1.       The present First Appeals (FAs) have been filed by the Petitioners against Respondents as detailed above, under section 51 of Consumer Protection Act 2019, against the order dated 12.09.2018 and 13.09.2018 of the State Consumer Disputes Redressal Commission Punjab (hereinafter referred to as the ‘State Commission’). FA Nos. 206 and 207 of 2021 have been filed with the delay of 746 and 754 days as per calculations made by the Registry.  Period of delay mentioned in the said IAs is 380 days and 372 days respectively.  FAs have been filed on 15.03.2021.  Period from 15.03.2020 to 14.03.2021 i.e. 364 is excluded being the Covid exempted period.  Hence the balance delay, after excluding the statutory permissible period of 30 days comes to 408 and 409 days.   IA Nos.2554 of  2021 and 2556 of 2021have been filed by the Appellant herein to condone the delay in filing the FAs.  In the said IAs, interalia, following reasons for delay / grounds for condonation have been given :

a.       That the free certified copy of the impugned order was dispatched by the Hon’ble State Commission on 02.01.2019 / 01.01.2019 and received by the Appellant on 29.01.2019 / 21.01.2019 and was diarized in the office of Appellants. The concerned dealing hand had put up the orders for challenging on file on 26.03.2019.

b.       Thereafter, the orders of the State Commission were examined by Legal Cell, GMADA on 10.05.2019 and recommended filing of appeal against the impugned order of the State Commission.  The file was sent to the Estate Officer ( Housing) on 10.05.2019.

c.       Subsequently, the Estate Officer ( Housing ) marked this file to the higher authorities of GMADA on 16.05.2019 for taking the approval for filing the First Appeal against the impugned order before this Hon’ble Commission and for engaging the panel counsel for filing the said appeal.

d.       That on 28.05.2019 / 04.06.2019 the Chief Administrator GMADA gave the approval for filing the First Appeal against the impugned order.

e.       The file was sent to the office of Ld. Advocate General,Punjab for engagement of panel counsel and thereafter the file was received on 13.06.2019 / 26.06.2019 alongwith sanction to engage the present counsel for filing the present appeal on 28.06.2019.

f.        The certified copy of the impugned order was sent to the counsel in Delhi by post on 10.07.2019.

g.       During the intervening Diwali holidays, the counsel for the Appellant had the office white washed and during that process several new files of the counsel were misplaced.  Since the papers involving the instant matter had been received contemporaneously, the same had not been inadvertently diarized by the office of the counsel for the Appellant and were misplaced by the staff of the Appellant’s counsel.

h.       Thereafter, drafting of the Appeal started.

i.        Due to outbreak of Covid-19, the Hon’ble Supreme Court passed various orders from time to time.

j.        Drafts of the instant appeals were sent to the Appellants and the appellant provided the approved draft for filing on 12.03.2021.

2.       Although we do not find the reasons for delay convincing, however, considering that we are considering connected FA Nos 246 of 2019 and 205 of 2021 which were also heard together alongwith these two FAs on 30.04.2024 and that issues involved are similar, in the interest of justice, we condone the delay and take up the matters on merits.

3.       The Appellant herein was the OP and the Respondents were Complainants before the State Commission.         Notice was issued to the Respondents on 02.09.2021.  The Appellant-Authority filed Written Arguments / Synopsis on 04.01.024.  However, the respondent-Complainants did not appear despite notice, hence proceeded ex parte.

Facts of FA No. 206 of 2021

4.       Brief facts of the case, as emerged from the FA, Order of the State Commission and other case records are that Complainant had applied for a Type-II flat under disabled persons /physically/mentally retarded persons category in the scheme of the opposite party namely Purab Premium Apartments situated at Sector 88, SAS Nagar by depositing a sum of Rs.5,50,000/-.  He was declared successful in the draw of lots held on 19.03.2012 and Letter of Intent ( LOI) dated 21.05.2012 was issued in his favour.  The Complainant got sanctioned a loan of Rs.41,00,000/- from State Bank of India after getting permission from the OP to mortgage the flat and to complete 30% of the total price of the flat a per clause 2.1 of the LoI i.e.Rs.10,17,500/- was made out of the said loan amount.  As per clause 3 (II) of the LoI, the possession of the flat was to be delivered after completion of development works at site in a period of 36 months from the date of issuance of LoI.  It is further the case of the Complainant that no construction was started at the site by the OP nor any letter demanding further payments were received.   As the work of the apartments started late and the complainant obtained loan from the Bank, so he was bound to pay interest to the Bank. Further, Accounts Officer of the OP issued letter to the Manager, SBI, Sector-17B, Chandigarh whereby cheque for Rs.8,06,743/- was sent on account of refund.  However, the complainant never came to know about that letter nor any intimation was sent by the OP to him in this regard.  Infact the Complainant was having his account with Sector 37 Branch of SBI, therefore, the said cheque was returned back and no refund was made to the complainant.  The complainant moved an application to the OP for refund of the amount, wherein it was stated that he had already deposited a sum of Rs.15,67,500/- with the OP upto 04.12.2012.  The Complainant approached the OP many times and later they refunded only Rs.8,05,743/- out of total deposited amount.  The said amount was received by him under protest categorically stating that either the OP should return the entire amount alongwith interest or it should allot a new flat to him as per the terms of the LoI.  Being aggrieved, the Complainant filed CC before the State Commission and State Commission vide order dated 13.09.2018  partly allowed the complaint directing the OP to refund the remaining amount of Rs.5,88,862 alongwith interest @ 8% per annum.  Being aggrieved, the OP is before this Commission now in the present FA.  

Facts of FA No. 207 of 2021

5.       Brief facts of the case, as emerged from the FA, Order of the State Commission and other case records are that Complainant had applied for a Type-II flat in the scheme of the opposite party namey Purab Premium Apartments and he was declared successful in the draw of lots.  LoI was issued in his favour.  The complainant started depositing the instalments within time as per the revised payment schedule given in the LoI and there was not even a single default on his part.  The complainant had paid a total sum of Rs.22,50,000/- with the OP till 09.02.2015. As per clause 3 (II) of the LoI, the possession of the flat as to be delivered after completion of the development work at site in a period of 36 months from the date of issuance of LoI, failing which the allottee was having a right to withdraw from the scheme by moving an application to the Estate Officer on which the entire deposited amount alongwith interest at the rate of 8% compounded annually was to be refunded.  The OP was liable to deliver possession upto 21.05.2015 as per the said clause.   It is further the case of the complainant that when he visited the site in June 2015, he was shocked to see that there was no development or construction and on approaching the OP, no satisfactory reply was given.  The OP failed to deliver the possession within the stipulated period and, therefore sought refund of the deposited amount alongwith interest.  The Complainant was shocked to receive the letter dated 27.01.2016 from the OP, whereby they refunded only Rs.14,59,202/- after forfeiting a sum of Rs.7,73,803/-  alongwith service tax on the ground of non payment of instalments.  Complainant’s case is that he stopped the payment of further instalments only after the expiry period of delivery of possession.  The complainant wrote letter dated 01.12.2016 to the OP requesting them to refund the whole amount received from him alongwith interest but in vain.  Being aggrieved, the Complainant filed CC before the State Commission and  Commission vide order dated 12.09.2018 partly allowed the Complaint directing refund of the remaining amount of Rs.5,48,803/- alongwith interest.  Being aggrieved, the OP is before this Commission now in the present FA.

6.       Appellant in FA No. 206 and 207 of 2021 has challenged the said Order dated 13.09.2018 and 12.09.2018 respectively of the State Commission mainly on following grounds:

1. LoI contemplates specific consequences for the failure to comply with the conditions  like submission of application seeking allotment along with deposit of earnest money of 10%, acceptance of allotment and payment as per schedule provided under the LoI.

2. State Commission erroneously observed that clause 5 (VII) of the Punjab Regional and Town Planning and Development Act, 1995 would not apply because no allotment letter has been issued but from the perusal of said clause, it is evident that said clause is general and cannot be limited to decide the liability of the allottee for delay in payment of instalments ‘upon allotment’ only.  It even applies upon non-payment of any amount due by the alliottee in terms of the payment plan under LoI prior to allotment.

3. State Commission failed to interpret Clause 2.1 (II), 2.3 (II), Clause 5 (VII) of the LoI and Section 45 (3) of the Punjab Regional and Town Planning and Development Act. 1995 correctly, which clearly specify that if there is default in payment, then the Appellant is required to deduct / forfeit 10% of the total amount of consideration money plus interest and other fees payable.

4. State Commission failed to interpret clause 2.1(II), 2.3 (II) read with Clause 5 (VII) and Section 45 (3) of the Punjab Regional and Town Planning and Development Act, 1995 correctly which clearly specify that if there is a default in payment, then the OP is required to deduct / forfeit 10% of the total amount of consideration money plus interest and other fees payable.

5. State  Commission erred in interpreting clause 2.3 (II) of the LOI to forfeiture of 10% of the amount paid or deposited as the same makes the forfeited amount / deduction subject to the amount deposited by a prospective allottee.  In effect, a gross defaulter who has only made the initial deposit of 30% would unduly benefit as the forfeiture in his case would be minimal whereas a diligent prospective allottee who defaults after making 90% of the total payment would suffer a higher deduction / forfeiture.

6. An applicant who merely communicated its rejection of the allotment beyond 30 days would be worse off by operation of Clause 7 (II) of the LOI than an allottee who has wilfully defaulted in payment after accepting the terms and conditions of the contract between the parties. 

7. Reliance has been put on the order of the Hon’ble High Court of Punjab and Haryana in Rajiv Arora Vs. State of Punjab, 2015 SCC Online P&H 13464.

8. The impugned order is contrary to the law laid down by the Hon’ble Supreme Court in Dresser S.A. V. Bindal Agro Chemical Ltd. Vs. K.G. Khosal Compressors Ltd. (2006) 1 SCC 751.

9. The impugned order is liable to be set aside in view of the settled position of law reiterated by the Hon’ble Supreme Court in Rajasthan State Industrial Development and Investment Corpn Vs.Diamond and Gem Development Corpn. Ltd. (2013) 5 SCC 470 and Ravneet Singh Bagga V. Kim Royal Dutch Airlines and Anr. (2000) 1 SCC 66.

7.       Heard learned counsel for the Appellant.  On account of absence despite notice, the respondents were proceeded ex parte. Learned counsel for the Appellant relied upon the following orders of the Apex Court :

1. Sheo Raj Singh (D) Vs. Union of India 2023 INSC 884
2. Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji and Ors. (1987) 2 SCC 107

3. Hemlata Verma Vs. Ms ICICI PrudentialLife Insurance Co. Ltd. and Anr., Civil Appeal No. 5131 of 2019.

8.       Relevant extract of the order of the State Commission in CC No. 123 of 2018 ( corresponding to FA No. 206 of 2021 are reproduced below :

13. Now coming to merits of the case, admittedly, the complainant applied for Type-II category flat in the scheme of the opposite party and, after being declared successful in the draw of lots held on 19.03.2012, he was issued Letter of Intent (LoI) dated 21.05.2012, Ex.C-2. The tentative price of the flat was ₹52,25,000/- (₹55,00,000/- minus 5% rebate being disabled persons category i.e. ₹2,75,000/-). Admittedly, the complainant deposited a total sum of ₹15,67,500/- with the opposite party towards the price of the flat. .  As per Clause 3(II) of the LoI, possession was to be delivered within 36 months from the date of issuance of the LoI, which reads as under:

“Possession of the apartment shall be handed over after completion of development works at site in a period of 36 months from the date of issuance of the LoI. In case for any reason, the Authority is unable to deliver possession of apartments within stipulated period, allottee shall have the right to withdraw from the scheme by moving an application to the Estate Officer, in which case, the Authority shall refund the entire amount deposited by the applicant, along with 8% interest compounded annually. Apart from this, there shall be no other liability of the Authority.”

14. As per Clause 2.1 (I), payment of ₹10,17,500/- being 20% price of the flat was to be made by 22.06.2012 to complete 30% of the price of the flat, whereas the same was deposited late by the complainant, vide receipt dated 04.10.2012, Ex.C-5. As per payment Plan-A, given under Clause 2.2 of the LoI, a sum of ₹32,26,438/- being balance 65% of the tentative price was to be deposited within 60 days from the date of the issuance of the LoI with a rebate of 5% of the balance amount payable. As per Payment Plan-B given under the above said Clause, the amount of ₹33,96,250/- being 65% of the tentative price with interest was to be paid in 6 half yearly instalments, with 12% interest from the issuance of the LoI. However, the complainant failed to deposit the requisite amount within time. This fact proves that he failed to adhere to the payment plans given in the LoI, by not making regular payments of instalments in time. No doubt, possession was to be delivered within 36 months of the issuance of the LoI, but the complainant was also required to deposit the instalments regularly on time, as per terms and conditions of the LoI, but he failed to comply with the same. In the instant case, no cogent and convincing reasons have been explained by the complainant for not depositing the instalments regularly. The complainant could have taken benefit of Clause 3(II) of the LoI, only in case he had deposited the instalments regularly on time, but since he himself defaulted in making payment of instalments regularly, so no benefit of this Clause of the LoI can be advanced to him. The opposite party also referred Clause 5 (VII) of the LoI, which provides as follows:

“In case of breach of any condition (s) of allotment or of regulations or non-payment of any amount due together with the penalty, the apartment shall be liable to be resumed and in that case an amount not exceeding 10% of the total amount of consideration money, interest and other fees payable in respect of the apartment shall be forfeited as per the provision of Section 45 (3) of the Punjab Regional and Town Planning and Development Act,1995 (hereinafter to be called as Act).”

15. Perusal of above said Clause shows that 10% of the total amount of consideration, interest and other charges can be deducted, only in case of breach of any condition of the allotment or of regulations or non-payment of amount due, together with penalty etc, as per Section 45 (3) of the Punjab Regional and Town Planning and Development Act, 1995. However, it is relevant to mention that no Allotment Letter has been issued in the present case and, as such, this Clause of the LoI and Section 45 (3) of the above said Act is not applicable in the present case. Rather, Clause 2.3 (II) of the LoI provides that delays in payment of instalments would result in cancellation of the allotment. However, on request establishing genuine grounds, delays up to 12 months could be condoned by the Estate Office by charging 18% interest for the period of delay. Delays beyond 12 months would not be condoned under any circumstances and would result in cancellation of allotment and refund of the amount after forfeiture of 10% of the amount.

16. The opposite party, vide order dated 13.01.2016, Ex.OP-1, cancelled the LoI and forfeited 10% of the total sale consideration money, interest and other dues in favour of the GMADA. Vide order dated 23.02.2016, Ex.OP-2, the opposite party deducted a sum of ₹7,45,612/- plus Service Tax of ₹16,145/- out of the total deposited amount of ₹15,67,500/- and refunded the sum of ₹8,05,743/- to the complainant. It is also relevant to mention that the opposite party has also not placed on record any evidence to prove that any development has been done at the site or not. Thus, it can be said that there is contributory negligence on the part of both the sides. Moreover, the deductions made by them in this order are against the provisions of Clause 2.3 (II), discussed above, of the LoI, as per which only 10% of the amount, presumably deposited amount, is to be deducted. Thus, we are of the view that the opposite party can deduct only 10% of the amount deposited by the complainant and not beyond that. Thus, the complainant is entitled to receive the remaining amount of ₹5,88,862/- (₹15,67,500-1,56,750-16,145-8,05,743/-).

17. So far as the Service Tax of ₹16,145/- charged by the opposite party is concerned, it is relevant to mention that the Service Tax is a statutory fee, which is to be deposited with the Government. However, it is made clear that if the Service Tax received from the Consumer complainant has been deposited by the opposite party with the Government, then it would issue the receipt/certificate for the same in favour of the complainant and the complainant would be at liberty to claim the same from the Government, as per rules and if the same has not yet been deposited by the opposite party with the complainant, then the opposite party shall refund the same to the complainant at its own level.

18. In view of our above discussion, the complaint is partly allowed and the opposite party is directed to refund the remaining amount of ₹5,88,862/-, along with interest at the rate of 8% per annum from the date of order dated 13.01.2016, Ex.OP-1, till realization.

9.       Relevant extract of order of State Commission in CC No. 160 of 2018 ( corresponding to FA No. 207 of 2021) are reproduced below :

13. Now coming to merits of the case, admittedly, the complainant applied for Type-II category flat in the scheme of the opposite parties and, after being declared successful in the draw of lots held on 19.03.2012, he was issued Letter of Intent (LoI) dated 21.05.2012, Ex.C-1. The tentative price of the flat was ₹55,00,000/-. Admittedly, the complainant deposited a total sum of ₹22,50,000/- with the opposite parties towards the price of the flat. As per Clause 3(II) of the LoI, possession was to be delivered within 36 months from the date of issuance of the LoI, which reads as under:

“Possession of the apartment shall be handed over after completion of development works at site in a period of 36 months from the date of issuance of the LoI. In case for any reason, the Authority is unable to deliver possession of apartments within stipulated period, allottee shall have the right to withdraw from the scheme by moving an application to the Estate Officer, in which case, the Authority shall refund the entire amount deposited by the applicant, along with 8% interest compounded annually. Apart from this, there shall be no other liability of the Authority.”

14. As per Clause 2.1 (I), payment of ₹11,00,000/- being 20% price of the flat was to be made by 22.06.2012 to complete 30% of the price of the flat. As per payment Plan-A, given under Clause 2.2 of the LoI, a sum of ₹33,96,250/- being balance 65% of the tentative price was to be deposited within 60 days from the date of the issuance of the LoI. As per Payment Plan-B given under the above said Clause, the amount of ₹35,75,000/- with 12% interest, totaling ₹43,25,750/- was to be paid in 6 half yearly instalments from the issuance of the LoI. However, the complainant himself admitted in the complaint that he deposited only ₹22,50,000/- upto 09.02.2015 against the above said requirements. This fact proves that he failed to adhere to the payment plans given in the LoI, by not making regular payments of instalments in time. He also averred in Para No.5 of the complaint that after making last payment on 09.02.2015, his mother became seriously ill and remained hospitalized due to multiple ailments, as a result of which he could not visit the office of the opposite parties. Thus, it can be presumed that he could not deposit the further instalments on time, due to illness and hospitalization of his mother. No doubt, possession was to be delivered within 36 months of the issuance of the LoI, but the complainant was also required to deposit the instalments regularly on time, as per terms and conditions of the LoI, but he failed to comply with the same. In the instant case, no cogent and convincing reasons have been explained by the complainant for not depositing the instalments regularly. The opposite parties issued Show-Cause Notice dated 05.11.2014, Ex.OP-1, to the complainant, intimating him as to why penalty/action under Section 45 (3) of the Punjab Regional & Town Planning & Development Act, 1995 may not be taken against him for violation of the terms and conditions of the LoI, but he failed to respond to this letter. Instead of paying the balance sale consideration of the flat, as per the terms and conditions of the LoI, the complainant sought refund of the amount deposited by him, along with interest, vide application dated 24.08.2015, Ex.C-2. The complainant could have taken benefit of Clause 3(II) of the LoI, only in case he had deposited the instalments regularly on time, but since he himself defaulted in making payment of instalments regularly, so no benefit of this Clause of the LoI can be advanced to him. The opposite parties also referred Clause 5 (VII) of the LoI, which provides as follows:

“In case of breach of any condition (s) of allotment or of regulations or non-payment of any amount due together with the penalty, the apartment shall be liable to be resumed and in that case an amount not exceeding 10% of the total amount of consideration money, interest and other fees payable in respect of the apartment shall be forfeited as per the provision of Section 45 (3) of the Punjab Regional and Town Planning and Development Act,1995 (hereinafter to be called as Act).”

15. Perusal of above said Clause shows that 10% of the total amount of consideration, interest and other charges can be deducted, only in case of breach of any condition of the allotment or of regulations or non-payment of amount due, together with penalty etc, as per Section 45 (3) of the Punjab Regional and Town Planning and Development Act, 1995. However, it is relevant to mention that no Allotment Letter has been issued in the present case and, as such, this Clause of the LoI and Section 45 (3) of the above said Act will not apply in the present case. Rather, as per Clause 2.3 (II) of the LoI, delays in payment of instalments would result in cancellation of the allotment. However, on request establishing genuine grounds, delays up to 12 months could be condoned by the Estate Office by charging 18% interest for the period of delay. Delays beyond 12 months would not be condoned under any circumstances and would result in cancellation of allotment and refund of the amount after forfeiture of 10% of the amount.

16. The opposite parties, vide order dated 12.12.2015, Ex.C-4, cancelled the LoI and forfeited 10% of the total sale consideration money, interest and other dues in favour of the GMADA. Vide order, issued vide Endorsement dated 27.01.2016, Ex.C-5, the opposite parties deducted a sum of ₹7,73,803/- plus Service Tax of ₹16,995/- out of the total deposited amount of ₹22,50,000/- and refunded the sum of ₹14,59,202/- to the complainant. It is also relevant to mention that the opposite parties have also not placed on record any evidence to prove that any development has been done at the site or not. Thus, it can be said that there is contributory negligence on the part of both the sides. Moreover, the deductions made by them in this order are against the provisions of Clause 2.3 (II), discussed above, of the LoI, as per which only 10% of the amount is to be deducted. Thus, we are of the view that the opposite parties can deduct only 10% of the amount deposited by the complainant and not beyond that. Thus, the complainant is entitled to receive the remaining amount of ₹5,48,803/- (22,50,000-2,25,000-16,995-14,59,202/-). Since the complainant himself failed to comply with the terms and conditions of the LoI, by regularly depositing the instalments, so he is not entitled to any compensation or costs.

17. So far as the prayer of the complainant to refund the Service Tax of ₹16,995/- charged by the opposite parties is concerned, it is relevant to mention that the Service Tax is a statutory fee, which is to be deposited with the Government. However, it is made clear that if the Service Tax received from the complainant has been deposited by the opposite parties with the Government, then they would issue the receipt/certificate for the same in favour of the complainant and the complainant would be at liberty to claim the same from the Government, as per rules and if the same has not yet been deposited by the opposite parties with the complainant, then the opposite parties shall refund the same to the complainant at their own level.

18. In view of our above discussion, the complaint is partly allowed and the opposite parties are directed to refund the remaining amount of ₹5,48,803/-, along with interest at the rate of 8% per annum from the date of order dated 12.12.2015, Ex.C-5, till realization.

10.     It is to be noted that complainants / respondents herein have not challenged the orders of the State Commission, hence the same have  become final as against Complainants / respondents. A similar issue pertaining to the allottees of the same project of Petitioner herein came up for consideration before this Commission in FA No.1011 of 2018 filed by the Complainant / allotee and this Commission vide its order dated 10.09.2024 held as follows :

9.       As regards judgment of Hon’ble Punjab and Haryana High Court in Rajiv Arora ( supra ), Complainant has contended that the said judgment varies from the instant case as the Complainant in the above mentioned case asked for refund before the stipulated time to deliver possession as per LOI, whereas in the present case, application for refund was made by Complainant after the OP failed to deliver the possession within the stipulated time, contending further that there has been no default as such on the part of Complainant as OP have been deficient in services as they have not been able to complete development work by the committed date of possession.

 10.     We have carefully gone through the order of the State Commission, other relevant records and rival contentions of the parties.  In this case, the unit in question was not ready for possession after completion of development work by the committed date of possession as per LOI i.e. 22.05.2015, hence the Complainant was justified in withholding further payments beyond 30% paid by him.  If OP considered it a case of default on the part of Complainant, it ought to have cancelled the allotment under clause 2.3 (I) and 5 (VII) and refunded the balance after forfeiting of amounts permissible as per these clauses.  However, no such cancellation was done by the OP. It was the Complainant, who applied for refund under clause 3 (II) of LOI on the ground of OP not being able to deliver the possession by the due date.  Hence, we are of the considered view that in the present case, Complainant is entitled to refund in accordance with clause 3 (II) and action of the OP to process his refund under clause 2.3 (II) and 5 (VII) is not correct.  Hence, we hold that order of the State Commission suffers from a material irregularity and cannot be sustained.  Accordingly, order of the State Commission is set aside, appeal is allowed and OP is directed to refund the entire amount of Rs.20.70 lacs paid by the Complainant ( after adjusting the amount already refunded, if any), alongwith interest @ 8% p.a. as per clause 3 (II) w.e.f. date of receipt of his request dated 22.06.2015 in the office of the OP, within 45 days of date of this order,  failing which amount payable at the end of 45 days shall carry interest @ 12% p.a. till the date of payment.  OP shall also pay litigation cost of Rs.25,000/- to the Complainant.

 11.    While hearing the above stated FAs 206 and 207 of 2021 alongwith FA Nos. 246 of 2019 and 205 of 2021 on 30.04.2024 and reserving the judgment in these cases, this Commission observed as follows :

“FA No. 246 of 2019 has been filed against the order dated 03.10.2018 of the State Commission vide which the State Commission has partly allowed the complaint and directed refund of the amount after deducting 10% of the amount, without any deduction on account of service tax.  In the FA, prima challenge is for the order of the State Commission towards 10% deduction.  Learned counsel for the respondent has drawn our attention to para 5 ( vii) of the LOI which entitles the OP ( respondent herein ) to deduct an amount not exceeding 10% of the total amount of consideration money on account of breach of condition of allotment or of regulations or non payment of the amount due. The total amount paid by the complainant in this case is Rs.59,75,750/- and the State Commission allowed the OP to deduct 10% of this amount.  However, the OP contends that they are entitled to deduct 10% of the total amount of consideration, which according to them is Rs.70,61,923 as detailed in their office order dated 23.06.2015.  A perusal of this document shows that total cost of the plot is Rs.55.00 and Scheme Interest of Rs.7,50,750 and Penal Interest of Rs.8,11,173 are added and calculating total consideration money as Rs.70,61,92/- and hence 10% is Rs.7,06,192/-.  One of the contention of the respondent authority herein, who is petitioner in FA No. 205 of 2021, challenging the same order, is that they are entitled to deduct 10% of Rs.70,61,923/- and not Rs.59,75, 750/- as has been ordered by the State Commission.  They have challenged the similar order of the State Commission in FA No. 206 of 2021 and FA No. 207 of 2021, in which respondents being absent today, have been proceeded ex parte.

2.       It is the contention of the Appellant in FA No. 246 of 2021 that under para 2 of the brochure , delay in payment of instalment shall result in cancellation of allotment.  However, on request, establishing genuine grounds, delay up to 12 months may be condoned by the Estate Officer, by charging 18% interest for the period of delay.  Delay beyond 12 months shall not be condoned under any circumstances and shall result in cancellation of allotment and refund of the amounts paid, after forfeiture of 10% of the amount.  It is argued by the Appellant that in this case, no cancellation of the allotment has been done by the respondent – authority, hence they are not entitled to forfeiture of 10% contending further that this part refers to 10% of the amount paid and not of the total consideration.

3.       As per brochure / LOI, possession of the apartment to be handed over to the allottee after completion of development work at site, in a period of 36 months from the date of issuance of LOI, which in this case expired on 20.05.2015.  It is admitted by the respondent -  Authority that possession could not be handed over as per this time schedule. Further, in case authority fails to deliver the possession as per this time schedule, allottee have a right to withdraw from the scheme on moving an application to the Estate Officer in which case the authority shall refund the entire amount deposited by the applicant alongwith 8% interest compounding annually.  It is the case of the Appellant that there being no cancellation of the authority, they sought withdrawal from the scheme and refund for the first time on 20.09.2016 which was followed by another reminder dated 21.11.2016  and another letter dated 02.03.2017.

4.       Appellant has also drawn our attention to letter dated 23.07.2012 of the authority vide which extension in deposit of 20% amount for one month from 22.06.2012 to 21.07.2012  was given.  He has further drawn our attention to the public notice issued by the Authority with respect to the deposit of amount by the allottees. 

12.     In view of the foregoing and after careful consideration of all the facts and circumstances of the case, we are of the considered view that State Commission has correctly interpreted the relevant clauses and given a well reasoned order.  We are in agreement with its observations and findings, hence the order of the State Commission is upheld in both the cases.  Accordingly, both the FA Nos. 206 and 207 of 2021 are dismissed.

13.     The pending IAs in the cases, if any, also stand disposed off.