This appeal by  opposite parties  is directed against the  order dated 3.12.2008 passed by District Consumer Forum-I, U.T.Chandigarh whereby the complaint bearing No.504 of 2008  filed by Jaspreet Kaur , respondent /complainant was allowed  in the following terms ;  

“In view of above discussion, we are of the opinion that the present complaint must succeed. The same is, therefore, allowed with costs. The OPs are directed to pay interest as compensation to the Complainant @ Rs.39,000/- per month as ordered above with effect from 1.3.2008, till delivery of possession, along with Rs.5500/- as costs of proceedings. The remaining amount due from the Complainant shall be paid to the OPs only on receipt of a communication from them about the Showroom being ready for delivery of possession and the possession shall be delivered within fifteen days of the receipt of the remaining amount due from the Complainant, failing which they shall be liable to pay interest at the rate of 15% per annum on that amount also received from the Complainant. The payment shall be made to the Complainant within thirty days from the date of receipt of the copy of the order, failing which the OPs would be entitled to interest on the arrears @15% per annum since the filing of the present complaint i.e. 5.5.2008, till realization.”

2.         The parties hereinafter shall be referred to as per their ranking before the District Consumer Forum.

3..       The facts culminating to the commencement of this appeal may be recapitulated  thus ;

 The complainant on her application  was allotted   a commercial showroom of category B    in an upcoming shopping mall  to be constructed by OPs. The possession of showroom  was promised to be handed  over to her within a period of two years as mentioned in the brochure, copy of which is annexure P-1.   Initially the complainant submitted the standard form and deposited an amount of Rs.5,40,000/- as required by OPs.  The OPs sent the acceptance cum demand letter dated 28.2.2006.  Thereafter, the complainant deposited Rs.10,80,000/- on 10.3.2006 and also paid Rs.5,00,000/- as first quarterly installments on 30.5.2006. She then paid Rs.10,00,000/-  on 10.2.2007 alongwith penalty of Rs.49,890/- being interest @ 15% p.a. for the delayed payment of second and third quarterly installments.  In the meantime, the complainant came to know that the OPs  had issued a new advertisement about the showrooms of the same shopping mall  commencing the scheme on 28.11.2006 to be closed on 12.12.2006. The brochure of this very advertisement also mentioned that the possession would be handed over within the time period of two years, thus it gave a new timeframe. Apprehending delay in the project, the complainant sent letter dated 8.5.2007 to  OPs requesting  them to clarify the position regarding handing over the possession of the showroom so that she could pay her next installments, but to no avail. By that time the complainant had paid an amount of Rs.31,20,000/- towards principal and penalty of Rs.49890/-  whereas there was no significant progress visible at the site. Out of the total amount of showroom of Rs.60,00,000/-,  the amount of Rs.41,20,000/- was required to be paid by the complainant and the balance was to be paid in lumpsum without interest within sixty days from the issue of allotment letter or in equated monthly installments in ten years with interest @ 11% p.a.. The complainant was ready and willing to pay the balance amount due but OPs failed to give any reply because of their lack of bonafide intention to handover the possession within the committed period.  However, the OPs issued another advertisement   in October,2007 regarding showrooms of the same shopping  mall commencing  the scheme on 12.10.2007 and closing on 26.10.2007. The brochure of this very advertisement also mentioned that the possession would be handed over within the time period of two years i.e. by the end of October,2009.  In the case of complainant the acceptance cum demand letter was issued on 28.2.2006 and as such the  time period  for handing over possession by  OPs was in February 2008. The complainant sent notice dated 23.2.2008 to OPs requesting them to intimate about the specific date of handing over of possession   and reiterated her readiness and willingness to pay the balance amount due towards her , but OPs kept mum . Hence, alleging deficiency in service and unfair trade practice on the part of OPs the complainant filed complaint before the District Consumer Forum.   

4.         The District Forum sent notice of the complaint   to OPs seeking their version of the case.  OPs  though appeared  before the District Forum through their counsel   on 7.7.2008 and took several adjournments to file reply and evidence, some of which were subject to payment of costs but  neither  reply nor evidence was  filed. However, OPs moved an application seeking  dismissal of the complaint  before the District Forum which was   dismissed vide order dated 26.11.2008  and the defence of OPs was   struck off.

5.           The learned District Consumer Forum after  going through the evidence and material  brought on record by the complainant  and hearing the   learned counsel for the parties allowed the complaint as indicated in the  opening part of this judgment. This is how feeling aggrieved , opposite parties have    come up in this appeal.

6.         We have heard  learned counsel for the parties  and also gone through the file   carefully.  Without going into any further details, suffice it to say that the learned counsel for appellants/OPs had emphasized upon documents now attached with the appeal  and then submitted that complainant is not entitled to the interest @ 15% p.a.  i.e.Rs.39,000/- per month  as awarded by the District Forum. At best, as per clause NO.17 of  the terms and conditions, OPs are liable to pay compensation to the intending allottee at the rate of Rs.10/- per sq.ft per month of the super area ,if they fail to deliver symbolic possession of the showroom by committed time.  However, the learned counsel for complainant repelled this point of argument  by stating that this clause relates only to ‘symbolic possession’ and not to the actual physical possession. Thus, this clause would not be applicable to the case where the delivery of physical possession was not made by OPs within the stipulated period. Further a look at the documents indicates that the OPs had advertised more than one time  for allotment of showrooms in their proposed  shopping mall and   every time in the terms and conditions of allotment  the time period allowed was two years from the date of commencement of the schemes.  It is also  evident on the file that inspite of giving ample opportunities  to OPs, no written statement or evidence by way of affidavit was filed before the District Forum. However, written arguments were submitted there. It is settled law that the evidence and documents  now relied upon by learned counsel for OPs in the appeal  cannot be gone into in the absence of any pleading of the case. Thus, we hold that the evidence led by the complainant before the District Forum has gone unrebutted.  

7.         The District Consumer Forum  rightly observed  in the impugned order  that as per condition No.44 of annexure P-2  in case of delay in the payment of any installment, OPs were entitled to recover interest at the rate of 15%  per annum till the payment was made so on the same analogy  complainant would be entitled to compensation by way of interest @ 15% per annum because it was the rate at which  the OPs were recovering interest from the defaulters. Thus, the order made by the Forum regarding allowing interest to the complainant  @ 15% p.a. from 1.3.2008 till delivery of possession of showroom   on the amount already received i.e.  Rs.31.20 lac  by OPs  is quite reasonable and justified.

8.         In the result, the impugned order dated 3.12.2008 passed by the District Consumer Forum is affirmed and consequently this appeal is hereby dismissed with costs which are quantified at Rs.5000/-.  

             Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.