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TMI Blog2019 (3) TMI 1789X X X X Extracts X X X X X X X X Extracts X X X X ..... ks from today, provided that the entire payment is made, within four weeks from today, failing which the interest shall be payable from the date of each payment to the OP, till the date of entire payment to the complainants in terms of this order. - Consumer Case No. 3873 Of 2017 - - - Dated:- 28-3-2019 - HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER For the Complainant: Mr. Deepak Kr. Khushalani, Advocate For the Opp.Party: Advocate Mr. P. Vinay Kumar, Mr. Kamlesh Kumar, Ms. Ruchi Kumar, Legal Manager ORDER Justice V.K.Jain, Presiding Member (Oral) The complainants Abhishek Khanna and Ms. Monika Khanna applied for allotment of a residential apartment in a project namely 'The Corridors', which the OP was to develop in Sector-67A of Gurgaon and were allotted a residential apartment bearing no. CD-C4-04-402 for a sale consideration of ₹ 1,45,22,006/-. The grievance of the complainant is that the possession of the apartment was not offered and even the construction was not completed despite they having already paid ₹ 1,44,72,364/- to the OP. An Apartment Buyers Agreement between the parties was executed on 12.5.2014. 2. lause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whatsoever, monetary or otherwise shall lie against the Company nor be raised otherwise or in any other manner by the Applicant. 49. Notwithstanding anything contained in this Agreement, timely performance by the applicant of all its obligations under this Agreement, including without limitation, its obligations to make timely payment of the Sale Consideration, maintenance charges and other deposits and amounts, including any interest, in accordance with this agreement shall be of essence under this Agreement. If the applicant neglects, omits, ignores, or fails in the timely performance of its obligations agreed or stipulated herein for any reason whatsoever or to pay in time to the Company any of the installments or other amounts and charges due and payable by the Applicant by respective due dates, the Company shall be entitled to cancel the allotment and terminate this Agreement in the manner described hereunder. 3. Clause 21.3 of the Buyers Agreement on which reliance was placed by the learned counsel for the OP, reads as under: 21.3 The allottee understands, agrees and consents that upon such termination, the Company shall be under no obligation save and except to ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the complainants that since the building plans for this project were approved on 23.07.2013, the possession ought to have been delivered latest by 23.07.2017 even if the grace period of six months is given to the OP. This is also the case of the OP that the parties are bound by the terms of the agreement executed between them, extracts from which have already been reproduced hereinabove. 6. The grounds on which the complaint has been resisted have already been rejected in a number of Consumer Complaints including CC No.1998 of 2016 Subodh Pawar Vs. M/s. Ireo Grace Realtech Pvt. Ltd. Ors. decided by this Commission on 24.09.2018. 7. It transpired during the course of hearing that installment no.4 has not been paid by the complainants. The contention of the learned counsel for the OP is that having not paid the said installment, the complainants are defaulters in making payment and therefore, they are not entitled to refund of the entire amount paid by them to the OP or any compensation on the said amount. A similar contention was advanced before this Commission in Subodh Pawar (supra) where there was default even in payment of 5th, 6th, 7th and 8th installments. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e date of the default, no interest or compensation will be paid to him for the period his money is utilized by the builder, and even the principal amount will be repaid to him in an uncertain future, when the builder has already sold the apartment which was allotted to him. Such a term in the contract would be wholly one sided, unfair and unjust particularly when examined in the light of the fact that as far as the builder is concerned, he has a right to terminate the transaction in the event of even a single default on the part of the flat buyer and not only forfeit the earnest money but also deduct the other charges specified in clause 21.3 of the Buyers Agreement. 14. The learned counsel for the OPs submits that the parties having agreed to all the above referred stipulations, are bound by the same and cannot be allowed to have a grievance at a later date claiming the same to be unfair or one sided. No doubt the parties are ordinarily bound by the terms and conditions agreed between them in respect of a particular transaction, but the position would be altogether different where such terms are found to be wholly one sided and unfair, operating only to the detriment of the fla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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