ORDER

(Per: Mrs. Veena Sharma, Member):

This is an appeal under Section 15 of the Consumer Protection Act, 1986, filed by the appellant-opposite party against the order dated 09.03.2011 passed by the District Forum, Haridwar in consumer complaint No. 221 of 2010.  By the impugned order, the District Forum has allowed the consumer complaint and directed the opposite party to pay Rs. 50,000/- to the complainant, within a month from the date of order.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Smt. Mohini Arora is a retired school teacher and after retirement she needs a flat to live, for which she deposited Rs. 50,000/- with the opposite party-The Vardhman Developers, Haridwar Delhi Road, Jwalapur to book two bed room flat in Rishabh Towers, Multi Story Building at Haridwar on 13.06.2009 vide receipt No. TVD/RT/G-116.  The opposite party assured the complainant that they will give the possession of the flat till 31.12.2009, but the same was not done.  So that the complainant requested the opposite party to refund the booking amount, but they refused to refund the said amount.  After several requests, the opposite party sent a letter No. TVD/GM/SASE on 07.10.2009 to the complainant that she should give an application attested by the Notary to the opposite party for refunding the booking amount. In this regard, the complainant sent a Notarized letter dated 11.11.2009 to the opposite party, but the opposite party did not fulfill its commitment.  Alleging deficiency in service on the part of the opposite party, the complainant filed the consumer complaint before the District Forum, Haridwar.

3.       The opposite party has filed the written statement before the District Forum and admitted that the complainant had booked two bed room flat from The Vardhman Developers-opposite party.  The total cost of the said two bed room flat was Rs. 17,15,400/- and as a booking amount, the complainant has deposited Rs. 50,000/- only.  The opposite party assured the complainant to give possession of that flat within 24 months. The complainant has filed the consumer complaint, before the said time limit. 

4.       The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide order dated 09.03.2011 in the above terms.  Aggrieved by the said order, the opposite party has filed this appeal.

5.       We have heard learned counsel for the parties and have also perused the material placed on record in the light of the facts of the case. 

6.       Learned counsel for the appellant- opposite party argued that the appellant has rightly not refunded the booking amount because the agreement between the complainant  and  opposite  party was made  for the  period of 24 months.  The complainant, before the said time limit, was asking for the possession of the flat, which was not correct.  The complainant has deposited only Rs. 50,000/-, while according to the agreement 15% of the earnest money should be deposited.  The respondent is an educated lady and she also understands the terms and conditions of the agreement, but she did not follow the terms and conditions of the agreement.  In support of the argument, the learned counsel for the appellant has invited our attention on para No. 9 of the terms and conditions alongwith the application form, which reads as under:-

“9. The Intending Allottee(s) ( s) hereby authorize the TVD to cancel the booking and forfeit the earnest money all together.  In case of non-fulfillment of all or any term and condition herein contained and in this agreement as also in the event of delay of more than 7 days in payment of any demand or failure to make payment by Intending Allottee(s) ( s) or to sign the Flat/House(s) (Villa(s) Buyers Agreement within thirty (30) days from the date given by the TVD.”

7.       As per the above mentioned para of the terms and conditions, the opposite party has not refunded the booking amount. 

8.       Learned counsel for the respondent submitted his oral submissions that after retirement, respondent was in need of flat, for which she deposited Rs. 50,000/- with the opposite party as booking amount for two bedroom flat.  But after a long time of period of 10 months, the opposite party has not started the construction work. So that the complainant-respondent was not interested to take the flat. For the aforesaid reasons, the complainant demanded her booking amount.

9.       There is no dispute between the parties regarding the booking of the flat.  There is also no dispute that instead of payment of 15% of the total sum, the respondent had deposited only Rs. 50,000/- with the appellant.  According to the Payment Plans, attached with the agreement, the allottee has to pay 15% of the total sum.  Therefore, it is clear that this is a breach of terms and conditions of the said Payment Plans.  The only dispute is in regard to the earnest money, which was deposited by the respondent. It shows that the terms and conditions of the agreement were not complied by the parties. Both the parties have violated the terms and conditions of the agreement, so that the appellant cannot take the benefit by not refunding the booking amount.

10.     The District Forum has properly considered all the facts and circumstances of the case and has rightly allowed the consumer complaint No. 221 of 2010 vide impugned order dated 09.03.2011, which does not suffer from any infirmity or illegality and is fit to be upheld.  The appeal lacks merit and is liable to be dismissed.

11.     For the reasons aforesaid, the appeal is dismissed.  No order as to costs.

(MRS. VEENA SHARMA)                              (D.K. TYAGI)                              (JUSTICE B.C. KANDPAL)