JUSTICE V.K.JAIN (ORAL)

IA/940/2015 (C/DELAY OF DELAY)

For the reasons stated in the application, the delay of 23 days in filing the revision petition is condoned. The application stands disposed of.

RP/350/2015

2.      The complainant/petitioner booked a residential flat admeasuring 1110 sq.ft. with the respondent in a project, namely, TDI City at Kundli in District Sonepat of Haryana, making an initial payment of Rs.3 lakh on 26.2.2006 followed by payment of Rs.2,50,000/- on 29.9.2006. The grievance of the complainant is that no allotment was made to him despite the payment which he had already made. He, therefore, approached the concerned District Forum by way of a consumer complaint seeking possession of a residential flat in the above-referred project alongwith compensation etc.

2.      The complaint was not resisted by the respondent which did not come forward to file any written version.  The District Forum vide its order dated 30.10.2013 directed the respondent to refund the amount received from the complainant alongwith interest @ 9% p.a.

3.      Being aggrieved from the order passed by the District Forum, the complainant approached the concerned State Commission  by way of an appeal. Since there was a delay of 275 days in filing the appeal, an application seeking condonation of delay of the said delay was also filed. The appeal preferred by the petitioner was dismissed by the State Commission as barred by limitation as well as on merits. Being aggrieved, the petitioner/complainant is before this Commission.

4.      As noted earlier, the respondent did not come forward to contest the consumer complaint before the District Forum. Admittedly, the order passed by the District Forum directing refund with interest @ 9% p.a. was also not challenged by the respondent. It was the petitioner alone who challenged the order passed by the District Forum since he wanted possession of the flat and not refund of the amount which he had paid to the respondent.

5.      The learned counsel for the petitioner / complainant states that though the complainant / petitioner was agitating for the possession of the flat, he will be satisfied if the interest awarded by the Fora below is enhanced to the agreed rate of interest @ 12% p.a.

6.      The learned counsel for the complainant / petitioner has drawn my attention to the application which he had submitted for allotment of a residential flat in this project. Clause (c) of the application reads as under:-

“That in the-event, offer of provisional allotment for a residential flat is made after six months, a simple interest @12% per annum shall be paid to me/us for the period beyond six months on the amount paid by me/us from encashment of  application money up to the date the offer of provisional allotment is made.”

7.      It would thus be seen that interest @ 12% p.a. was payable to the complainant / petitioner was payable to the complainant if provisional allotment was made to him after six months and such interest was payable w.e.f. six months after encashment of the application money till the offer of provisional allotment. The same in my view would be the position, if no allotment at all is made. A person who is denied allotment cannot be worse than a person with delayed allotment.

8.      The learned counsel for the respondent has drawn my attention to the letter dated 9.3.2007 sent by them to the complainant which to the extent it is relevant, reads as under:-

“With reference to your registration for a residential flat "Kingsbury Apartments", at TDI City Kundli, we invite you to visit us and choose a flat(s) of your choice before March 17th 2007.

In case you opt for a preferential location, i.e. First, Second or Third floor, 5% of basic value will be charged as PLC towards the same, subject to availability. .

Please note that the allottnent of flat(s) shall be done by the Management if we do not receive any request for priority from your side till above mentioned date.”

 9.     The submission of the learned counsel is that it was for the complainant to come forward to opt for a flat of his choice. The above-referred letter would show that if the complainant did not come forward to opt for a flat of his choice, the respondent was to make allotment of its own in case no such choice is exercised before 17.3.2007. There is no evidence of any allotment at all having been made to the complainant even after 17.3.2007. Though the learned counsel for the respondent submits that as per the instructions received by her from the respondent, they had made allotment  in the year 2006 itself, there is no evidence on record to substantiate  the said averment, the respondent having not contested the consumer complaint and having not filed any document. The case of the petitioner in the consumer complaint, however, was that no allotment had been made to him. Therefore, it would be difficult to accept at this stage that a specific flat was actually allotted to the complainant in the year 2006 as is submitted by the learned counsel for the respondent.

10.    Since the respondent failed to make any allotment to the complainant, the complainant is entitled either to allotment of a suitable flat in the above-referred project or to the refund of the amount which he had paid to the respondent with interest. The interest awarded by the Fora below requires the respondent to refund the amount received from the complainant with interest @ 9% p.a. The learned counsel for the complainant / petitioner having taken instructions from the complainant / petitioner submits   that the complainant / petitioner now wants refund of the amount which he had paid to the complainant alongwith agreed interest of @ 12% p.a.

11.    For the reasons stated hereinabove and also considering the grounds given in the application seeking condonation of delay in filing the appeal before the State Commission,  the delay in filing the appeal before the State Commission  is condoned and the order passed by the Fora below is modified to the extent that the respondent shall refund the entire principal amount received from the complainant to him within three months from today alongwith compensation in the form of simple interest @ 12% p.a. w.e.f. six months from the date of realization of the first cheque on the amount of Rs.3 lakh and w.e.f. the date of realization of the second cheque on the balance amount of Rs.2,50,000/-.

12.    The learned counsel for the respondent submits on instructions that the respondent is ready to give possession of a flat in this very project to the complainant with lump sum compensation of Rs.2 lakh or in the alternative to make refund in terms of the order passed by the Fora below. The parties are, therefore, given liberty to explore the possibility of the respondent delivering possession of a suitable flat to the complainant / petitioner on mutual acceptable terms. If such a settlement is reached, they shall comply with the said settlement instead of complying with this order. The revision petition stands disposed of.