ORDER
JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
This revision is directed against the order of the State Commission, Punjab dated 21.11.2016 in first appeal No.135/2016.
2. Briefly stated, facts relevant for the disposal of the revision petition are that petitioner opposite party in the year 2012 floated a scheme for allotment of 976 free hold residential plots in PUDA Enclave, Sugar Mill site, Badhala, District Mansa. The respondent being a disabled lady applied for allotment of plot under the category 'Disabled Persons' in the said scheme. Alongwith application for allotment, the complainant deposited 10% of the consideration amount i.e. Rs.90,000/- as earnest money. The complainant was selected for allotment of 150 sq. yds. plot and was issued Letter of Intent dated 12.04.2013. As per the terms and conditions stipulated in the letter of intent, the complainant deposited a further sum of Rs.1,23,750/- i.e. 15% against the consideration amount. The balance 75% of the consideration amount was to be paid in one go within 60 days of the issue of allotment letter or in six equated half yearly instalment alongwith 12% interest. The first instalment was to be paid one year after the issuance of the allotment letter. As per the stipulation, the possession of the plot was to be handed over to the complainant after completion of development work at the site or within 18 months from the date of issuance of allotment letter, whichever is earlier. According to the complainant, al-though more than two years have elapsed since the date of issue of letter of
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intent, neither the allotment letter has been issued by the opposite party nor the opposite party has been able to complete the development work at the site. Claiming this to be deficiency in service on the part of the opposite party, the complainant approached District Forum concerned with a prayer seeking refund of the amount paid by him with 18% interest p.a. besides cost as also litigation charges.
3. The opposite party in its written statement admitted having invited application for allotment of residential plots. It was also admitted that the complainant had applied for a plot of 150 sq. yards and she was issued letter of intent of allotment. It is further admitted that the complainant as per the terms & conditions has deposited 25% of total cost of plot and that neither the allotment letter has been issued to the complainant nor the possession of the plot has been issued. According to the opposite party, it has already allotted the work for development of the site to M/s Avtar Singh Construction Company. It is pleaded that after the completion of development work, the allotment letter would be issued to the complainant. The opposite party further pleaded that the complainant never applied for refund of money and if she is not interested in the scheme the opposite party is ready to refund her money as per the terms & conditions contained in the brochure and the letter of intent. The opposite party has also taken preliminary objection that there being an arbitration clause in the agreement between the parties, the jurisdiction of District Forum is barred.
4. The District Forum on appreciation of the evidence allowed the complaint and directed the petitioner/opposite party to refund to the respondent/complaint the amount deposited by her with 12% interest p.a. Besides cost of Rs.2,500/- was also imposed.
5. Being aggrieved of the order of the District Forum, the petitioner/opposite party preferred an appeal. The State Commission did not find merit in the appeal. Consequently, the appeal was dismissed. This has led to filing of the revision petition.
6. Learned counsel for the petitioner has contended that Foras below have exceeded their jurisdiction by arbitrarily granting relief to the respondent complainant contrary to the terms of Letter of Intent (LOI). Expanding on the argument, learned counsel has drawn our attention to relevant stipulation in the Letter of Intent, namely, clause 12, 21 & 22. It is argued that as per clause 12 of Letter of Intent, the possession of the plot was to be handed over to the complainant after the completion of development work at the site or within 18 months from the date of issue of allotment letter, whichever is earlier. Learned counsel submitted that Foras below have failed to appreciate that neither the development work is complete nor letter of allotment has been issued to the complainant. Therefore, the consumer complaint is pre mature. Learned counsel has submitted that perusal of clause 21 & 22 of Letter of Intent would show that these clauses made it clear to the complainant that she may deposit 15% of the price of the plot within 30 days if the terms and conditions of Letter of Intent were acceptable or in case the terms are not acceptable, the complainant may communicate her refusal to accept the offer in writing through registered AD post within 30 days from the date of issue of Letter of Intent failing which the entire 10% earnest money shall be forfeited. It is argued that the Fora below have ignored the aforesaid essential terms and conditions of Letter of Intent. Therefore, the impugned orders are liable to be set aside. In support of her contention, learned counsel has referred to the judgment of the Supreme Court in the matter of
Rajasthan State Industrial Development & Investment Corporation V. Diamond & Gem Development Corpn Ltd. (2013) 5 SCC 470, wherein Hon'ble Supreme Court has interalia
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held as under:
"A party cannot claim anything more than what is covered by the terms of contract for the reason that contract is a transaction between the two parties and has been entered into with open eyes and understanding the nature of contract. Thus, contract being a creature of an agreement between two or more parties has to be interpreted giving literal meanings unless, there is some ambiguity therein. The contract is to be interpreted giving the actual meaning to the words contained in the contract and it is not permissible for the Court to make a new contract, however reasonable, if the parties have not made it themselves. It is to be interpreted in such a way that its terms may not be varied. The contract has to be interpreted without any outside aid. The terms of contract have to be construed strictly without altering the nature of the contract, as it may affect the interest of either of the parties adversely. ( Vide United India Insurance Co. Ltd. V. harchand Rai Chandan Lal (2004) 8 SCC 644; AIR 2004 SC 4794) and Polymat India ( P) Ltd. Vs. National Insurance Co. Ltd. [ (2005) 9 SCC 174; Air 2005 SC 286]."
7. In order to appreciate the learned counsel for the petitioner, it would be useful to have a look on clauses 12, 21 & 22 of the Letter of Intent for allotment dated 26.02.2013 which are reproduced as under:
12. Possession of plot shall be handed over to the allottee after completion of development works at site or 18 months from the date of issue of allotment letter whichever is earlier.
21. In case terms and conditions of the letter of intent, as detailed above are acceptable, allottee is required to send his / her acceptance by registered post along with a demand draft of 15% price of the plot within 30 days of issue of Letter of intent ( excluding date of issue) subject to the conditions.
22. In case of refusal to accept the offer, such refusal in writing through a registered post should be received within 30 days from the date of issue of Letter of Intent, 10% amount of earnest money shall be forfeited. In the event, such refusal is received after a period of 30 days from the issue of Letter of Intent, entire earnest money deposited shall be forfeited."
8. No doubt, clause 12 of Letter of Intent do provide that the possession of the plot shall be handed over to the allottee after the completion of the development work at the site or within 18 months from the date of issue of allotment letter, whichever is earlier. It is also true that neither the development work has been completed as yet nor any allotment letter has been issued in favour of the complainant who deposited the demanded 15% of the consideration amount in furtherance of Letter of Intent. The question is does this mean that by providing the stipulation in clause 12, 21 & 22 of Letter of Intent, the opposite party can delay the delivery of possession of subject plot to the complainant for indefinite period? Our answer to the question if a firm 'No'. Admittedly, by giving a lure of allotment of plot to the complainant, the petitioner opposite party has received 25% of the agreed consideration amount from the
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complainant way back in April 2013. Till date no allotment letter has been issued in favour of the complainant. On our query, learned counsel for the complainant stated that development work at the site is not yet complete. From this it is evident that petitioner has obtained 25% of the consideration amount about four years back and till date the petitioner is not in a position to deliver possession of the plot to the complainant. The complainant is not expected to wait for the delivery of possession of plot for indefinite period. The aforesaid conduct of the opposite party in itself amounts to unfair trade practice by which they are utilizing the money belonging to the gullible consumers without making a serious effort to ensure that the promised possession of the plot is delivered within a reasonable period. The stipulation to the effect that possession shall be delivered within 18 months of the issue of allotment letter gives a clear indication that impression was given to the consumers that possession of the plot would be delivered within a reasonable period i.e. 2-2 ½ years, which implied promise has not been fulfilled by the opposite party. Therefore, we do not find any reason to differ with concurrent finding of the Fora below that petitioner opposite party is guilty of deficiency in service bordering unfair trade practice.
9. In view of the discussion above, we do not find merit in the revision petition. It is accordingly dismissed.
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AJIT BHARIHOKE
PRESIDING MEMBER
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ANUP K THAKUR
MEMBER
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