Dlf Commercial Developers Limited vs Ravinder Zutshi

PETITIONER , DLF Commercial Developers Limited, was the opposite party before the District Forum, where the respondent/complainant had filed a complaint alleging deficiency in service on the part of the petitioner.

UNDISPUTED facts of the case are that the respondent/complainant had booked office space at DLF Galleria in 1998 and had paid a sum of Rs. 4,41,838 against the total consideration of Rs. 16,35,000. After paying these two instalments of the above -mentioned amount, the complainant vide letter dated 18.5.99 requested the petitioner to cancel the allotment and refund the amount on account of some unavoidable circumstances. As a result of this, the petitioner refunded the amount of Rs. 1,98,640 on 23.2.2002. It was the case of the complainant that the balance amount of Rs. 2,43,198 was still to be refunded by the petitioner, to the respondent/complainant, being the balance deposited amount. When the matter was not getting sorted out between the parties, a complaint was filed before the District Forum, who partly allowed the complaint and directed the petitioner to refund the amount after deducting 10% of the basic sale -price, i.e., Rs. 80,127, along with interest @ 12% from 1.8.99 till the date of realisation together with cost of Rs. 5,000. Aggrieved by this order, an appeal was filed by the petitioner before the State Commission, who dismissed the appeal, hence this revision petition before us.

WE heard the learned Counsel for the petitioner and the respondent, in person at some length and perused the material on record. The learned Counsel for the petitioner has drawn our attention to Clauses 10 and 11 of the agreement between the parties, which read as under: "10. That it shall be incumbent on the Allottee to comply with the terms of payment and/or other terms and conditions of this Agreement failing which the Firm shall be at liberty to forfeit the entire amount of earnest money and whereupon this Agreement shall stand cancelled and the Allottee shall be left with no lien, right, title, interest or claim of whatsoever nature in the said premises. The Firm shall thereafter be free to resell and / or deal with the said premises in any manner, whatsoever, at its sole discretion. The amount(s), if any, paid over and above the earnest money shall be refunded to the Allottee by the Firm only after realising the amounts on resale, without any interest or any compensation of whatsoever nature. The firm shall have first lien and charge on the said premises for all its dues and other sums payable by the Allottee to the Firm under this Agreement.

That it is clearly agreed and understood by the Allottee that it shall not be obligatory on the part of the Firm to send demand notices / reminders regarding the payments to be made by the Allottee as per Schedule of Payments (Annexure -II) and that without prejudice to what has been stated in the preceding clause, the Firm may at its sole discretion waive the breach of Agreement committed by the Allottee in not making the payments at specified time but on the condition that the Allottee shall pay interest, at the rate of 24% per annum for the period of delay and such other penalties the Firm may impose."

It is his case that, in case of cancellation, they are entitled to forfeit the earnest money as also the unpaid interest till the date of cancellation.

WE have very carefully gone through the provisions and find that as per terms of agreement the petitioner is correct in arguing that in the case of cancellation of space, he is entitled to forfeiture of earnest money, which is 10%. But our careful scrutiny of the terms reproduced above, does not help the case of the petitioner, to recover the interest on account of delayed/non -payment(s) of the instalments due at the time of refund. The learned Counsel for the petitioner wishes to rely upon this part of Clause 11, which is as under: "......the firm may at its sole discretion waive the breach of agreement committed by the allottee in not making the payments at specified time but on the condition that the allottee shall pay interest @ 24% p.a. for the period of delay and such other penalties, the firm may impose."

AFTER careful consideration of the condition 11, part of which is extracted above, we are left in no doubt that the condition 11 would help the case of the petitioner only if the breach is waived. This is not the case here. It is very difficult for us to read the point relating to "payment of interest @ 24% p.a." in isolation. It has to be read in continuation of the words appearing earlier to this point on payment of interest, which relates to breach of agreement. In this case, there is no request from the complainant to waive the breach of agreement. Our understanding of the clause is, that this would be applicable only in case, the complainant or the allottee makes request for restoration of the property in question. This is not the case here.

LEARNED Counsel for the petitioner also wishes to rely upon the following Judgments: 1. Bhagwati Prasad Pawan Kumar v. Union of India, IV (2006) SLT 771=III (2006) ACC 1 (SC)=III (2007) CLT 293 (SC)=(2006) 5 SCC 311, passed by the Hon''ble Supreme Court. 2. DLF Universal Ltd. v. Ekta Seth and Anr., III (2008) CPJ 44 (SC)=2008 (10) SCALE 310. 3. M/s. Aslam Carpets Pvt. Ltd. v. DLF Universal Ltd., Complaint Case No. C -18/2004 dated 27.8.2007.

WE have very carefully gone through the cited judgments and find that as far as the first judgment passed by the Hon''ble Supreme Court in the case of DLF Universal Ltd. v. Ekta Seth and Anr. is concerned, even though facts are different yet we find no difficulty in agreeing with the decision of the Hon''ble Supreme Court as far as the deduction of amount is concerned, which we are upholding. With regard to other cited judgments, we find that in the facts and circumstances of this case, they have no applicability.

IN the present case, we have only to examine whether the petitioner was justified in deducting the interest for delayed payments? There can be no dispute that, merits or otherwise of each case have to be governed by the terms of the contract entered between the parties, which in this case was through the Agreement''. We have already discussed the conditions 10 and 11, in which, at the cost of repetition, we hold that there is no term in the Agreement for deduction of interest at the time of refund of amount.

AT best the petitioner was entitled to deduct the earnest money which was 10% of the total price of the flat as per the agreement, which has been done in view of which the excess amount retained by the petitioner, over and above the amount, has to be refunded.

IN the aforementioned circumstances, we uphold the order of the District Forum as affirmed by the State Commission. This revision petition has no merit, hence dismissed. No order as to costs.