MRS. NEENA SANDHU, PRESIDING MEMBER

1.       This is an appeal filed by OPs against order dated 26.3.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 1209 of 2009. It is pertinent to mention here that the record of the learned District Forum shows that the date of decision of the impugned order is dated 26.3.2010 instead of 31.5.2010. In fact, the complaint has been finally decided by the learned District Forum on 26.3.2010 and on 31.5.2010 the learned District Forum has decided in the Miscellaneous Application No. 79 of 2010 in Complaint No. 1209 of 2009, which has been filed by the complainants for the correction of the name of the complainants in the judgment.

2.       Briefly stated, the facts of the case are, that the complainants had booked two bed rooms flat in Jaipuria Sunrise Greens, Zirakpur on 1.1.2007 and the said flat was to be constructed at Patiala Road, Zirakpur. The total price of the flat was fixed as Rs.25,69,560/-, in which the complainants deposited Rs.2 lacs vide receipt No.248 dated 1.1.2007 as booking amount and the balance was to be paid in installments progressively with various stages of construction to be completed on the part of OPs. The copy of the allotment letter dated 5.1.2007 issued by the OPs along with the schedule of payment of the installments and showing the delivery of the possession in October, 2008.  It was submitted by the complainants that before submitting the 1^st installment which was due on 31.1.2007, the complainants visited the site to check about the progress of work which to their surprise had not even commenced on ground, at which the OPs promised the complainants to start work very soon. After believing the OPs about the completion of all the stages of construction and finally completion of all construction activities on due time i.e. by 31.1.2008, the  complainants on their own credentials, arranged for a loan of Rs.11,20,000/- from UTI Bank Ltd and the said amount was arranged for by the complainants by raising a loan on a high rate of interest from UTI Bank. Since the OPs had delayed the agreed construction for payment of 1^st installment, the complainants also delayed the payment of the said installment amounting to Rs.3,45,260/- which was due to be paid on 31.1.2007 but was actually paid on 12.3.2007 after start of the work by the OPs. However the OPs waived off the 18% interest on the delayed period since the said delay was due to their own fault and failure to meet the construction schedule. The complainants visited the office of the OPs at Chandigarh and also visited the proposed site many times but were surprised to see that there was no sign of any construction work being carried out on the site. The complainants requested the OPs to return the booking amount and installments already paid for the flat in question or in the alternative to provide the flat as promised but nothing was done by the OPs and ultimately the complainants served a legal notice dated 4.6.2009 but inspite of the receipt of the legal notice, nothing was done by the OPs till date. It was further submitted that non-delivery of the possession of the flat within the stipulated period and non-refund of the deposited amount, despite repeated requests amounts to deficiency in service and unfair trade practice. Hence, the complaint was filed.

3.       Reply was filed by the OPs and admitted that the complainants had booked a two bed rooms flat in Jaipuria Sunrise Greens, Zirakpur with OPs at a total cost of Rs.25,69,560/- and also admitted that the complainants paid Rs.2,00,000 + Rs.3,45,260/- i.e. total Rs.5,45,260/- towards the cost of the flat. Thereafter the complainants made no further payment, which was due towards them. It was pleaded that the whole project got delayed due to some unavoidable circumstances and the long processing time taken by various Government Departments for giving approvals as required for this project. It was further pleaded that Clause 30 of the terms and conditions of the allotment letter (signed by the complainant also) clearly states that the possession period agreed upon is only indicative and the possession could be given before the said date or after the said date. It was further pleaded that in case of delay in delivering the possession of the flat, the OPs would be liable to pay to the allottee a compensation of @Rs.5/- per sq. feet of the super area per month for the period of delay and no other installments were paid to the OPs. This clearly shows that the intention of the complainants were only to book the flat, resale it and earn profit out of it but due to recession in the real estate market, they were unable to do so. The complainants requested the OPs to cancel the booking and return the whole booking amount but the OPs told that in view of Clause 3 of the terms and conditions of the agreement, the OPs are entitled to forfeit 10% of the basic price of the unit and the complainants did not agree for this and was adamant for the refund of full booking amount along with interest. The complainants never paid any other installments due towards them, this clearly shows that the complainants themselves violated the terms and conditions as stated in the allotment agreement. All other allegations leveled by the complainants in the complaint were denied and pleaded that there was no deficiency in service on their part and prayed for dismissal of the complaint. 

4.       The parties led their evidence in support of their contentions.

5.       The learned District Forum allowed the complaint and directed the OPs  to refund to the complainants a sum of Rs.5,45,260/- with interest @ 18% p.a. from the respective dates of its deposits till its realisatioin and also directed to pay Rs.5,000/- as costs of litigation to the complainants. The learned District Forum directed the OPs to comply with the order within 45 days from the date of receipt of its certified copy.

6.          Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the OPs.  Sh.B.S.Mangat, Advocate has appeared on behalf of appellants/OPs and Sh.J.K.Babbar, Advocate has appeared on behalf of respondents/complainants.

7.       In appeal, it is submitted that the allegations leveled by the respondents/complainants in their complaint are totally false. The respondents/complainants signed the application form and the allotment letter only after reading and understanding the various terms and conditions of the allotment letter. It is clearly mentioned in the allotment letter that the possession of the unit in the time linked plan i.e. Installment Plan is to be handed over to the respondents/complainants after 3 months from the completion of the period of the installment plan, subject to receipt of the entire basic price. After making a payment of first installment, respondents/complainants never paid any further installments, which were due towards them and the respondents/complainants blatantly violated the terms and conditions as stated in the Allotment Agreement. Clause 30 of the Allotment Letter clearly states that the date of possession is purely indicative but not final. It is submitted by the appellants/respondents that possession can be handed over before or after the said date and in case of delay due to some unforeseen circumstances, the appellants will be paying a penalty @ Rs.5/- per sq. feet per month to its customers. The learned District Forum has misinterpreted the evidence placed on record and has thus erroneously arrived at a wrong conclusion. The allotment letter duly signed by the respondents/complainants clearly mentions “That in case the applicant, at any time, desires for cancellation of the allotment, it may be agreed to though, in such a case, 10% of the basic price of the unit, constituting the earnest money will be forfeited and the balance, if any, refunded without any interest.”  Hence, keeping in view these terms and conditions which the respondents/complainants agreed and signed after reading and understanding them, the respondents/complainants only deserves the balance amount, if any, after forfeiture of 10% of the basic price of the unit. Hence, it is prayed the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

8.       We have heard the learned counsel for the parties and perused the record.

9.       It was argued by the learned counsel for the complainant that the complainant had paid Rs.5,45,260/- out of the total cost of the flat i.e. Rs.25,69,560/-. The remaining amount was to be deposited in installments in at various stages of construction to be completed by the OPs. The learned counsel for the complainants contended that as per the allotment letter, the possession of the flat was to be handed to the complainants by the OPs on 31.10.2008 in down payment plan and after three months of completion of the period of the installment plan, subject to receipt of the entire basic price. The OPs have failed to complete the construction and deliver the possession of the flat to the complainants within a period agreed upon. It was contended that the complainants had paid the amount of the flat after raising loan from UTI Bank Ltd and are paying interest on the said amount. In these circumstances, the complainants cannot afford to wait for an unlimited period for taking physical possession of the flat and the learned District Forum has rightly allowed the complaint by directing the OPs to refund to the complainants a sum of Rs.5,45,260/- with interest @ 18% p.a. from the respective dates of its deposits till its realization along with Rs.5,000/- as costs of litigation.

10.       The learned counsel for the appellants/OPs argued that this delay in handing over the possession of the flat is not due to the fault of the OPs but the delay in construction of the flat was due to the long processing time taken by various Government Departments for giving approvals as required for development of the project. It is further submitted that the date of possession is specified as 31.10.2008 Clause 30 of the allotment letter clearly states that the date of possession is purely indicative but not final and the possession can be handed over before or after the said date. The complainants after making the payment of first installment never paid any further installments, which were due towards them. It is further submitted that in case of delay due to some unforeseen circumstances, the appellants will have to pay a penalty @ Rs.5/- per sq. feet per month to its customers.

11.       After hearing the learned counsel for the parties, it has been observed by us that definitely there is a delay in handing over the possession of the flat as agreed upon by the parties and the OPs were supposed to give the possession of the flat by 31.10.2008 in case of down payment and in case of installment plan after three months of completion of the period of installment plan subject to receipt of the entire basic price. It is also clear that the complainants had raised a loan from bank for paying the amount for the said flat and for which, the complainants have to pay heavy interest to the bank on the loan amount. Therefore, it is not possible for the complainant to wait for an unlimited period to get the possession of the flat. Taking all these facts into consideration, we are of the view that there is a deficiency in service on the part of OPs by not delivering the possession of the flat to the complainants within a stipulated period and the complainants are entitled for the refund of the amount, which they have already deposited with the OPs along with interest as the complainants are paying to the bank on the loan amount as the complainants have not mentioned in their complaint that at what rate of interest they are paying to the bank on the loan amount. In this situation, we feel that the rate of interest @ 18% awarded by the learned District Forum is appropriate. The law has already been settled on this point by the Hon’ble Apex Court. Therefore, we are of the view that the learned District Forum has rightly directed the OPs for refund of the amount along with interest. The order passed by the learned District Forum is just, fair and proper and no interference is called for. Hence, the appeal filed by the OPs is dismissed as devoid of any merit, we uphold the order passed by the learned District Forum and allowed the complaint. The parties are left to bear their own costs.

12.            Copies of this order be sent to the parties, free of charge. 

Pronounced.                                                                        

21^st January, 2011.