Complainants/petitioners entered into an agreement with the respondents for purchase of a flat at Gurgaon for a total consideration of Rs.98,53,380/-.  Initially, the complainants paid a sum of                  Rs.10 lakhs to the respondent on 08.10.2007 towards the booking of the said flat.  An agreement was entered into between the parties on 9.2.2008.  The complainants/petitioners were asked to make payments as per schedule.  They paid Rs.one lakh towards                   

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2^nd installment on 03.09.2008, Rs.9,06,338/- towards 3^rd installment on 03.09.2008 and Rs.3,53,169/- on 25.3.2009.  Another sum of  Rs.1 lakh was paid on 08.04.2009.  In all, complainants deposited a total sum of Rs.36,25,352/- with the respondents towards the part price of the flat.  

On account of financial constraints, the complainants were not able to purchase the said flat.  They requested the respondents to allot them an alternate flat of lesser value, but their request was not accepted.  Petitioners then wrote a letter to the respondents  surrendering the flat and accepting the surrender value after deduction of 10% of the amount deposited.  Request was accepted and the respondents refunded the sum of Rs.22,18,654/-.  Petitioners, thereafter, filed the complaint before the District Forum  alleging that there was no clause in the agreement authorizing the respondents to deduct 10% of the deposited amount.  That they had singed the full and final settlement letter and accepted the surrender value of Rs.22,18,654/- under protest.

          District Forum allowed the complaint in part and directed the respondents to refund sum of Rs.4,21,360/-, i.e. Rs.3,15,348/- as

brokerage + Rs.1006012/- as interest on delayed payment along-with interest @ 9% p.a.  Complaint qua other reliefs was dismissed.

          Complainants/petitioners being aggrieved filed the appeal before the State Commission which has been dismissed by the impugned order.

          State Commission relying upon the letter written by the petitioners asking the respondents to refund the amount deposited by them after deducting 10% of the basic price coupled with Clause 6 of the Agreement and the judgment of Supreme Court in “HUDA & Anr. V. Kewal Krishan Goel & Ors. 1996 AIR 1981”  in which it has been held as under:

            “This being  the legal  position and  the allotee hating accepted the  allotment and  having  made  some  payment  on installment basis  then made  the request  to surrender the land, has committed default  on his  part and therefore the competent authority  would be  fully justified in forfeiting the earnest  money which  had been deposited and not the 10% of the amount deposited as held by the High Court. The High Court was  totally in  error in  issuing  the  direction  in question on  the ground  that the respondents were not in a position to  deliver the  possession  of  the  land  to  the allotee. lt may be stated that in the letter of allotment no period was stipulated within  which the  possession of the land was  to be delivered. The land in question

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was required to be developed and then to be delivered and in absence of any period in the letter of allotment, it was required to be delivered’, within a reasonable period. In the facts and circumstances.  It cannot be said that the reasonability had lapsed particularly  when the  allotees had  not paid up the entire installment due and merely paid a par thereof.

    In the premises as aforesaid the impugned judgment and direction of  the High Court in  each of the appeal are set aside and it is held that the appellant would be entitled to forfeit the  earnest money  which had  been deposited  alongwith  the   application   form  and  on     deducting  the said ’earnest’ the  balance amount  may be refunded to allotees - respondents who had made application for refund in question.”

dismissed the appeal.

          We agree with the view taken by the State Commission.  Petitioners in their letter had stated in clear cut terms that they were surrendering the plot allotted to them.  It was stated in the letter that the respondents could deduct 10% of the basic price and refund the remaining amount.  Respondents accepting the letter of the petitioner refunded the sum of Rs.22,18,654/- after deducting 10% of the basic price in terms of the Clause 6 of the Agreement.  In view of the letter written by the petitioners, the plea now taken by them that they had

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accepted the surrender value of the plot of Rs.22,18,654/- under duress or compulsion cannot be accepted.  No ground for interference is made out.  Dismissed.