1. This order will dispose of these two Appeals No.02 of 2015 filed by M/s. Omaxe Buildhome Pvt. Ltd./ the opposite party in the original complaint case and Appeal No.11 of 2015 filed by the complainant Pradeep Chaudhary against the impugned order dated 27.10.2014 of the Delhi, State Consumer Disputes Redressal Commission, (in short ‘the State Commission’). 2. Brief facts of the case are that the complainant Sh. Pradeep Chaudhary a senior citizen, applied for allotment of an apartment No.1304, on 13th floor in Sugar Palm-C Tower in the upcoming project of OP-M/s. Omaxe BuildhomePvt. Ltd. Palm Green, Sector-MU, Greater Noida U.P. having super built area of 1700 sq. Ft. through application dated 26.09.2006 with cheque No.255937 dated 18.09.2006 for a sum of Rs.6,40,000/-drawn on ICICI Bank as initial payment. The application was accepted and aforesaid apartment was allotted in the name of the complainant. Total cost of the apartment initially was Rs.50,50,500/-. The construction was to be completed within 30 months from the date of allotment letter. In case of delay the OP was liable to pay a sum of Rs.5 per sq. ft. per month to the complainant. Allotment letter was signed on 31.10.2008 and the payment was to be made as per construction linked payment schedule given as Plan-A in the complaint. The complainant made further payments of Rs.4,72,000/-, Rs.2,46,000/- Rs.3,93,975/- through cheques. It was alleged by the complainant that despite timely payments made, OP failed to raise construction of the apartment as per schedule and time agreed for completion of the construction expired on 30.04.2011. Since the project was considerably delayed, complainant requested the OP through letter dated 25.03.2010 either to transfer money to the OP’s Jaipur project or return his money with interest. In response the OP sent letter dated 24.04.2010 informing the complainant that request could not be accepted. During the year 2010, due to slump in real estate there was a very low demand, therefore, OP decided to revise the rate of the apartments. OP gave a discount of Rs.08,07,500/- to complainant as well as to other buyers. Thus the cost of the apartment was reduced to Rs.42,43,000/-. The complainant received another letter dated 23.12.2010 whereby to utter surprise of the complainant, OP suo-moto transferred the allotment to flat no.1304, 13th floor Peach Palm-B tower in the said project and demanded the amount as per schedule of payment given earlier. The flat allotted to complainant was still under development. The complainant however, through his letter dated 04.01.2011 informed the OP that he was not interested in change of the allotment from 1304, Sugar Palm-C apartment to 1304 peach palm-B apartment. Complainant insisted to retain the previous apartment. The OP sent another letter dated 11.03.2011 completely ignoring the letter sent by complainant, therefore, complainant replied to the letter dated 11.03.2011 of the OP through his letter dated 16.03.2011 reiterating the earlier stand that he was not interested in change of allotment. However, the OP did not pay any heed and failed to correct its record. Complainant received a letter dated 24.10.2011 from the OP alleging failure to make timely payment of dues and demanding balance dues payment by 10.11.2011. Despite clear cut objections raised by the complainant regarding the change of allotment of the flat from 1304 Sugar Palm-C apartment to 1304 peach Palm-B apartment, OP failed to correct its records and suo-motu treated that complainant has accepted the offer of the OP. Not only this, the complainant received another letter dated 14.11.2011 of the OP informing the complainant that allotment of the apartment No.1304, 13th Floor, Peach Palm-B Tower in Omaxe Palm Green has been cancelled and a sum of Rs.6,56,625/- has been forfeited on account of administrative charges towards the cancellation of the apartment. 3. The complainant filed a consumer complaint No.27/2012 before the State Commission. The Opposite party, M/s. OmaxeBuildhomePvt. Ltd. filed its written reply contesting the claims of the complainant, apart from raising some preliminary objections regarding jurisdiction. It was mentioned that the complainant was not entitled for refund of any amount or interest whatsoever. The complainant himself was at fault and did not make timely payment for development and construction of the said flat. The timely payment of instalments was the essence of allotment as has clearly been provided in clause 23 of the allotment letter. It was denied that there was any deficiency of service on the part of the OP or the OP indulged in any kind of unfair trade practice. As the complainant failed to make payment of the due amount despite repeated requests, OP had no option but to cancel allotment vide its letter dated 14.11.2011 and forfeit the amount paid by the complainant. 4. The State Commission finally allowed the complaint and gave the following order on 27.10.2014:- “21. Accordingly, the complaint is allowed and we pass the following order:- i. OP is directed to refund a sum of Rs.09,94,375/- along with 12% interest from the date of deposit till the date of actual payment. ii. OP is further directed to make payment of Rs.1Lac as compensation for harassment, mental pain, agony and inconvenience caused to complainant. iii. The complainant shall further get Rs.20,000/- towards costs of litigation. 22. Compliance of the order shall be made within 30 days from the date of receipt of the copy of the judgment.” 5. The opposite party as well as the complainant both have preferred first appeals No.2 of 2015 and 11 of 2015 respectively before this Commission against the above order of the State Commission. 6. Heard the learned counsel for both the parties and perused the documents carefully. 7. Learned counsel for the opposite party (appellant in appeal no. 2 of 2015 M/s. Omaxe Buildhome Ltd.) argued that the State Commission has wrongly awarded interest @12% on the awarded amount of Rs.9,94,375/- from the date of deposit. Similarly, the State Commission has wrongly awarded the compensation. Learned counsel contended that on the one hand, the State Commission has upheld the cancellation of the plot due to non-payment of due instalments in time as well as the deduction of the earnest money, but on the other hand, it has awarded the interest and compensation to the complainant which is a contrary stand taken by the State Commission. Once there is a contract/agreement between parties, both parties are bound by the terms and conditions of that contract/agreement and State Commission cannot grant any relief against the agreed terms and conditions of the contract. There is no breach of legal or contractual obligation by the opposite party and hence no deficiency in service can be attributed to the opposite party as per the definition of deficiency given in Section 2(g) of the Consumer Protection Act, 1986. Learned counsel emphasised that order of the State Commission is illegal so far it relates to interest and compensation awarded to the complainant. 8. Learned counsel also contended that the complainant is not entitled to 18% interest as held by the National Commission in Sundeep Gupta, Priyanka Gupta Vs. Unitech Limited, III (2015) CPJ 623 (NC) where the following has been held: “Consumer Protection Act, 1986- Sections 291)(g), 21(a)(i)- Housing- Booking of flat- Non-delivery of possession- Deficiency in service- Interest @ 18% claimed- Complainant cannot claim interest @ 18% p.a. merely because they have agreed to pay interest to OPs @ 18% in case of delay on their part in making payment –Complainants are not entitled to grant of relief claimed in Clause g(2) of prayer clause- No justification of claiming additional amount of Rs.10.00 lakh as compensation from opposite parties over and above alleged market value of flats with pendent lite and future interest @ 18% per annum compounded quarterly- Directions issued.” 9. Learned counsel for the complainant (appellant, Mr. Pradeep Choudhary in FA No.11/2015) stated that complainant had made regular payments of instalments as stipulated in the construction link payment plan of the flat No.1304, 13 Floor, Sugar Palm-C Tower, Sector MU, Greater Noida originally allotted to the complainant. It was the opposite party who suo moto and illegally changed the booking of the appellant from Apartment No.1304, 13th floor in Sugar Plam-C Tower in Omaxe Palm Green, Sector MU, Greater Noida, U.P. to Apartment No.1304, 13th floor in Peach Palm-B Tower in Omaxe Palm Green, Sector MU, Greater Noida, U.P. The learned counsel argued that on the one hand the opposite party did not complete the construction of originally booked flat in time and on the other hand forfeited the earnest money and cancel the allotment for no fault of the complainant. The complainant never agreed to take the changed flat in the other tower and as per the builder –buyer’s agreement change of flat cannot be made unilaterally. It can only be made through mutual consent and the complainant never gave his consent to this change. The State Commission has not considered this aspect of the complaint and has wrongly allowed the deduction of earnest money as per the terms and conditions of the builder- buyer’s agreement. This clause is applicable when the allottee wants to cancel his allotment and wants refund of his money. In this case, it is the opposite party who has cancelled the allotment without any rhyme or reason and therefore, this clause is not applicable. The learned counsel also emphasised that the State Commission has awarded only 12% p.a interest on the refund amount whereas it should have been 18%p.a on the principle of equity because the opposite party was charging 18% p.a. interest for the delayed instalments. Learned counsel also mentioned that the complainant had paid to the opposite party a sum of Rs.17,51,000/- whereas the State Commission has wrongly recorded Rs.16,51,000/-. Hence the figure of Rs.9,94,375/-awarded by the State Commission should be Rs.10,94,375/-. It was mentioned that there is no dispute in this regard. The opposite party has also admitted the same. 10. Learned counsel also cited the following judgments in support of his contentions for refund of full amount paid:- (i) Smt. ReshmaBhagat&Anr.Vs. M/s. Supertech Ltd., CC No.118 of 2012, decided on 04.01.2016 (NC). (ii) Anupam Chakraborty &Anr. Vs. Supertech Ltd. &Ors. Civil Appeal No.1962 of 2015, decided on 16.02.2015 by Hon’ble Supreme Court. 11. I have carefully considered the arguments advanced by both the parties and have gone through the records. In this case it is admitted by the opposite party that the construction of the tower in which the complainant had booked the original flat was not ready in the prescribed period of construction as per the agreement and opposite party unilaterally changed the flat to the other tower without the consent of the complainant. Complainant objected to this but opposite party did not take any action on his objection. Thus in this case, I am of the opinion that it was the opposite party who first breached the agreement by changing the flat to some other tower without the consent of the complainant. 12. The clause relating to earnest money reads as follows:- “22. The Allottee has agreed that out of the amount(s) paid/payable by him for the said Unit allotted to him, the Company shall treat 15% of basic sale consideration as earnest money to ensure fulfilment, by the Allottee, of all the terms and conditions as contained in the Allotment Letter. 24. In the event of the failure of the Allottee to perform his obligations or fulfill all the terms and conditions set out in the Allotment Letter, the Allottee hereby authorises the Company to cancel the Allotment of the said Unit and forfeit out of the amounts paid by him, the earnest money as aforementioned together with any interest on instalments, interest on delayed payment due or payable. The amount, if any, paid over and above the earnest money shall, however be refunded to the Allottee/the financial institution as the case may be by the Company without any interest after re-allotment of the said unit and after compliance of certain formalities by the Allottee.” 13. From the above clause, it is clear that earnest money is to be forfeited in the event of allottee breaching any terms and conditions of the allotment. However, in this case, the first breach of agreement has been made by the opposite party himself by changing the flat without the consent of the allottee. Hence the earnest money cannot be deducted as per the above clause of the terms and conditions of the allotment. The two cases cited by the learned counsel for the complainant Smt. ReshmaBhagat&Anr. Vs. M/s. Supertech Ltd. (supra), and Anupam Chakraborty &Anr.Vs. Supertech Ltd. &Ors.(supra) also supports the contention that the complainant is entitled to refund of the full amount paid. 14. In paragraphs No.4 and 6 of the complaint, the complainant has given the details of money paid to the opposite party, which amounts to a total of Rs.17,51,000/-. In the written reply submitted by the opposite party, it has been mentioned that these are matter of records and no specific denial has been made by the opposite party in respect of the amount Rs.17,51,000/- paid by the complainant. Accordingly, I have no hesitation in accepting the version of the learned counsel for the complainant that admittedly an amount of Rs.17,51,000/- was paid to the opposite party whereas the State Commission has wrongly recorded this payment as Rs.16,51,000/- only. 15. So far as the question of interest and compensation awarded by the State Commission is concerned, relying on the judgment of Sundeep Gupta, Priyanka Gupta Vs. Unitech Limited, III (2015) CPJ 623 (NC) submitted by the learned counsel for the opposite party, I agree that no case is made out for awarding18% interest on the refund amount. Further on the basis of the prevailing bank rates an interest at the rate of 9% would be reasonable and sufficient as compared to 12% awarded by the State Commission. 16. The State Commission has clearly given a finding that the complainant made defaults in timely payment of some instalments, which contributed to the cancellation of allotment.Thus, in this case both the opposite party as well as the complainant are to some extent guilty on breaching terms and conditions of the allotment and therefore, I feel that compensation of Rs.1 lakh awarded by the State commission was not required as the interest has been awarded which is in the form of compensation. 17. Based on the above discussion, the order of the State Commission dated 27.10.2014 is maintained except with the following modifications:- (i) That the figure of Rs.9,94,375/- will stand substituted with a figure of Rs.17,51,000/- (Rupees Seventeen Lakhs Fifty One Thousand only). (ii) Rate of interest will stand changed to 9% p.a. from 12% p.a. (iii) Compensation of Rs.1 lakh shall be deleted. (iv) Rest of the order of the State Commission shall remain unchanged. 18. This order be complied within a period of 45 days from the date of this order, failing which, the opposite party shall be liable to pay interest @ 12% pa. instead of 9% p.a. from the date of deposit till realization. 19. No order as to costs for these appeals. 20. Both the appeals i.e. First Appeal No.02 of 2015 and First Appeal No.11 of 2015 stand disposed of in terms of the above order. | 
