PER SHRI B.A.SHAIKH, HON’BLE JUDICIAL MEMBER.
1. Advocate R.S.Aahuja is present for the complainant. None is present for the opposite party. We have heard complainant’s Advocate finally to-day and perused the complaint and the documents filed in support of the complaint. It is seen that in pursuance of the notice served to the opposite party, Mr.Rewatkar, Authorised representative of the opposite party (for short O.P.) had appeared before this Commissiom on 09/02/2016 and filed power of his Advocate Mrs.Sandhya Dwivedi. Thereafter Advocate Mushayad Ali had appeared for the O.P. and he then filed power for O.P. on 23/03/2016. Thereafter on 28/07/2016 direction was given by this Commission to supply compilation of the complaint by Registered Post A/D to the O.P. The complaint was then adjourned till 18/08/2016. On 18/08/2016 the complainant’s Advocate filed a pursis alongwith copy of the track report obtained from India Post and submitted that he sent entire compilation of the complaint by Registered Post A/D to the O.P. and that O.P. received the same. He also submitted that additional entire compilation of the complaint has been also handed over by hand delivery to the O.P. He produced index of the compilation of the complaint showing the endorsement of the O.P. on it about acceptance of the compilation and further showing stamp of the O.P. Therefore we are satisfied that the compilation of the entire complaint has been already submitted by Registered Post A/D as well as by hand delivery to the O.P. The same were submitted before 18/08/2016 to the O.P. The O.P. has not filed written version and failed to appear, after last appearance on 09/02/2016.
2. Thus it is seen that the complaint as well as the documents filed on record by the complainant went un-challenged. The learned Advocate of the complainant submitted that the cause of action arose on 13/06/2014 when the complainant due to his inability to pay the balance installments of the price of the flat, issued letter to the O.P. for cancellation of the allotment. He thus submitted that the complainant which is thereafter filed on 19/08/2015 is within limitation. He also submitted that in clause No “D” of the allotment letter filed on record it is stated that on failure of the complainant to pay the balance amount, the O.P. will forfeit the earnest money and refund the balance money without interest but only out of the sale proceeds after re-allotting the said flat to the 3rd party and against such refund, the complainant shall have no claim against the O.P. inrespect of the flat. The learned Advocate of the complainant therefore submitted that as there is no mention of quantum of earnest money in that allotment letter and as there is no separte agreement, the O.P. does not have right to forfeit unquantified earnest money. He further submitted that the O.P. neither replied to the letter of cancellation given by the complainant nor appeared before this Commission to raise any defence in the present complaint. He therefore requested that at least actual amount of Rs.14,35,000/- paid by the complainant to the O.P. as seen from the receipts produced on record may be refunded without interest to the complainant.
3. We find that as the complaint and documents filed on record went unchallenged as above, there is no reason to disbelieve the same. The receipts produced on record shows that the complainant paid Rs.1 lakh on 23/09/2012, Rs.11,75,000/- on 05/11/2012 and Rs.1,60,000/- on 10/01/2013 to the O.P. towards the part of the price of the flat which was fixed at Rs.55,45,000/- There is no agreement of sale in writing. There is only allotment letter dated 10/12/2012 inrespect of the aforesaid contract. Its clause No. ‘D’ shows that in the event of failure of the complainant to pay installments as per that allotment letter, the O.P. will forfeit the earnest money and refund the balance amount without interest only after re-allotment of the flat to the 3rd party.
4. There is a reference of only 22 installments towards the price of the flat. The earnest money is not specified in that allotment letter. Therefore in the absence of any agreement about the earnest money, we find that the O.P. is not entitled to forfeit any unspecified earnest money from the aforesaid any amount paid by the complainant to the O.P. However, we find that the complainant is entitled to refund of the entire amount of Rs.14,35,000/- without interest, since there is no case of the O.P. before us as to whether the flat is re-allotted to 3rd party.
5. We also find that the complaint is within limitation as it is filed within two years from the date 13/06/2014 when the complainant issued letter of cancellation of the allotment to the O.P. The O.P. has neither replied said letter nor filed any written submission before this Commission. Therefore it can be presumed that O.P. had conceded for cancellation of the allotment, as per said letter dated 13/06/2014.
6. Thus we hold that as the O.P. failed to file written version despite of receiving entire compilation of complaint long back as discussed above, the relief as above deserves to be partly allowed.
// ORDER //
I The complaint is partly allowed.
II The opposite party is directed to refund the entire amount of
Rs.14,35,000/- to the complainant without any interest within the
period of one month from the receipt of copy of present order.
III No order as to costs in view of the aforesaid facts and circumstances.
IV. Copy of the order be furnished to both parties free of cost.
