PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioner against the order dated 21.08.2013 in Appeal No. 578/2012 DLF Southern Towns Pvt. Ltd. Vs. Dipu passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, the State Commission) by which, while dismissing appeal, order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that Complainant/Respondent and his wife jointly applied for allotment of apartment No. Q.142, 3BHK unit in the project of OP/petitioner New Town Heights DLF, Kakkanad for a total consideration of Rs.40,00,000/-. Vide application dated 30.9.2008 and they paid Rs.4,00,000/- towards first instalment. OP promised to handover possession of the apartment by the end of 2009, but construction was delayed by OP, so, complainant did not remit subsequent instalments. It was further submitted that recently OP has started construction, therefore, complainant expressed his willingness to remit the defaulted instalments, but OP demanded additional amount of Rs.1,70,000/-, otherwise they will forfeit amount of first instalment of Rs.4,00,000/-. Alleging deficiency on the part of OP, complainant filed complaint before District Forum for delivering flat after receiving balance amount or to refund the deposited amount. OP resisted complaint and submitted that dispute between the parties is to be adjudicated by a competent Civil Court and complaint was not maintainable as complainant was not a consumer. OP admitted booking of flat and receipt of Rs.4,00,000/- as earnest money. It was further submitted that OP agreed to deliver possession of flat within 36 months, but complainant failed to return signed agreement and did not pay subsequent instalments inspite of repeated demands; hence, OP was entitled to forfeit Rs.4,00,000/- paid by the complainant towards earnest money and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OP to refund Rs.4,00,000/-. Appeal filed by the OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed along with application for condonation of delay.
3. Heard learned Counsel for the parties finally at admission stage and on application for condonation of delay and perused record.
4. Petitioner filed application for condonation of delay and submitted that his office was relocated from 17.8.2012 and intimation regarding change of address was given to Post Office by letter dated 14.8.2012 and petitioner did not receive free copy of the order dated 21.8.2013 and was not aware about the same and he received intimation only vide notice issued in execution application which was served on him on 25.2.2014 and this revision petition has been filed on 30.4.2014.
5. As revision petition has been filed within 90 days from the date of service of notice enclosing impugned order, delay in filing revision petition is condoned for the reasons mentioned in the application supported by documents.
6. Learned Counsel for the petitioner submitted that on account of default in payment of instalments, petitioner rightly forfeited earnest money amount, even then, learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.
7. It is not disputed that complainant along with his wife filled application form on 30.9.2008 along with cheque of Rs.4,00,000/- for allotment of residential apartment by the OP. Terms and conditions forming part of this application for provisional allotment was also signed by complainant and his wife.
8. The core question to be decided in this matter is whether on default of payment of rest of the amount by the complainant, OP was entitled to forfeit Rs.4,00,000/- deposited by complainant or not.
9. Complainant filled application form for provisional allotment on 30.9.2008 and rest of the amount was to be paid in instalments within 27 months of booking. Complainant did not pay any of the instalments and OP vide demand notice dated 31.10.2008, 4.12.2008, 17.12.2008, 31.12.2008, 2.2.2009, 2.3.2009 and 6.3.2009 asked complainant to remit payment, but complainant did not remit payment. OP also asked complainant from time to time to return duly signed Apartment Buyers Agreement, but that was not sent by complainant to OP. As per letter dated 28.1.2010, OP asked complainant to deposit Rs.10,60,326/- outstanding against him on or before 1.3.2010, failing which, allotment will be cancelled and earnest money will be forfeited. Later on, by notice dated 10.3.2010, issued by complainants Advocate it was expressed that complainant was ready to remit unpaid instalments or in the alternative demand of Rs.4,00,000/- deposited was made which was denied by OP vide reply dated 9.4.2010. It was specifically stated in this reply that OP was to complete construction within 36 months from date of execution of the agreement subject to allottee making timely payment of instalments and when payment was not made by the complainant, OP vide letter dated 28.7.2010 cancelled allotment and forfeited Rs.4,00,000/- earnest money and intimated to the complainant that no balance was refundable. After this letter, complainant filed complaint before District Forum with aforesaid prayer.
10. Learned Counsel for the petitioner submitted that as per terms and conditions of the application for provisional allotment, booking amount paid by the complainant along with application was to be treated as earnest money. As per Clause 10, OP was entitled to forfeit earnest money if allottee fails to sign and return agreement within 30 days. As per Clause 14 construction was to be completed within 36 months and for delay in completion of construction, OP was liable to pay compensation @ Rs.5/- per sq. ft. per month. As per Clause 17 of the agreement, if allottee fails in complying terms and conditions of the application OP had the right to forfeit the entire amount of earnest money along with other non-refundable amounts.
11. Admittedly, complainant neither made payment of any instalments nor sent duly signed agreement, though; it was to be remitted within 30 days from the receipt. Inspite of repeated reminders, complainant has not made payment of any instalments and in such circumstances, OP had every right to forfeit earnest money on account of failure to comply terms and conditions of the allotment. Learned Counsel for the petitioner has placed reliance on judgment of this Commission in Sahara India Commercial Corpn. Ltd. Vs. P. Gajendra Chary III (2010) CPJ 190 (NC) in which it was observed as under:
12. Observations made by Honble Supreme Court of India in H.U.D.A. s case (supra) would be applicable to the facts of the vs. Kewal Krishan present case. In the said case, the Supreme Court has held that the builder would be entitled to forfeit the amount paid by way of instalments in a case where the allotte defaults in making the payment of the remaining instalments. That the builder would be fully justified in forfeiting the earnest money deposited by the allottee. In the present case, petitioner having paid the sum of Rs.46,350/- failed to pay the remaining amount by way of instalments and asked for the refund of the amount already deposited. As per Clause 8 of the terms and conditions of allotment, the petitioner was entitled to forfeit the amount.
12. He has also placed reliance on judgment of this Commission in R.P. No. 624 of 2007 Sahara India Commercial Corpn. Ltd. & Anr. Vs. C. Madhu Babu in which also similar order was passed as in P. Gajendra Chary (Supra). He further placed reliance on judgment of Honble Apex Court reported in (2000) 4 SCC 120 Prashant Kumar Shahi Vs. Ghaziabad Development Authority in which it was observed as under: Having failed to perform his part of the contract, the appellant cannot be permitted to urge that he is not liable to pay the balance amount along with interest as according to him the respondent-authority had failed to deliver possession as per terms of the brochure. The authority was not expected to deliver possession in the absence of the payment of the agreed amount.
13. In the light of aforesaid judgments, it becomes clear that as complainant has not paid any subsequent instalments and committed default in making payments of instalments and also committed default in returning back duly signed agreement, OP had every right to forfeit amount of earnest money deposited by complainant and learned District forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal.
14. On the other hand, learned Counsel for the respondent has placed reliance on judgment of this Commission in Consumer Complaint No. 88/2012 Kushal K. Rana Vs. M/s. DLF Commercial Complexes Ltd. by which, complaint was allowed and entire deposited amount was directed to be refunded with interest. Facts of the aforesaid case are not similar to the present case as in the aforesaid case builder unilaterally changed position of flat and area. In the aforesaid case builder promised to start construction in November, 2008, but no construction was started till February, 2009 and construction was adjourned to April, 2009 and in such circumstances, complainant asked builder to refund money by letter dated 20.2.2009. On the contrary, in the case in hand construction was to be completed within 36 months from the date of application i.e. 30.9.2008 and complainant was bound to make payment of rest of the instalments as agreed between the parties and he could not have asked for possession before completion of 36 months whereas this complaint was filed in August, 2010 before 24 months of agreement. Learned Counsel for the respondent also placed reliance on judgment of Honble Apex Court in (2013) 12 SCC 776 Hansa V. Gandhi Vs. Deep Shankar Roy & Ors. in which rate of interest awarded by lower court was enhanced by Honble Apex Court on appeal filed by allottee. In the aforesaid case order of lower court was not challenged by builder, hence, this case is not applicable to the facts and circumstances of the present case.
15. In the light of above discussion, it becomes clear that as complainant failed to perform terms and conditions of the agreement inspite of repeated reminders, OP was well within its rights to forfeit amount of earnest money and learned District Forum committed error in allowing complaint and learned State Commission further committed error in dismissing appeal.
16. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 21.08.2013 in Appeal No. 578/2012 DLF Southern Towns Pvt. Ltd. Vs. Dipu passed by the State Commission and order of District Forum dated 30.4.2012 in CC No. 483/2010 - Dipu Vs. DLF Southern Towns Pvt. Ltd. is set aside and complaint stands dismissed with no order as to costs. ......................J K.S. CHAUDHARI PRESIDING MEMBER