He said the tower had not risen far enough to justify the bill. The email he filed was missing its attachments

AVM J. Rajendra and Justice Anoop Kumar Mendiratta dismissed a complaint over a cancelled flat at Lodha Marquise, a municipal certificate having confirmed the construction stage on which the disputed demand was raised.

A buyer who had put more than ₹3 crore into a flat on the sixty-sixth floor of a Lower Parel tower argued that the developer's demand for an instalment was illegal because the construction had not reached the stage the demand was pitched at. The National Consumer Disputes Redressal Commission has dismissed his complaint, because the email he filed to prove it was missing its annexures — and those annexures, produced by the developer, included a municipal building supervisor's certificate confirming that the work had in fact reached that stage.

What happened

In 2013 the developers advertised a project then called Lodha Codename Blue Moon. The brochure promised towers of over seventy storeys with views of the Arabian Sea, the Bandra-Worli Sea Link and the Mahalaxmi Race Course; two, three and four bedroom air-conditioned flats with Italian marble and wooden flooring; a club and spa, gym, yoga and aerobics, jacuzzi and steam rooms, swimming pools including a covered heated pool and pools for children and toddlers, tennis, basketball, volleyball, badminton and squash courts, snooker, mini golf, a jogging track, a garden gym, a cricket pitch, banquet facilities, a gourmet restaurant, guest rooms, a party lawn, a juice bar, a barbeque area and a temple.

Pratap Premchand Agarwal, of Nagpur, booked Flat No. 6602 in B Wing of the building known as Lodha Marquise on 22 January 2013 with a deposit of ₹9,00,000. The provisional allotment letter followed on 6 February 2013, and the agreement between the parties is dated 12 April 2013. The first opposite party amalgamated with Lodha Developers on 11 July 2013.

His case was that the agreed consideration was ₹6,65,73,009, that possession was to be delivered by January 2016, and that the allotment letter arbitrarily raised the price to ₹7,25,79,041.

What followed was a sequence of demands he did not meet. A demand of ₹41,62,144 went out on 19 June 2015, with reminders in July. On 6 October 2015 the developer demanded ₹43,57,138 within fifteen days, failing which the agreement would be cancelled. On 23 December 2015 came a demand of ₹86,85,375 on initiation of reinforced concrete work at level 18. On 4 February 2016 a demand of ₹1,23,06,331, including interest at 18 per cent on the delay.

The allotment was cancelled on 19 February 2016, with ₹76,22,610 forfeited — ten per cent of the basic sale price, together with ₹6,95,308 of service tax. On 4 July 2016 the developer sent twelve post-dated cheques totalling ₹2,76,48,302 refunding the balance. The buyer asked for the cancellation to be revoked; a revocation letter of 22 July 2016 demanded ₹1,89,29,925, including revocation charges of ₹6,65,730. In 2017 he was offered two options in a three-bedroom residence at a different tower instead, protested, was assured his allotment would be reinstated or he would be migrated, and encashed the cheques on that assurance. On 1 September 2017 he was offered a fresh booking rather than reinstatement.

The defence: limitation, and a draft that was not the agreement

Senior counsel for the developers began with time. The allotment was cancelled on 19 February 2016 and the complaint was filed on 11 December 2018, more than two years later, so a claim for the balance refund was barred. The amendment from refund to possession, on this argument, was made without any payment at all and only to sidestep the limitation problem. Three authorities were relied on: State Bank of India v. B.S. Agricultural Industries, Kandimalla Raghavaiah and Co. v. National Insurance Co. Ltd. and V.N. Shrikhande v. Anita Sena Fernandes.

The second limb went to the document the whole case rested on. The complainant, it was said, had not filed a true copy of the agreement to sell but only a draft, bearing no signatures, and the final agreement differed from it. Crucially, the draft does not state the total consideration while the executed agreement does — which matters, because the complaint's central allegation is that the price was arbitrarily raised from one figure to another.

The third was the payment history, and it is longer than the narrative above suggests. This was not the first cancellation. Before the one that led to this complaint, the developers had sent demand letters on 9 and 25 December 2013, 2 and 21 January 2014 and 28 February 2014, followed by a final demand notice of 25 March 2014, and had cancelled the allotment on 13 May 2014. At the complainant's request that cancellation was revoked and the allotment reinstated. The demand of ₹41,62,144 on 19 June 2015 for the level 9 milestone came after that reinstatement, and it too went unpaid.

What the Commission found

The complaint, filed in 2018 for a refund of ₹9,97,96,751.63 with interest at 18 per cent compounded quarterly, was amended in April 2019 to seek possession instead. The developers lost their right to file a written version in August 2022, having missed the statutory period, so the case proceeded on the complainant's evidence and the arguments.

The Commission reduced the dispute to one question. The cancellation and the ten per cent forfeiture are provided for by Clause 21.1(b) of the agreement of 12 April 2013, and the balance was refunded and encashed. So the issue is whether the demand whose non-payment triggered the cancellation was legally tenable — which turns on whether the construction had actually reached the milestone the demand was based on.

The demand letter of 19 June 2015 said the payment milestones had been started. The complainant put the covering email on the record and argued that no corresponding progress had been made. Senior counsel for the developer answered that the document filed was incomplete: the email had carried specific annexures evidencing progress — an architect's certification, an acknowledgement by the concerned building supervisor and inspector of the municipal corporation, and photographs — none of which the complainant had filed. The developer filed the complete email with its annexures along with its written arguments.

Among them was a certificate dated 18 June 2015 from the municipal building supervisor, recording that the building known as Marquise on the plot at Senapati Bapat Marg was under construction and that the work status as on that date was the initiation of reinforced concrete works for level 9 — the very stage the next day's demand was pitched at.

On that record the Commission held the demand was in accordance with the construction plan agreed between the parties. Beyond asserting that he had not received the annexures listed in the email, the complainant did not say that he had ever raised any question about them with the developer when he decided not to pay. The later reminders, and the demand following progress to level 18, were likewise in accordance with the agreed schedule. The allegation that the demands did not correlate with the construction work has no legs to stand on. It was the complainant who defaulted, and the cancellation and forfeiture were within the four corners of the agreement.

The two remaining strands failed for want of proof. No evidence at all was produced to show that the sale consideration had been fixed at ₹6,65,73,009, so the complaint of arbitrary enhancement remained uncorroborated. Nor was there any documentary support for the assertion that possession was due in January 2016.

Outcome

The complainant failed to make out any reasonable case of deficiency in service or unfair trade practice. Consumer Complaint No. 2705 of 2018 was dismissed, with no order as to costs and the pending applications disposed of.

The ₹76,22,610 forfeited on cancellation stays forfeited. The matter was reserved on 15 September 2026 and pronounced on 12 October 2026.