DWARKADHIS PROJECTS PVT. LTD. & ANR. vs ASHOK KUMAR

Costs paid.

This Revision Petition by a Real Estate Developer, M/s Dwarkadhis Projects Pvt. Ltd., and its Directors, is directed against the order dated, 03.07.2015, passed by the Haryana State Consumer Disputes Redressal Commission at Panchkula (for short "the State Commission") in First Appeal No. 434 of 2015. By the impugned order, the State Commission has affirmed the order, dated 11.03.2015, passed by the District Consumer Disputes Redressal Forum at Rewari (for short "the District Forum"). By the said order, the District Forum, while allowing the Complaint filed by the Complainant, Respondent herein, had directed the Petitioners to refund to the Complainant the amount deposited by him from time to time alongwith interest @ 12% per annum from the date of respective deposits till payment. The District Forum had also awarded a compensation of 40,000/- for mental agony and physical harassment, besides litigation expenses of 11,000/-.

The case of the Complainant before the District Forum was that he had booked a flat with the Petitioners, admeasuring 1200 sq. feet, at a total cost of 17,85,600/-. The said amount was to be paid in instalments, depending on the progress in construction, inasmuch as each instalment was related with the casting of a roof and finishing etc. The Complainant had deposited with the Petitioner Company a sum of 9,74,160/- between the period from 15.12.2006 to 15.02.2009, which, according to the schedule of payment, covered the start of second floor slab. According to the Complainant, when he found that there was no construction at the site, he stopped making payment of further instalments from the stage of casting of third floor slab. Since, according to the Complainant, there was no progress at construction at the site, at all, what to talk of casting of second floor slab, the stage up-to which he had paid instalments, he requested the Petitioners to refund the total amount deposited by him from time to time. Having failed to elicit any positive response from the Petitioners, he filed the Complaint before the District Forum.

It appears that during the course of proceedings before the District Forum, vide order dated 15.11.2010, the District Forum appointed one Mr. Narender Singh Tanwar as the Local Commissioner to visit the site and submit a report with regard to the condition of the flat in question. As per the said report, which has now been placed before us by the Complainant, on his visit to the site on 27.04.2011, in the presence of Counsel for both the parties, he found that the walls were not plastered; flooring, electricity and wood work was yet to commence. There was no water supply as well. According to the Local Commissioner, keeping in view the ground conditions, inasmuch as there was no construction activity at the site, the project would take a long time to complete, including the flat. Admittedly, no objection to the said report was filed by either of the parties.

On appraisal of the documents placed on record by both the parties in support of their respective pleas, the District Forum came to the conclusion that the Petitioners, being guilty of non-performance of the agreement, inasmuch as the project was not completed on time, non-refund of the money deposited by the Complainant with them was definitely deficiency in service on their part. Accordingly, the Complaint was accepted with the afore-noted directions.

Being aggrieved, the Petitioners took the matter in Appeal to the State Commission but without any success. Hence, the present Revision Petition.

We have heard learned Counsel for the Petitioners and the Complainant, who appears in person.

Learned Counsel appearing for the Petitioners has vehemently submitted that since the Complainant had defaulted in making payments of instalments as per the schedule, forming part of the allotment letter dated 22.06.2007, he is not entitled to seek refund of the amount deposited and as a matter of fact, as per the terms and conditions of allotment, the Petitioners were entitled to forfeit 10% of the total price of the flat, on account of the default on the part of the Complainant in not making payment as per the schedule. On a pointed query by us, it is candidly admitted by learned Counsel for the Petitioners that allotment of the flat in question was not cancelled and, therefore, the question of applicability of forfeiture clause, contained in paragraph-9 of the terms and conditions of the allotment, does not arise.

Additionally, as noted above, according to the report of the Local Commissioner, on his visit to the site on 27.04.2011, not only the flat in question but the entire complex was incomplete. In the light of the said report, no fault can be found with the concurrent finding of

fact recorded by both the Fora below that the Petitioners were deficient in not completing the project on time.

For the afore-stated reasons, we do not find any jurisdictional error in the impugned order, warranting our interference insofar as the direction for refund of the amount deposited by the Complainant is concerned. However, bearing in mind the fact that the Complainant did not respond to the letters of demand, raised by the Petitioners from time to time, intimating the reasons for non-payment of instalments by the due date, we are of the view that the interest awarded by the Fora below is slightly on the higher side. Accordingly, we direct that the Petitioners shall pay to the Complainant, on the amount deposited by him from time to time with them, interest @ 10% per annum from the date of respective deposits till realization. Other directions issued by the District Forum and affirmed by the State Commission shall remain unaltered.

Consequently, the Revision Petition is partly allowed and the impugned order is modified to the extent indicated above. The amount deposited by the Petitioners in this Commission, pursuant to our order dated 03.02.2016, shall be released to the Complainant forthwith. The balance amount shall be remitted directly to the Complainant within four weeks from today, failing which the Complainant shall be entitled to interest @ 12% per annum, as directed by the Fora below. On payment of the said amount(s), the Execution proceedings, stated to be pending before the District Forum, shall stand closed. However, if the Petitioners fail to comply with this order, it will be open to the Complainant to have the said proceedings revived. There will be no order as to costs.