MADHU GOYAL vs ASHIANA CONSTRUCTIONS (P) LTD.

ON a complaint instituted by Madhu Goyal, resident of House No. 2185, Sector 22/C Chandigarh, the District Forum-II, ordered refund of Rs. 79,200/- together with interest @ 12% per annum from the date of institution of the complaint, till realisation and costs Rs. 1,100/-. Aggrieved against it, M/s. Ashiana Constructions and others have attempted the present appeal.

ACCORDING to the "Ashiana Economy Scheme-I" Phase II, Mansa Devi (Dhinsa Tibba), near Chandigarh, residential flats were to be constructed by the appellants. The built-up area originally announced was 611 sq. ft. and its price was fixed as Rs. 2.75 lacs. However, subsequently, the built area was raised to 812 sq. ft. and the price was fixed at Rs. 3.60 lacs. The letter regarding the modification dated 25.9.1991 is Annexure C-II. The main grievance of the complainant-Mrs. Madhu Goel had been that originally plot No. G-7 was shown to have been allotted, but subsequently, the allotment of flat was changed and instead No. G-6 was allotted. On behalf of the learned Counsel for this appellant, it has been stressed that the respondents were not giving any information regarding the construction of flats and the Company failed to identify the plot, where the construction of flats was to be carried out. Thus admittedly, there were architectural changes and M/s. Ashiana Constructions Company Private Limited never specifically pointed out the identity of the plot. Any communication bearing the signatures of Mrs. Madhu Goyal that she changed allotment of flat No. G-7 to G-6 has not been brought on record. It is a case where M/s. Ashiana Constructions Company committed breach. It shall be useful to refer to Clause 3(b) of the Allotment letter dated 9.1.1992, as under : "3(b). In case of absolute deletion of the Apartment on account of reduction in number of Apartments in the proposed building or due to any other reason, no claim, monetary or otherwise, will be raised or accepted but the amount received shall be refunded to the Apartment Buyer in full without any interest."

Relying upon the aforesaid clause, the District Forum has denied interest to Mrs. Madhu Goyal, complainant. We feel that when there was a clear breach of contract M/s. Ashiana Constructions Co. were not entitled to decline payment of interest. The clause referred to above denying interest is unfair and cannot be acted against the consumer. This appears to be the reason that the District Forum ordered payment of interest on the various deposits made w.e.f. 22.11.1994. The contention raised on behalf of Mrs. Madhu Goyal that interest should be payable w.e.f. 12.5.1991, when the complainant started depositing, is not acceptable in the circumstances of the case. The conclusion is that the appeal of Mrs. Madhu Goyal, for enhancement fails and is hereby dismissed and the parties are left to bear their own costs. Cross Appeal No. 89 of 1999

In Cross Appeal No. 89 of 1999, attempted by M/s. Ashiana Constructions Private Limited, the plea raised is that the complainant was duly informed about the change vide letter dated 26.8.1992 through U.P.C. So even according to Clause 6(a) of the agreement, only 10% of the price deposited could have been forfeited in case there was a breach of agreement on the part of the allottee. Here the change of location and the identity of the flat without written consent of the consumer was a clear breach and the simple plea that complainant was taken into confidence, regarding the change in the allotment of the flat is not acceptable. The conclusion is that the appeal attempted by M/s. Ashiana Constructions Private Limited claiming forfeiture of 10% of the deposit is also not acceptable and it also fails and is dismissed. Appeals dismissed.