NCDRC Presiding Member Dr Inder Jit Singh and Member Shashi Nandkeolyar directed that the Rs 22 lakh already refunded by the builder be adjusted against the total amount payable.

The commission observed that the flat buyers were justified in withholding further payments after the builder refused to engage with their concerns regarding the agreement.

“The complainant, therefore, was justified in not making any further payment as demanded by OP No.1 (Adani M2K Projects LLP). OP No.1 was not justified in cancelling the unit on account of such non-payments,” the consumer commission said on June 5.

How dispute began

• The dispute traces its origins to October 2012, when the complainants were approached by representatives of the developer and its marketing partner regarding a flat in the Oyster Grande project located in Sector 102/102A, Gurgaon.
• According to the complaint, the project was marketed as a premium residential development, and the couple was told that only a limited number of apartments remained available. Acting on these representations, they paid Rs 8 lakh to block a three-bedroom apartment and subsequently paid additional amounts.
• In January 2013, the couple received a provisional allotment letter for apartment number A-003 on the ground floor, having a super area of 1,889 square feet.
• The flat buyers continued making payments and had paid more than Rs 32 lakh by May 2013 when the developer sent them a 60-page “Apartment Buyers Agreement” for execution.

Objections to builder agreement

After reviewing the agreement, the complainants wrote to the developer on May 22, 2013, stating that the document was “grossly one-sided and unfair” and that it severely compromised the rights of allottees.

Among other concerns, they objected to clauses that imposed strict obligations and penalties on buyers while granting the developer extended timelines and limited liability in the event of delays or project-related issues.

The couple informed the developer that they were willing to proceed if suitable amendments were made to create a balanced agreement. Alternatively, they sought a refund of the money already paid along with interest.

The developer, however, maintained that the agreement was a standard document applicable to all purchasers and could not be altered.

Conditional cheque became the turning point

• In January 2014, Adani M2K raised a further demand of over Rs 16 lakh. The complainants forwarded a cheque for the demanded amount, but stated that it should be encashed only if the developer was willing to accept the amendments proposed by them in the agreement.
• Along with the cheque, they also sent a revised version of the agreement containing suggested modifications.
• The builder nevertheless encashed the cheque and later informed the buyers that none of their proposed changes would be accepted.
• The commission found this conduct significant.
• According to the NCDRC, if the builder was unwilling to consider any modification, it should not have encashed a payment that was expressly made subject to that condition.
• The commission noted that the developer neither accepted the suggested changes nor expressed any willingness to discuss mutually acceptable terms.

Cancellation and forfeiture

The dispute escalated further when Adani M2K issued demand notices and eventually served a pre-cancellation notice in July 2015, demanding payment of outstanding dues. The allotment was formally cancelled on August 5, 2016.

During the pendency of the consumer proceedings, the builder refunded Rs 22.02 lakh to the complainants in July 2021 after deducting 15 per cent of the sale consideration as earnest money and making additional deductions towards GST, service tax and VAT liabilities.

The developer defended its actions by arguing that the complainants had defaulted in payment of instalments and had refused to execute the “Apartment Buyers Agreement” despite repeated opportunities.

It further contended that the buyers were bound by the terms contained in the original booking application and that the cancellation and forfeiture were valid under those terms.

NCDRC rejects builder’s stand

• Rejecting the developer’s defence, the commission held that the complainants had consistently objected to the agreement from the very beginning and had not simply stopped making payments without explanation.
• The consumer body emphasised that the buyers had made a conditional payment and that the builder could not both encash the cheque and simultaneously reject the condition attached to it.
• The commission concluded that the cancellation letter dated August 5, 2016, and the subsequent forfeiture communicated in July 2021 were unsustainable in law.
• Both the letters are hereby quashed, the order stated.

Relief granted

Allowing the complaint in part, the commission directed Adani M2K Projects LLP to refund Rs 49,71,504 along with interest at 9 per cent per annum from the date of each deposit until actual payment.

The order clarified that the amount includes Rs 1,16,232 deducted as Tax Deducted at Source (TDS), which would be payable upon submission of the requisite TDS certificate by the complainants.

The consumer body also directed that the Rs 22.02 lakh already refunded by the builder in 2021 be adjusted against the total amount payable.

The remaining amount has been ordered to be paid within six weeks. If the builder fails to comply within that period, the outstanding amount will carry interest at 12 per cent per annum until payment.

The ruling is likely to be cited in future disputes involving standard-form builder agreements, particularly where homebuyers challenge contractual clauses as unfair or one-sided.