BHAWANIPATNA SPECIAL PLANNING AUTHORITY OF KALAHANDI vs KALAHANDI CONSUMERS WELFARE ORGANISATION

THE opposite party in C.D. Case No. 53 of 1995 before the District Forum, Kalahandi, Bhawanipatna is the appellant challenging the final order passed by the Forum in the said case. THE complaint was filed by Kalahandi Consumers Welfare Organisation on behalf of one Sri Bikash Kumar Patnaik. THE grievance of the complainant is that in response to a notification of the Special Planning Authority, Bhawanipatna (the present appellant) inviting applications for allotment of shops in the shopping complex in the new Bus Stand, the complainant deposited a sum of Rs. 50/- for obtaining an application form and Rs. 30,000/- as earnest money deposit. He deposited the aforesaid amount on 30.9.94 and 7.10.94 respectively. He entertained some doubts as to whether the transaction going to be entered into with the Special Planning Authority would be an outright sale or lease as according to him in some documents it was described as a ''sale'' and in others it was described as a ''lease''. He faced some financial crisis for which, to be on the safe side, he asked for refund of the amount deposited as earnest money. THE present appellant refunded a sum of Rs. 24,000/- deducting a sum of Rs. 6,000/- saying that Rs. 6,000/- is not payable as it was deducted towards service charges. THE present appellant filed a show cause denying all the averments made in the complaint-petition. Apart from challenging that the complainant is not a consumer as defined in the Act, the stand taken by the opposite party was that the earnest money was taken from the applicants for deduction of any amount if it will be found payable by the applicant subsequently. As the complainant did not like to have the shop room and withdrew from the contract, a sum of Rs. 6,000/- was rightly deducted towards service charges. THE District Forum after considering the case from all angles held that Rs. 6,000/- was not deductible and should be paid back to the complainant alongwith a cost of Rs. 200/-. Hence this appeal.

IT is admitted case of both parties that the complainant was an applicant for allotment of a shop room in the shopping complex within the terms of the membership for which he had filed an application and had deposited a sum of Rs. 30,000/- as earnest money. IT appears to us that the complainant for reasons of his own wanted to withdraw his prayer for allotment of a shop room and wanted refund of his deposited amount. A sum of Rs. 24,000/- has been paid to him deducting a sum of Rs. 6,000/- on the ground that the same stands adjusted towards service charges. We wanted to know as to whether there was any stipulation to the above effect in the advertisement made. Inviting applications and requiring the applicants to deposit the earnest money. Mr. Acharya representing the respondents has filed a copy of the notice in which there are no such stipulations appearing to be there. On the other hand in the said notice, it has been mentioned that the earnest money deposited will be adjusted in the sale price. So, in the event sale would have taken place, the earnest money deposited was available to be adjusted against the sale price. The question that now remains to be decided is what would be the position if one of the parties, namely, the complainant withdraws from the contract. For breach of a contract, a party who is guilty of the breach, namely, is required to compensate the other party and various other consequences may follow depending upon the facts and circumstances of the case. IT is not the case of the present appellant that a sum of Rs. 6,000/- is forfeited either for breach of contract or as per the stipulations in an agreement between the parties. As already stated earlier, the earnest money in its entirety would have been available for adjustment against the sale price had the transaction matured and the complainant would have been allotted with a shop room. Rs. 6,000/- is not said to be damages for breach of contract but the stand of the present appellant before the District Forum was that it was towards service charges. We are, therefore, one with the District Forum that the deduction of Rs. 6,000/- was unjustified and the direction of the District Forum to pay back Rs. 6,000/- (Rupees six thousand only) to the complainant in our opinion is, therefore, justified. The appeal is devoid of any merits and is dismissed. Appeal dismissed.