ORDER (ORAL) This Appeal has been filed by Godrej Projects Development Ltd., which was Opposite Party before the State Commission, (hereinafter referred to as “the Builder) against the order dated 06.02.2018 of State Consumer Disputes Redressal Commission Haryana (for short “the State Commission’) in Complaint No.798 of 2017 filed by the Respondent (hereinafter referred to as “the Complainant”). -2- 2. The State Commission had earlier disposed of this Complaint No.798 of 2017 vide its order dated 01.08.2017 whereby it had allowed the Complaint. The Builder challenged the said order by way of First Appeal No.2030 of 2017 before this Commission and this Commission while allowing the said Appeal vide its order dated 17.11.2017 remanded the matter back to the State Commission giving opportunity to the parties to file written arguments and directed the State Commission to hear the matter afresh and decide the same. 3. Both the parties filed their written arguments before the State Commission. After hearing the parties and perusing the record, the State Commission passed the impugned order dated 06.02.2018 whereby it had again allowed the Complaint and directed refund of earnest money to the Complainant along with interest @ 12% p.a. from the date of respective deposits till the date of realization. Compensation to the tune of ₹25,000/- was also awarded for rendering deficient services and ₹11,000/- towards litigation expenses. Aggrieved by this order, the present Appeal has been filed by the Builder. 4. The brief admitted facts of the case are that on 10.09.2012, the Complainant had booked an apartment with the Builder. The -3- basic sale price of the apartment was ₹67,25,700/-. He was allotted apartment No.G0107, Tower-G, 1st Floor, Godrej Summit, Sector 104, Gurgaon. Apartment Buyer’s Agreement dated 22.04.2013 was executed. The Complainant had paid only a sum of ₹20,80,057.83ps. to the Builder as per the statement of account. 5. As per the Complainant, he had informed the Builder about the change of his address from Lajpat Nagar to Greater Kailash-1 vide his e-mail dated 16.09.2014 which, according to him, was duly acknowledged by the Builder on the same day vide return e-mail dated 16.09.2014. His contention was that he had never received any letter or notice from the Builder on the changed address. He only received one termination letter dated 13.01.2016 at his changed address which was related to the forfeiture of his amount towards earnest money. He sent e-mails dated 19.01.2016, 22.01.2016, 30.01.2016 and again on 18.02.2016 to the builder requesting for restoration of his application for allotment of the subject apartment. He also sent a sum of ₹52,05,875/- through cheque dated 28.03.2016 but the said cheque was returned by the Builder on the ground that the application of the Complainant for restoration of his allotment had been rejected by the management. He made a request to the Builder for refund of his deposited -4- amount of ₹20,80,057.83ps. but the Builder refused and thereafter the Complaint had been filed seeking of the said money. 6. The Builder had filed written version and taken several preliminary objections including that the Complainant was not a consumer. It was contended that the Complainant under the Apartment Buyer’s Agreement and as per the construction linked payment plan, was to make the payments but he did not make any payment except his initial deposit of ₹20,80,057.83ps. and thus he was a defaulter and under the terms and conditions of the Apartment Buyer’s Agreement, the Builder was within its right to terminate the agreement and forfeit the earnest money which under the terms and conditions of the agreement was 20% of the basic sale price. It was contended that the Builder had never received any communication from the Complainant regarding the change of his address as alleged by him and the letter of termination dated 19.10.2015 was sent to him at the address which was available with them. It was submitted that thereafter several communications were sent to the Complainant including demand letters dated 02.03.2014, 02.06.2014, 26.07.2014, 21.09.2014, 13.10.2014, 04.11.2014, 23.11.2014, 19.12.2014, 04.03.2015, 17.07.2015 and all the communications were also -5- sent on the e-mail address of the Complainant which was active. It was contended that a pre-termination letter dated 19.10.2015 was sent by courier and even thereafter, no payment or communication was received from the Complainant. On these contentions, it is submitted that the termination was done in terms of the agreement and the forfeiture of the earnest money was also in terms of the agreement agreed between the parties. 7. Parties led their evidences before the State Commission and also filed their documents. The details of the documents are mentioned in the impugned order along with exhibits given to these documents. The State Commission after relying on these documents on record allowed the Complaint. 8. Aggrieved by the direction to refund the forfeited amount as earnest money, the present Appeal has been filed by the Builder. 9. Learned Counsel for the Builder has taken me to the various documents on record. He has referred pages 48, 45, (clause 11 and 14), page 79 (clause 1.2) page 80 (clause 2.3) and also page 116 and has argued that the clause in the Apartment Buyer’s Agreement gives right to the Builder to terminate the allotment and forfeit the earnest money. He has also brought my attention to -6- several e-mails in order to show that even before the alleged communication of change of address by the Complainant, he had defaulted in making the payments, and did not respond to the demand letters received through e-mails on his active e-mail account which are dated 03.03.2014, 07.06.2014, 27.07.2014 and the payments due till 26.06.2014 and 13.08.2014 were not made and this conclusively shows that the Complainant was a defaulter. It is further argued that vide letter dated 13.01.2016 which was sent through post on the new address as well as on e-mail, the allotment was terminated and the forfeiture of the earnest money of ₹20,80,058/- was done. It is further argued that the grant of interest @ 12% p.a. is towards higher side. 10. It is argued on behalf of the Complainant that in various letters and e-mails written by the Builder, it is mentioned that the allotment was terminated vide letter dated 16.10.2015 but this letter of termination was never produced before the State Commission nor proved by the Builder. It is further submitted that this letter of termination was sent on the old address of the Complainant and had been received back by the Builder, as is clear from the e-mail dated of 22.02.2016 of the Builder wherein it is clearly mentioned that the letter of pre-termination was received -7- back as the addressee had shifted. Along with the written synopsises subsequently filed by the Complainant, he has also annexed certain documents and has also placed on record e-mails received from the Builder. During the course of arguments, it is argued that vide this e-mail dated 16.09.2014, the Builder has acknowledged the fact that they had received the e-mail from the Complainant regarding the change of address. It is argued that despite the fact that the new address was available with the Builder, as per its own admission in e-mail dated 16.09.2014, yet the termination letter was sent at the old address and no efforts were made, after the letter was received unserved, to send it again at the new address of the Complainant. It is submitted that as per clause 8.2 of the Apartment Buyer’s Agreement, the Builder was under obligation to terminate the agreement only through a written notice served upon the allottee and since no such notice was served by the Builder, the termination was improper and the Builder has no right to forfeit the money paid by the Complainant to them. It is further argued that since the terms and conditions provided in Clause 8.2 and 8.4 have not been followed, the forfeiture of the amount is improper. -8- 11. I have heard the arguments and perused the relevant record. The only issue before this Commission to determine is whether the termination of the allotment was as per the terms and conditions laid down in the agreement and for this Clauses 8.2 and 8.4 of the agreement are relevant which read as under: “8.2 Upon receiving/gaining knowledge of any Buyer’s event of Default stated above, the Developer may, without prejudice to his rights to enforce specific performance of this Agreement, through a written notice served upon the Buyer terminate this Agreement from such date as may be specified in the written notice. 8.3 xxxxxxx 8.4 On and from the date of such termination on account of Buyer’s Event of Default as mentioned herein above (“Termination Date”), the parties mutually agree that – (i) The Developer shall, out of the entire amounts paid by the Buyer to the Developer till the Termination Date, forfeit, the entire Earnest Money and any other dues payable by the Buyer including interest on delayed payments as specified in this Agreement; (ii) After the said forfeiture, the Developer shall refund the balance amount to the Buyer or to his banker/financial Institution, as the case may be, without any interest; (iii) On and from the Termination Date, the Buyer shall be left with no right, title, interest, claim, lien, authority whatsoever either in respect of the Apartment or under this Agreement and the Developer shall be released and discharged of all its liabilities and obligations under this Agreement; (iv) On and from the Termination Date, the Developer shall be entitled, without any claim or interference of the Buyer, to convey, sell, transfer and/or assign the Apartment in favour of third party(ies) or otherwise deal with it as the Developer may deem fit and appropriate, in such a manner that this Agreement was never executed and without any claim of the Buyer to any sale proceeds of such conveyance, sale, transfer and/or assignment of the Apartment in favour of third party(ies)” -9- 12. From these clauses, it is clear that written notice of letter of termination is required to be served upon the allottee. From the record it is apparent that copy of the alleged letter of termination dated 16.10.2015 has not been filed on record. From the e-mail dated 22.02.2016 of the Builder, copy of which has been filed on record, it is clear that this letter remained unserved upon the allotteee/Complainant for the reason that the addressee had shifted the residence. The e-mail dated 16.09.2014 clearly acknowledges by the Builder of receipt of communication from the Complainant regarding change of his address. This clearly establishes that the change of address of the Complainant was within the knowledge of the Builder, yet no efforts were made to send the termination of allotment letter on changed address. Even when the letter through which such intimation was sent, was received back with noting of postal department that addressee had changed the address, no efforts were made to send the letter even on the permanent address available with the Builder. Thus there is a clear violation of the Clause 8.2. The subsequent letters which were sent by the Builder to the Complainant, have the mention of the letter dated 16.10.2015 as the termination letter. Since the termination letter was not ever served upon the Complainant, the -10- State Commission has rightly reached to the conclusion that the termination of the allotment was not as per the terms and conditions of the agreement. It is also not explained as to when on earlier occasions the communications were sent through e-mails, also why this letter was not sent on e-mail even after it was received back unserved. There is no such contention of the Builder that this notice was ever sent through e-mail to the Complainant. Forfeiture of the money deposited by the Complainant without due compliance of the terms and conditions of agreement is deficiency in service on the part of the Builder. 13. I have also perused the letter dated 13.01.2016 of the Builder and in this letter in the column “earnest money 20% of the Basic Sale Price is calculated as ₹13,45,140/-. Still the forfeiture of the entire deposited amount of the Complainant as earnest money has been done by the Builder. This further shows that the Builder is not acting fairly. In view of this, I found no illegality or infirmity in the impugned order of the State Commission qua deficiency in service on the part of the Builder. 14. It is argued on behalf of the Builder that the interest granted @ 12% p.a. is towards higher side and therefore, it should be reduced. -11- 15. Learned Counsel for the Complainant, however, has relied on the findings of this commission the case of “BPTP Ltd. Vs. Deepak Kumar, FA No.704 of 2021” wherein the rate of interest granted by the State Commission @ 12% p.a. was confirmed. This order of the Commission was also upheld by the Hon’ble Supreme Court in “SLP Nos.9684-9685 of 2022”. 16. In view of this, I am satisfied that the rate of interest awarded, in the facts and circumstances of the case, is not towards higher side. 17. Besides grant of compensation in terms of interest, the State Commission has also granted compensation of ₹25,000/- towards deficiency in service which is against the directions of the Hon’ble Supreme Court in “DLF Homes Panchkula Limited vs. D. S. Dhanda etc. (2020) 16 SCC 318” wherein the Apex court has clearly held that where the compensation has been awarded by way of interest, no other compensation under different heads like mental agony, physical harassment etc. ought to be awarded. The grant of compensation of ₹25,000/-, therefore, is hereby quashed. 18. While partly allowing the Appeal, following directions are issued: -12- (i) The Builder is directed to refund sum of ₹20,80,057.83ps. to the Complainant, along with interest @ 12% from the date of respective deposits till its realization; (ii) The Builder is directed to pay litigation costs of ₹11,000/- as awarded by the State Commission. (iii) Litigation costs of ₹25,000/- is also awarded to the Complainant, while disposing of this Appeal. 19. With these directions, the present Appeal stands disposed of. | 
