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TMI Blog2021 (5) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 2. Appellants are Allottees. Respondent is Promoter. we will refer the parties as per their status of Allottees and Promoter. 3. Brief facts need to be stated for deciding the Appeal are as under: Allottees agreed to purchase and Promoter agreed to sell flat No. 807 in the project namely "Vaikunth Clustefr -2" at Thane. Allottees have submitted form of "request for reservation of flat" on 29th January, 2019 and paid an amount of Rs. 1,12,393/- as booking amount. Allottees have also paid Rs. 4,49,574/- on 1st March, 2019 towards price of the flat to Promoter. On account of medical emergency in the family of Allottees, they decided to cancel the flat booking. Accordingly, they e-mailed to Promoter and requested to cancel th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g amount of Rs. 1,12,393. Admittedly, Allottees have again paid an amount Rs. 4,49,571/-on 1st March, 2019 towards price of the flat. So, Allottees have paid total amount of Rs. 5,61,967/- (Five Lacs Sixty-One Thousand Nine Hundred Sixty-Seven only) to Promoter. Allottees informed the Promoter on 18th May, 2019 that Allottees have cancelled the booking due to some reason and requested to return the amount paid to Promoter. Copy of form of "request for reservation" is at exhibit -A. It is revealed from exhibit-A that it is signed by Allottees. Detailed information of Allottees is mentioned in the said form. Terms and conditions recited in Annexure-A are to be followed and observed by Allottees only. Exhibit-A is not signed by Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s i.e., Allottees. Promoter has relied on clause 17 of Annexure-A. It reads as under: "The Applicant(s) shall not withdraw this Request for Reservation. If the Applicant(s) withdraw this Request for Reservation, the Company shall be entitled to forfeit of the Sale consideration or the amounts paid by the Applicant(s) till such date, whichever is less and balance (if any) will be refundable in 50 days without any interest. Provided however the taxes and outgoings, including GST if any, already paid (including on the forfeited amount) or due and payable by the Applicant(s) in respect of the said Residential Flat shall be borne by the Applicant(s) and the company shah not be liable to refund/reimburse the same. Applicant(s) agrees not to rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any amount as per clause 17 of request form. Assuming for the sake of argument that the transaction between Allot-tees and Promoter is revealed from request form, we would like to point out that such unreasonable and unfair transaction cannot be enforced. The Hon'ble Supreme Court, while deciding the case in favour of an Allottee, held the view in Pioneer Urban Land and Infrastructure Vs. Govindan Raghavan in Civil Appeal No. 12238 of 2018 on 02.042019 signifying that court will not enforce an unreasonable, unfair contract or an unreasonable and unfair clause in a contract where contracting parties are not equal in bargaining power and where a man has no choice or rather a meaningful choice but to give his assent to a contract or to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the stage of executing agreement for sale. There was no attempt to execute agreement on the part of either party. In such circumstances, Allottees cannot claim refund on the basis of binding effect at clause (18) of "model agreement" for sale under rules of RERA. In fact, claim of Allottees for refund cannot be supported by clause 18 of model agreement for sale under RERA rules. Refund of amount paid to Promoter can be demanded as per Section 18 of RERA on the ground that Promoter fails to give possession on agreed date or fails to complete the project as per terms and conditions of agreement for sale. Transaction in the instant case is not governed by Section 18 of RERA. In this peculiar matter, though the claim of refund is not govern ..... X X X X Extracts X X X X X X X X Extracts X X X X
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