[2015] 53 taxmann.com 408
(Art)
FINANCE (NO. 2) ACT 2014 -
RETRO-CHANGES - A Critique
Epilogue
7. The study herein, as viewed, may not be complete without at least a
brief reference to a couple of SC Judgments, one being that in CIT v. Podar
Cement (P.)Ltd.'s [1997] 226 ITR 625/92 Taxman 541.
7.1 Podar Cement
Ltd.'s case - On a critical study of the Apex Court's
judgment, it will be observed, that it is a case in which the tax related issue
pertained to the rights of a holder of flat (unit) in a building complex. Even
so, the Apex Court's verdict has turned to be on other grounds/considerations;
that is, without going into, as warranted, the distinct and crucial
implications of the special law of Maharashtra governing the property rights of
taxpayer as owner/holder of a Flat. Had that been so, the issues perhaps would
have been decided on better reasoned grounds. No need to specially add, it is
the bar representing both sides who are expected to have assisted the Court
more efficiently for having accomplished that end.
7.2 Sanjeev Lal
v. CIT - The other SC judgment to which attention may be
pertinently drawn to fit into the present context is Sanjeev Lal v. CIT
[2014] 46 taxmann.com 300
In the instant
case, the issue raised pertained to the tax exemption claimed under section 54.
It was disputed by the Revenue and litigated because of the time lag between
transfer of an 'old asset' and utilization of its proceeds in purchase of a
'new' asset exceeding the prescribed one year. On the flip side, however, like
issue could arise also in situations in which delay is in 'purchase' of a new
asset. In short, in a manner of speaking, the weapon for fighting/battle of
wits could prove to be a double-edged one. Invited to accord intuitive thoughts
thereto, for finding a foolproof or near foolproof solution.
From the viewpoint
of taxpayers, the view the Apex Court has taken may be commended to be quite
sensible, having been founded on a pragmatic judicious approach, unmistakably
founded on principles of natural justice; instead of allowing to be tied down
simplistically by the 'letter' of the law.
The points to be
stressed upon are mainly these: The customary delays in completion, registration
and handing over of physical possession of flats/apartments by
promoters/sellers, as commonly experienced and sharply focused on, have led to
grave prospects of 'purchasers' failing to satisfy the rigid time-limits
prescribed by law of 2 or 3 years for purchase or construction, as the case may
be; albeit the default happens to be invariably for no fault of them, but
beyond their control. Hence, it is high time the government either suitably
amends the law or the CBDT through a directive brings about a relaxation of
such time-limits having regard to the surrounding realities.
Conclusion
8. In the fond hope and belief that the underlying points have been
satisfactorily brought out, it is now left open to enlightened and experienced
tax experts, in the interests of own clientele, to further explore those
in-depth, to the end of reaching a righteous conclusion; and, besides being of
proper guidance to clientele, also move the government to take suitable steps.
All said, it only
remains to specially focus on one aspect; that is, how judicial interpretation
of any enactment has been increasingly leaning towards and growingly in favour
of taxpayers, more so having regard to the peculiar facts and circumstances on
a case-to-case basis. In saying so, what calls for a specific mention is that
the same line of common sense reasoning, founded on principles of natural
justice, and liberal judicial approach, have been adopted in the two SC cases
referred to hereinbefore.
kAR Model AG. To
Sell
ANNEXURE-A
ANNEXURE-A
(See
sub rule (1) of rule 8)
AGREEMENT
FOR SALE
*******
This Agreement for Sale
(“Agreement”) executed on this day of , 20 ,
By and Between
[If the
promoter is a company]
(CIN no. ), a company
incorporated under the
provisions of the
Companies Act, 2013, [Central Act 18 of 2013), as the case may be], having its
registered
office at and its
corporate office at
(PAN - ), represented by
its authorized
signatory (Aadhar no. )
authorized
vide board
resolution dated hereinafter referred to as the “Promoter”
(which expression shall
unless repugnant to the context or meaning thereof be deemed to mean
and include its
successor-in-interest, executors, administrators and permitted assignees);
[OR]
[If the
promoter is a Partnership firm]
, a partnership firm
registered under the Indian Partnership Act,
1932(Central Act 9 of
1932), having its principal place of business at , (PAN
), represented by its
authorized Partner ,
(Aadhar no. ) authorized
vide , hereinafter
referred to as the “Promoter”
(which expression shall unless repugnant to the context or
meaning thereof be
deemed to mean and include its successors-in-interest, executors,
administrators and
permitted assignees, including those of the respective partners).
[OR]
[If the
promoter is an Individual]
Mr. / Ms. , (Aadhar no.
) son /
daughter of , aged about
_, residing at
27
, (PAN ), hereinafter
called the “Promoter”
(which expression shall unless repugnant to the context or meaning thereof
be deemed to mean and
include his/her heirs, executors, administrators, successors-in- interest and
permitted assignees).
AND
[If the
Allottee is a company]
, (CIN no. ) a company
incorporated
under the provisions of
the Companies Act, 2013, [Central Act 18 of 2013), as the case may be],
having its registered
office at , (PAN ), represented by
its authorized
signatory, , (Aadhar no.
) duly authorized vide board
resolution dated , hereinafter
referred to as the “Allottee”
(which expression shall unless repugnant to the context or
meaning thereof be
deemed to mean and include its successor-in-interest, executors,
administrators and
permitted assignees).
[OR]
[If the
Allottee is a Partnership]
, a partnership firm
registered under the Indian Partnership Act, 1932,
having its principal
place of business at , (PAN ),
represented by its
authorized partner, , (Aadhar no. )
authorized vide ,
hereinafter referred to as the “Allottee”
(which expression shall
unless repugnant to the context or meaning thereof be deemed to mean
and include its
successors-in-interest, executors, administrators and permitted assignees,
including
those of the respective
partners).
[OR]
[If the
Allottee is an Individual]
Mr. / Ms. , (Aadhar no.
) son / daughter of
, aged about , residing
at
28
, (PAN ), hereinafter
called
the “Allottee”
(which expression shall unless repugnant to the context or meaning thereof be
deemed
to mean and include
his/her heirs, executors, administrators, successors-in-interest and permitted
assignees).
[OR]
[If the
Allottee is a HUF]
Mr. , (Aadhar
no. ) son of aged about
for self and as the
Karta of the Hindu Joint Mitakshara Family known as
HUF, having its place of
business / residence at , (PAN
), hereinafter referred
to as the “Allottee” (which expression shall unless repugnant to
the context or meaning
thereof be deemed to include his heirs, representatives, executors,
administrators, successors-in-interest
and permitted assigns as well as the members of the said HUF,
their heirs, executors,
administrators, successors-in-interest and permitted assignees).
[Please
insert details of other allottee(s), in case of more than one allottee]
The Promoter and
Allottee shall hereinafter collectively be referred to as the “Parties” and
individually as a “Party”.
WHEREAS:
A. The Promoter is the
absolute and lawful owner of [khasra nos./ survey nos.] [Please
insert
land details as per local laws] totally admeasuring square
meters situated at _in
Tehsil & District (“Said Land”) vide sale
deed(s) dated registered
as documents no. at the office of the
Sub-Registrar;
[OR]
(“Owner”) is the
absolute and lawful owner of [khasra nos./ survey
nos.] [Please
insert land details as per local laws] totally admeasuring
square meters situated
at in Tehsil & District (“Said
29
Land”) vide sale
deed(s) dated registered as documents no.
at the office of the
Sub-Registrar. The Owner and the Promoter have entered into a
[collaboration/development/joint
development] agreement dated
registered as document
no. at the office of the Sub-Registrar;
B. The Said Land is
earmarked for the purpose of building a [commercial/residential/any
other
purpose] project, comprising multistoried apartment buildings and [insert
any
other components of the Projects] and the said project shall be known as
‘ ’ (“Project”);
[OR]
The Said Land is
earmarked for the purpose of plotted development of a
[commercial/residential/any
other purpose] project, comprising plots and
[insert
any other components of the Projects] and the said project shall be known as
‘ ’ (“Project”):
Provided that where land
is earmarked for any institutional development the same shall be
used for those purposes
only and no commercial/residential development shall be permitted
unless it is a part of
the plan approved by the competent authority.
C. The Promoter is fully
competent to enter into this Agreement and all the legal formalities with
respect to the right,
title and interest of the Promoter regarding the Said Land on which
Project is to be
constructed have been completed;
D. The [Please
insert the name of the concerned competent
authority] has granted
the commencement certificate to develop the Project vide approval
dated bearing no. ;
E. The Promoter has
obtained the final layout plan approvals for the Project from
[Please
insert the name of the concerned
competent
authority]. The Promoter agrees and undertakes that it shall not make any
changes to these layout
plans except in strict compliance with section 14 of the Act and
other laws as
applicable;
F. The Promoter has
registered the Project under the provisions of the Act with the Real
Estate Regulatory
Authority at no. ;
on under registration
G. The Allottee had applied
for an apartment in the Project vide application no.
dated and has been
allotted apartment no.
having carpet area of
square feet, type , on floor in
[tower/block/building]
no. (“Building”) along with garage/closed parking no.
admeasuring square feet
in the [Please insert
the
location of the garage/closed parking], as permissible under the applicable law and
of pro
rata share in the common areas (“Common Areas”) as defined under
clause (n)
of Section 2 of the Act
(hereinafter referred to as the “Apartment” more particularly
described in Schedule
A and the floor plan of the apartment is annexed hereto and
marked as Schedule
B);
30
[OR]
The Allottee had applied
for a plot in the Project vide application no. dated
and has been allotted
plot no. having area of square
feet and plot for
garage/closed parking admeasuring square feet (if
applicable)]
in the [Please insert the location of the garage/closed
parking], as
permissible under the applicable law and of pro
rata share in the common
areas (“Common
Areas”) as defined under clause (n) of Section 2 of the Act (hereinafter
referred to as the “Plot” more
particularly described in Schedule A);
H. The Parties have gone
through all the terms and conditions set out in this Agreement and
understood the mutual
rights and obligations detailed herein;
I.
[Please
enter any additional disclosures/details]
J. The Parties hereby
confirm that they are signing this Agreement with full knowledge of all the
laws, rules,
regulations, notifications, etc., applicable to the Project;
K. The Parties, relying on
the confirmations, representations and assurances of each other to
faithfully abide by all
the terms, conditions and stipulations contained in this Agreement and all
applicable laws, are now
willing to enter into this Agreement on the terms and conditions
appearing hereinafter;
L. In accordance with the
terms and conditions set out in this Agreement and as mutually agreed
upon by and between the
Parties, the Promoter hereby agrees to sell and the Allottee
hereby agrees to
purchase the Apartment or Plot and the garage/closed parking (if applicable) as
specified in para G;
NOW THEREFORE, in
consideration of the mutual representations, covenants,
assurances, promises and
agreements contained herein and other good and valuable
consideration, the
Parties agree as follows:
1. TERMS:
1.1 Subject
to the terms and conditions as detailed in this Agreement, the Promoter agrees
to sell
to the Allottee and the
Allottee hereby agrees to purchase, the Apartment or Plot as specified
in para G;
31
1.2 The
Total Price for the Apartment or Plot based on the carpet area is Rs.
(Rupees only ("Total
Price")
(Give break up and description):
Block/Building/Tower no.
Apartment
no.
Type
Floor
Rate of Apartment per
square feet*
*Provide break up of the
amounts such as cost of apartment, proportionate cost of common
areas, preferential
location charges, taxes etc.
[AND] [if/as applicable]
Garage/Closed parking -
1 Price for 1
Garage/Closed parking -
2 Price for 2
[OR]
Plot no.
Type
Rate
of Plot per square feet
Explanation:
(i) The Total Price above includes the booking amount paid by the allottee
to the
Promoter
towards the Apartment or Plot ;
(ii) The Total Price above includes Taxes (consisting of tax paid or payable
by the
Promoter
by way of Value Added Tax, Service Tax, and Cess or any other
similar
taxes which may be levied, in connection with the construction of the
Project
payable by the Promoter) up to the date of handing over the possession of the
Apartment
or Plot :
Provided that in case
there is any change / modification in the taxes, the
subsequent amount
payable by the allottee to the promoter shall be
increased/reduced based
on such change / modification;
(iii) The
Promoter shall periodically intimate to the Allottee, the amount payable as
stated
in (i) above and the
Allottee shall make payment within 30 (thirty) days from the
date of such written
intimation. In addition, the Promoter shall provide to the Allottee
the details of the taxes
paid or demanded along with the acts/rules/notifications
together with dates from
which such taxes/levies etc. have been imposed or
become effective;
32
(iv) The
Total Price of Apartment or Plot includes: 1) pro
rata share in the Common
Areas; and 2)
garage(s)/closed parking(s) as provided in the
Agreement.
1.3 The Total Price is escalation-free, save and
except increases which the Allottee hereby agrees to pay, due to increase on
account of development charges payable to the competent authority and/or any
other increase in charges which may be levied or imposed by the competent
authority from time to time. The Promoter undertakes and agrees that while
raising a demand on the Allottee for increase in development charges,
cost/charges imposed by the competent authorities, the Promoter shall enclose
the said notification/order/rule/regulation to that effect along with the
demand letter being issued to the Allottee, which shall only be applicable on
subsequent payments.
1.4 The Allottee(s) shall make the payment as per the payment plan set out
in Schedule C
(“Payment Plan”).
1.5 The Promoter may allow, in its sole discretion,
a rebate for early payments of installments
payable by the Allottee by discounting such
early payments @ % per annum for the
period by which the respective installment has
been preponed. The provision for allowing
rebate and such rate of rebate shall not be
subject to any revision/withdrawal, once
granted to an Allottee by the Promoter.
1.6 It is agreed that the Promoter shall not make any additions and
alterations in the
sanctioned plans, layout plans and
specifications and the nature of fixtures, fittings and
amenities described therein in respect of the
apartment, plot or building, as the case may
be, without the previous written consent of the
Allottee. Provided that the Promoter may
make such minor additions or alterations as may
be required by the Allottee, or such
minor changes or alterations as per the
provisions of the Act.
1.7 [Applicable in case of an
apartment] The Promoter shall
confirm the final carpet area that
has been allotted to the Allottee after the
construction of the Building is complete and the
occupancy certificate* is granted by the
competent authority, by furnishing details of the
changes, if any, in the carpet area. The total
price payable for the carpet area shall be
recalculated upon confirmation by the Promoter.
If there is any reduction in the carpet area
within the defined limit then Promoter shall
refund the excess money paid by Allottee
within forty-five days with annual interest at
the rate specified in the Rules, from the date
when such an excess amount was paid by the
Allottee. If there is any increase in the carpet
area allotted to Allottee, the Promoter shall
demand that from the Allottee as per the next
milestone of the Payment Plan. All these
monetary adjustments shall be made at the
same rate per square feet as agreed in Clause
1.2 of this Agreement.
1.8 Subject to Clause 9.3 the Promoter agrees and acknowledges, the Allottee
shall have the
right to the Apartment or Plot as mentioned
below:
(i) The Allottee shall have exclusive ownership of the Apartment or Plot ;
(ii) The Allottee shall also have undivided proportionate share in the Common
Areas. Since the share / interest of Allottee in
the Common Areas is undivided and
cannot be divided or separated, the Allottee
shall use the Common Areas along with
other occupants, maintenance staff etc., without
causing any inconvenience or
hindrance to them. Further, the right of the
Allottee to use the Common Areas
shall always be subject to the timely payment of
maintenance charges and other
charges as applicable. It is clarified that the
promoter shall convey undivided
proportionate title in the common areas to the
association of allottees as provided in
the Act;
33
(iii) That the computation of the price of the
Apartment or Plot includes recovery of price of land, construction of [not only
the Apartment but also] the Common Areas, internal development charges,
external development charges, taxes, cost of providing electric wiring, fire
detection and fire fighting equipment in the common
Areas, etc. and includes cost for providing all
other facilities as provided within the Project.
1.9 It is made clear by the Promoter and the Allottee agrees that the
Apartment or Plot
along with garage/closed parking shall be
treated as a single indivisible unit for all
purposes. It is agreed that the Project is an
independent, self-contained Project covering
the said Land and is not a part of any other
project or zone and shall not form a part of and/or
linked/combined with any other project in its
vicinity or otherwise except for the purpose
of integration of infrastructure for the benefit
of the Allottee. It is clarified that Project’s
facilities and amenities shall be available only
for use and enjoyment of the Allottees of the
Project.
1.10 It is understood by the Allottee that all other areas and i.e. areas and
facilities falling
outside the Project, namely XX - here specify
the details shall not form a part of the
declaration to be filed with [Please insert the name of the
concerned competent authority] to be filed in accordance with the
XX [XX insert the name of the relevant State ct, if any].
1.11 The Promoter agrees to pay all outgoings before transferring the
physical possession of the
apartment to the Allottees, which it has
collected from the Allottees, for the payment of
outgoings (including land cost, ground rent,
municipal or other local taxes, charges for
water or electricity, maintenance charges,
including mortgage loan and interest on
mortgages or other encumbrances and such other
liabilities payable to competent authorities,
banks and financial institutions, which are
related to the project). If the Promoter fails to
pay all or any of the outgoings collected by it
from the Allottees or any liability, mortgage
loan and interest thereon before transferring
the apartment to the Allottees, the Promoter
agrees to be liable, even after the transfer of
the property, to pay such outgoings and penal
charges, if any, to the authority or person to
whom they are payable and be liable for the
cost of any legal proceedings which may be taken
therefor by such authority or person.
1.12 The Allottee has paid a sum of
Rs____________________________________ (Rupees
only) as booking amount being part payment
towards the Total Price of the Apartment or Plot
at the time of application the receipt of
which the Promoter hereby acknowledges and the
Allottee hereby agrees to pay the
remaining price of the Apartment or Plot as
prescribed in the Payment Plan as may be
demanded by the Promoter within the time and in
the manner specified therein:
Provided that if the allottee delays in payment
towards any amount for which is
payable, he shall be liable to pay interest at
the rate specified in the Rules.
2. MODE OF PAYMENT.-
Subject to the terms of the Agreement and the
Promoter abiding by the construction milestones, the
Allottee shall make all payments, on demand by
the Promoter, within the stipulated time as
mentioned in the Payment Plan through A/ c Payee
cheque/demand draft or online
payment (as applicable) in favour of
‘ ’ payable at .
34
3. COMPLIANCE OF LAWS RELATING TO REMITTANCES.-
3.1 The Allottee, if resident outside India, shall be solely responsible for
complying with the
necessary formalities as laid down in Foreign
Exchange Management Act, 1999, Reserve
Bank of India Act and Rules and Regulations made
thereunder or any statutory
amendment(s) modification(s) made thereof and
all other applicable laws including that
of remittance of payment
acquisition/sale/transfer of immovable properties in India etc.
and provide the Promoter with such permission,
approvals which would enable the
Promoter to fulfill its obligations under this
Agreement. Any refund, transfer of security, if
provided in terms of the Agreement shall be made
in accordance with the provisions of
Foreign Exchange Management Act, 1999 or
statutory enactments or amendments thereof
and the Rules and Regulations of the Reserve
Bank of India or any other applicable
law. The Allottee understands and agrees that in
the event of any failure on his/her part
to comply with the applicable guidelines issued
by the Reserve Bank of India, he/she shall
be liable for any action under the Foreign
Exchange Management Act, 1999 or other laws
as applicable, as amended from time to time.
3.2 The Promoter accepts no responsibility in this regard. The Allottee
shall keep the
Promoter fully indemnified and harmless in this
regard. Whenever there is any change in the
residential status of the Allottee subsequent to
the signing of this Agreement, it shall be the
sole responsibility of the Allottee to intimate
the same in writing to the Promoter
immediately and comply with necessary
formalities if any under the applicable laws. The
Promoter shall not be responsible towards any
third party making payment/remittances on
behalf of any Allottee and such third party
shall not have any right in the
application/allotment of the said apartment
applied for herein in any way and the Promoter
shall be issuing the payment receipts in favour
of the Allottee only.
4. ADJUSTMENT/APPROPRIATION OF PAYMENTS.-
The Allottee authorizes the Promoter to
adjust/appropriate all payments made by him/her under
any head(s) of dues against lawful outstanding,
if any, in his/her name as the Promoter may in its
sole discretion deem fit and the Allottee
undertakes not to object/demand/direct the Promoter to adjust
his payments in any manner.
5. TIME IS ESSENCE.-
1.13 Time is of essence for the Promoter as well
as the Allottee. The Promoter shall abide by the time
schedule for completing the project and handing
over the Apartment or Plot to the Allottee and the
common areas to the association of the allottees
after receiving the occupancy certificate* or the
completion certificate or both, as the case may
be. Similarly, the Allottee shall make timely
payments of the installment and other dues
payable by him/her and meeting the other obligations
under the Agreement subject to the simultaneous
completion of construction by the Promoter as
provided in Schedule C (“Payment Plan”).
6. CONSTRUCTION OF THE PROJECT OR APARTMENT.-
The Allottee has seen the specifications of the
Apartment or Plot and accepted the Payment
Plan, floor plans, layout plans [annexed along
with this Agreement] which has been approved by
the competent authority, as represented by the
Promoter. The Promoter shall develop the Project
in accordance with the said layout plans, floor
plans and specifications. Subject to the terms in this
Agreement, the Promoter undertakes to strictly
abide by such plans approved by the competent
Authorities and shall also strictly abide by the
bye-laws, FAR and density norms and provisions
prescribed by the [Please insert the
35
relevant State laws] and shall not have an option to make any
variation /alteration / modification in
such plans, other than in the manner provided
under the Act, and breach of this term by the
Promoter shall constitute a material breach of
the Agreement.
7. POSSESSION OF THE APARTMENT OR PLOT.-
7.1 Schedule for possession of the said Apartment/Plot].- The Promoter agrees and
understands that timely delivery of possession
of the Apartment or Plot is the essence of
the Agreement. The Promoter, based on the
approved plans and specifications, assures
to hand over possession of the Apartment or Plot
on , unless there is delay or failure due to war, flood, drought, fire,
cyclone, earthquake or any other calamity caused by nature affecting the
regular development of the real estate project (“Force Majeure”). If, however, the completion of the Project
is delayed due to the Force Majeure conditions then the Allottee agrees that
the Promoter shall be entitled to the extension of time for delivery of
possession of the Apartment or Plot , provided that such Force Majeure
conditions are not of a nature which make it impossible for the contract to
be implemented. The Allottee agrees and confirms
that, in the event it becomes impossible
for the Promoter to implement the project due to
Force Majeure conditions, then this
allotment shall stand terminated and the
Promoter shall refund to the Allottee the entire
amount received by the Promoter from the
allotment within 45 days from that date. After
refund of the money paid by the Allottee,
Allottee agrees that he shall not have any rights,
claims etc. against the Promoter and that the
Promoter shall be released and discharged
from all its obligations and liabilities under
this Agreement.
7.2 Procedure for taking possession. - The Promoter, upon obtaining the occupancy
certificate* from the competent authority shall
offer in writing the possession of the
Apartment or Plot , to the Allottee in terms of
this Agreement to be taken within 3
(three months from the date of issue of such
notice and the Promoter shall give
possession of the Apartment or Plot to the
Allottee. The Promoter agrees and undertakes
to indemnify the Allottee in case of failure of
fulfillment of any of the provisions,
formalities, documentation on part of the
Promoter. The Allottee agree(s) to pay the
maintenance charges as determined by the
Promoter/association of allottees, as the case
may be. The Promoter on its behalf shall offer
the possession to the Allottee in writing
within days of receiving the occupancy
certificate* of the Project.
7.3 Failure of Allottee to take Possession of Apartment or Plot.- Upon receiving a written
intimation from the Promoter as per clause 7.2,
the Allottee shall take possession of the
Apartment or Plot from the Promoter by executing
necessary indemnities, undertakings
and such other documentation as prescribed in
this Agreement, and the Promoter shall
give possession of the Apartment or Plot to the
allottee. In case the Allottee fails to take
possession within the time provided in clause
7.2, such Allottee shall continue to be liable to
pay maintenance charges as applicable.
7.4 Possession by the Allottee.- After
obtaining the occupancy certificate* and handing over physical possession of
the Apartment or Plot to the Allottees, it shall be the responsibility of the
Promoter to hand over the necessary documents and plans, including common
areas, to the association of the Allottees or the competent authority, as the
case may be, as per the local laws.
7.5 Cancellation by Allottee.– The Allottee shall have the right to cancel/withdraw his
allotment in the Project as provided in the Act:
Provided that where the allottee proposes to
cancel/withdraw from the project without
any fault of the promoter, the promoter herein
is entitled to forfeit the booking amount paid
for the allotment. The balance amount of money
paid by the allottee shall be returned by
the promoter to the allottee within 45 days of
such cancellation.
36
7.6 Compensation.- The Promoter shall compensate the Allottee in case of any loss
caused to him due to defective title of the
land, on which the project is being
developed or has been developed, in the manner
as provided under the Act and the
claim for compensation under this section shall
not be barred by limitation
provided under any law for the time being in
force.
Except for occurrence of a Force Majeure event,
if the promoter fails to complete or is unable
to give possession of the Apartment or Plot (i)
in accordance with the terms of this Agreement, duly
completed by the date specified herein; or (ii)
due to discontinuance of his business as a developer
on account of suspension or revocation of the
registration under the Act; or for any other reason; the
Promoter 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 total amount received by him
in respect of the Apartment or Plot , with
interest at the rate specified in the Rules within 45 days
including compensation in the manner as provided
under the Act. Provided that where if the
Allottee does not intend to withdraw from the
Project, the Promoter shall pay the Allottee interest at
the rate specified in the Rules for every month
of delay, till the handing over of the possession of the
Apartment or Plot.
8. REPRESENTATIONS AND WARRANTIES OF THE PROMOTER.-
The Promoter hereby represents and warrants to
the Allottee as follows:
(i) The [Promoter] has absolute, clear and
marketable title with respect to the said Land; the
requisite rights to carry out development upon
the said Land and absolute, actual,
physical and legal possession of the said Land
for the Project;
(ii) The Promoter has lawful rights and
requisite approvals from the competent
Authorities to carry out development of the
Project;
(iii) There are no encumbrances upon the said
Land or the Project;
[in case there are any encumbrances on the land
provide details of such encumbrances
including any rights, title, interest and name
of party in or over such land]
(iv) There are no litigations pending before any
Court of law with respect to the said Land,
Project or the Apartment or Plot ;
(v) All approvals, licenses and permits issued
by the competent authorities with respect to
the Project, said Land and Apartment or Plot are
valid and subsisting and have been
obtained by following due process of law.
Further, the Promoter has been and shall, at
all times, remain to be in compliance with all
applicable laws in relation to the Project,
said Land, Building and Apartment or Plot and
common areas;
(vi) The Promoter has the right to enter into
this Agreement and has not committed or omitted
to perform any act or thing, whereby the right,
title and interest of the Allottee created
herein, may prejudicially be affected;
(vii) The Promoter has not entered into any
agreement for sale and/or development agreement
or any other agreement / arrangement with any
person or party with respect to the said
Land, including the Project and the said
Apartment or Plot which will, in any manner,
affect the rights of Allottee under this
Agreement;
(viii) The Promoter confirms that the Promoter
is not restricted in any manner whatsoever
from selling the said Apartment or Plot to the
Allottee in the manner contemplated in this
Agreement;
37
(ix) At the time of execution of the conveyance
deed the Promoter shall handover lawful,
vacant, peaceful, physical possession of the
Apartment or Plot to the Allottee and the
common areas to the Association of the
Allottees;
(x) The Schedule Property is not the subject
matter of any HUF and that no part thereof is
owned by any minor and/or no minor has any
right, title and claim over the Schedule
Property;
(xi) The Promoter has duly paid and shall
continue to pay and discharge all governmental dues, rates, charges and taxes
and other monies, levies, impositions, premiums,
damages and/or penalties and other outgoings,
whatsoever, payable with respect to the said project to the competent
Authorities;
(xii) No notice from the Government or any other
local body or authority or any legislative
enactment, government ordinance, order,
notification (including any notice for
acquisition or requisition of the said property)
has been received by or served upon the
Promoter in respect of the said Land and/or the
Project.
9. EVENTS OF DEFAULTS AND CONSEQUENCES.-
9.1 Subject to the Force Majeure clause, the Promoter shall be considered
under a
condition of Default, in the following events:
(i) Promoter fails to provide ready to move in possession of the Apartment
or Plot to
the Allottee within the time period specified.
For the purpose of this clause, 'ready to
move in possession' shall mean that the
apartment shall be in a habitable
condition which is complete in all respects;
(ii) Discontinuance of the Promoter’s business as a developer on account of
suspension
or revocation of his registration under the
provisions of the Act or the rules or
regulations made thereunder.
9.2 In case of Default by Promoter under the conditions listed above,
Allottee is entitled to the
following:
(i) Stop making further payments to Promoter as demanded by the Promoter. If
the
Allottee stops making payments, the Promoter
shall correct the situation by
completing the construction milestones and only
thereafter the Allottee be
required to make the next payment without any
penal interest; or
(ii) The Allottee shall have the option of terminating the Agreement in which
case the
Promoter shall be liable to refund the entire
money paid by the Allottee under any
head whatsoever towards the purchase of the
apartment, along with interest at the
rate specified in the Rules within forty-five
days of receiving the termination notice:
Provided that where an Allottee does not intend
to withdraw from the project or
terminate the Agreement, he shall be paid, by
the promoter, interest at the rate
specified in the Rules, for every month of delay
till the handing over of the
possession of the Apartment or Plot .
9.3 The Allottee shall be considered under a condition of Default, on the
occurrence of the
following events:
(i) In case the Allottee fails to make payments for consecutive demands made
by
the Promoter as per the Payment Plan annexed
hereto, despite having been issued
notice in that regard the allottee shall be
liable to pay interest to the promoter on
the unpaid amount at the rate specified in the
Rules.
38
(ii) In case of Default by Allottee under the condition listed above
continues for a period
beyond consecutive months after notice from the
Promoter in this regard, the
Promoter shall cancel the allotment of the
Apartment or Plot in favour of the
Allottee and refund the amount money paid to him
by the allottee by deducting the
booking amount and the interest liabilities and
this Agreement shall thereupon
stand terminated.
10. CONVEYANCE OF THE SAID APARTMENT.- The Promoter, on receipt of complete amount of
the Price of the Apartment or Plot under the Agreement from the
Allottee, shall execute a conveyance deed and convey
the title of the Apartment or Plot together with proportionate indivisible
share in the Common Areas within 3 (three)
months from the issuance of the occupancy
certificate*. However, in case the Allottee fails to deposit the stamp duty,
registration charges and all other incidental and legal expenses etc. so
demanded within the period mentioned in the demand letter, the Allottee
authorizes the Promoter to withhold registration of the conveyance deed in
his/her favour till full and final settlement of all dues and stamp duty and
registration charges to the Promoter is made by the Allottee. The Allottee
shall be solely responsible and liable for compliance of the provisions of
Indian Stamp Act, 1899 including any actions taken or deficiencies/penalties imposed
by
the competent authority(ies).
11. MAINTENANCE OF THE SAID BUILDING OR APARTMENT
ORPROJECT.- The Promoter shall be responsible to provide and maintain essential
services in the Project till the taking over of
the maintenance of the project by the
association of the allottees. The cost of such
maintenance has been included in the Total
Price of the Apartment or Plot .
[Insert any other clauses in relation to maintenance of project,
infrastructure and
equipment]
12. DEFECT LIABILITY.- It is agreed that in case any structural defect
or any other
defect in workmanship, quality or provision of
services or any other obligations of the
Promoter as per the agreement for sale relating
to such development is brought to the notice
of the Promoter within a period of 5 (five)
years by the Allottee from the date of handing
over possession, it shall be the duty of the
Promoter to rectify such defects without further
charge, within 30 (thirty) days, and in the
event of Promoter’s failure to rectify such defects
within such time, the aggrieved Allottees shall
be entitled to receive appropriate
compensation in the manner as provided under the
Act.
13. RIGHT OF ALLOTTEE TO USE COMMON AREAS AND
FACILITIES
SUBJECT TO PAYMENT OF TOTAL MAINTENANCE CHARGES.- The Allottee
hereby agrees to purchase the Apartment or Plot
on the specific understanding that is/her
right to the use of Common Areas shall be
subject to timely payment of total maintenance
charges, as determined and thereafter billed by
the maintenance agency appointed or the
association of allottees (or the maintenance
agency appointed by it) and performance by
the Allottee of all his/her obligations in
respect of the terms and conditions specified by the
maintenance agency or the association of
allottees from time to time.
14. RIGHT TO ENTER THE APARTMENT FOR REPAIRS.- The Promoter or
maintenance agency or association of allottees
shall have rights of unrestricted access of
all Common Areas, garages/closed parking’s and
parking spaces for providing necessary
maintenance services and the Allottee agrees to
permit the association of allottees and/or
maintenance agency to enter into the Apartment
or Plot or any part thereof, after due notice
and during the normal working hours, unless the
circumstances warrant otherwise, with a
view to set right any defect.
39
15. USAGE.- Use of Basement and Service Areas: The basement(s) and service areas,
if any, as located within the (project name), shall be earmarked for purposes such as
parking spaces and services including but not limited to electric sub-station,
transformer, DG set rooms, underground water tanks, pump rooms, maintenance and
service rooms, fire fighting pumps and equipment’s etc. and other permitted
uses as per sanctioned plans. The Allottee shall not be permitted to use the
services areas and the basements in any manner whatsoever, other than those
earmarked as parking spaces, and the same shall be reserved for use by the
association of allottees formed by the Allottees for rendering maintenance
services.
16. GENERAL COMPLIANCE WITH RESPECT TO THE APARTMENT.- Subject to
Clause 12 above, the Allottee shall, after
taking possession, be solely responsible to maintain the
Apartment or Plot at his/her own cost, in good
repair and condition and shall not do or suffer to
be done anything in or to the Building, or the
Apartment or Plot , or the staircases, lifts, common
passages, corridors, circulation areas, atrium
or the compound which may be in violation of any laws
or rules of any authority or change or alter or
make additions to the Apartment or Plot and keep the
Apartment or Plot , its walls and partitions,
sewers, drains, pipe and appurtenances thereto or
belonging thereto, in good and tenantable repair
and maintain the same in a fit and proper condition
and ensure that the support, shelter etc. of the
Building is not in any way damaged or jeopardized.
The Allottee further undertakes, assures and
guarantees that he/she would not put any sign-board /
name-plate, neon light, publicity material or
advertisement material etc. on the face / facade of the
Building or anywhere on the exterior of the
Project, buildings therein or Common Areas. The
Allottees shall also not change the colour
scheme of the outer walls or painting of the exterior side of
the windows or carry out any change in the
exterior elevation or design. Further the Allottee shall
not store any hazardous or combustible goods in
the Apartment or Plot or place any heavy material in
the common passages or staircase of the
Building. The Allottee shall also not remove any wall,
including the outer and load bearing wall of the
Apartment or Plot . The Allottee shall plan and
distribute its electrical load in conformity
with the electrical systems installed by the Promoter and
thereafter the association of allottees and/or
maintenance agency appointed by association of
allottees. The Allottee shall be responsible for
any loss or damages arising out of breach of any of
the aforesaid conditions.
17. COMPLIANCE OF LAWS, NOTIFICATIONS ETC. BY
ALLOTTEE.- The Allottee is entering
into this Agreement for the allotment of a Apartment or Plot with the
full knowledge of all laws, rules, regulations,
notifications applicable to the Project in general and this project in particular.
That the Allottee hereby undertakes that he/she shall comply with and carry
out, from time to time after he/she has taken over for occupation and use the
said Apartment or Plot , all the requirements, requisitions, demands and
repairs which are required by any competent Authority in respect of the
Apartment or Plot / at his/
her own cost.
18. ADDITIONAL CONSTRUCTIONS.- The Promoter undertakes that it has no right to
make additions or to put up additional structure(s) anywhere in the Project
after the building plan has been approved by the competent authority(ies)
except for as provided in the Act.
19. PROMOTER SHALL NOT MORTGAGE OR CREATE A CHARGE.- After the
Promoter executes this Agreement he shall not
mortgage or create a charge on the
[Apartment/Plot/Building] and if any such
mortgage or charge is made or created then
notwithstanding anything contained in any other
law for the time being in force, such
mortgage or charge shall not affect the right
and interest of the Allottee who has taken or
agreed to take such [Apartment/Plot/Building].
40
20. THE KARNATAKA APARTMENT
OF OWNERSHIP ACT, 1972.- The Promoter has assured the Allottees that the project in its entirety
is in accordance with the provisions of the Karnataka Apartment of Ownership
Act, 1972(Karnataka Act 17 of 1973). The Promoter showing
compliance of various
laws/regulations as applicable in (xx - here specify the details).
21. BINDING EFFECT.- Forwarding this Agreement to the Allottee by the
Promoter
does not create a binding obligation on the part
of the Promoter or the Allottee until, firstly,
the Allottee signs and delivers this Agreement
with all the schedules along with the
payments due as stipulated in the Payment Plan
within thirty days from the date of receipt
by the Allottee and secondly, appears for
registration of the same before the concerned Sub-
Registrar as and when intimated by the Promoter.
If the Allottee(s) fails to execute and
deliver to the Promoter this Agreement within
thirty days from the date of its receipt by the
Allottee and/or appear before the Sub-Registrar
for its registration as and when intimated
by the Promoter, then the Promoter shall serve a
notice to the Allottee for rectifying the
default, which if not rectified within thirty
days from the date of its receipt by the
Allottee, application of the Allottee shall be
treated as cancelled and all sums deposited by
the Allottee in connection therewith including
the booking amount shall be returned to the
Allottee without any interest or compensation
whatsoever.
22. ENTIRE AGREEMENT.- This Agreement, along with
its schedules, constitutes the entire Agreement between the Parties with
respect to the subject matter hereof and
supersedes any and all
understandings, any other agreements, allotment letter, correspondences,
arrangements whether written or oral, if any, between the Parties in regard to
the said apartment/plot/building, as the case may be.
23. RIGHT TO AMEND.- This
Agreement may only be amended through written consent of the Parties.
24. PROVISIONS OF THIS AGREEMENT APPLICABLE ON
ALLOTTEE OR
SUBSEQUENT ALLOTTEES.- It is clearly understood and so agreed by and
between the
Parties hereto that all the provisions contained
herein and the obligations arising hereunder
in respect of the Project shall equally be
applicable to and enforceable against any
subsequent Allottees of the Apartment or Plot ,
in case of a transfer, as the said obligations go
along with the Apartment or Plot for all intents
and purposes.
25. WAIVER NOT A LIMITATION TO ENFORCE.-
25.1 The Promoter may, at its sole option and discretion, without prejudice
to its rights as set out
in this Agreement, waive the breach by the
Allottee in not making payments as per the
Payment Plan including waiving the payment of
interest for delayed payment. It is made
clear and so agreed by the Allottee that
exercise of discretion by the Promoter in the
case of one Allottee shall not be construed to
be a precedent and /or binding on the
Promoter to exercise such discretion in the case
of other Allottees.
25.2 Failure on the part of the Promoter to enforce at any time or for any
period of time the
provisions hereof shall not be construed to be a
waiver of any provisions or of the right
thereafter to enforce each and every provision.
26. SEVERABILITY.-
If any provision of this Agreement shall be
determined to be void or unenforceable under the Act or the Rules and
Regulations made there under or under other applicable laws, such provisions of
the Agreement shall be deemed amended or deleted in so far as reasonably
inconsistent with the purpose of this Agreement and to the extent necessary to
conform to Act or the Rules and Regulations made there under or the applicable
law, as the case may be, and the remaining provisions of this Agreement shall
remain valid and enforceable as applicable at the time of execution of this
Agreement.
27. METHOD OF CALCULATION OF PROPORTIONATE SHARE
WHEREVER
REFERRED TO IN THE AGREEMENT.-
Wherever in this Agreement it is stipulated that
the Allottee has to make any payment, in common with other Allottee(s) in
Project, the same shall be the proportion which the carpet area of the
Apartment or Plot bears to the total carpet area of all the [Apartments/Plots]
in
the Project.
28. FURTHER ASSURANCES.-
Both Parties agree that they shall execute,
acknowledge and deliver to the other such instruments and take such other
actions, in additions to the instruments and actions specifically provided for
herein, as may be reasonably required in order to effectuate the provisions of
this Agreement or of any transaction contemplated herein or to confirm or
perfect any right to be created or transferred hereunder or pursuant to any
such transaction.
29. PLACE OF EXECUTION.-
The execution of this Agreement shall be complete
only upon its execution by the Promoter
through its authorized signatory at the
Promoter’s Office, or at some other place, which may be
mutually agreed between the Promoter and the
Allottee, in after the Agreement is duly executed by the Allottee and the
Promoter or simultaneously with the execution the said Agreement shall be
registered at the office of the Sub-Registrar. Hence this Agreement shall be
deemed to have been executed at.
30. NOTICES.-
That all notices to be served on the Allottee and
the Promoter as contemplated by this Agreement
shall be deemed to have been duly served if sent
to the Allottee or the Promoter by Registered
Post at their respective addresses specified
below:
Name of Allottee
(Allottee Address)
M/s Promoter name
(Promoter Address)
It shall be the duty of the Allottee and the
promoter to inform each other of any
change in address subsequent to the execution of
this Agreement in the above address by
Registered Post failing which all communications
and letters posted at the above address
shall be deemed to have been received by the
promoter or the Allottee, as the case may be.
31. JOINT ALLOTTEES.-
That in case there are Joint Allottees all
communications shall be sent by the Promoter to the Allottee
whose name appears first and at the address
given by him/her which shall for all intents and
purposes to consider as properly served on all
the Allottees.
32. GOVERNING LAW.-
That the rights and obligations of the parties
under or arising out of this Agreement shall be construed and enforced in
accordance with the laws of India for the time being in force.
42
33. DISPUTE RESOLUTION.-
All or any disputes arising out or touching upon
or in relation to the terms and conditions of this Agreement, including the
interpretation and validity of the terms thereof and the respective rights and
obligations of the Parties, shall be settled amicably by mutual discussion,
failing which the same shall be settled through the adjudicating officer
appointed under the Act.
[Please insert any other
terms and conditions as per the contractual understanding between the parties,
however, please ensure that such additional terms and conditions
are not in derogation of or
inconsistent with the terms and conditions set out above or the Act and the
Rules and Regulations made thereunder.]
IN WITNESS WHEREOF parties hereinabove named
have set their respective hands and signed
this Agreement for sale at (city/town name) in the presence of attesting witness, signing as
such on the day first above written.
SIGNED AND DELIVERED BY THE WITHIN NAMED
Please affix
Allottee: (including joint buyers)
(1)
(2)
At on in the presence of:
photograph
and sign
across the
photograph
Please affix
photograph
and sign
across the
photograph
43
SIGNED AND DELIVERED BY THE WITHIN NAMED
Promoter:
(1)
(Authorized Signatory)
WITNESSES:
1. Signature Name Address
2. Signature Name Address
SCHEDULE ‘A’ - PLEASE INSERT DESCRIPTION OF THE Apartment or
Plot AND
THE GARAGE/CLOSED PARKING (IF APPLICABLE) ALONG
WITH BOUNDARIES IN
ALL FOUR DIRECTIONS
SCHEDULE ‘B’ - FLOOR PLAN OF THE APARTMENT
SCHEDULE ‘C’ - PAYMENT PLAN BY THE ALLOTTEE
***********
* or such other certificate by whatever name
called issued by the competent authority.
Please affix
photograph
and sig
