TaxTMI 
TaxTMI 
2024 (2) TMI 1154
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.... Wadala, Mumbai. The parties executed Agreement to Sell dated 29.11.2013 (hereinafter, 'the Agreement'), whereby the 4BHK apartment bearing No. B-602, on the sixth floor of the proposed building named 'Lodha Evoq', with a carpet area of 1966 sq. ft. was allotted to the appellants. The sale consideration was fixed at Rs.7,55,50,956/-. As per the payment schedule, this sale consideration was to be paid in four sets of 'application money', viz., 18,00,000/-, Rs. Rs.57,55,096/-, Rs.74,79,545/- and Rs.21,62,700/- respectively, and the balance amount, being Rs.5,83,53,615/-, was to be paid on initiation of fit outs. It is not in dispute that the appellants paid Rs.2,25,31,148/- in all to the respondent-company by the date of institution of their consumer complaint before the NCDRC and were not in default. As per the Agreement, possession of the apartment was to be delivered to the appellants for fit outs by 30.06.2016 or, with a grace period of one year, by 30.06.2017. Alleging that the respondent-company had not delivered possession of the apartment for fit outs by the said date and that they had terminated the Agreement, the appellants approached the NCDRC. Their prayer was for refund ....
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.....a. on the total amount paid from the committed date of possession as per ABA (30/06/2016) till the date of offer of possession (29/11/2017). iv. Parties to bear their respective litigation cost. v. In case the Complainants does not wish to take possession of the unit in question now, for whatsoever reasons, and wishes to seek a refund, as prayed for, he shall make a specific request in this regard, in writing, to the OP within 15 days of this order. In such a situation OP shall be entitled to deductions/forfeiture of earnest money as per provisions of the agreement. OP shall, on receipt of such written request for refund the amount paid by the Complainants after making deductions towards forfeiture of earnest money, as per provisions of the agreement, within two months from the date of request from the complainants.' The appellants are referred to as 'complainants' in the order extracted above while the respondent-company is 'OP'. 4. Aggrieved by the disposal of their case on the aforestated lines and more particularly, para 'v' of the directions set out hereinabove, the appellants assert before us their right to terminate the Agreement and claim unconditional refund of t....
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....and payable hereunder, in the event the Company fails to offer the possession of the Unit for fit outs by the date stated in Annexure - 2 and the aforesaid grace period, then within 30 (thirty) days of expiry of such grace period, the Company shall inform the Purchaser the revised date by which the Unit is likely to be ready for being offered for possession for fit out. Upon expiry of such grace period, the Purchaser may elect to continue with this Agreement in which case, the date of offer of possession for fit outs mentioned in Annexure-2 shall stand revised to and substituted by the revised date of offer of possession (for fit outs) as communicated by the Company. Alternatively, the Purchaser may by giving notice in writing elect to terminate this Agreement. Provided that such right to terminate shall be exercised by the Purchaser within a period of 90 days from the expiry of the aforesaid grace period. In the event, the letter of termination is not received by the Company within the said period of 90 days or is received after the said period of 90 days, the Purchaser shall, without the Company being liable to the Purchaser be deemed to have elected to continue with the Agreemen....
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....n the Date of Offer of Possession (for fit outs) works in the Unit shall be complete and the Unit shall have regular water and electricity supply, as well as lift access. There may be certain works which may be ongoing in the Building/ development/Property at such time but all due care shall be taken to ensure that the fit outs of the Unit are not affected in any manner by such works. It is clarified that the Offer of Possession (for fit outs) entitles the Purchaser to carry on interior and other related works in the Unit but does not entitle the said Unit to be occupied till such time that the Occupation Certificate is received in relation to the said Unit.' 8. Cursory overview of the above clauses manifests that the respondent-company was to deliver possession of the apartment to the appellants for fit outs by 30.06.2016 but grace period of one year was provided under Clause 11.2, whereby the date for delivery of such possession stood extended till 30.06.2017. Clause 21.u indicates that the works in the apartment, so far as the respondent-company is concerned, were to be completed by that date and the apartment was to have regular water and electricity supply, apart from lift a....
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....ppellants wanted to back out of the contract as they did not wish to bear the additional burden of the newly introduced Goods and Service Tax payable by them in relation to the subject transaction. 11. Perusal of the certificate dated 08.06.2017 relied upon by the respondent-company reflects that it is titled 'Part Occupancy Certificate'. It was issued by the Town & Country Planning Division of the Mumbai Metropolitan Region Development Authority and recorded, under Condition No. 6 thereof, that the respondent-company should complete the unfinished internal works before applying for grant of a Full Occupation Certificate of the building or before handing over physical possession of the premises for habitation, whichever was earlier. Notably, in the State of Maharashtra, 'Occupancy Certificate' is defined under Regulation 6(7) of the Development Control Regulations, 1991, and it reads as follows: - '6(7). Occupancy Certificate: - On receipt of the acceptance of completion certificate in the form in Appendix XXI, the owner through his licensed surveyor/engineer/structural engineer/supervisor of this architect shall submit to the Commissioner a development completion certificate in t....
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....iz., the 'date of offer of possession' under Clause No. 1.14, which is linked with the 'Occupation Certificate' which it did not even have by that date. Further, it is not even its case that it made available the key common areas and amenities, as provided in the Agreement. In effect, expiry of the 'date of delivery of possession for fit outs', with the grace period, being 30.06.2017, the appellants were well within their rights, under Clause 11.3, in getting issued a legal notice on 01.07.2017 stating that they had not received any letter of offer of possession for fit outs and that they had elected to terminate the Agreement. The respondent-company was called upon, in consequence, to refund the monies paid by them with interest thereon. The respondent-company, however, disclaimed liability, by its reply legal notice dated 21.07.2017, constraining the appellants to move the NCDRC. 13. This being the factual backdrop of the case, the NCDRC noted that there was 'some delay' in handing over of possession of the apartment by the respondent-company, but opined that it was not 'unreasonable', whereby the appellants could cancel the Agreement and seek a refund. The NCDRC further opined ....
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....rd, we may refer to the Constitution Bench decision in General Assurance Society Ltd. vs. Chandumull Jain and another AIR 1966 SC 1644, wherein it was observed that, in interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties because it is not for the Court to make a new contract, however reasonable, if the parties have not made it themselves. Thereafter, in Rajasthan State Industrial Development & Investment Corporation vs. Diamond & Gem Development Corporation Ltd. (2013) 5 SCC 470, this Court reiterated that a contract, being a creature of an agreement between two or more parties, is to be interpreted giving the actual meaning to the words contained in the contract and it is not permissible for the Court to make a new contract, however reasonable, if the parties have not made it themselves. 17. More recently, in Shree Ambica Medical Stores vs. Surat People's Coop. Bank Ltd. (2020) 13 SCC 564, it was observed that, through its interpretative process, the Court cannot rewrite or create a new contract between the parties and has to simply apply the terms and conditions of the a....
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.... grace period, when the appellants were not even seized of all the facts, cannot be held against them by treating it as an act in acceptance of or acquiescence with the change impliedly suggested by the respondent-company. 20. The fact that the appellants were anxious to avoid the additional tax liability, owing to the introduction of the Goods and Service Tax regime, cannot be held against them or be imputed to them as an underhand motive for backing out of the Agreement. Avoidance of tax is neither illegal nor equivalent to tax evasion and, therefore, the urgency shown by the appellants in trying to complete the process quickly so as to avoid an additional tax burden was natural. Further, it cannot be presumed that the appellants, who were willing to spend over 7.5 Rs. Crore for the apartment, would back out at the eleventh hour only because the tax component was increasing by Rs.40 lakh or so. 21. Reliance is placed by the respondent-company on the decision of this Court in Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna (2021) 3 SCC 241 in the context of the rate of interest payable on the refund. However, we find that the aforestated decision is distinguishable on facts. Th....