JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This revision is directed against the order of the State Commission Punjab dated 12.08.2015 in First Appeal No. 70 of 2015 whereby the State Commission partly accepted the appeal preferred by the respondent opposite party and modified the order of the District Forum. The operative portion of the impugned order is reproduced as under: “In view of the above, we partly accept the appeal. The order of the District Forum is modified to the extent that instead of Rs.15 lacs, the complainant will be entitled to Rs.5 lacs alongwith interest @ 12% p.a. from the date of deposit till realization. Other part of the order will remain as it is. The appellant had deposited an amount of Rs.25,000/- + Rs.3,00,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to the respondents / complainants in equal share by way of a crossed cheque/demand draft after the expiry of 45 days from the dispatch of the order of the parties; subject to stay, if any, by the higher Fora /Court. Remaining amount, if any due shall be paid by the appellant to the respondents/complainants within 30 days from the receipt of the copy of the order.” 2. Briefly put, the facts relevant for the disposal of the revision petition are that petitioner had come across an advertisement inviting applications for allotment of residential plots in Sector 105, Mohali Hills Emaar MGF, Mohali approached the respondent opposite party and applied for allotment of residential plot vide application dated 02.08.2011. Alongwith the application, the complainant issued a cheque of Rs.10.00 lakhs dated 02.08.2011 in favour of the respondent opposite party. Pursuant to the application, a provisional allotment letter in respect of plot no.209 was issued in favour of the complainant on 03.03.2012. The total consideration amount for the plot was stated to be Rs.87,52,350/-. The complainant on receipt of the provisional allotment letter deposited a further sum of Rs.5,00,000/- lakhs with the opposite party vide bank draft dated 31.03.2012. It is the case of the complainant that after making the above noted payment of Rs.15,00,000/- lakhs, the complainant visited the subject sector on several occasions but found that land was in such a state that its development would take several years. Thus, the complainant vide letter dated 09.05.2012 requested to surrender his allotment and sought refund of Rs.15,00,000/- deposited with the opposite party. The opposite party instead of refunding the amount, vide letter dated 14.08.2012 informed the complainant that his allotment has been cancelled and sum of Rs.12,29,191/- out of the deposited amount has been forfeited. Claiming the forfeiture of the amount as deficiency in service, the complainant approached the concerned District Forum and raised a consumer dispute seeking refund of Rs.15,00,000/- alongwith 18% interest thereon as also Rs.5,00,000/- as compensation for mental harassment and agony. 3. The opposite party in its reply took the plea that complainants have approached the consumer forum with unclean hands and they had concealed the relevant terms and conditions of the provisional allotment which provide that in the event of the complainants failure to comply with the terms and conditions, the opposite party shall have right to cancel the allotment and forfeit the earnest money. The opposite parties also pleaded that complainants failed to remit the payments as per the schedule of payment despite of many reminders and they had failed to sign the Builder-Buyer agreement sent to them which was supposed to be returned within 30 days after signing the same. Therefore, the opposite parties were justified in cancelling the allotment and forfeiting the earnest money. 4. The District Forum on consideration of the pleadings of the parties and evidence came to the conclusion that by forfeiting the amount of Rs.12,29,191/-, the opposite parties have committed deficiency in service. Accordingly, the complaint was allowed with following directions: “Therefore, we allow the present complaint with the direction to the OP to refund Rs.15.00 lacs ( Rs. Fifteen Lacs only) to the complainants alongwith interest @ 12% per annum from the date of respective deposits till realization with further direction to the OP to pay to the complainants a lumpsum compensation of Rs.1,00,000/- (Rs. One lac only). Compliance of this order be made within a period of one month from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter file be consigned to record room.” 5. Being aggrieved of the order of the District Forum , the opposite party preferred an appeal and the State Commission vide impugned order partly allowed the appeal and directed as noted above. 6. Mr. Abhishek Puri, Advocate for the petitioners has submitted that impugned order of the State Commission is based upon incorrect appreciation of law and facts. It is argued that State Commission has failed to appreciate that condition no. VI of the terms and conditions of the allotment letter is a one sided, which is stated to be binding on the complainants but does not constitute any offer or definite allotment or agreement to sell on the part of the opposite party. It is contended that after having received a substantial amount of Rs.15,00,000/-, the opposite party sent a Builder-Buyer agreement to the complainant alongwith letter calling upon them to sign the agreement and return the same to the builder within 30 days failing which it was stated that application of the applicant shall be treated as cancelled. Learned counsel has contended that as the terms detailed in the agreement were not acceptable to the complainants, they were well within their rights not to return agreement to the opposite party after signing the same. It is further contended that amount deposited by the complainants was against booking of the plot and not as earnest money. Therefore, also, opposite party was not justified to forfeit the amount, claiming the part of the same to be the earnest money. Lastly, it is contended that otherwise also, forfeiture of the amount as earnest money on the part of the opposite party would be justified only if the opposite party has suffered any loss due to withdrawal of complainants from the allotment. In support of their contention, petitioners have relied upon the judgment of Supreme Court in the matter of Kailash Nath Associates Vs. DDA (2015) 4 SCC 136. 7. Mr. Aditya Narain, Advocate for the opposite party respondent has argued in support of the impugned order. He has drawn our attention to letter of the complainants dated 09.05.2012 requesting for cancellation of allotment and refund of Rs.15,00,000/-. It is argued that complainant had failed to comply with payment schedule despite of several reminders and instead had asked for cancellation of allotment and refund of money. Therefore, opposite party was justified in forfeiting the earnest money. 8. We have considered the rival contentions and perused the record. The short question which needs determination in this revision petition is whether the respondent opposite party was justified in forfeiting the amount for alleged breach of contract by the petitioners? 9. It is undisputed that petitioners complainants have applied for allotment of plot in the development project undertaken by the opposite party vide application dated 02.08.2011. Some of the salient terms on the printed application form in which blanks have been filled in by the complainants require to be highlighted which are reproduced as under: “ii. The Company within the said Integrated Township “Mohali Hills” is inviting Application for the provisional allotment and booking of the independent plots, comprised in the said Land. The applicant understands that this application relates to one such plot admeasuring 30x90 bearing no.209-CP ( hereinafter referred to as ‘Plot’) in block/sector no.105 in the said project. The Applicant has been intimated that though the Project has various components including independent floors, villas, plots and apartments etc., this Application shall be confined and limited in its scope to the plot in the aforesaid land. iii. The applicant after having read, understood and agreed with the terms and conditions ( Terms & Conditions) annexed hereto as annexure-1, pertaining to the registration & booking of the said Plot, do hereby apply for registration & booking of the said Plot, under the following payment plans: - Full Down Payment Plan b. Installment Payment Plan
v. The Applicant hereby remit a sum of Rs.10,00000/- ( Rupees Ten Lac only) vide Cheque/No. (s) 61645 dated 02.08.11 drawn on Axis Bank Ltd. in favour of “Emaar MGF Land Ltd. A/C Mohali Hills” as the registration/booking amount for the said Plot in the Project. vi. The Applicant agrees and understands that this Application is irrevocable. The Applicant understands that this Application does not constitute any offer or definitive allotment or any agreement to sell and the Applicant do not become entitled to the provisional and/or final allotment of a Plot, notwithstanding the fact, that the Company may have issued a receipt (s) in acknowledgment of the money tendered with this Application. xi. The Applicant undertakes to sign and return the Buyer’s Agreement, together with all the annexures, draft tripartite maintenance agreement together with the amounts due and payable as set forth in the Payment Plan within a period of 30 (Thirty) days of the receipt of the Buyer’s Agreement. If the Applicant fails to execute the Buyer’s Agreement and deliver to the Company within the aforesaid stipulated time period, then the Application of the Applicant shall be treated as cancelled.“ 10. On reading of the above, it is evident that petitioners had applied for allotment of plot no. 209-CP in Sector 105 of the Project measuring 30’ x 90’ and that alongwith application, he remitted a cheque of Rs.10,00,000/- in favour of the opposite party. It is admitted case of the parties that thereafter a further sum of Rs.5,00,000/- was deposited with the opposite party. Further, the condition of the application form provides that application is irrevocable and this does not constitute any offer or definitive allotment or agreement to sell. Another requirement as per the application form is that the applicant undertakes to sign and return the Buyer’s Agreement with all annexures within a period of 30 days from the receipt of Buyer’s Agreement from the opposite party. 11. Perusal of the copy of the Buyer’s agreement would show that vide this agreement, the complainants were offered allotment of a plot measuring 300 sq. yards, meaning thereby that in the Buyer’s Agreement sent by the opposite party to the petitioners complainants, they have varied the terms and conditions as mentioned in the application inasmuch as the area of the plot has been changed. As the opposite party after having received a substantial amount of Rs.15,00,000/-, had sent a Plot Buyer’s Agreement to the complainants for their signatures making a material change regarding the area of allotted plot, the complainants were well within their rights to seek cancellation of allotment and refund of money. Otherwise also, there is huge mismatch between the terms and conditions detailed in the application form and Builder-Buyer Agreement. Therefore, also, the complainant was justified in withdrawing his application and seeking refund. 12. It is pertinent to note that condition no. vi in the application form is unfair as it is one sided condition specifying that application submitted by the complainants is irrevocable and at the same time provides that application does not constitute any offer or definitive allotment or any agreement of sell and by this application submitted alongwith deposit of substantial amount, applicant do not become entitled to provisional / or final allotment of the plot. The aforesaid condition is not only one sided but unfair and oppressive. The State Commission has totally ignored the above aspect of the matter and fallen in error to partly accept the appeal. Therefore, impugned order of the State Commission cannot be sustained. 13. In view of the discussion above, we allow the revision petition, set aside the order of the State Commission as it suffers from material irregularity and restore the order of the District Forum. | 
