JUDGMENT Per Justice Sham Sunder , President This appeal is directed against the order dated 5.4.2010 passed by District Consumer Disputes Redressal Forum-I, U.T.Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint and directed OP Nos.1 & 2 (now appellants) to refund the total amount of Rs.1,01,000/- (less already paid) alongwith interest @ 12% per annum, from the date of deposit till the entire amount was paid by the OPs to the complainant alongwith Rs.5,000/- as litigation costs. Since neither any deficiency in service had been alleged, nor any relief had been claimed against OP-3(now respondent NO.2), therefore, the District Forum dismissed the complaint against it. 2. The complainant applied for allotment of a category-I flat on 8.3.2009, in the scheme floated by OPs 1 & 2 at Banur, vide application Form No.960, as he was fully eligible to apply for the same. The total cost of the said flat, was shown to be Rs.20.18 lacs. Along with the application, the complainant deposited Rs.1,01,000/- by way of draft, being 5% of the initial deposit of the cost of category-I flat. The draw was held on 9.6.2009, but the complainant was not successful. Upon enquiry, he came to know that his name was placed at Sr.No.16 of the waiting list. It was stated that as per condition 2(f) of the brochure, the waiting list was valid for one year, from the date of closing of the scheme, and refund of the initial deposit was to be made within 90 days i.e. upto September 8, 2009. The complainant was in dire need of money, therefore, he approached the OPs and sought refund of the amount, vide request, which was received by the OPs on 20.7.2009. When he did not get the refund, he approached the OPs and also sent reminder dated 27.8.2009. He was astonished to know that he had already been allotted a flat, and the refund was being sent to his banker, after deducting 25% of the initial deposit. He made representation on 11.9.2009 for refund of the full amount, in terms of clause 2(f), but to no avail. It was stated that the OPs were, thus, deficient in rendering service and also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no other alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be referred to as the Act only) was filed by him. 3. In reply, OPs 1 & 2, admitted the material facts. It was, however, stated that when the complainant approached them on 20.7.2009, he had already been allotted category-I flat vide allotment letter No.4046 dated 8.7.2009, copy whereof was also sent to the State Bank of India, Main Branch, Sector 17B, Chandigarh, from where he had taken loan. Therefore, condition No.2(f) of the brochure was not applicable in this case. It was further stated that the amount of 25% was rightly deducted according to the terms and conditions, contained in the brochure, and the remaining refund was sent to the banker of the complainant. It was denied that on 20.7.2009 the complainant came to know that he was on the waiting list. It was also denied that the complainant came to know about the allotment of flat on 11.9.2009 only. It was further stated that the OPs were neither deficient in rendering service, nor did they indulge into unfair trade practice. The remaining averments, were denied, being wrong. 4. After hearing the Counsel for the parties, , and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the judgment. 5. Feeling aggrieved, the instant appeal, was filed by the Appellants/OPs . 6. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 7. The Counsel for the appellants, submitted that, no doubt, in the first draw of lots, the complainant was not successful. He further submitted that, however, as per the terms and conditions of the brochure, a waiting list was prepared which was to last for a period of one year. He further submitted that vide letter dated 8.7.2009, the complainant was allotted Flat No.960, being a candidate, in the waiting list and letter A-1, was sent to him, which was received back unclaimed. He further submitted that since the flat had already been allotted, to the complainant, before he moved an application for refund of the amount, on 20.7.09, it amounted to surrender of the same (flat), already allotted to him, and, as such, the appellants were entitled to deduct 25% amount from the initial deposit and repay the remaining amount. He further submitted that the District Forum did not take into consideration Clause-4 of the brochure C-1, placed on the file, and, thus, fell into an error, in coming to the conclusion that the complainant was entitled to the refund of the entire earnest money, deposited by him, as initial payment. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 8. On the other hand, the complainant/respondent in person submitted that he, for the first time, came to know on 11.9.2009 that a flat had been allotted to him. He further submitted that, no doubt, his name was in the waiting list. He further submitted that he had applied for refund of the full amount of earnest money, vide application C-3. He further submitted that he also sent reminder C-4 to the OPs, for refund of the amount. He further submitted that no Letter of Allotment was ever received by him and the report made on the envelope as unclaimed, was not correct. He further submitted that, in these circumstances, the District Forum was right in relying upon Sub-clause (f) of Clause(2) of the Terms and Conditions, contained in Brochure C-1. He further submitted that clause 4(b) of the said brochure did not apply to his case. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld. 9. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. C-1 is the brochure issued by OPs NO.1 & 2 regarding the scheme. The parties were bound by the terms and conditions, contained therein. It is an admitted case of the parties, that the complainant was not allotted the flat in the draw of lots. Thus, he was an unsuccessful bidder. His name was kept in the waiting list at Serial No.16. Clause 2(f) of the Terms & Conditions of the brochure C-1, reads as under ; “(f). A waiting list to the extent of 25% of the total number of flats in each category shall also be prepared which shall remain operative for a period of one year from the date of closing of the scheme. However the applicants on the waiting list can withdraw from the scheme at any time during the validity of waiting list and the amount of initial deposit shall be refunded in full without any interest within 30 days from the date of receipt of request application. If the validity of the waiting list has elapsed, every applicant on the said waiting list shall be given refund of initial deposit without any interest within 30-days of the expiry of the validity period.” 10. From bare reading of Clause 2(f) of the brochure, it is abundantly clear that the waiting list of 25% of the total number of flats, in each category, which was to be prepared, was to remain operative for a period of one year, from the date of closing of the scheme. It is also very much clear from the said Clause, that the applicants on the waiting list could withdraw from the scheme, at any time, during the validity of waiting list, and the amount of initial deposit in full was refundable , without any interest, within 30 days, from the date of receipt of the application. It also provides that if the validity of the waiting list had lapsed, the applicants on the said waiting list shall be given refund of the initial deposit, without any interest, within 30 days of the expiry of the validity period. It was, by virtue of Sub-clause(f) of Clause(2) of brochure C-1, that the complainant moved an application dated 20.7.2009 for refund of the amount. According to this clause, no amount could be deducted from the earnest money, deposited by the waiting list candidate. Under these circumstances, the District Forum was right, in holding that the deduction of 25% from the initial deposit of earnest money by the complainant with the OPs, was illegal, being contrary to Sub-Clause(f) of Clause(2) of brochure C-1. The District forum was also right, in holding that the said amount of Rs.25,000/- could be deducted only in respect of successful candidates, if they asked for refund of the same, and not in respect of the candidates whose names were appearing in the waiting list. 11. No doubt, reliance was placed by the OPs on R-1 allotment Letter dated 8.7.09 vide which the flat was allotted to the complainant. No fresh draw of lots was admittedly held. Under these circumstances, it is not clear, as to how on 8.7.09, a flat to the complainant, whose name figured in the waiting list, was allotted. Even the allotment letter which was allegedly sent by the OPs, to the complainant, was not received by him, but was returned undelivered. The complainant had already applied for refund of the amount on 20.7.09. OP No.3 in para-6 of its reply, admitted that it had received a copy of the letter dated 20.7.09, from the complainant. It was forwarded to OPs NO.1 & 2, for necessary action. Reliance by the OPs on clause 4(b) was, thus, misplaced. This Clause only related to the successful applicants, in the draw of lots. If any successful candidate, in the draw of lots, after deposit of earnest money, made a request for refund of the same, then according to Clause 4(b) of brochure C-1, 25% of the amount could be deducted. In the instant case, neither the complainant came to know about the allotment of flat, on 20.7.09, when he applied for the refund of the same, nor Clause 4(b) of the brochure C-1 was applicable to him. In these circumstances, no help could be drawn by the Counsel for the appellants, from Sub-Clause(b) of Clause(4) of the brochure. The District Forum was right in holding so. 12. In para-9 of its order, the District Forum was right in holding that according to Clause 8 of C-1, if the payment was delayed beyond the due date, interest would be charged @ 15% per annum on instalment for the delayed period. It was not mentioned in this clause that if the application of the applicant, who asked for the refund was not processed within 30 days from the date of receipt of the request, at what rate they would pay interest. The District Forum was, thus, right in holding by relying upon Clause 8, that the OPs were required to pay interest @ 12% on the delayed payment, to the complainant. The District Forum was right in holding that the OPs were deficient, in rendering service to the complainant. The order of the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 13. For the reasons recorded above, the appeal, being without merit, must fail, and the same is dismissed with costs quantified at Rs.3000/- 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 | , | |
