. 357/1, 1st floor (3 BHK) allotted to the possession within 15 days on the receipt of the pending amount, as per the terms and conditions of the agreement to sell. The complainant refused to make the balance payment as he stated that he is no more interested in continuing with this project.
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The Hon’ble member of the tribunal said, that no doubt, the date of possession of the flat was 19.12.2017 but the respondent cannot be held responsible for the delay, since he has already completed the structure but in the absence of timely payments by the complainant, the respondent could not do the fit-outs and complete the flat, since the same as sold on the basis of construction linked payment plan. Respondent’s assertion that he is position to offer the position of the flat within 15 days on the receipt of the pending amount by the complainant shows that he is not at fault in this case, as the buyers have certain duties which are cast upon them as provided in section 19(6) of the Real Estate (Regulation & Development) Act, 2016.
The court finically dismissed the case, giving the conclusive statement that in this case, the allottee has not fulfilled his duties as provided in the Real Estate (Regulation & Development) Act, 2016 and Punjab State Real Estate (Regulation & Development) Rules, 2017 made thereunder. Hence, his case for refund of the total amount and interest is not made out and the complainant is hereby dismissed. However, in case, the allottee offers to make the delayed payments, the promoter shall offer him possession, as per the terms & conditions of the Agreement to sell and the remaining payment shall be made at the time of offer of possession. File be consigned to record room and copy of order be provided, free of cost, to both the complainant and the respondent.
ALSO READ- AGREEMENT TO SELL REGISTRATION UNDER RERA
This post was written by Aman Dubey.
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