Case Title: Kailash Kumari Vs. M/S. Omaxe Ltd. & Anr
Case Number: F. A. No. 66/2018
In a recent judgment, the National Consumer Disputes Redressal Commission, under the leadership of Dr. Inder Jit Singh, ruled that real estate company Omaxe Ltd was guilty of providing deficient service. How? By pushing the buyer into signing a one-sided builder-buyer agreement.
Let’s break down the story:
Kailash Kumari, the complainant, had booked a flat in Omaxe City and was assigned a particular unit. The company tried to get her to sign the Builder Buyer Agreement (BBA), which she didn’t because she wasn’t happy with some of the terms. She was also concerned about the quality of the materials being used and wanted her deposit back. She felt the BBA was biased towards the builder.
She took the case to the State Commission, which agreed with her and ordered Omaxe to refund her money, minus Rs. 5,75,000 earmarked as earnest money. But they didn’t grant her any interest because the signing and payment agreement had some issues. Not satisfied with this, Kumari took the matter to the National Commission.
Omaxe argued that the complainant had been given enough chances to make payments. According to them, they had to cancel her allotment and keep the earnest money. After they cancelled the cancellation and re-allotted the unit, she still didn’t sign the agreement, leading to another cancellation and the forfeiture of her earnest money.
After looking at all sides, the Commission noted that Omaxe should have sent the BBA within a reasonable time after Kumari had signed the application form. But they took about a year to send it to her. They also didn’t provide the initial draft agreement letter and the first copy of the draft BBA.
The Commission questioned whether a builder could impose one-sided conditions and add more conditions later in the BBA that were not in the application form. They referred to a Supreme Court case, Ireo Grace Realtech Pvt. Ltd. vs. Abhishek Khanna & Anr., which stated that a builder can’t force buyers to agree to one-sided terms in an apartment buyers’ agreement.
The Commission felt that Omaxe was wrong to keep Kumari’s earnest money just because she didn’t sign the BBA. She had every right to ask for a refund as the builders weren’t willing to change the terms and conditions she didn’t agree with. Therefore, they felt the State Commission’s order needed to be revised.
The National Commission ordered Omaxe to refund Kumari the principal amount of Rs. 27,90,418, with an added interest rate of 9%.
Takeaway: Builders cannot impose one-sided conditions on buyers and must be willing to discuss and amend terms and conditions that buyers find objectionable.
