Puspak Infrastructure Pvt. Ltd. through its Director Mr. Manish Sharma and Sri Monish Sharma vs Santanu Mukherjee

PETITIONER S being aggrieved of concurrent finding of the foras below against them have preferred this revision. Briefly put, the facts relevant for the disposal of this revision petition are that petitioner No. 1 is a Company incorporated under the provisions of Companies Act, 1956, engaged in the business of real estate development. Petitioner No. 2 is the director of petitioner No. 1 Company. Respondent filed a complaint under section 12 of the Consumer Protection Act, 1986 against the petitioners alleging that he entered into an agreement to purchase flat No. A -408, Type A at the 4th Floor with super built up area of 980 sq. ft. alongwith covered parking in the upcoming project of the opposite parties situated at Ichapore Nilgang Gram Panchayat P.S. Barasat, District North 24 Parganas for a total consideration of Rs. 13,75,000/ -. Pursuant to the agreement, respondent paid Rs. 2,75,000/ - to the petitioner as booking amount. As per the terms and conditions of the agreement, the balance payment was to be made in construction linked installments. According to the complainant, the opposite parties failed to keep him informed about the progress of construction and suddenly vide letter dated 04.03.2010 called upon the complainant to pay a sum of Rs. 13,06,250/ - against the balance price of the flat. The demand was much more than the agreed price of the flat. Therefore, the complainant approached the opposite parties and protested against the demand. On this, the opposite party told the complainant that there was some calculation error and they would rectify the payment. Thereafter, the opposite parties demanded a sum of Rs. 25000/ - from the complainant against the charges for electric connection, which was also paid. It is also alleged that the opposite parties No. 1 & 2 instead of informing the complainant about the progress of work and justifying their demand, cancelled the allotment of the flat and also refused to refund the advance money of Rs. 3,00,000/ - paid by the complainant. This led to the filing of the complaint.

THE opposite Parties in their written statement admitted that petitioner had booked flat in their project and paid booking amount of Rs. 2,75,000/ -. It was also admitted that subsequently a sum of Rs. 25000/ - was also paid against the demand towards the electricity connection. Other allegations of the complainant were denied. According to the opposite parties, the complainant failed to pay the construction linked installments despite being intimated and because of his failure to pay the balance amount, his allotment was ultimately cancelled. According to the opposite parties, there was no deficiency in service on their part because the complainant/respondent had failed to comply with the terms and conditions of the agreement. District Forum Barasat on consideration of the pleadings of the parties and the evidence allowed the complaint and directed the opposite parties to pay to the petitioner a sum of Rs. 2,70,000/ - within one month of the date of the order and further directed that in the event of failure to pay the amount within one month, the amount shall carry 9% interest from the date of the order till the realisation of the amount.

FEELING aggrieved by the order of the District Forum, the opposite parties preferred an appeal before the State Commission West Bengal and learned State Commission after hearing the parties, dismissed the appeal.

SHRI Rahul Jain, Advocate, learned counsel for the petitioners has contended that the impugned orders of the fora below are unsustainable for the reason that the orders have been passed ignoring the agreement between the parties, in particular clause 24 of the agreement. We are not convinced with the above submissions made on behalf of the petitioners. It is undisputed that the petitioners have received a sum of Rs. 3,00,000/ - against the part payment of flat booked by the complainant and that the petitioners have cancelled the allotment of flat in favour of the complainant on the premise that the respondent has failed to make the balance payment against the price of the flat in terms of agreement. Clause 24 of the agreement between the parties deals with the situation where the allotment in favour of the purchaser is cancelled by the opposite party/developer. In order to appreciate the contention of the learned counsel for the petitioners, it would be useful to have a look on clause 24 of the agreement which is reproduced thus: In the even the Flat Purchaser (1) fails to make payment and any other amount payable to the developer hereunder, (2) or fails to perform the obligations on the part of the Flat Purchaser to be performed in terms of this Agreement shall at the option of the Developer stand cancelled and/or rescinded, upon which the Developer shall refund to the Flat Purchaser all payment received till that date, without any interest, after deducting 10% of payment received and due if any by termination date or Booking Amount (whichever is higher).....

ON careful reading of the above noted clause, we find that the aforesaid clause is drafted in a manner having potential to mislead the prospective flat purchaser. On the one hand, clause 24 states that in the event of cancellation or rescinding of the agreement by the developer, the developer shall refund to the flat purchaser all payments received till date without any interest after deducting 10% which gives an impression that in such an event, the purchaser would get the refund of 90% of the payments made till the date of cancellation of the contract. The aforesaid words, however, are followed by the words "payment received and due if any by the termination date or booking amount (whichever is higher)", which would mean that in all circumstances booking amount of Rs. 2,75,000/ - shall stand forfeited because the amount of Rs. 2,75,000/ - is higher than the 10% of agreed cost of the flat i.e. Rs. 1,37,500/ -. The opposite parties developer instead of making a clear stipulation that booking amount of Rs. 2,75,000/ - deposited by the petitioner shall be forfeited in case of cancellation of contract has used the above deceptive language which cannot be comprehended by the layman who is not conversant with the niceties and technicalities of rules of interpretation and a prospective purchaser is likely to be deceived by such a language and can reasonably get an impression that in the event of cancellation of allotment by the opposite party, he would receive back the amount paid by him after deduction of 10%. Thus in our view, clause 24 of the agreement being deceptive is unfair and the fora below have rightly directed the petitioners to refund 90% of the deposit i.e. Rs. 2,70,000/ - to the respondent/complainant. In view of the discussion above, we do not find any jurisdictional error, illegality or material irregularity in the impugned orders which may call for interference by this Commission in exercise of the revisional jurisdiction. Revision petition is, therefore, dismissed. Parties to bear their own costs.