JUSTICE J. M. MALIK, PRESIDING MEMBER 1. On 14.2.1994, Mrs. Sangita Arora, the complainant, in this case booked an apartment measuring super area 91.03 sq. mt. with the opposite party, DLF Universal Limited. The opposite party formally allotted an apartment No. B-061 in Regency Park, DLF City, Gurgaon to the petitioner. Agreement between the parties was entered into on 23.5.1994. It was agreed that price of the flat would be Rs.7,59,372/-. The complainant paid a sum of Rs.89,607/- to the opposite party as an earnest money. It was stipulated in the agreement that the possession of the apartment would be delivered to the complainant within three and a half years from the date of booking i.e. 14.2.1994, according to the complainant. The opposite party failed to deliver the possession of the apartment to the complainant upto 29.8.1997 without assigning any reason. Moreover, the opposite party increased the area and demanded extra money from the complainant. The grievance of the complainant is that she was not informed about the said fact and no consent was obtained from the complainant in this regard. Till then the complainant had paid an amount of Rs.8,01,131.32 paise so far.2. On 2.6.2000, the opposite party acting unilaterally and arbitrarily cancelled the allotment and also sent a cheque for a sum of Rs.6,16,638/- towards the refund due to the complainant. However, the complainant did not encash that amount. Thereafter, the opposite party offered restoration of the flat but demanded undue and arbitrary amounts from the complainant. The complainant requested the opposite party to charge just and reasonable amount but the opposite party sent a letter dated 18.02.2003 to the complainant demanding an amount of Rs.11,15,330/- as pre condition for restoration of the allotment of the apartment.3. The complainant filed a complaint before the District Forum and made the following prayers.“i. the respondent be directed not to charge holding charge not to charge compound interest, not to increase area of apartment more than 5% and restore the allotment of the apartment in question. 2. Or in the alternative the respondent be directed to pay/refund amount of Rs.8,01,131.32 ps. with interest at the rate of 24% per annum, till date to the complainant. 3. The respondent may also be directed to pay penalty of Rs.6,00,000/- for not delivering possession of apartment in question in agreed time of 3 ½ years to the complainant as per terms and conditions of agreement dt.23.5.1994. The respondent may also be penalized for violating terms and conditions of agreement dt.23.5.1994. Any other relief which this Hon’ble Forum deems fit and proper may also be granted in favour of the complainant.” 4. The defence set up by the respondent is this. It was admitted that the petitioner had submitted an application for allotment on 14.2.1994. The complainant had opted for 10 years payment plans in respect of apartment in question. The complainant failed to pay overdue instalments despite receipt of letter dated 30.12.1997. Under the circumstances, the opposite party was compelled to terminate the agreement dated 23.3.1994. Again, vide letter dated 10.9.1998, the complainant was called upon to clear the outstanding payment and to complete the requisite paper work so that the possession of the apartment could be given to the petitioner. Thereafter, several opportunities were granted to the complainant to pay the amount but the complainant did not do the needful. The complainant sent a letter dated 24.8.2001 to the opposite party requesting it to waive the interest which the opposite party did not agree. It is explained that allotment of the apartment in favour of complainant, in view of the circumstances, was validly and legally terminated. It is contended that there was no deficiency in service on the part of the opposite party and prayed for dismissal of the complaint. 5. The District Forum dismissed the complaint and the State Commission dismissed the appeal filed by the complainant. Aggrieved by that order, the petitioner has filed the revision petition before us. 6. We have heard the learned counsel for the parties. 7. Learned counsel for the respondent at the very outset submitted that the apartment in question has already been sold. They are not in a position to handover the possession of the apartment right now. Learned counsel for the opposite party invited our attention towards para No. 4 of the terms and conditions for allotment of residential apartments in DLF Qutub Enclave, Gurgaon, Haryana. Para 4 of the said terms and conditions is reproduced as follows: “The company shall have the right to effect suitable and necessary alterations in the layout plan of the building or block of buildings, if and when found necessary, which alterations may involve all or any of the following changes, namely change in the position of the Apartment, change in the number of apartment/or change in its dimensions or change in the height of the building or change in its area. To implement any or all of the above changes, supplementary agreement(s), if necessary, will be executed. If there is any increase/decrease in the super area, the rate per sq. meter and other charges will be applicable to the changed area at the same rate at which the Apartment was booked and as a consequence of such reduction or increase in the super area the company shall be liable to refund without interest only the extra price and other proportion charges recovered or shall be entitled to recover the additional price and other proportionate charges without interest as the case may be. If for any reason the Company is not in a position to allot the property applied for the company shall refund the amount deposit with simple interest @12% per annum.” 8. Learned counsel for the opposite party admitted that no supplementary agreement was executed between the parties. He could not give any reason for the same. He could not say why it was not necessary to execute the new supplementary agreement. 9. Learned counsel for the respondent pointed out that they have informed the petitioner about the new changes vide letter dated 24.2.1998. He laid emphasis on the following paras: “Additionally, the aesthetics have been upgraded to provide for an appearance both externally and internally befitting such a Group Housing Complex. Principally, the changes relate to a reduction in the number of apartments served by a common core and staircase from eight, as originally envisaged, to four as provided now. Despite the reduction, the number of lifts has not been reduced thus leading to better vertical circulation than envisaged earlier. The above changes, being substantial in nature, have led to a marked increase in super area of apartments, the details of which are outlined in Annexure 1 to this letter. Due to an increase in balcony size etc., the apartment area stands increased by about 45 sq. ft. The increase in the common area on account of larger and additional lobbies, staircases, services area as well as Laundromat and building management offices in the basement is in the range of 95sq. fit. Despite these changes the ratio between apartment area/super area stands at 21.1% which, we hope, you will find reasonable especially in view of the substantial improvements in the layout of the buildings.” 10. Learned counsel for the opposite party argued that additional amount of Rs.1,59,481.63 was demanded. It also includes the statement of account which is reproduced as follows: “STATEMENT OF ACCOUNT ORIGINALLY SOLD AREA 91.03 sq. mtrs. Revised area 102.698 sq. mtr. 1. Cost on account of increase in area of 11.67 sq. mtrs at the original rates Basic Sale Price Rs.97352.31 Preferential Location Charges Rs. 0.00 External Development Charges Rs. 4387.92 Total Rs.101740.23 2.Cost of DG Sets etc., for providing 24 hours power back up. Rs.279.86 per sq. mtr. (Rs.26.00 per sq. ft.) Rs.34,323.73 3.Fire safety measures including automatic sprinkler system and fire detection & alarm system in terms of Clause No. 2(b) of the Agreement. Rs. 427.5 per sq. mtr. (Rs.39.72 per sq. ft.)……………………………….……….Rs.23777.67 Grand Total…………………………………..Rs.159841.63 In view of the financial burden of a lump-sum payment, as stated above, a six months interest free plan is given below: 15.03.98 Rs. 39960.41 15.05.98 Rs. 39960.41 15.07.98 Rs. 39960.41 15.09.98 Rs. 39960.41” 11. Thereafter, time and again, the opposite party/respondent wrote a number of letters to the complainant to pay the remaining amount, i.e. letters dated 21.1.1999, annexure R-28, dated 28.1.1999 Annexure R-29, dated 18.2.1999 annexure R- 30, dated 5.3.1999, dated 19.4.1999, 20.5.1999, 17.5.1999, 18.8.1999, 30.8.1999, 20.9.1999, 21.10.1999, 16.11.1999, 1.12.1999, 19.1.2000, 25.1.2000 etc. It was also mentioned that the opposite party would charge 20% interest for the delayed payment. The final notice was sent on 16.5.2000. Since the payment was not made, therefore, the agreement to sell was cancelled and a cheque in the sum of Rs.6,16,138/- was sent to her after deduction of necessary charges. Thereafter, the complainant wrote a letter to the opposite party, whereby she prayed for furnishing a copy of balance amount so that she would pay the amount till 16.8.2000. In response to that letter, the opposite party demanded Rs.6,61,731/-. Its particulars are given below: “Particulars Amount Basic Sale Price Rs.7,59,372/- External Development Charges Rs.34228/- Preferential Charges Rs. Nil Contingency Deposit Rs.1957/- Security (IFMS) Rs.10,000/- Interest on Regular Quarterly Instalments upto 25.08.2000 Rs.2,79,425/- Delayed interest as on 25.08.2000 Rs.76,295/- Extra Charges Rs.1,59,841/- Stamp duty & Registration charges Rs.11,3015/- Liquidated damages Rs.15,060/- Processing Fee Rs.13,669/- Total Amount paid Rs.14,62,862/- Amount paid Rs.801131/- Balance Amount payable Rs.661731/-“ 12. To this notice, the complainant sent reply. Para No. 1 of reply runs as follows: “That reference to details of amount payable by my client, in your letter dated 19.8.2000, it is submitted that you have no right to demand Rs.6,61,731/- in lump sum from my client, which is said to be total balance amount payable by my client, as total price of said apartment No. B061. This demand of Rs.6,61,731/- in lump sum by you is unjustified and is in total violation of agreement dated 23.5.1994, executed between you and my above named client.” 13. Vide order dated 26.9.2001, the opposite party demanded Rs.8,70,430.31 paise. Its particulars run as follows: “Particulars 15.10.2001 31.10.2001 Basic Sale Price 7,59,372.00 7,59,372.00 External Development Charges 34,228.00 34228.00 Contingency Security Deposit 1,957.00 1957.00 Interest Free Maint. Security 10,000.00 10,000.00 Interest on instalments 3,32,002.00 3,33,772.00 Cost of increase in area 1,01,740.23 1,01,740.23 FRF 23,777.67 23.777.67 Generator 34,323.73 34,323.73.00 Processing Fee 13,669.00 13,669.00 Delayed interest 86,959.00 88.921.00 Delayed interest on extra charges 40,252.00 40,761.00 Holding Charges(5.2.2000-31.10.01) 1,16,025.00 1,16,025.00 Stamp duty and regn. Charges 1,13,015.00 1,13,015.00 Total amount due 16,67,320.63 16,71,561.63 Less: Already received ,01,131.32 8,01,131.32 Amount due on 15.10.01/31.10.01\ 8,66,189.31 8,70,430.31” 14. Learned counsel for the opposite party has cited two authorities in HUDA and Anr. Vs. Kewal Krishan Goel & Ors. JT 1996 (6) S.C. 62 and Ashwani Kapoor and Anr. vs. Union of India and another 73 (1998) Delhi Law Times 843 (DB) whereby the forfeiture of amount made by HUDA and Delhi Development authority was held to be legal. 15. We find force in the argument urged by learned counsel for the opposite party in a measure. We agree with him that at this stage, the opposite party cannot be asked to handover the possession of the above said apartment. As per prayer by the complainant she is restricted to claim the paid amount back and compensation. However, the opposite party is deficient in providing services due to the following reasons. 16. First of all, the complainant was taken by a surprise to pay a sum of Rs.1,59,841.63. It must be borne in mind that total agreed amount of the apartment was Rs.7,59,372/-. By the increase of land, the opposite party was also increasing one fourth of the total amount. The complainant has already deposited sufficient amount with the respondent to the tune of Rs.8,01,132.32 paise more than the total agreed price. It is difficult to fathom as to how a poor person can cough out a sum of Rs.1,50,000/- out of the blue. She should have been called and matter should have discussed and if she was unable to pay that much amount she should have been given the possession of apartment bearing the previous one as agreed in the agreement. Mrs. Sangita Arora vide her application dated 9.6.1998, had already informed about her economic stringency. She admitted that she could not pay the instalment in time as her husband was not feeling well during that period. Her husband had suffered a serious heart attack. She stated that she was not in a position to do so because of the above said ailment of her husband. She requested them to accept her instalments without interest. The opposite party did not agree. She was not informed earlier regarding the increase of the area. No supplementary agreement regarding the increase of the area was sent. The opposite party was trying to make an attempt that she must pay through the nose. 17. Still the opposite party stands in a beneficial position. The price of land has increased by leaps and bounds. There is 300% increase in the land prevalent in February, 1994 and the land prevalent in 2002-2003. When the flat in dispute was sold to some another person, according to the opposite party, the opposite party has not come to the Commission with clean hands. They did not disclose for what amount that very flat was sold to the new purchaser. They did not offer to handover the difference of dues of amount between the old purchaser and the new purchaser. This clearly smacks of malafides on the part of the opposition party. Furthermore, they are demanding interest @20% p.a. Learned counsel for the opposite party replied that it is a matter of agreement between the parties. This therefore means, that everything and every covenant must be executed in favour of the opposite party. The learned counsel for the respondent admitted that they are ready to pay back the amount. He contended that company will not pay interest @20% p.a. 18. Normally we award interest at the rate of 9% p.a. As per the agreement the opposite party has agreed to pay interest at the rate of 12% p.a. However, in this peculiar case wherein the respondent has been charging 20% of the interest to its so many customers, to our mind, there lies no rub in asking the opposite party to pay the complainant with the same coin, though it cannot be laid down as a rule of thumb. We are allowing 20% interest in this particular case only which would not become a precedent. 19. Keeping in view of all the facts and circumstances of the case, we hereby accept the revision petition to the following extent only. The respondent is directed to pay the whole amount which they have received from the bank, in the sum of Rs.8,01,131.32 with interest @20% from the date of its deposit till its realization. It is also surprising to note that it took four to five years in constructing the above said apartment. This is an inordinate delay. Such like matters must come to an end within a reasonable time, whether it is stipulated or not. Three years’ time is more than enough. The opposite party is building a house on the consideration paid by others but the opposite party is not doing it in a reasonable time for the reasons best known to them. This clearly reveals that the complainant is deprived of the fond dream of having her own house even after payment of almost total amount. One can purchase a house within one’s own capacity. What is fate if one is asked to pay double or more than that for fulfilling its wish. Consequently, we also impose compensation for litigation charges and harassment and mental agony in the sum of Rs. 50,000/- payable to the complainant within 45 days otherwise it will carry interest @9% till its realization. |
