Appellants/Complainants being aggrieved by order dated 27.11.2013 passed by State Consumer Disputes Redressal Commission, UT Chandigarh         (for short, ‘State Commission) in Consumer Complaint No.62 of 2013 have filed the present first appeal.

2.       Appellants’ case is that in the year 2010, Respondent/Opposite Party advertised plots situated within the revenue estate of Mullanpur, LPA (GMADA) District SAS Nagar, Punjab. It was stated that  representative/official of the respondent, assured the appellants that all work of the project, including clear demarcation of plots, would be completed, before handing over the allotment letter. It was further stated that the appellants jointly booked one plot measuring 300 sq. yards @ Rs.18,000/- per sq. yard (including EDC & IDC) and also deposited 25% of the total cost of the plot, which was Rs.13,50,000/- on 6.12.2010. Further, the appellants deposited the next installment of 15% of Rs.8,10,000/- on 29.6.2011. It was further stated that appellant no.1 was intimated the date of draw of lots being 12.12.2011. Appellant no.1 was provisionally allotted plot no.903 measuring 301 sq. yards, vide letter dated 12.12.2011. It was further stated that appellants received letter dated 5.1.2012 from the respondent, asking them to pay next installment of 10% of the total cost, which was replied to by them vide letter dated 6.2.2012. It was further stated that instead of carrying out any development at the site, respondent sent reminders dated 23.2.2012, 13.3.2012, 1.5.2012, 14.6.2012 and 11.7.2012, which were replied to by the appellants. Thereafter, appellants again received demand letter dated 27.8.2012 whereby respondent had threatened to levy penalty @ 18% to 24% per annum in case of delay in the said payment. It was further stated that the sole intention of respondent was to grab money of the appellants and development of the site was not at all on its agenda. It was further stated that the respondent did not even fulfill the mandatory requirements, which must be completed before the development work could commence at the site. The appellants sent a detailed reply dated 30.9.2012 whereby respondent was requested to return the amount alongwith interest @ 24% per annum or to develop the site and accept the installments without interest because of delay, on the part of the respondent itself. Thereafter, respondent sent demand letter dated 26.9.2012 whereby it threatened to cancel the allotment of the plot, on failure to deposit the requisite amount, which was duly replied by the appellants vide letter dated 5.10.2012.It was further stated that despite the fact that a period of 18 months for handing over the possession from the date of signing of allotment letter lapsed on 12.5.2013, still there was no development at the site. It was further stated that appellants were facing hard time as their hard earned money including retiral benefits were deposited with the respondent. The appellants wrote letter dated 2.4.2013 to the respondent, seeking refund of the amount, deposited by them with it alongwith interest @ 24% per annum but it did not reply to the same. It was further stated that the cause of action was a continuing one, as the delivery of plot was still not given nor any development made at the site. It was further stated that the aforesaid acts of omission and commission of the respondent amounted to the deficiency in service, and unfair trade practice, on the part of the respondent. When the grievance of the appellants was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (for short as ‘Áct’) was filed seeking directions to the respondent to refund the amount deposited by the appellants, alongwith interest @ 24% p.a. or carry out development in a time bound manner and fix the date of possession; pay Rs.50,000/- as compensation towards mental agony and physical harassment besides costs of litigation.

3.       Respondent in its written statement has admitted the factum of receipt of initial deposit, issuing of allotment letter, in favour of the appellants from time to time. It was further stated that appellants, despite demands being raised by the respondent, failed to pay even a single penny thereafter. It was further stated that the payment plan chosen by the appellants was Time Linked Payment Plan and as such they were duty bound to pay the installments, in time. However, appellants failed to adhere to the said plan and were informed vide letter dated 11.7.2012, that the timely payment of installments was the essence of contract. It was further stated that had the installments been paid in time, the appellants would have full authority to question the progress of the project, in question. It was further stated that  appellants were adamant in not paying any installment and kept on sending uncalled for and unreasonable replies/representations. It was further stated that the progress of project at the site, was based upon compliance of formalities by the appellants. Thus, appellants were not entitled to any interest on the amount, as delay if any, could only be attributed to them. It was further stated that payment plan/estimated time of possession i.e. 18 months was a matter of record and appellants could not be allowed to raise hue and cry regarding the same. It was further stated that the respondent was facing hard time by allotting the unit to the appellants who failed to pay even a single penny. It was further stated that act of the appellants in not taking payment of installment led to failure/delay of the project of the respondent. It was further stated that since appellants themselves did not come forward tomake the payment of installments, therefore, the question of delivery of plot did not arise. It was further stated that neither there was any deficiency, in rendering service nor indulgence into unfair trade practice, on the part of the respondent.

4.       The State Commission after going through the evidence and after hearing the parties, partly accepted the complaint and passed the following directions;

“i.     Opposite Party is directed to refund the amount of Rs.21,60,000/- to the complainants, within one month, from the date of receipt of a certified copy of this order.

ii.      Opposite party is directed to pay cost of litigation, to the tune of Rs.10,000/- to the complainants.

iii.      In case the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Party shall be liable to pay the said amount, with interest @ 9% per annum, from the respective dates of deposit, till realization besides payment of costs, to the tune of Rs.10,000/-.”

5.  Not satisfied with the relief granted by the State Commission, appellants have filed this appeal.

6.  We have heard the ld. Counsel for the appellants and gone through the record.

7. It has been contended by ld. Counsel that respondent misled the appellants and which amounted to indulgence into unfair trade practices on its part.

8.       It is further submitted that State Commission failed to take notice of the fact, that respondent was illegally demanding interest ranging between 18% to 24%, in case of default made by the appellants. However, in case of default being committed on its own part, there will be no interest.

9.    State Commission in its impugned order has observed;”

       “10.   It is evident that the complainants paid the following amounts against the payment schedule:-

11.   No doubt, the complainants paid the second installment viz. Rs.8.10,000/- on 28.6.2011, even before the due date of 12.12.2011 i.e. the date on which they were issued allotment letter, but they did not make any payment against the next three installments, payment of which was to be made by 10.02.2012, 10.4.2012 and 09.07.2012 respectively. No specific date for payment of subsequent installments had been indicated in the intimation letters/installment schedule, as extracted above.

12.  Clause of the “Basic Terms and Conditions of the application form is extracted below:-

     “Timely payment of installments of basic sale price and allied charges pertaining to Residential Plot is the essence of the terms of the booking/allotment. However, in the event of breach of any of the Terms and Conditions of the allotment by the applicant/allottee, the allotment will be cancelled at the discretion of the company and the aforesaid earnest money together with any brokerage, interest on installments due but unpaid and interest on delayed payments shall stand forfeited. The balance amount shall be refundable to the applicant/allottee without any interest, after the said residential plot is allotted to some other intending allottee and after compliance of certain formalities by the allottee. Further, if any discounts/concessions have been given by the company in the basic sale price/in the payment terms to the buyer(s) hereby authorize the company to withdraw such discount/concession and demand the payment of such discount/concession amount as a part of sale consideration amount which the allottee hereby agree to pay immediately. The company in its absolute discretion may condone  the delay by charging penal interest @ 18% per annum for up to one month delay from the due date of payment and @ 24% per annum thereafter on all outstanding dues from their respective due dates.”

13.  The various averments of the complainants that the site was not developed, and the Opposite Party did not have the necessary approvals and permissions, have not been convincingly rebutted by the Opposite party, by producing any cogent evidence. Even while replying vide letter dated 11.7.2012 to the complainant’ communication dated 5.7.2012 wherein they (complainants) pointed out non-earmarking of plot number and non-development of the area. The Opposite Party, chose to remain silent on the issues raised by them (complainants) but referring to clause 6 of the basic terms and conditions pointed out that timely payment of installments of basic sale price, and allied charges pertaining to the residential plot in question, was the essence of the terms of the booking/allotment and the complainants were deficient in not making payment. Notwithstanding non-payment of some installments, the complainants had a right, and, the Opposite Party was duty bond to apprise the status of development etc. to the complainants, who despite depositing their hard earned money to the extent of Rs.21.60 lacs, were kept in lurch by the Opposite Party, which was not coming forward to throw any light on the issues raised. The complainants in Para 7 of the complaint averred that there was clear deficiency in service, on the part of the Opposite Party, as it failed to fulfill its commitment of delivery of plot as promised. In reply, the Opposite Party in Para 7, submitted that the question of delivery of plot, a promised, would arise only after the payment of due installments by the complainants. In para 10, the Opposite Party again stated that no cause of action accrued, in favour of the complainants, as they themselves defaulted. Without adducing any evidence that the area was developed, the Opposite Party had simply stated that the complainants could not be allowed to question the same without paying the installments. The Opposite Party could be said to be in possession of the best evidence to prove whether it had the necessary approval and permissions of the Competent Authority before undertaking the development of the project, wherein the plot was allotted to the complainants. They, however, failed to produce such primary evidence, in the shape of documents. In the absence of production of documentary evidence, by the Opposite Party, that it had all the necessary approvals and permissions before undertaking the development of the project, an adverse inference could be drawn against it that it had no permissions or approvals. Thus, the Opposite Party, misled the complainants, which amounted to indulgence into unfair trade practice on its part. The fact that the Opposite Party had not cancelled the allotment despite the complainants being defaulters, indicates that the Opposite Party has not yet developed the site and, as such, not in a position to deliver the possession.

14.   The facts of the case titled as Ánsal Properties & Infrastructure Ltd., New Delhi and Anr. Vs. InduDhirW/oShri R.K. Dhir (supra) are distinguishable from the facts of the instant case. In that case, there was no dispute with regard to necessary approvals and permissions having been taken by the Opposite Party. Not only this, the Opposite Party, in that case, had cancelled the allotment. In the instant case, the allotment has not been cancelled, and, non-production of cogent evidence by the Opposite Party and non-cancellation of allotment fortifies the contention of complainants that the area has not been developed. No help, therefore, can be drawn by the Counsel for the Opposite Party from the aforesaid case.

15.    However, the fact that complainants also defaulted in making the payment of three installments, cannot be over-looked. The complainants were, thus, also at fault. In the face of circumstances aforesaid, we are of the considered opinion, that the complainants are entitled to refund of amount of Rs.21.60 lacs deposited by them with the Opposite Party, but since they also defaulted in adhering to the instalments Payment Plan, we do not deem it appropriate, either to allow them, any interest, on the said amount or compensation.”

10.    It is an admitted fact that both parties are at fault in this case. As per above findings of the State Commission, admittedly the respondent had not developed the site and was not in a position to deliver the possession. Be that as it may, the appellants also in this case were defaulters. When appellants themselves were the defaulters, therefore under such circumstances, they are not entitled for any interest. On this issue, we are in full agreement with the reasonings given by the State Commission.

11.    Accordingly, we do not find any infirmity or ambiguity in the impugned order passed by the State Commission. Hence, the appeal stand dismissed.

12.    No order as to costs.                                                                        

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     (V.B. GUPTA,J)

      PRESIDING MEMBER

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     (VINAY KUMAR)

     MEMBER