DLF UNIVERSAL LTD vs AJAY KUMAR JAIN

PETITIONER which was the Opposite Party before the District Forum, has filed this Revision Petition against the order dated 17.04.07 passed by the State Consumer Disputes Redressal Commission, Delhi (for short, ''the State Commission '') in appeal no. 1946/01 whereby the State Commission while upholding the order of the District Forum has reduced the rate of interest from 18% to 12%.

RESPONDENT /Complainant applied for allotment of a shop in Ankur Vihar, Ghaziabad (U.P.) on 21.05.93 and deposited a sum of Rs.20,000/- with the Petitioner herein. An agreement dated 14.07.93 was entered into between the Petitioner and the Respondent for shop No. S-21/3, First Floor, Ankur Vihar Ghaziabad. Petitioner vide its letter dated 23.02.94 informed the Respondent that the captioned property was ready for use and occupation and invited him to take possession of the same subject to clearance of amount of Rs.63,428/- and registration and stamp duty charges of Rs.23,190 totaling Rs.86,618/-. On 22.08.95, Petitioner again wrote to the Respondent to takeover physical possession inviting his attention to its earlier dated 23.2.94 to takeover physical possession subject to payment of all charges and completion of documents. Petitioner, once again, vide its letter dated 1.8.96 informed the Respondent that out of total price of Rs.1,54,780/-, sum of Rs.1,24,700/- had been remitted leaving a balance amount of Rs.30,072/- which was due and payable. Petitioner requested the Respondent to make the payments by 16.08.96, failing which the Petitioner will be compelled to take action as per clause 17 of the Agreement. Respondent did not either take the possession of the property or pay the balance amount.

PETITIONER , by letter dated 25.06.98 enclosed a statement of account of the Respondent showing that a sum of Rs.75,757/- and holding charges of Rs.30,000/- thereby totaling Rs.1,08,757/- were due and payable by the Respondent. In response to this, Respondent sent a letter on 8.07.98 objecting to the levy of holding charges and requesting the Petitioner to withdraw its letter dated 25.6.98 and to grant six months '' time to him to take over the possession. Respondent also requested the Petitioner not to take any action without informing him. In the said letter, Respondent also admitted that the Petitioner was entitled to charge 20% interest p.a. on the delayed payment in terms of the agreement.

IN spite of repeated reminders dated 5.4.99, 31.8.99, 22.09.99, 6.1.2000 requesting the Respondent to make the payment of the outstanding amount and take the possession failing which action would be taken in terms of the Agreement, Respondent did not either take possession or make the payment. When despite of repeated reminders, Respondent did not come forward to take possession, Petitioner even after lapse of six years of the offer made for the first time on 23.2.94 invoking clause 17 of the agreement, cancelled the allotment made in favour of the Respondent on 5.2.2000 after forfeiting 20% of the earnest money amounting to Rs.30,356/-. On 16.02.2000, Petitioner sent a cheque dated 11.2.2000 for Rs.94,352/- drawn on ICICI Bank Ltd. being the refund of amount over and above the earnest money paid by the Respondent in full and final settlement of the allotment. This cheque was accepted and encashed by the Respondent. Respondent sent a notice to the Petitioner to pay interest @ 20% p.a. on the sum of Rs.94,352/- from 17.8.96 to 29.2.2000. Petitioner sent a reply to the legal notice. Thereafter, Respondent filed the complaint on 4.4.2000 which was disposed of by the District Forum, Sheikh Sarai on 10.8.01 holding that the allotment stood cancelled on 16.08.96 in terms of the agreement when the Respondent had failed to remit the sum of Rs.30,072/-. That the Petitioner Company withheld the amount payable to the Respondent for an unreasonable period which amounted to deficiency in service and directed the Petitioner to pay interest @ 18% p.a. on the amount refunded from 17.8.96 to 11.2.2000 and imposed Rs.1,000/- as costs. Petitioner, being aggrieved, filed the appeal before the State Commission. State Commission upheld the order of the District Forum except that it reduced the rate of interest to 12% from 18%.

THE short question that arises for consideration in the present Revision Petition is as to what is the date of cancellation of allotment made in favour of the Respondent. The fora below have taken the date of cancellation as 1.8.96 presuming the letter written by the Petitioner on 1.8.96 to be the order of cancellation. The fora below have held that on the failure of the Respondent to pay the outstanding amount as per demand made on 1.8.96, the cancellation was automatic.

LEARNED Counsel for the Petitioner contends that the fora below have erred in treating the letter dated 1.8.96 to be the letter of cancellation. That the orders of the fora below are based on misreading of the said letter. That the fora below have erred in not taking into consideration the correspondence ensued between the parties subsequent to the letter dated 1.8.96 which shows that there was no cancellation of the agreement on 1.8.96. That the agreement was cancelled only on 5.2.2000 and the amount was refunded immediately thereafter on 16.2.2000. As against this, Respondent who is appearing in person states that on failure to make the payment as demanded by letter dated 1.8.96, the cancellation was automatic and he is entitled to get interest on the refunded amount from 16.8.96 till the date of payment, i.e.,16.2.2000. Parties have been heard at length. Letter dated 1.8.96 reads as under:- "It is very much regretted that in spite of your various reminders, we have not been favoured with the above overdue amount of Rs.30,072/- so far. As such, you are requested, once again, to please remit us a sum of Rs.30,072/- as early as possible or latest by 16.8.96, failing which we shall be compelled to take action in terms of clause 17 of the agreement, already signed and executed by you. It may please be noted that all delayed payments are subject to levy of penal interest @ 20% p.a. for the overdue period, for which a separate advice would be sent to you on receipt of the above outstanding amount. As already intimated to you in our previous letter dated 23.2.94, the captioned property is ready for use and occupation and its physical possession may be taken over on clearance of all dues including stamp duty/registration charges and completion of all documents as per the agreement. You are, therefore, requested to please remit the outstanding amounts, complete the documentation and thereafter visit our office to collect the possession letter for taking over physical possession of the property at site to avoid the levy of holding charges @ Rs.1000/- per month, vide our registered letter dt.22.8.95. "

A bare perusal of this letter shows that the Petitioner by this letter gave an opportunity to the Respondent to pay the outstanding dues and complete the documentations in respect of the allotment and take over the physical possession of the shop failing which the holding charges shall be levied in terms of the agreement. Reference to clause 17 of the agreement was made in the letter, only to notify that in the event of not making the payment, due action to cancel the agreement may be taken. The said letter invited the Respondent to make the payment due and take over the possession of the premises. Even Respondent did not take the letter of 1.8.96 to be the letter of cancellation. This fact is evident from the letter of the Respondent dated 8.7.98 requesting the Petitioner to give six months '' time to take over the possession of the shop which was acceded to by the Petitioner which clearly shows that the Respondent never understood that the shop allotted to him stood cancelled on 1.8.96.

PETITIONER for the first time had asked the Respondent to take over the physical possession of the property on 23.2.94 after clearing all the dues including the stamp duty and registration charges. As in spite of number of opportunities given and reminders sent, Respondent did not either pay the outstanding dues or take the possession, Petitioner after a lapse of six years of offering physical possession (on 23.2.94) cancelled the allotment on 5.2.2000. Without any delay Petitioner dispatched the cheque of the amount to be refunded by its letter dated 16.2.2000 in full and final settlement of the allotment in terms of the agreement, which was accepted and encashed by the Respondent. Finding recorded by the fora below that the letter dated 1.8.96 was to be treated as the letter of cancellation making the Petitioner liable to pay interest from that date till 16.2.2000, cannot be accepted. Letter dated 1.8.96 by any stretch of imagination cannot be treated as letter of cancellation. Cancellation was made on 5.2.2000 and the amount was refunded immediately thereafter. There is no deficiency in service on the part of the Petitioner and the fora below have erred in recording the finding that the letter dated 1.8.96 was the letter of cancellation and the Petitioner was liable to pay interest from that date till the actual payment on 16.2.2000. For the reasons stated above, the Revision Petition is accepted, orders passed by fora below are set aside and the complaint is ordered to be dismissed leaving the parties to bear their respective costs.