SHALIMAR ESTATE (PVT.) LIMITED vs SURINDER KUMAR ANAND

THIS appeal bearing No. 264 of 2000 has been directed against the order dated 1.8.2000 passed by the District Consumer Disputes Redressal Forum - I, U.T., Chandigarh (for short hereinafter referred to as the District Forum-I). The facts stated briefly are as under.

THE respondent/complainant - Sh. Surinder Kumar Anand, House No. 513, Sector 38-A, (Top Floor), Chandigarh deposited Rs. 10,800/- in cash on 5.2.1998 towards the earnest money of a 6 marlas plot at Naraingarh (Hrayana) vide Application No. 16110 with the appellant - M/s. Shalimar Estate (Pvt.) Limited, Administrative Office, SCO 110 - 111, Sector 8-C, Chandigarh. THE respondent/complainant was informed of the allotment of plot No. 382 vide a letter No. SEPL/98/4563 dated 26.5.1998 whereby he was also requested to deposit the balance of 25% amounting to Rs. 16,200/- within 30 days. As per the averments made by the respondent/complainant, he was unable to deposit any more amounts due to personal difficulties and he requested the appellant-Company to refund his earnest money after deducting 10% canecllation charges. Letters dated 20.6.1998, 27.7.1998, 15.8.1998, 20.9.1998 and 22.10.1998 written by the respondent to the appellant - Company requesting them to cancel the allotment and refund the amount have been placed on record. THE complainant/respondent has also referred to Rules of Housing Development Authorities like HUDA, PUDA, etc. which normally refund the earnest money after deducting of 5 or maximum 10% and pleaded that even these Agencies do not forfeit the entire money. The opposite party in their reply dated 29.9.1998 in the preliminary objections have averred that the complaint is primarily aimed at tarnishing the reputation of the opposite party-Company. The appellant/opposite party has averred that the complaint is not maintainable as it is the respondent/complainant himself who has defaulted in the payment of 15% of the balance amount of 20% within 30 days as stipulated under the rules of allotment. The appellant has further averred that another grace period of 30 days to make the payment with 18% intertest was also granted to the respondent but he failed to make the requisite payment by the above date as well. The appellant/opposite party has justified the forfeiture of the earnest money as the same being according to the Terms & Conditions governing the allotment as given in the brochure of the company. The appellant/opposite party has further averred that the complaint is not maintainable as the complicated questions of law and facts are involved so the Consumer Redressal Agencies are not competent to adjudicate upon such matters.

The District Forum-I after perusal of the record and on the basis of the arguments advanced by both the parties in the impugned order has directed the opposite party (now appellant) to refund the earnest money by deducting 10% of the same within 4 months failing which the complainant would be entitled to interest @ 12% p.a. from the date of the order.

AGGRIEVED by the order of the District Forum-I, the opposite party - Company, namely, M/s. Shalimar Estate (Pvt.) Limited, Administrative Office, SCO 110 - 111, Sector 8-C, Chandigarh has filed the present appeal. The main grounds taken in appeal are as under. Firstly that the order of the District Forum is not based on correct appreciation of facts placed before it. The appellant has contended that it was the respondent/complainant who failed to pay the balance of 15% in spite of being given a grace period of 30 days. Referring to the Terms and Conditions for the allotment/sale of residential plots under Columns 1 and 2 wherein it has been stated : "The applicant shall deposit with the Company an additional 15% of the sale price or such other amount which together with the earnest money equals 25% of the sale price of the site. In case of failure to deposit such amount within 30 days the period can be extended upto 60 days on written request by the purchaser/allottee. However, interest @ 18% will be charged if payment is not made within this extended period as well, the allotment shall be cancelled and the entire deposit of 10% earnest money made at the time of application shall be forfeited and the applicant shall have no claim against such payment, subsequently." Also the appellant has contended that the District Forum-I, has not considered the contents of written statement/replication filed by the complainant on 7.1.2000 in which he has admitted the fact of his own inability to pay the balance of the amount. The appellant has further stated that the District Forum-I, after recording that there was a deficiency on the part of the complainant as he failed to deposit the balance of 15%, was not justified in holding the refund of the earnest money, in the face of the fact that the respondent has been held deficient in as far as making of payment was concerned. A copy of the brochure containing the Terms and Conditions has been attached for the perusal of this Commission. Further the appellant has assailed the order of the District Forum-I on the ground that the Forum had not taken into consideration the affidavit of Mr. R.K. Aggarwal, Managing Director of the appellant-Company while deciding the case in favour of the respondent.

FURTHER the appellant-Company has assailed the order of the District Forum-I being against the principles of natural justice and spirit of Consumer Protection Act, 1986 (for short hereinafter referred as to C.P. Act) and has prayed to set aside the same on the above stated grounds. We have perused the impugned order along with record produced as evidence in the District Forum-I as well the grounds of appeal and the arguments submitted by the respondent and learned Counsel for the appellant. This Commission holds that since as per rules relating to the admission of appeals any document at the stage of appeal not being admissible, the copy of Terms and Conditions as referred above cannot be admitted at the stage of appeal. So the applicability of the contents of the same cannot be taken into account. Consequently this document cannot be taken into consideration for the purpose of the decision of the case. The District Forum-I has on the basis of material placed on record by both the parties which primarily was the allotment letter by the opposite party-Company and the letters of request of cancellation of the plot by the respondent/complainant, rightly come to the conclusion that because of the personal difficulty of the respondent/complainant the opposite party-Company should refund the earnest money after deducting the 10% of the same. Any material regarding the complete forfeiture of money in the form of Terms and Conditions governing the allotment etc. has not been produced on record. Hence the District Forum-I was justified in ordering the refund as stated above. Another plea in appeal, namely, that the order of the District Forum-I is not based on principles of natural justice and spirit of C.P. Act, we hold to the contrary. Rather the impugned order of the District Forum-I is very well balanced on the principles of natural justice. Since the consumer is unable to pay the balance he is held liable to surrender 10% of the earnest and this is the deduction he has to undergo because of his inability to pay further. Since this Act is meant for the protection of the consumers, the order of the District Forum conforms to the spirit of the C.P. Act. Resultantly, we are of the considered opinion that the order of the District Forum-I does not suffer from any infirmity either on facts or in law. The appeal lacks merit and is dismissed. However, the parties are directed to bear their own costs. Copies of the order be sent to the parties free of charge Appeal dismissed.