Per Justice Sham Sunder , President This appeal is directed against the order dated 5.5.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T.Chandigarh (hereinafter to be referred as the District Forum only), vide which it partly accepted the complaint with costs of Rs.7000/- and directed the OPs to refund to the complainants a sum of Rs.4,21,360/- (Rs.3,15,348/- + Rs.1,06,012) alongwith interest @ 9% per annum from the date of refund i.e. 23.4.2010 till actual realization. The OPs were jointly and severally directed to comply with the order within 30 days of the receipt of a certified copy, failing which the OPs were liable to pay the aforesaid amount with interest @ 18% p.a. from the date of filing the complaint i.e. 29.7.2010 till the date of actual payment. 2. The complainants(now appellants) entered into an agreement with the OPs (now respondents) for the purchase of a Flat at Gurgaon for a total consideration of Rs.98,53,380/-. Initially, the complainants paid a sum of Rs.10 Lacs towards the booking of said flat vide receipt dated 8.10.2007 annexure C-1. An agreement dated 9.2.2008 annexure C-6 was also entered into between the parties. The complainants were asked to make payments as per schedule. The complainants paid Rs.one Lac towards 2nd installment on 3.9.2008 vide annexure C-7, Rs.9,06,338/- towards 3rd installment on 3.9.2008 vide annexure C-8, and Rs.3,53,169/- on 25.3.2009 vide annexure C-9. Another sum of Rs.1 Lac was paid on 8.4.2009 vide annexure C-10. In all, the complainants, deposited a total sum of Rs.36,25,352/- with the OPs towards the part price of the flat aforesaid. It was stated that, on account of, financial constraints, the complainants were not able to purchase the said flat. They requested the OPs to allot them an alternative flat of lesser value, but their request was not acceded to. Instead, they were directed by the OPs to surrender the flat and give in writing that they would accept the surrender value, after deduction of 10% of the amount deposited, which was done by the complainants vide letter dated 14.9.2009 annexure C-11. It was further stated that there was no clause in the agreement authorizing the OPs to deduct 10% of the deposited amount, in case, buyers request for surrender of the flat. It was further stated that the complainants were surprised when they received only a sum of Rs.22,18,654/- against the deposited amount of Rs.36,25,352/-. The amount was accepted under protest at the time of signing the full and final settlement letter, annexure C-15. Thereafter, the complainants wrote to the OPs that since the amount deposited was not as per the conditions of the agreement, they were not justified in making any deduction. It was further stated that the deduction of Rs.14,06,698/- was, thus, completely illegal and wrong. It was further stated that the OPs were, thus, deficient, in rendering service and also indulged into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only) was filed by them . 3. In the joint written statement, filed by the OPs, it was pleaded that the District Forum at Chandigarh had no jurisdiction to entertain and try the complaint. It was stated that neither the flat, in question, was purchased by the complainants at Chandigarh, nor various payments made to the OPs were sent from Chandigarh. It was further stated that even the drafts were not prepared at Chandigarh. It was further stated that even the agreement was executed at Delhi. It was admitted that the complainants entered into an agreement with the OPs for purchase of the flat at Gurgaon for a consideration of Rs.98,53,380/-. It was also admitted that a sum of Rs.36,25,352/-, being part payment of the price of the flat, was deposited by the complainants in instalments. It was denied that the complainants requested for allotment of a flat of lesser cost. It was denied that the complainants were asked by the OPs to give, in writing, to accept the surrender value, after deducting 10% of the basic price . It was, however, stated that the complainants gave written consent dated 14.9.2009 annexure OP-4 for accepting the surrender value, after deduction of 10% of the basic price of the flat, as per the terms and conditions of the agreement. This request was accepted by the OPs vide OP-8 dated 24.4.2010.It was further stated that the forfeiture of 10% of the basic price was voluntarily accepted, at the time of surrender of flat by the complainants, without any pressure. It was further stated that the complainants received an amount of Rs.22,18,654/- vide cheque dated 24.4.2010 without any protest, in full and final settlement. It was further stated that since the complainants, to whom the flat was allotted, were unable to perform their part of the obligation, in fulfillment of the terms and conditions of the agreement, the OPs were entitled to deduct 10% amount of the basic price, at the time of surrender. It was denied that the OPs were deficient, in rendering service or indulged into unfair trade practice. The remaining averments were denied, being wrong. 4. The parties led evidence, in support of their case. 5. After hearing the Counsel for the parties, and, on going through the record, the District Forum partly accepted the complaint, while ordering refund of Rs.4,21,360/- (Rs.3,15,348/- as brokerage + Rs.1,006,012/- as interest on delayed payment alongwith interest @ 9% p.a.). The complaint with regard to remaining reliefs was, however, not allowed. 6. Feeling aggrieved against the order of the District Forum, vide which refund of 10% of the basic price was declined, the instant appeal was filed, by the appellants/complainants. 7. We have heard the Counsel for the appellants, and have gone through the record of the case, carefully. 8. The Counsel for appellants, submitted that, the OPs were not entitled to deduct 10% of the basic price of the flat, at the time of refund of the remaining amount. He, however, submitted that, no doubt, the complainants were in financial constraints and, therefore, were unable to pay the remaining price of the flat, and that was why they asked for the refund of the amount deposited. He further submitted that clause 1.2(i) of the agreement C-6, was not applicable to the instant case, but the District Forum was wrong in applying the same. He further submitted that the order of the District Forum declining the refund of 10% of the basic price, deducted by the OPs, being illegal, is liable to be set aside. 9. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, in our considered opinion, the appeal is liable to be dismissed, for the reasons, to be recorded hereinafter. The short question, that falls for consideration is, as to whether the OPs/respondents, were entitled to deduct 10% of the basic sale price, at the time of refund of the remaining amount, deposited by the complainants, towards part price of the flat, especially when they themselves made a request for surrender of the same due to financial constraints. Admittedly, annexure C-6, an agreement was executed between the parties. The terms and conditions of the agreement were binding between the parties. In other words, the parties were governed by the terms and conditions of this document. C-2 is the letter, vide which Apartment No.M-50 in Palm Drive,Sector-66, Gurgaon was allotted to the complainants. Undoubtedly, a sum of Rs.36,25,352/- was deposited by the complainant towards the part price of the flat. Since, the complainants were in financial constraints, they wrote a letter dated 14.9.2009, copy whereof is annexure C-11 to the OPs, in this letter, the complainants in clear-cut terms, stated that they were surrendering the apartment, allotted to them. They also stated in this letter that the OPs could deduct 10% of the basic price and refund the remaining amount. OP-6 is the approval which was accorded by the OPs, for refund of the amount, subject to deduction of 10% of the basic price, as per forfeiture clause. OP-8 is the letter which was written by the OPs to the complainants, that on receiving a sum of Rs.22,18,654/-, after deduction of 10% of the basic price, in full and final settlement of their claim, they shall have no claim of any nature, whatsoever, against the company. OP-9 is the copy of the cheque in the sum of Rs.22,18,654/- which was accepted by Sh.Amarbir Singh Dhaliwal, one of the complainants, out of the amount, deposited by them. At the time of receiving this amount, the complainants did not raise any objection that they were receiving the same, under protest, and that the OPs were not liable to deduct 10% of the basic price. Clauses 1.2(1)(i), (ii) and (iii) of the agreement C-6 read as under ; “Earnest Money: (i) The Apartment Allottee understands and agrees that payment of earnest money is to ensure the fulfillment of terms and conditions of the Agreement. Out of the amount(s) paid/payable by Apartment Allottee towards the Sale Price, the Company shall treat 10% of the Sale Price as earnest money (hereinafter referred to as the “Earnest Money”) to ensure fulfillment of the terms and conditions as contained in the application and this Agreement, by the Apartment Allottee(s).” (ii)The Apartment Allottee hereby agrees that the Company shall have the right to forfeit out of the amounts paid/payable by him/her/them/it, the Earnest Money with the processing fee, any interest paid, due or payable, any other amount of a non-refundable nature including brokerage paid by the Company to the brokers (in case of booking done through a broker) in the event of the failure of the Apartment Allottee to perform his/her/their obligation or non-fulfillment of all/any of the terms and conditions set out in this Agreement executed by the Apartment Allottee or in the event of failure of the Apartment Allottee to sign and return this Agreement in its original form to the Company within thirty(30) days from the date of its despatch by the Company. (iii)The Apartment Allottee(s) agrees that the conditions for forfeiture of Earnest Money with the processing fee, any interest paid, due or payable, any other amount of a non-refundable nature including brokerage paid by the Company to the brokers (in case of booking done through a broker) shall remain valid and effective till the execution and registration of the conveyance deed for the said Apartment/Villa/Penthouse and that the Apartment Allottee hereby authorizes the Company to effect such forfeiture without any notice to the Apartment Allottee and the Apartment Allottee has agreed to this condition to indicate his/her/their/its commitment to faithfully fulfill all the terms and conditions contained in his/her application and this Agreement.” 10. The combined reading of the aforesaid clauses goes to show that the same are unambiguous and clear. It is evident from the aforesaid clauses that the allottees/complainants, had agreed to the right of the company to deduct 10% of the basic sale price (earnest money), in case of non-fulfillment of the terms and conditions, contained in the agreement. In the instant case, the complainants did not fulfill the terms and conditions of the agreement, as they stopped making payment of the remaining price of the flat, on account of their financial constraints. Since, they violated the terms and conditions of the agreement, and requested for the surrender of the flat, and refund of the remaining amount, after deduction of 10% of the basic price (earnest money), there was no option with the OPs not to do so. According to the aforesaid clauses, the OPs were competent to deduct 10% of the basic price, and refund the remaining amount, already deposited by the complainants. Once, the complainants received the amount, in full and final settlement, without any protest, and in terms of clauses 1.2(i),(ii) and (iii) of the aforesaid agreement they cannot be heard to say that 10% amount was wrongly deducted. The forfeiture of 10% of the sale price, therefore, could not be said to be illegal on the part of the OPs.. Even in H.U.D.A & Anr. Vs Kewal Krishan Goel & Ors., 1996 AIR 1981, the principle of law, laid down by the Apex Court was as under ; “This being the legal position and the allotee having accepted the allotment and having made some payment on instalment basis then made the request to surrender the land, has committed default on his part and therefore the competent authority would be fully justified in forfeiting the earnest money which had been deposited and not the 10% of the amount deposited as held by the High Court. The High Court was totally in error in issuing the direction in question on the ground that the respondents were not in a position to deliver the possession of the land to the allotee. lt may be stated that in the letter of allotment no period was stipulated within which the possession of the land was to be delivered. The land in question was required to be developed and then to be delivered and in absence of any period in the letter of allotment, it was required to be delivered', within a reasonable period. In the facts and circumstances. It cannot be said that the reasonability had lapsed particularly when the allotees had not paid up the entire instalments due and merely paid a part thereof. In the premises as aforesaid the impugned judgment and directions of the High Court in each of the appeal are set aside and it is held that the appellant would be entitled to forfeit the earnest money which had been deposited along with the application form and on deducting the said 'earnest' the balance amount may be refunded to the allotees – respondents, who had made application for refund in question. The appeals are allowed to the extent indicated above, but in the circumstances there will be no order as to costs.” 11. The ratio of the law, laid down, in the aforesaid case, is fully applicable to the facts of the present case. Under these circumstances, there was neither any deficiency, in service, on the part of the OPs, nor they indulged into unfair trade practice. 12. The order rendered by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission and the same is liable to be upheld. 13. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs, quantified at Rs.3000/- . The impugned order is upheld. 14. Certified Copies of this order be sent to the parties, free of charge. 15. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
