PER DR. B.C. GUPTA, MEMBER

        This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 20.12.2012 passed by the Punjab State Consumer Disputes Redressal Commission(hereinafter referred to as “State Commission”)in First Appeal No. 1222 of 2008, vide which the State Commission had confirmed order dated 03.09.2008 passed by the District Consumer Disputes Redressal Forum, Ropar in complaint No. 110 dated 23.5.2008, directing the present petitioner not to charge interest of Rs. 2,38,640/- as per their letter dated  05.05.2008.

2.     Briefly stated, the facts of case are that complainant / respondent Navneet Modi filed an application for allotment of residential plot of 200 Sq.Yards in Janta Residential Township, Sector 91, Mohali in a scheme floated by the petitioner/opposite party. He deposited a sum of Rs. 7.20 lacs (30%) vide Demand Draft No. 490648 dated 01.09.2005 and a booking receipt No.2020 dated 01.09.2005 was issued to him. The total price of the said plot was stated to be Rs. 24.00 lacs @ Rs.12,000/- per Sq. Yard.  The petitioner/opposite party issued a letter dated 08.03.2006 to the

complainant / respondent informing him about the allotment of a plot in his favour and asked him to deposit a further sum of Rs. 7.20 lacs (30%).  The respondent deposited the said amount also vide cheque No. 6842004 dated 18.10.2006 drawn on the Oriental Bank of Commerce and this payment was acknowledged vide receipt No. 2967 by the petitioner.  In this way a total sum of Rs. 14.40 lacs was deposited by the respondent against the price of the plot, leaving a balance of Rs. 9.60 lacs.  The petitioner / opposite party then issued a formal letter of allotment dated 30.10.2006, by which the allottee was told that the petitioner company had decided to allot him residential plot No. 1023 of 200 Sq. Yard in the scheme mentioned above at a tentative price of Rs. 24.00 lacs.  He was asked vide this letter to remit the balance amount of Rs. 9.60 lacs in lump sum without interest, within 45 days from the date of issue of the letter to enjoy a rebate of 5% on the balance amount.  In the alternative, he was asked to deposit the balance amount in two instalments of Rs. 4.80 lacs each payable on 30.04.2007 and 30.10.2007 respectively along with interest of 12% per annum on the outstanding amount.  As per the calculations mentioned in the letter dated 30.10.2006, the respondent was asked to deposit Rs. 5,37,600/- by 30.04.2007 and another Rs. 5,08,800/- by 30.10.2007.  However, the respondent did not make any further payment to the petitioner and took the stand that basic amenities had not been provided for the plot in question.  According to the complainant, he personally met the General Manager of the petitioner company on 18.10.2006 and complained about the lack of basic amenities and development activities.  The petitioner vide letter dated 08.03.2007, informed the respondent/complainant that the company had decided to hand over physical possession of residential plot No. 1023 to him and he could take over the possession on 14.03.2007 or 15.03.2007 between 11.00 A.M. to 1.00 P.M.  The respondent, however, sent a letter dated 15.03.2007 to the company complaining about development works but he was informed vide letter dated 03.5.2007 from the company that the developments works had been completed and he could take over the possession within seven days of the issue of the letter from 10.00 A.M. to 12.00 noon.  He was sent another letter dated 28.06.2007 by the company that the first instalment of the balance payment of Rs. 5,37,000/- had become due on 30.04.2007 as mentioned above and he was asked to deposit the sum within seven days of the letter, in order to avoid penalty and penal interest.  The respondent, however, did not take possession and kept on corresponding with the company regarding lack of development works.  The petitioner then issued a letter dated 17.04.2008 to the complainant / respondent saying that the allotment of the plot shall be cancelled if the balance payment was not deposited within ten days.  The complainant, thereafter, deposited the principal amount of Rs. 9.60 lacs under protest on 28.04.2008 vide cheque No. 495924 dated 28.04.2008 drawn on the Oriental Bank of Commerce.  The petitioner however, demanded a sum of Rs. 11,98,640/- as overdue till 29.04.2008 and asked him to remit a further amount of Rs. 2,38,640/- (Rs. 11,98,640/- minus Rs. 9.60,000/-as per intimation already sent to him vide allotment letter dated 30.10.2006). 

3.     The case of the petitioner is that the complainant had accepted the terms and conditions contained in the letter of allotment dated 30.10.2006, and hence there is a legally binding contract between the parties.  The complainant / respondent was asked to have possession of the plot three times, but he never submitted the building plans for approval of the competent authority.  The complainant was required to complete the building within three years from the date of issue of possession letter, after getting the plan of the proposed building approved from the competent authority.  Further the amount of Rs. 7.20 lacs, which the complainant paid on 18.10.2006 should have been paid within thirty days of the issue of letter of allocation dated 08.3.2006.  The complaint of the respondent that the possession of the plot was denied on 18.10.2006 is meaningless because the respondent was informed first time to take possession on 14^th and 15^th March, 2007, vide letter dated 03.05.2007 only but he did not turn up.  The respondent had deposited principal amount of Rs.24.00 lacs but had failed to deposit six monthly interest as well as interest on the late payments as per the contract.

4.     The respondent made a claim before the District Forum, Ropar pleading that the opposite party should be directed not to charge the penal interest / overdue amount as per letter dated 05.5.2008 for Rs. 2,38,640/-.  The opposite party be further directed to give Rs. 1,00,000/- as compensation for harassment and Rs. 10,000/- for cost of litigation.  The District Forum, vide their order dated 03.09.2008, allowed the complaint with the direction to the petitioner/opposite party not to charge penal interest / overdue charges as reflected in their letter dated 05.05.2008, amounting to Rs. 2,38,640/- from the complainant, because penal interest/overdue charges could only be charged after delivery of the possession of the plot in question, with the completion of basic amenities.  The State Commission also dismissed the appeal against this order agreeing with the contention of the District Forum.

5.     At the time of hearing before us, the learned counsel for the petitioner has drawn our attention to the grounds of the revision petition, in which it has been stated that the respondent booked a residential plot of the value of Rs. 24.00 lacs on 01.09.2005 by making an initial payment of Rs. 7,20,000/-.  In the draw of lots held on 02.09.2006, a residential plot bearing No. 1023 was earmarked for him and this fact was conveyed to him vide letter dated 02.09.2006.  On depositing another sum of Rs. 7,20,000/-, an allotment letter dated 30.10.2006 was issued to the respondent, asking him to pay the balance amount of Rs. 9,60,000/- in lump sum without interest, within a period of 45 days and avail a rebate of 5% on lump sum payment, or in the alternative, to remit the balance amount in two six monthly instalments of Rs. 4,80,000/- each with interest of  12%          per annum.  The schedule mentioned in the said letter was as follows:

6.     The respondent did not make the lump sum payment and also, he did not pay the interest on two instalments, which were due on 30.04.2007 and 30.10.2007.  He deposited the balance amount of Rs. 9,60,000/- on 28.04.2008 only.  The petitioner was therefore, within his rights to claim interest from the respondent as per the terms and conditions of the allotment.  As on 28.04.2008, an amount of Rs. 11,98,640/- was due and hence the petitioner demanded a sum of Rs. 2,38,640/- (Rs. 11,98,640/- minus Rs. 09,60,000/-) from the respondent.  Before that, the petitioner had requested the respondent to take possession of the plot vide letters dated 08.03.2007, 03.05.2007 etc.  Another letter had been sent to the respondent dated 17.04.2008 by which he was informed that if the outstanding amount was not paid, the allotment shall stand cancelled.  The deposit of the amount of Rs. 09,60,000/- on 28.04.2008 was the result of the said letter dated 17.04.2008.  The contention of the petitioner is that when the plot was offered to the respondent for possession, it was fully developed in all respects.  The adjoining plots No. 1022 and 1024 were duly handed over to the respective allottees on 15.11.2007 and 18.05.2007 and there was no problem in this regard. 

7.     The learned counsel for petitioner has also drawn our attention to the order made by the Hon’ble Supreme Court of India in Sector-6, Bahadurgarh Plot Holders’ Association (Regd.) and Others Vs. State of Haryana and Another as reported in (1996) 1 Supreme Court Cases 485, saying that the parties to the contract are to abide by the terms and conditions of the contract.  Even if the plots have not been fully developed, interest would be payable from the date of the offer of possession of the plots.  The learned counsel also invited our attention to the judgment of the Supreme Court in Haryana State Agricultural Marketing Board and Another Vs. Rajpal as reported in (2011) 13 Supreme Court Cases 504, saying that the allottees are liable to pay instalments and simple interest thereon and they could not postpone payment of instalments mainly on the ground that some of the amenities were not ready.

8.     The learned counsel for the respondent has also drawn our attention to the authority reported in (2011) 13 SCC 504(Supra) saying that it had been made clear in para 10 of this order that the basic amenities had to be provided within the time prescribed.  He invited our attention to para 8 and 9 of the complaint dated 23.05.2008 made by the respondent saying that the respondent had personally met the General Manager of the petition on 18.10.2006 and brought to his notice the factum of lack of development activity.  In fact, there was no sewerage, storm water drain, electricity or water supply provided at the site of the plot.  Despite giving many applications, physical possession was not handed over to the complainant.  In the written statement also, the petitioner had stated in reply to para 8,  that the question of delivery or non-delivery of physical possession of plot did not arise. as the plot was allotted to the complainant only on 30.10.2006.  Further, on receipt of letter dated 03.05.2007, the respondent had visited the site to take over physical possession of the plot, but it was detected that the basic amenities had not been provided.  Moreover, the construction work could not be started by the complainant without the delivery of physical possession.

9.     We have examined the entire material on record and given our thoughtful consideration to the arguments advanced before us.  From the entire factual matrix of the case, it becomes clear that the allotment letter of residential plot No. 1023, measuring 200 sq. yards in Janta Residential Township, Sector 90-91, Mohali was issued to the complainant, vide letter dated 30.10.2006.  It has been made clear in this letter that the total value of the plot in question is Rs. 24,00,000/-, out of which 60% price i.e. Rs. 14,40,000/- had already been deposited by the respondent / complainant, leaving a balance of Rs. 09,60,000/-.  It has been stated that the balance amount should be paid in lump sum without interest within a period of 45 days from the date of issue of the allotment letter and 5% rebate on the balance amount shall be admissible.  In the alternative, the balance amount could be paid in two six monthly instalments with an interest of 12% per annum.  The schedule of payment has also been mentioned in the said letter asking the complainant to make payment of two instalments of Rs. 04,80,000/- each on 30.04.2007 and 30.10.2007. However, the complainant/respondent failed to make payment in time, taking the plea that development works had not been carried out.  The orders passed by the District Forum and the State Commission indicate that the petitioner is not entitled to charge penal interest/overdue charges amounting to Rs. 2,38,640/- from the complainant.  It is very clear however, from the facts of the case that this amount of Rs. 2,38,640/- is the simple interest of 12% being charged on the payment of two instalments of Rs. 4.80 lacs each.  It is a matter of general practice that in similar schemes, when the offer of possession is made by the developer to the allottees, he is asked to make the payment of balance amount in lump sum and enjoy a fixed percentage of the rebate on the outstanding amount.  In the alternative, the second option is given to repay the outstanding balance in instalments along with interest at the rates prescribed.  In the present case, it has nowhere been stated that Rs. 2,38,640/- is penal interest being charged from the allottees.  Terms and conditions spelt out in the allotment letter dated 30.10.2006 make it very clear that this amount is the normal amount of outstanding balance being charged along with 12% simple interest.  We therefore, hold that the District Forum and the State Commission have not been able to make a correct appreciation of the facts on record because the allottee is not being charged the penal interest.  The order passed by the District Forum and the State Commission are therefore, set aside and the complaint is ordered to be rejected being without any rational basis.

10.   It is further stated that the total outstanding amount payable by the complainant upto 28.04.2008 was Rs. 11,98,640/- including 12% simple interest on the outstanding amount.  The payment of Rs. 9.60,000/- was made by the complainant on that day leaving behind a balance of Rs. 2,38,640/-.  The complainant is however, liable to pay simple interest on outstanding amount till date to the opposite party. It shall be appropriate therefore, that out of the amount paid on 28.04.2008 i.e. 9,60,000/-, the interest accrued till that date should be deducted and the balance amount of outstanding principal should be calculated.  On the balance principal amount as it stood on 28.04.2008, the complainant shall be liable to pay simple interest @ 12% per annum to the petitioner till realization and we order accordingly with no order as to costs etc.