XXXXX & ASSOCIATES

LEGAL CONSULTANT & ADVOCATE

SUPREME COURT OF INDIA

      Office No. ___________________________________

                      Date: ___________

REGD. POST / EMAIL

To,                                                                       

XXXXX

Advocate

C/o ____________________

XXXXXXX

Email: _________________

Sub:  Reply to your legal notice dated XXXX issued by you on behalf of your client Sector- XXXXXXXXX.

Dear Sir,

About your legal notice dated XXXX, received on XXXX, addressed to my client XXXX at X, I have been instructed to give a reply to the same as under:-

At the very outset, I would like to inform you that your notice is based on information supplied by your client. It is pertinent to mention that my client is not going through the contents and allegations of your notice as my client was willing to resolve the issue amicably. The performance of the obligations on her part has become completely impracticable and the change of circumstances due to the nCovid-19 pandemic has completely upset the very foundation of her financial condition, therefore, rendering its performance impracticable and impossible.

As your client is aware, nCovid-19 virus (“Covid”) infected the entire world leading to a pandemic and widespread causalities. Covid virus started significantly showing its presence in India in 20XX and resultantly, the entire country was forced into a nationwide lockdown. The said lockdown was thereafter respectively extended till 20XX and is currently operational in one form or the other.  The same led to a situation whereby my client's entire earning operations have seen colossal losses and are on the brink of shutting down. Hence, the question of performing the obligations which was impracticably not possible during that period and the exaggerated charges levied by your client are liable to be waived as the same was unreasonable and unacceptable.

The current situation has led to a scenario where the allotted apartment has become useless to my client and is a burden. The performance of the obligations on her part has become completely impracticable and the change of circumstances due to the nCovid-19 pandemic has completely upset the very foundation of the execution of the allotment, therefore, rendering its performance during the period of the pandemic impracticable and impossible for my client for which my client regularly contacted and visited your office for the same but you linger on the issue on pretext or other.

I advised me that given the exaggerated charges levied by your client upon my client which are unnecessary and unreasonable and your client raised the demand after two years and my client personally visited your office regularly to make the payment and settle all the accounts but you didn’t give any satisfactory answer to my client and linger on the issue on one pretext or other and now your client sending the present notice and claiming the exaggerated amount on various accounts like CAM charges, holding charges, exorbitant interest and other charges which are unfair, unreasonable and unacceptable.

Therefore by all these activities of your client, it is very much evident that your client is giving false and unreliable information to you which doesn’t have any ground reality.

Parawise Reply On Merits:-

1.              Contents of para 1 of your noticeable matter of record, need no reply. 

2.              Contents of para 2 of your notice are a matter of fact and need no reply.

3.              Contents of para 3 of your notice are a matter of record and need no reply.

4.              Contents of para 4 of your notice are false, wrong, concocted, and denied. It is submitted that your client didn’t offer any possession to my client. The third tranche of payment, as per the Payment Plan, was supposed to be demanded by your client after the application of the Occupancy Certificate (“OC”). However, there were no demands for the completion of the project raised by your client from my client even until the promised date of handover of possession within 36 months. you have offered the possession of the property on ______ only after a delay of ____ months even after considering the grace period. It is pertinent to note that before 20XX-XX, my client regularly contacted your client to enquire about the status of the project and want to make the payment and settled the accounts with your client, but your client failed to respond to my client despite repeated physical visits to your client. Accordingly, your client was misled to believe that the completion of construction was happening promptly and therefore did not make any demand for money. It is submitted that my client had both, the willingness and capability, to make the said payments as per the agreed schedule; however, the same was delayed only on account of the delay in construction by your client. It is further pertinent to mention that my client made multiple attempts via personal visits to your client's office to make the payment and settled the accounts in the year 20XX-20XX but your client did not provide any satisfactory answers to my client’s requests.

That Sec. 19(2) of the Real Estate (Regulation &Development) Act [“RERA”] entitles the allottees with the right to know the status of construction of the concerned project and levies a duty on the promoter to inform the allottee about the status of construction as agreed as per the plan. Sec. 19(2) of the Act reads as follows:

“(2) The allottee shall be entitled to know the stage-wise schedule of completion of the project, including the provisions for water, sanitation, electricity, and other amenities and services as agreed to between the promoter and the allottee by the terms and conditions of the agreement for sale.”

It is submitted that in blatant violation of the aforesaid Sec. 19(2), your client did not bother to inform my client regarding the status of construction even though the agreed time limit for completion of construction and handover of possession i.e. February 2017, had already passed. It is this delay caused by your client coupled with the non-responsive nature and dilatory tactics used by your client that developed a sense of deep distrust for your client in the minds of my client.

5.              Contents of para 5 of your notice are false, wrong, concocted, and denied. It is denied that several letters/emails including email/letters dated _______ and _______ wherein requesting to pay (i) balance sale consideration (ii) CAM charges/maintenance charges (iii) deposit including interest bearing maintenance deposit and other charges and (iv) submit stamp papers showing payment of stamp duty and registration charges for registration of conveyance deed in respect of the said apartment as alleged. It is further denied that despite repeated requests and reminders sent by your client, my client has failed and neglected to make the aforesaid payments and therefore failed to register the conveyance deed and also failed to take possession of the said Apartment., however, it was your client who made no communication whatsoever to my client despite repeated personal visits at the office of your client for settling the accounts and made the payments, that the completion of construction of the aforementioned project was facing considerable delays and possession of the said unit will not be handed over to my client as per the originally agreed date. It is pertinent to mention here that now your client continued to send further communication regarding payment for other stages but made no mention of the delays in the project.

6.              Contents of para 6 of your notice are false, wrong, concocted, and denied. It is submitted that given the exaggerated charges levied by your client upon my client which are unnecessary and unreasonable and your client raised the demand after two years of completion of a project and my client personally visited your office regularly to make the payment and settle all the accounts but you didn’t give any satisfactory answer to my client and linger on the issue on one pretext or other and now your client sending the present notice and claiming the exaggerated amount on various accounts like CAM charges, holding charges, exorbitant interest and other charges which are unfair, unreasonable and unacceptable.

7.              Contents of para 7 of your notice, it is submitted that my client was very well aware of the provision of registration and its consequences if a delay occurred. The delay in offering the possession as well as completion of the project was solely on the part of your client and my client regularly approach your client in the year 20XX-20XX and make personal visits to your client’s office regularly to make the payment and settle all the accounts but your client didn’t give any satisfactory answer to my client and linger on the issue on one pretext or other.

8.              Contents of para 8 of your notice are false, wrong, concocted, and denied. It is denied that my client did not make the payment towards sale consideration, interest has accrued which is an on date is Rs. XXXX/-. It is submitted that regularly visited your client’s office for settling the accounts and make the payments, but your client is adamant to entertain my client and refused to give any satisfactory answer to my client to date, resulting thereof the present notice has been sent on exaggerated charges levied upon my client which was unreasonable and liable to be waived off.

9-10.  Contents of paras9-10 of your notice are false, wrong, concocted, and denied. It is denied that my client is liable to pay any holding charges from the expiry of the due date towards payment of CAM commencement date till takes actual possession of the Apartment. It is further denied that your client already offered the possession and thereafter several reminders were also sent towards registration of the conveyance deed and for taking possession of the said apartment. It is further denied that my client is only responsible and/or liable for non-registration of the conveyance deed and for not taking possession of the said apartment. It is further denied that my client completely failed and neglected to comply with the obligation to pay the stamp duty and registration charges to register the conveyance deed and take possession of the said apartment. It is further denied that my client is also liable to pay an amount of Rs. XXXX/- as the cost of this legal notice. Your client concerning the offer the possession and several reminders sent to my client misrepresented the facts with a mala fide intention. My client did not make any further payments concerning these demands as no demand was raised by your client and when my client approached your client for settling the accounts and make the payments you failed to give any satisfactory answer, hence it is submitted that the project was facing considerable delays and the originally agreed date of handover of possession had already passed with no communication from your client on any such expected delays. My client, already cautious due to the misrepresentations of your client, even after repeated requests, did not receive any satisfactory response from your client on any of the clarifications sought, and thus refrained from making any further payments towards the allotted project owing to the mala fide intentions of your client. The possession was offered after a delay of approximately …… months from the original agreed date and your client has to date, not offered any explanation whatsoever in writing to my client concerning such considerable delays. Your client has not taken into account these charges while calculating the final pending balance of my client and has instead added arbitrary additional payment obligations upon my client.

My client, without due consideration to the already deposited payments, has continued to arbitrarily charge exponential delayed payment/holding charges and has continued to misrepresent/conceal material facts throughout the years with a mala fide intention. The erosion of trust, due to such constant misrepresentations has caused great distress to my client who despite having attempted to clear their doubts regarding the status of their Unit were faced with nothing but unfair charges for the shortcomings that occurred on your client’s part.

Without prejudice to the aforesaid, it is further submitted that your client has conveniently and maliciously failed to even provide the detailed calculation or rate of interest that has been applied by your client in raising the delay penalty/ interest charged upon my client. Your client has failed to substantiate its demand and is merely trying to mislead my client.

Sec. 18 of the RERA Act provides for return, interest, and amount of compensation to be allowed to the allottees as reads as follows:

“18. (1) If the promoter fails to complete or is unable to give possession of an apartment, plot, or building —

(a) by the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or

(b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act:

Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed.”

Accordingly, it is submitted that in consonance with the provisions of Sec. 18(1) of the Act, your client is liable to cancel the allotment in favor of my client in light of the default by your client and refund the entire amount already paid by my client along with applicable interest. It is stated without prejudice that alternatively, your client is liable to pay my client with interest for every month of delay till the date of handover of possession.

It has been held by the Hon’ble Supreme Court of India in the judgment titled Pioneer Urban Land and Infrastructure Limited v. Govind Raghavan & Ors. that ex-facie one-sided, unfair, and unreasonable terms in Agreements with buyers constitute unfair trade practice. Further, even the Hon’ble NCDRC in a recent judgment had categorically held that there should be parity in the rate of interest to be paid by the builders and the homebuyers for not complying with the terms of the agreement and it was suggested that builders should pay the same rate of interest for delay in project that they demand from buyers in case of delay in payment. The same proposition has further been consolidated by the advent of RERA laws.

Without prejudice to the foregoing, it is submitted that my client is not liable to pay any additional charges/ penalty to my client as mentioned in para 10 under the reply. The resultant delay, if any, is solely due to the delay caused by your client and the negligent conduct of your client itself.

Further, your client has failed to substantiate its demand for additional money on account of the charges with any proof regarding the same and has merely cooked up false and fictitious numbers to harass my client in an attempt to hide your client’s defaults. Therefore, it is submitted that the demands made by your client are false and should not be accepted. On the contrary, it is your client who is liable to pay interest on account of the delay in offering possession to my client.

11.    That the contents of para 11 of your notice are false, wrong, concocted, and denied. It is submitted that your client is not entitled to hand over the existing project of my client to any Society, it will grave prejudice caused to my client which will not compensate in terms of money. That you have not been inclined to accept the request of my client and repeatedly demanded interest for the delayed payment from my client. So the amount of interest demanded should be waived. Your client had given all rosy pictures and had made false promises to my client.

That time in this case was the essence of the contract in as much as the project had to be completed within 36 months. The apartment was never ready to be offered for possession.

My client is within his right to avoid the contract when possession is not offered within a reasonable time and there is an inordinate delay of a considerable number of years.

My client is entitled to compensation i.e. actual loss, expected loss, and even to physical, mental, or even emotional suffering, insult or injury or loss, and even payment of interest for injustice suffered by him.

As such the ground/contents raised in your notice are false, unknown, shocking, and frivolous. That the contents of your notice under reply is wrong and denied as stated.

My client is not prepared to bear with this shocking situation anymore and has instructed me to initiate appropriate proceedings, but I have thought it advisable to give you yet another opportunity the last to withdraw the notice.

I trust, however, by timely action, you will obviate the necessity of any unpleasant steps having been taken against the client. It will be in your client's interest to withdraw the notice.

This notice has no legal force and still your client proposes to take any legal action against my client, in that event, your client shall be doing so at its costs, risks, and consequences thereof which you may please advise your client.

In view thereof, it appears that there is dispute arose between my client and your client, as my client through this response requests your client to have one meeting to settle of accounts to avoid any kind of unwarranted proceeding against each other.

My client hereby calls upon your client to settle our accounts at the earliest mutually and advise us to withdraw the present notice.

A copy of this notice has been kept in my office for further reference and action.

                              (XX)

                                                    Advocate