Per Justice Sham Sunder , President This appeal is directed against the order dated 10.08.2011, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it dismissed the complaint of the complainants(now appellant). 2. The complainant booked apartment No. 234, A type category, first floor, in Block A-1, at Silver City Themes, with the OPs on 05.01.2006, and deposited a sum of Rs.2,08,500/-, as an earnest money, for which, a receipt of the even date, was issued in his favour. It was stated that due to personal reasons, the complainant was unable to make further payment of instalments. Therefore, he requested the OPs to cancel the allotment and refund him the amount deposited, on account of earnest money. On the asking of the OPs, the complainant deposited all the required documents alongwith receipt etc. with them, on 30.7.2008. He also visited the office of the OPs, a number of times, for the refund of earnest money, but all in vain. A legal notice was issued to the OPs on 20.04.2010, regarding the same, but no response was received. It was stated that the aforesaid acts of the OPs, amounted to deficiency, in service, and indulgence into unfair trade practice. When the grievance of the complainant, 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 him. 3. The District Forum came to the conclusion, after perusal of the record, that the complaint was baseless and had been filed just to harass the OPs. Accordingly, it was not admitted for regular hearing and was dismissed in limine. 4. Feeling aggrieved, the instant appeal has been filed, by the appellant/complainant. 5. None put in appearance, on behalf of the appellant/complainant on 6.12.2010, 8.3.2011 and 8.4.2011. Even, on 23.8.2011, when the appeal was fixed for arguments, none put in appearance, on behalf of the appellant. 6. We have heard the Counsel for the respondents, and have gone through the record of the case, carefully 7. The Counsel for the respondents, moved an application to produce on record, the documents R1 to R5 mentioned therein, by way of additional evidence. It was stated that the documents were essential for the just decision of the controversy, arising in the appeal. It was further stated that the complainant concealed the material facts, while filing the complaint. It was further stated that, in case, the application for placing on record the documents, aforesaid, by way of additional evidence, was not allowed, a great prejudice shall be caused to the respondents/OPs. 8. Since, the complaint was dismissed, in limine, without issuance of notice to the OPs(now respondents), the documents sought to be placed, on record, by way of additional evidence, could not be produced before the District Forum. The question arises, as to whether, these documents are essential for the just decision of the controversy, involved in the appeal or not ? Annexure R-1 is a copy of the application, for allotment of residential apartment, which was filed by the appellant/complainant alongwith schedule of payments annexure-II, R-2 is the reminder issued to the complainant, for making payment of instalments, which were due on 8.2.2006, 8.4.2006 and 8.8.2006, R-3 to R-5 are the receipts of courier regarding delivery of the letters, to the complainant. These documents could not possibly be fabricated later on. R-1, the application for allotment of residential apartment, bears the signatures of the complainant, with date as 5.1.2006. It means that the complainant, after accepting the terms and conditions thereof, signed the same. Annexure-II is the instalment payment schedule. In our considered opinion, it is a fit case, in which the application for additional evidence, should be allowed, as the documents, referred to above, are essential for the just decision of the appeal and to enable the Commission to pronounce the order, in a better manner. No prejudice shall occasion, to the appellant, in case, these documents are allowed to be placed, on record, by way of additional evidence. Accordingly, the application is allowed, and the documents R-1 to R-5, are taken on record. 9. Now coming to the appeal, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. C-1 is a copy of the receipt, regarding the payment of earnest money to the tune of Rs.2,08,500/-. This was duly signed by the authorized signatory of the respondents/OPs. On this document, there is an endorsement “received original receipt & affidavit”. Under the endorsement, the signatures of the complainant with date as 30.07.08 exist. C-2 is the affidavit, which was executed by the complainant. Admittedly, only the earnest money was deposited by the complainant, in this case, vide receipt, copy whereof is C-1. In para-2 of the complaint, it was admitted that, due to some personal reasons, the complainant could not make payment of instalments, as agreed to, between the parties. In this very receipt, there is an endorsement that, in case of non-payment of any instalment, by due date, money deposited shall stand forfeited & the proposed transaction shall be treated as cancelled. In the application form for allotment R-1, it was stated that in case of delay beyond 2 months, the amount already deposited, shall be forfeited, and the proposed transaction shall stand cancelled. As per clause-15 of the terms and conditions of this application, the allottee was to make all the payments, as per instalment plan, and no separate intimation, in regard, to the payment due, shall be sent to the allottee. Since, the complainant failed to deposit the instalments, as per schedule, and showed his inability to do so, there was breach of condition, referred to above, contained in C-1, copy of the receipt, as also R-1, copy of the application form, duly singed by the complainant and, as such, no alternative was left with the OPs, than to forfeit the amount of earnest money, already paid by him(complainant). In Haryana Urban Development Authority Vs. Wing Commander Ravinder Kumar Ahuja, III (2009) CPJ 138, the complainant surrendered the apartment, as he was not in a position to deposit 15% amount, towards the price of the plot, due to which, the allotment was cancelled and 10% of the earnest money, was forfeited, as per the policy of HUDA. The Haryana State Consumer Disputes Redressal Commission while referring to the cases Smt. Vijay Garg vs. Haryana Urban Development Authority, 2001 (3) RCR (Civ.) 293, Civil Writ Petition No.13951/2003 Naresh Kumar Solanki vs. Haryana Urban Development Authority and H.U.D.A and Another vs. Kewal Krishan Goel and Others, AIR 1996 SC 1981, in which similar controversy was involved, held that the forfeiture of 10% earnest money, towards the price of the plot, was justified, as per the policy of the Haryana Urban Development Authority. The District Forum was, thus, right in holding that the forfeiture of amount of earnest money, deposited by the complainant, and cancellation of the transaction, was validly made by the OPs/respondents. 10. The order rendered by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 11. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. 12. Certified Copies of this order be sent to the parties, free of charge. 13 The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
