Pronounced on:  04^th February 2020

ORDER

PER DR. S. M. KANTIKAR, PRESIDING MEMBER

1.     We heard the learned counsel for the revisionist builder co. and perused the record.

2.     The brief facts are that the builder co. took Rs. 3,92,400/- from the complainant towards a unit in its project, the complainant was not informed whether or not his application had been accepted by its Board of Directors, the amount deposited by the complainant was not refunded to him with or without interest.

3.     The District Forum appraised the evidence and vide its Order dated 14.07.2015 partly allowed the complaint:

The case of the complainant is that he is dentist by profession and he booked one unit for his clinic having super area of 218 sq.ft. covered area 130 sq.ft. @ Rs. 9000/- sq.ft. in the project of OP at Vardhaman Central Mall, LSC Plot, Nehru Vihar, Delhi. OP offered unit No. F- 230B to the complainant on the first floor of the aforesaid project. OP did not execute any agreement rather sought an application bearing No. 15037 from the complainant containing their own terms and conditions and received a sum of Rs. 1,96,200/-. It is stated that as per terms and conditions mentioned in the said application, OP was to execute an agreement which was subject to the confirmation by the Board of Directors and the said application also contained that Board of Directors reserves their right to reject the application without assigning any reason and in that event the amount was to be refunded. OP never conveyed the approval of the Board of Directors. On the contrary demanded further sum of Rs. 1,96,200/- which was paid vide receipt dated 25.4.2008. Thus in all complainant paid a sum of Rs. 392400/- to OP.

 It is further stated in the complaint that OP neither started the project nor gave any information in this regard, nor executed any agreement, nor intimated the confirmation of Board of Directors and still went on demanding further amount. It is further submitted that confirmation by Board of Directors can only be by Resolution of Board of Directors but no Resolution has been forwarded to the complainant till date nor any agreement has come into existence. In these circumstance complainant sent a letter dated 14.1.09 to OP demanding back the amount deposited alongwith interest. OP instead of returning the amount replied the said letter vide his letter dated 21.1.09 stating therein that they have intimated stage of construction and also called upon the complainant to sign the agreement. The said letter has been duly replied by complainant vide reply dated 11.2.09. Ultimately complainant sent a legal notice dated 09.6.09 demanding the refund of the amount but instead of refunding the amount OP has sent a reply dated 18.6.09.

- - -

The agreement was never executed between the parties. It is stated by counsel of OP that it is an admitted fact that the complainant has received a letter dated 23.4.08 whereby he has been asked to pay Rs. 392400/- by 10.5.08. Thereafter the complainant has paid a sum of Rs. 196200/- vide cheque dated 24.4.08 vide receipt dated 25.4.08. It is submitted by him that it was again stated in this letter if the complainant has not signed the agreement then he can sign the agreement. It is submitted by OP that the complainant cannot take advantage of his own wrong. It is true that the complainant after the receipt of this letter dated 23.4.08 deposited a sum of Rs. 196200/- . It is true that the complainant was called upon to sign the agreement vide letter dated 23.4.08. But the fact remains that in order to prove breach of terms and conditions of allotment, the onus was on OP that at the time of signing of application form the terms and conditions of allotment were brought to the notice of complainant. In fact in their application form it was stated that the agreement was to be executed subject to the confirmation by the Board of Directors of the said application. Complainant specifically stated that he has never received letter dated 25.3.08 nor till date the copy of resolution passed by the Board of Directors was conveyed to him.

 In fact the complainant has proved deficiency in service on the part of OP and hence OP is bound to refund the amount deposited by the complainant i.e. Rs. 392400/- alongwith interest @ 9 % p.a. from 01.5.08 till its recovery plus Rs. 3,000/- as compensation and Rs. 3,000/-  towards litigation expenses.

 (extracts from copy of the District Forum’s Order)

4.     The builder co. appealed in the State Commission. The State Commission also appraised the evidence and vide its impugned Order dated 28.01.2019 dismissed the appeal: 

14. Counsel for appellant relied up on decision in Subhag Naryana Mathew vs. Pragya Aggarwal 2007 (8) AD Delhi 386 to make out that simply because complainant pleaded that he did not receive the confirmation letter or that there was no concluded contract can not be accepted. It is not necessary to enter into the said controversy because I have already held above that letter dated 25.03.08 was received by the complainant / respondent herein.

15. Reliance on terms and condition no. 4 at page 67 of the bunch of appeal providing for forfeiture of 25 % of total cost is unfounded. Similarly the same clause providing that buyer will not be entitled to any interest on installment / payment made by the builder at any stage under any circumstance is against the public policy. A person can not use the money of another for a long period of 10 years and say that he is not liable to pay interest thereupon.

16. Reliance on decision in Sourabh Prakash vs. DLF Universal ltd. (2007) 1 SCC 228 to make out that developer has right to forfeit the earnest amount is unfounded. There is a difference between earnest money and the part payment of the sale price. In the instant case there is nothing to show that the amount paid by the respondent was earnest money. For the same reason reliance on Aswani Kapoor vs. Union of India 73 (1995) DLT 843 is of no help to the appellant.

17. As a result of the above discussion I find that appeal has no merit. The same is dismissed.

(extracts from the State Commission’s Order)

5.     The builder co. filed this instant revision petition under section 21 (b) of the Act 1986 challenging the said Order dated 28.01.2019 of the State Commission.

6.    We find the impugned Order of the State Commission to be well-appraised and well-reasoned. The State Commission has concurred with the findings of the District Forum. We note in particular the extracts of the respective appraisal / observations made by the two fora below, quoted, verbatim, in paras 3 and 4 above.

7.     Within the ambit and scope of section 21(b), we find no crucial error in appreciation of evidence, as may warrant re-appreciation afresh in revision.

8.     The award made by the District Forum, to refund the deposited amount of Rs. 3,92,400/- with interest at the rate of 9% per annum along with Rs. 3,000/- as compensation and Rs. 3,000/- as litigation expenses, and as affirmed by the State Commission, appears just and appropriate. (It belies equity and justice, that the builder co. can high-handedly and arbitrarily retain, indefinitely, the amount deposited by the complainant, without either making allotment or making refund with reasonable interest.)

9.     No jurisdictional error, or a legal principle ignored, or miscarriage of justice, is seen, as may require interference in exercise of the revisional jurisdiction of this Commission under section 21(b) of the Act 1986. 

10.           The revision petition, being totally misconceived and entirely devoid of merit, is dismissed.

11.  The builder co. shall forthwith comply with the award made by the District Forum vide its Order dated 14.07.2015, without further delay. In case of failure or omission in compliance, the District Forum shall undertake execution as per the law.

12.   A copy each of this Order be sent to the District Forum and to the complainant by the Registry within ten days.