H Kishie Singh And Another vs Unitech Limited And Another

CHALLENGE in this revision petition is to the order dated 4.9.2009 passed by the State Commission, UT Chandigarh (for short, ''State Commission'') in Appeal No.2294 of 2009 by which the State Commission accepted the appeal filed by Respondent No.1/Opposite Party No.1 and set aside the order dated 2.12.2008 passed by the District Forum in Complaint Case No.516 of 2008. By its order, the District Forum had allowed the complaint filed by the petitioners. Thus, aggrieved by the impugned order of the State Commission reversing the order of District Forum the Complainants/Petitioners have filed this revision petition before the National Commission.

BRIEFLY stated, the case set up by the complainants in the complaint is that they had booked a flat with the opposite party no.1 -Builder through opposite party no.2, channel partner of opposite party no.1 in the housing complex, namely ''Unitech Habitat'' in Greater Noida. As per the application, the apartment was measuring 1300 sq. ft. and the price was quoted to be Rs.39,65,000/ - approximately. According to the complainants, they paid a sum of Rs.5 lacs vide cheque dated 14.6.2006 and booked the flat with specific understanding given by the opposite parties opposite parties that the apartment should not be more than 1300 sq. ft. and the price of the same would be Rs.39,65,000/ -. The complainants paid a total sum of Rs.10,52,730/ - vide three different cheques which were duly acknowledged by the opposite parties and for which receipts were also issued. The complainants, however, received allotment letter dated 20.11.2006 through opposite party no.2 stating that they had been allotted Apartment No.604 with an area of 1693 sq. ft. and the price thereof was Rs.54,60,941/ -. As per the allegations, the complainants requested opposite parties to get the allotment changed and in turn the opposite party no.2 represented that this was only a formality and the allotment letter would be changed subsequently. Thereafter, the complainants approached opposite party no.1 for refund of the amount deposited and, according to them, on 2.7.2007 opposite party no.2 issued ''No Objection'' for the refund of the amount and the complainants were told to approach opposite party no.1 who kept delaying the payment. Having failed to get the refund, even after service of legal notice dated 14.9.2007, the complainants knocked the door of the District Forum by filing consumer complaint in question alleging deficiency in service and unfair trade practice against the opposite parties.

ON notice, opposite party no.1 contested the complaint by filing reply in which it was stated that the complainants were fully aware that the super area of the said apartment was 1693 sq. ft. and the same was specifically mentioned on the receipts dated 29.6.2006, 15.9.2006 and 6.10.2006. It was also pleaded that alongwith letter dated 31.8.2006, opposite party no.1 sent two sets of the allotment letter containing terms and conditions of allotment which were duly executed by the complainants as well as opposite parties on 20.11.2006. Opposite party no.1 submitted that the complainants did not raise any grievance or objection while signing the terms and conditions for allotment. According to the opposite party no.1, amount of Rs.33,95,478/ - was still due as consideration and the complaint was an after -thought to wriggle out of their liability to pay according to the agreed terms of allotment as per the schedule opted by the complainants. Denying any deficiency in service or unfair trade practice on its part opposite party no.1 prayed for dismissal of the complaint. Opposite party no.2 submitted that it had all along been cooperating with the complainants regarding refund of the alleged amount only out of goodwill and hence there had been no misrepresentation on its part. It was also pleaded that opposite party no.2 was not responsible for any damages/compensation and the same was within the domain of opposite party no.1. On the basis of the evidence adduced by the parties in support of their contentions, the District Forum allowed the complaint by directing the opposite parties to refund the total amount deposited by the complainants with them alongwith interest @ 9% p.a. from the date of deposit till the date of payment alongwith Rs.5,500/ - as cost of proceedings.

AGGRIEVED by this order of District Forum, the opposite party no.1 challenged the same by filing its appeal before the State Commission which was accepted by the State Commission by reversing the order of District Forum and dismissing the complaint.

WE have heard learned counsel Shri S.K. Bhaduri, Advocate for petitioners and learned Shri S.K. Pattjoshi, Sr. Advocate alongwith Shri Sunil Mund and Shri S.K. Dubey, Advocates for respondent No.1. None has appeared for respondent no.2, hence it was proceeded ex parte.

PERUSAL of the order of District Forum shows that District Forum allowed the claim by accepting the contention of the complainants that the area of the flat booked by them was 1300 sq. ft. and undertaking had been given by opposite parties to this effect to the complainants. In view of this, the District Forum accepted the complaint and directed the opposite parties to refund the total amount with interest. While accepting the complaint the District Forum has observed: "Since the size had increase considerably, it had become beyond their financial reach and savings. Again another letter (Annexure C -4) was written by OP No.2 to the OP No.1, in which again it was mentioned that as it was pre -launch, they (i.e. Complainants) were made to believe that it would be 1300 sq. ft. area apartment. However, after the flat with a covered area of 1693 sq. ft. was allotted, it was beyond their reach. We are, therefore, of the opinion that the documents produced by OP No.1 showing 1693 sq. ft. area cannot be held sufficient to deny the refund of the amount deposited by the complainants.

There is no evidence produced by the OP if a flat with covered area of 1300 sq. ft. is not available with them. Rather, OP No.2 in their letter (Annexure C -3) mentioned that such a flat with 2 Bed Room was available with the OP No.1, but the same was not allotted to the complainants for the reasons best known to them. The OPs, therefore, have no right to sit over the request of the complainants and delay the refund of the amount."

THE State Commission set aside the order of the District Forum and dismissed the complaint holding that there was no evidence to support the understanding on the part of the complainants that the flat was of 1300 sq. ft. In the allotment letter, the receipts and other documents specifically mentioned 1693 sq. ft. as area of the apartment and the payments made by the complainants also relate to area of 1693 sq. ft. The alleged version of the complainants with regard to the claim of the complainants/petitioners is not supported by evidence. In the circumstances, the State Commission did not find the order of the District Forum as sustainable and as such reversed it and allowed the appeal. While reversing the order of District Forum and accepting the appeal of opposite party no.1 the State Commission has recorded the following reasons in support of the impugned order: "16. From the evidence on record, we are constrained to come to the conclusion that the complainants have miserably failed to prove that they ever approached OPs for buying a flat of 1300 sq. ft. with value of Rs.39,65,000/ - as stated by the complainants in the complaint. It is evident from the record that the complainants were allotted a flat of the area 1693 sq. ft. the value of which was Rs.54,60,941/ - and the complainants were fully aware of both the facts with regard to the area and the cost of the flat and even then they paid subsequent payment as well. It is also quite clear from the evidence on record that the complainants never made any request to OP No.1 for allotting a flat of 1300 sq. ft. area instead of the earlier allotted flat of 1693 sq. ft. area. The complainants have also failed to produce any cogent believable evidence to prove that OP No.1 did in fact construct flats of the size 1300 sq. ft. It is also relevant to mention here that the contention of the complainants that some refunds had been made to some other persons who had booked the flats has no meaning as we are not aware of the facts and circumstances under which such refunds, as alleged, had been made. The complainants cannot seek refund of their amount on similar grounds unless it is proved by evidence that the facts in both the cases are identical.

In view of the foregoing discussion, we find that the complainants have failed to prove their case and the order of the learned District Forum, therefore, does not stand legal scrutiny in the face of evidence on record."

WE agree with the view taken by the State Commission while dismissing the complaint and setting aside the order of the District Forum. We find that there is no evidence to support the alleged understanding on the part of the complainants (as claimed by them) because the allotment letter dated 20.11.2006 issued by OP No. 1 indicates area of the flat as 1693 sq. ft. Not only each one of three receipts issued by OP No. 1 on 29.06.2006, 15.09.2006 and 06.10.2006 indicate that the area of the flat in question is 1693 sq. ft., the letter written by the broker/agent/OP No. 2 on 06.07.2007 on which so much reliance has been placed by the complainants does not indicate any document to substantiate the claim made by the complainants. It only narrates the difficulties of the complainants alongwith request for refund on compassionate ground. In view of this, the District Forum had gravely erred in granting relief regarding refund of the total deposited amount along with interest. During the course of arguments, learned counsel for the petitioners has relied upon the following cases: Thakur Dass Verma and Another Vs. Harish Chand, 2011 182 DLT 1

Fathe Chand Vs. Balkishan Dass, 1963 AIR(SC) 1405

Dilip Kumar Bhargava Vs. Urmila Devi Sharma and Others Delhi High Court, 2011 LawSuit(Del) 1772

M/s. Kusal Construction Company Vs. Municipal Corporation of Delhi, (Delhi High Court Judgment in in RFA No. 373 of 2002 dt. 2011)

WE have gone through the cases cited by the counsel for petitioners but all of them pertained to the decisions of the courts against the forfeiture of the deposits made by the prospective purchaser under specific agreement to sell by the sellers concerned by way of penalty without showing specific loss incurred by the sellers concerned and hence held to be unsustainable under the law. We may note that the present case is one of contract of sale, where the petitioners have booked a flat for which they have received specific letter of allotment from the Builder/Developer and they have been making payments of instalment from time to time, but for personal reasons, the petitioners want refund and the Builder/Developer has opposed the complaint on the ground that there was neither any deficiency in service nor any unfair trade practice in as much as petitioners were required to make further payments in accordance with the schedule as per the terms and conditions of the allotment of the flat duly executed by the parties on 20.11.2006.

LEARNED Senior Counsel who has argued for Respondent no. 1/OP No. 1, contended that in view of the evidence on record no fault could be found with the impugned order of the State Commission and the same deserves to be confirmed. In support of his submission, learned Counsel has cited the judgment of the Hon''ble Apex Court in the case of Satish Batra Vs. Sudhir Rawal, 2013 1 SCC 345. In this case, the question "whether the seller is entitled to forfeit the earnest money deposited, where the sale of the immovable property falls through, by reason of the fault or failure of the purchaser", come up for consideration before the Hon''ble Supreme Court and their Lordships of the Apex Court after taking into consideration the entire case law, answered the question as under: "19. We are, therefore, of the view that the seller was justified in forfeiting the amount of Rs.7,00,000/ - as per the relevant clause, since earnest money was primarily a security for the due performance of the agreement and consequently, the seller is entitled to forfeit the entire deposit. The High Court, has, therefore, has committed an error in reversing the judgment of the Trial Court."

APPLYING the ratio laid down by the Hon''ble Apex Court in Sathis Batra''s case to the facts and circumstances of this case, we are of the considered view that the order of the District Forum, cannot be sustained in the eye of law.

IN view of the above discussion, we do not find any merit in this revision petition and hence dismiss the same with the parties bearing their own costs.