A couple won their suit after a flat they had booked in 2009 and begun paying for was resold by the builder for a higher price.
Coming to the rescue of property buyers in the city, the Bombay High Court has restrained a well-known developer from allowing a person possession of a flat which was sold again because of price escalation.
Justice Roshan Dalvi has passed the restraining order against the second purchaser of a flat that is part of the Neptune Living Point Phase II project developed by Neptune Ventures & Developers Pvt Ltd in Bhandup.
The court passed the order last week after a suit and application were filed by Pius Varghese Pullikottil and his wife Reena Pius, seeking the execution of the agreement signed between Pius and the developer in April 2009. The application sought a restraining order against all parties from transferring possession of the flat.
"The developer has committed a breach of contract, having backed out of his contract with the plaintiff (Pius) after the real estate value rose, which it always does. The developer cannot by law be allowed to do so," the court observed while passing an order in favour of the couple.
The couple had booked the flat in the building called Flying Kite for an agreed price of Rs 70.83 lakh. The payment was to be done in installments- based on the progress of the construction work. The Pius's made an initial payment of Rs.51,000 at the time of booking the flat, followed by two cheques of over Rs 5 lakh each the same year, and cheques worth around Rs 11 lakh the next year. This was as per a pre-printed schedule provided to them.
However, in a letter sent to them in June 2013 requiring payment for the completion of the 7th slab of the building, the developer allegedly unilaterally increased the price of the flat from Rs 70.83 lakh to Rs 98.28 lakh, showing it as the "agreement value".
The two immediately protested by sending a letter through a lawyer. The developer, however, cancelled the deal with the Pius's and went on to sell the flat to one Deshpande family for a total price of Rs 2.05 crore.
In their suit, filed through Advocate Satyakumar Shettigar, the Pius's argued that price cannot be increased unilaterally and that it cannot be sold to someone else when they had an agreement with the developer.
The developer's side, in turn, submitted that as per the agreement, the Pius's were supposed to pay the entire Rs 70.83 lakh at one go, which they did not, and that the pre-printed payment schedule was not a part of their agreement. It was also argued that the document presented by the couple was merely an allotment and did not assure them any rights.
The court, however, observed that the developer had accepted the payment in installments and never even once sent a reminder stating that they were supposed to pay in lump sum.
"There has been no contention in the reply sent by the developer to the family that the lump sum amount was due and payable without installments. There has been no contention of any oral agreement between the parties of any nature. Indeed no oral terms can be admissible in a written contract," the court observed.
The court further said that the new purchasers had paid a paltry amount of Rs 5.5 lakh to book the flat worth over Rs 2 crore, indicating their anticipation of a litigation on the issue.
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