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TMI Blog2014 (5) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said advertisements, one Navdeep Uppal had booked a flat in the said housing project. An initial amount of Rs. 1,50,000/-was paid to the respondent company as booking amount. The respondent company acknowledged the same and issued a receipt bearing no.043 dated 25.04.2006 for the said amount. The balance payment was to be made in installments which were linked to the progress in construction of the multistoried buildings. The respondent company raised a further demand of Rs. 2,25,000/- towards first installment vide demand letter no.CG/INST.I/618 dated 21.12.2006. This installment representing 12% of consideration was due and payble on the commencement of construction. Mr Navdeep Uppal did not make the said payment and agreed to sell/transfer the booking in favour of the petitioner. 4. Thereafter, Mr Navdeep Uppal and the petitioner executed an agreement dated 26.12.2006 whereby the petitioner paid a sum of Rs. 1,50,000/- to Mr Navdeep Uppal vide Demand Draft No.811208 dated 11.10.2006 drawn on State Bank of Patiala, Kanpur and Mr Navdeep Uppal surrendered his booking and all attendant rights vide a surrender memo along with original memo receipt No.043 dated 25.04.2006. Pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said amount be deposited in a fixed deposit. 8. The counsel for the petitioner has contended that the respondent company has played a fraud on the petitioner by repeatedly representing that the construction of Tower 'BEETA-6', in which the petitioner had booked a flat, was in full swing while, in fact, the construction of the said tower had not even commenced. It is contended that the respondent has misrepresented and mislead the petitioner as the petitioner was induced to make the payment of the first installment on the false representation that the construction had commenced. It is contended that the petitioner demanded a refund of Rs. 3,75,000/- alongwith interest, by a demand notice dated 01.10.2012, as the respondent had failed to carry out the construction of the flat booked by the petitioner. However, the respondent neither responded to the said demand notice nor paid the demanded amount. It is contended that the respondent has used the funds of the petitioner without performing its obligations and, therefore, the respondent company is liable to pay the sum of Rs. 3,75,000/- alongwith interest to the petitioner. 9. The counsel for the respondent has submitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Within Apartment - 5%+50% of EDC At the time of Possession - 5% + Stamp duty + any other charges as applicable." 13. The respondent demanded a sum of Rs. 2,25,000/- (12% of the consideration) by its letter dated 21.12.2006. The said letter further put the petitioner to notice that if the payment as demanded was not made within a period of 30 days, the petitioner would be liable to pay penal interest at the rate of 20% P.A. 14. Admittedly, the respondent received the payment of the booking amount and the first installment (aggregating 20% of the consideration) and thereafter, issued the letter for allotment of "Provisional Flat no. 302 on the 3rd floor measuring 1500 Sq. Ft. in Tower Beeta 6 at Camelia Garden, Bhiwadi". The respondent was obliged to carry out the construction and demand further payments according to the schedule as agreed. However, admittedly, the respondent did not carry out any construction in respect of "Tower Beeta-6" and no further demands were made on the petitioner till 09.01.2012 The respondent invited the petitioner to make the balance payment immediately by its letter dated 09.01.2012. It is appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in respect of which the amount of Rs. 3,75,000/- had been accepted. Admittedly, the petitioner was only obliged to pay 20% of the consideration till the commencement of construction as per the construction linked plan. The amount of booking and the first installment was also demanded and accepted by the respondent as being 20% of the consideration (computed for a flat of 1500 Sq. ft. at the rate of Rs. 1250 per Sq ft.) for a flat measuring 1500 sq ft. It is thus, not open for the respondent to contend that it was not obliged to hand over a flat measuring 1500 Sq ft. A allotment letter for such flat was issued to the petitioner on 22.11.2007 and there has been no further communication by the respondent whereby the said allotment has been sought to be altered in any manner. On the contrary, respondent called upon the petitioner to pay the balance sum due immediately, by its letter dated 09.01.2012 17. In the given circumstances, the defence raised by the respondent that he is not liable to repay the amount of Rs. 3,75,000/- to the petitioner is not credible. In my view, there is no justifiable reason or ground on which the respondent can resist the claim of the petitioner and with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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