JUSTICE V.K.JAIN (ORAL)

          The complainants/petitioners booked a residential plot admeasuring 442.52 square yards with the respondent in Panchkula by submitting an application signed by both of them in English. The total price of the plot as per the application was Rs.1,89,39,930/- in addition to some other charges specified in the application. The complainants/ petitioners opted for the installment payment plan. Payment of Rs. 12 lacs was made by them by way of two cheques dated 07.01.2012. There were several printed terms and conditions annexed to the application which were also signed by both the petitioners/complainants on each page.  As per class 13 of the terms and conditions forming part of the application, the complainants were to offer position within 24 months of the application subject to timely payment by the complainants/petitioners.

2.      The respondents issued a letter dated 03.02.2012 to the complainants, enclosing therewith the booking receipt along with the payment plan. As per the payment plan, a copy of which has been submitted by the learned counsel for the respondents today in the court the second installment of Rs. 19,07,778/- was to be paid by 12^th March 2012.  Subsequent installments were payable at an interval of 2 months each till seventh installment and thereafter three instalments  were to be paid at the interval of 3 months each. The final installment was to be paid on offer of possession.

3.      The complainants did not make any payment after they had paid the booking amount of rupees 12 lacs along with the application, thereby committing default in payment even of the second installment of Rs.19,07,778/- which was payable on 12.03.2012. Complainant No. 1 sent a letter dated 14.05.2012 to the respondents stating therein that the Hon’ble Supreme Court had vide its order dated 13.05.2012 stayed construction work in Pinjore Urban Estate in Panchkula and, therefore, the amount of Rs. 12 lacs paid by him be refunded so that he could build a house at another place. This letter was followed by an undated letter sent by the complainant No. 1 to the respondent in which he inter alia stated that at that time when he visited the office of the respondent No. 1, Mr. Gagan had represented to him that the price of the plot would be Rs. 40,000/- per square yard and since he was not conversant with English and no translation was provided to him, the application form was submitted by him. Since the amount paid by them to the respondents was not refunded complainants/petitioners approached the concerned District Forum by way of a consumer complaint.  

4.      The complaint was resisted by respondents primarily on the ground that the complainants/petitioners had defaulted in making balance payment as a result of which the entire amount paid by them had been forfeited, the said amount being less than the earnest money which could be forfeited in case of default in payment of the balance sale constitution.

5.      District Forum allowed the consumer complaint and directed refund of the amount of Rs. 12 lacs with interest and compensation.

6.      Being aggrieved  from the order passed by District Forum respondents approached the concerned Dtate Commission by way of an appeal. Vide impugned order dated 27.03.2019 State Commission allowed the appeal and consequently dismissed the consumer complaint. Being aggrieved complainants/petitioners are before this Commission.

7.      First question which arises for consideration in this petition is as to whether the complaint was barred by limitation or not. Admittedly, the complainants had sought refund of the amount which they had paid to the respondents vide letter dated 12.05.2012. The amount deposited by the complainants was forfeited by the respondents vide its letter dated 16.11.2013. Having been instituted on 21.12.2015 the consumer complaint was barred by limitation prescribed in section 24A of the Consumer Protection Act even if the period of limitation is calculated from the date on which the aforesaid amount was forfeited.

8.      The second question which arises for consideration in this petition is as to whether the petitioners are illiterate or not. A perusal of the application would show that it has been signed by both the complainants on each page. Even the terms and conditions forming part of the application are signed by them on each page. They having signed in English, the inference would be that they cannot be illiterate. The educational qualification of the complainants/petitioners has not been disclosed in the consumer complaint. Rather it is stated that the complainant No. 1 was a former employee. This would mean that he cannot be an illiterate person. As far as complainant No. 2 is concerned, this is not even the case of the complainants/petitioners that he is also an illiterate person. Therefore, even if it is assumed, for the sake of arguments, that the complainant No. 1 being illeterate could not have read the contents of the application and the terms and conditions forming its part, complainant No. 2 who also signed in English must necessarily have gone through the contents of the application before he puts his signatures on it. Therefore it would be difficult to accept that the petitioners/complainants were illiterate, and therefore, were not aware of the contents of the application which they had submitted to the respondents.

9.      A perusal of the application would show that the sale price of the plot was agreed at Rs. 1,89,39,930/-.  This clearly shows that the stand taken by the petitioners/complainants with respect to the price of the plot is wholly untenable. The price of the plot even @ Rs. 40,000/- per sq. yd. would come to more than Rs. 1.7 crore.  Moreover, in the first letter which he sent to the respondents on 12.05.2012 the complainant No. 1 did not even allege that he was illiterate or that the price of the plot was agreed at Rs. 40,000/- per sq. yards. The only plea taken in the said letter was that since the construction in Pinjore had been stayed by the Hon’ble Supreme Court, the complainant wanted refund of the amount of Rs. 12 lakhs which he had paid to the respondents. This letter belies the plea of the complainants that they are illiterate and the price of the plot was agreed at Rs. 40,000/- per sq. yard. 

10.    It was also stated by complainant No. 1 in one of the letters sent to the respondents that the balance price of the plot was to be paid at the time of delivery of possession and that too in small installments.  This is, however, contrary to the payment plan which was sent to the complainants along with the letter dated 03.02.2012.  On receipt of the letter dated 03.02.2012 the complainants did not even claim that they were required to pay the balance amount only at the time of possession of the plot and that too in small installments. Therefore, the said plea taken by them is entirely unacceptable in the facts and circumstances of the case.    

11.    As far as the stay order passed by the Hon’ble Supreme Court on 03.05.2012 is concerned, the fact remains that the complainants had defaulted even before the said order came to be passed, they having defaulted on 12.05.2012 when the second instalment became due and the stay order having been passed by the Hon’ble Supreme court about one and half month later on 03.05.2012. Therefore, the afore-said stay order could not have justified the default which they already committed in paying the installments which had become due on 12.03.2012.   

12.    The respondents had 24 months available to it under the terms and conditions of the application for offering possession of the allotted plot to the complainants.  Therefore, the complainants were not justified in committing default before expiry of said 24 months period.  Had the complainants made payment in time and had the respondents not being able to offer possession within two years of the application they could possibly have some justification for not making the balance payment which could be still due from them at that time though the case of the respondents is that the stay order passed by the Hon’ble Supreme Court being a force majeure circumstance they are also entitled to exclusion of the period during which the said order remained in force.

13.    In terms of the decision of this Commission in DLF Vs. Bhagwanti Narula I (2015) CPJ 319 (NC) the respondents could have forfeited the initial payment of Rs. 12 lakhs which the complainants had made to them at the time of booking of the plot.  Therefore, the complainants are not entitled to refund of the said amount.

14.    The learned counsel for the complainants/petitioners relying on the decision dated 09.01.2015 of the Hon’ble Supreme court in M/s Kailash Nath Associates Vs. Delhi Development Authority & Anr. Civil Appeal No. 193 of 2015 submits that no evidence of any loss having been produced on account of the cancellation of the plot by the respondents, they were not entitled to forfeit the earnest money since the earnest money could be forfeited only if there was evidence to prove the loss, if any, suffered by the respondents on account of the default committed by the petitioners/complainants.

15.    A perusal of the consumer complaint would show that this was nowhere the case of the complainants in the consumer complaint that no loss had been suffered by the respondents despite the default committed by them in making payment of the balance installments.  Unless such a plea was taken, the respondents would have no opportunity to plead and then prove the loss, if any, suffered by it on account of the default committed the complainants.  This was also not the case of the complainants in the consumer complaint filed by them that the plot allotted to them was later sold by the respondents at a higher price and, therefore, no loss was suffered by it on account of the defaults committed by them.  In M/s Kailash Nath Associates (supra) the Delhi Development Authority had sold the plot which Kailash Nath Associates had purchased in the auction at a much higher price and had in the process made a hefty profit instead of suffering any loss.  It was in these circumstances that the Hon’ble Supreme Court held that forfeiture of the earnest money which Kailash Nath Associates had paid to Delhi Development Authority was not justified.  However, in the present case, neither there is any evidence either way, nor has Complainants, even alleged in the consumer complaint that no loss was suffered by the respondent on account of their having not paid the balance installments.  It would also be pertinent to note here in this regard that though the first default was committed by the complainants on 12.03.2012 the allotment came to be cancelled by the respondents only on 16.12.2013, after more than one year and eight months of the default thereby incurring at least the loss of interest for the intervening period.  

16.    For the reasons stated hereinabove I find no ground to interfere with the order passed by the State Commission. Revision Petition is, therefore, dismissed with no orders as to costs.