JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

1.      The complainants/respondents booked flats in a project namely ‘New Town Heights’, which the petitioner company was developing in Sector-86 of Gurgaon. The petitioner company could not get environmental clearance for the said project and therefore, it sent a communication to the buyers, offering several discounts and also giving them an exit option, in case they were not happy to continue with the booking made by them. They were informed, in writing, that the petitioner would do its best to re-trade their property and refund “the amount paid by them” maximum within six months’ time, even if it was not in a position to do re-trading by then. The said letter/communication was also posted on the website and the buyers were requested to give their final decision whether to continue or to exit. Mr. Rajesh Malhotra, complainant/respondent in RP No. 433/2016 opted for the exit option vide his communication dated 01.05.2009. The complainants in other petitions also exercised the exit option given to them by the petitioner.

2.      Sh. Rajesh Kukreja, complainant in RP No. 429/2016 was sent an e-mail dated 13.04.2009 by the petitioner informing him that he would be refunded the entire amount paid by him excluding the brokerage if any. He was also advised to check the exit policy on the website. The aforesaid e-mail was sent in response to the e-mail of Mr. Rajesh Kukreja dated 12.04.2009 seeking calculation of the refund amount pursuant to his discussion with Mr. Rahul of the petitioner company. The mail shows that Mr. Rahul had informed him about some deductions towards brokerage could possibly be made. He had also sought to know the total amount of refund that shall be made to him. Mr. Rajesh Kukreja responded to the aforesaid e-mail from the petitioner company, stating that there was no clarity on the amount or calculation of the refund amount, in the policy which he had downloaded from the website of the company and sought to know what kind of brokerage the petitioner company wanted to charge. There was no response from the petitioner company to the aforesaid e-mail and the petitioner company refunded an amount of Rs. 2532780/- to him vide its letter dated 30.10.2009. The complainant Mr. Rajesh Kukreja responded on 10.11.2009 stating therein that only a delayed payment had been received by him out of the total payment of Rs.2682563/- made by him and the balance payment of Rs. 149783/- was still lying with the company. He sought return of that amount alongwith interest on the entire amount which he had deposited with the petitioner company.

          Similar exchange of mails and letters took place between Mr. Manoj Kukreja, complainant in RP No. 428/2016 and the petitioner company. However, the amount refunded to him was Rs. 1822518/- and the deduction made in his case was Rs. 111394/-.

3.      Since the petitioner company did not refund the amount which it had deducted towards brokerage, the complainants approached the concerned District Forum by way of separate complaints. In case of Mr. Rajesh Malhotra, complainant in RP No. 433/2016, there was an additional claim for interest since the refund was not made to him within six months from the date on which the exit option was exercised by him.

4.      The District Forum allowed the complaints and directed payment of the amount deducted from the deposits of the complainants alongwith interest on that amount. In case of Mr. Rajesh Malhotra, the District Forum also directed payment of interest @ 15% per annum for the delayed period of 15 days.

5.      Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of separate appeals. The said appeals having been dismissed by the State Commission, the petitioner company is before this Commission by way of these separate revision petitions.

6.      As noted earlier in the communication whereby exit option was given to the buyers, the petitioner company clearly stated that in case the exit option was exercised, it will refund the amount paid by the buyer within a maximum period of six months. The expression “amount paid by you” obviously would comprise the entire amount which the buyers had paid and therefore, going by the communication whereby the exit option was given to the buyers, the petitioner company could not have made any deduction while refunding the amount which the buyers had paid to it. As far as the exit policy itself is concerned, the said policy had no indication of any deduction whether on account of the brokerage if any paid by the petitioner company or on any other account while making refund to the buyer in terms of the exit option exercised by him. Therefore, as far as Mr. Rajesh Malhotra is concerned, there was absolutely no ground for making any deduction from the amount which he had paid to the petitioner company. As far as payment of interest for delayed period of 15 days is concerned, the contention of the learned counsel for the petitioner company is that the complainant took time to return the original agreement which had been executed between the parties and that being the reason for the delay in making refund to him, there is no justification for directing payment of interest for the said delayed period of 15 days. I however, find no merit in the contention as far as the liability to pay interest is concerned. The petitioner company had undertaken to refund the amount deposited by the buyers within six months of exercise of the exit option. Mr. Rajesh Malhotra exercised the said option on 01.05.2009. The refund therefore, out to have been made to him by 31.10.2009. It however, was made only on 21.11.2009 when the cheque was received by him. It transpired during the course of hearing that the communication asking for return of the agreement was sent by the petitioner company to the complainant only in the last week of October, 2009. Since the petitioner company knew that it had to make refund within six months from 01.05.2009 when the exit option was exercised by the complainant, the said communication ought to have been sent well in time, so as to give adequate time to him to return the document the company wanted him to return. That having not been done, the complainant cannot be blamed for the time taken in returning the original agreement. This is more so when the time which he took for returning the document cannot be said to be unreasonable. Therefore, the direction for payment of interest for 15 days is fully justified in the facts and circumstances of the case.

7.      As far as the cases of Mr. Manoj Kumar and Mr. Rajesh Kumar are concerned, I find that though in the communication sent by the petitioner company on 13.04.2009, it was indicated that some deduction on account of brokerage may possibly be made, the precise amount which could possibly be deducted while making refund or even the basis on which it was to be calculated, was not indicated in the said mail. The aforesaid complainants wrote back to the petitioner company informing it that in the exit policy available on the website, there was no clarity in this regard. They also sought to know what kind of brokerage the petitioner company wanted to charge. The petitioner company did not respond to the aforesaid e-mail from the complainants and did not even convey the brokerage amount which it was seeking to deduct from the payment made by them. The petitioner company, in my opinion, ought to have communicated the brokerage amount which it was seeking to deduct while making refund to the aforesaid complainants besides giving name of the broker to whom the said brokerage was allegedly paid by it. That having not been done, the petitioner company was deficient in rendering services to the aforesaid complainants. Had the petitioner company conveyed the amount of brokerage to the complainants and had the complainants thereafter remained silent or accepted the proposed deduction, the petitioner company could have been justified in making the deduction which it actually made from the amount which the complainants had paid to it. But it is also equally possible that had the petitioner company conveyed the amount of brokerage which it was seeking to deduct, the complainants would have not sought the refund of the amount which they had paid to the petitioner company and would have continued with the booking made by them. In my opinion, the petitioner company could not have deducted a particular amount towards brokerage alleged to have been paid by it without conveying the exact amount or at least the basis of calculating the said brokerage to the complainants. That having not been done, the petitioner company was not entitled to make any deduction while refunding the amount which the complainants had paid to it. This is more so when there was no reference to any such deduction in the communication whereby the exit option was conveyed to the buyers and the said communication envisaged refund of the amount which the complainants had paid to it.

8.      For the reasons stated hereinabove, I find no merit in the revision petitions and the same are accordingly dismissed with no order as to costs.