TRILOK ENGINEERING AND BUILDERS PVT. LTD. vs JITENDRA KUMAR GARG

THIS is an appeal by M/s. Trilok Engineering and Builders Pvt. Ltd. against the order dated 10.1.2001 passed by the District Forum, Hardwar whereby the District Forum directed the appellant to refund the sum of Rs. 1,00,000/- along with interest at the rate of 15% from the date of deposit and a compensation of Rs. 5,000/-.

THE brief facts of the case are that the appellant is a builder. He was constructing apartments in the scheme known as Hariganga Apartment. THE complainant Mr. Jitendra Kumar Garg booked a flat on 10.5.1991 and deposited a sum of Rs. 10,000/-. He agreed to comply all the terms and conditions of the deposit. Complainant booked apartment No. 120 on the ground floor. He has alleged that instead he was allotted apartment No. 118 on the first floor. This is deficiency in service of the appellant. THE appellant did not complete the constructions in time, therefore, the complainant called for the refund of Rs. 1,00,000/- deposited by him on various dates. The appellant contested the case. He admitted the booking dated 10.5.1991 and deposit of Rs. 10,000/-. It is alleged that on 29.7.1991, the appellant has informed the complainant that he can be given apartment No. 118 on the first floor. According to the opposite party, the complainant agreed to it and deposited a sum of Rs. 30,000/- on 16.8.1991. He deposited a sum of Rs. 10,000/- on 12.9.1991. By that time, since the deposits were not made properly and regularly, the prices have increased. When the dues had become more than Rs. 59,000/- , the complainant also deposited a sum of Rs. 30,000/- vide cheque on 16.8.1992. It is alleged that on 25.6.1994 the complainant was to deposit the entire dues and should get the Sale Deed executed. The complainant wanted another date. The other date fixed was 18.7.1994. Again date of 2.1.1995 was fixed. The complainant did not get the Sale Deed executed. Several other letters were sent but the complainant did not execute Sale Deed. It is alleged that according to the terms of agreement, if the deposits were not made in time and the complainant does not comply with the terms and conditions of the agreement, the appellant was entitled to deduct 25% of the deposited money. On 18.4.1996, the complainant asked for his entire deposits back. It is alleged that after the deduction, the complainant can be refunded a sum of Rs. 20,924/-. The complainant is not entitled to any compensation.

After hearing the parties, the learned Forum passed the order that the appellant was not entitled to change the flat from No. B-120 to B-118 and further held that there was no agreement to deduct 25% of the deposit in case of cancellation of the agreement. Hence it directed for the total refund and compensation. Having aggrieved by this order, the appellant had filed this appeal and the same pleas were taken here too. It was argued by the learned Counsel for the appellant that in a three page judgment, the learned Forum has written only 4 lines while it arrived at this conclusion. It may be true to some extent but the entire factual position dealt with by the learned Forum lead to its conclusion and the judgment cannot be rejected merely on this ground. However, the first finding as given by the Forum is that the flat No. 120 was changed to flat No. 118 without the consent of the appellant does not appear to be correct. In this case, there is not any written agreement between the parties regarding the booking. The booking has been made on mere deposit of Rs. 10,000/- and that is the receipt wherein it is written that "Received with thanks from Shri Jitendra Kumar Garg, a sum of Rs. 10,000/- towards booking of apartment in Hariganga Apartment, Hardwar." Type of apartment is given as B-120. It is true that B-120 was booked but when there was no other agreement between the parties, for this agreement it can be changed also by a correspondence between the parties. By the letter dated 16.9.1991, the appellant informed that the complainant has been alloted type B aparment of which is 118 on first floor. Earlier on 29th July, 1991, the appellant has informed the complainant that by your choice, we have booked one flat type B No. 118 on first floor. In the letter dated 6.2.1992 also Flat No. 118 B was mentioned. Similar is the position with the letters dated 28.7.1992 and 17.5.1993. In all the letters of the appellant flat No. 118-B has been mentioned and this is very soon after the deposits. In his complaint, the complainant has infomed that he has deposited a sum of Rs. 20,000/- on 13.5.1991, Rs. 30,000/- on 19.8.1991, Rs. 10,000/- on 12.9.1991 and Rs. 30,000/- on 25.2.1992. These deposits have been made even after the letters of the appellant that the complainant has been alloted plot No. 118. At least, the depsosits on 19.8.1991, 12.9.1991, 25.2.1992, all have been made after the letters of the appellant to the complainant that the later has been alloted Plot No. B-118. The deposits made after allotment of this flat without any protest will go to show that the complainant has agreed for this flat, otherwise, he should have immediately raised objection and should not have deposited a handsome sum of Rs. 70,000/- after the change of flat. The complainant has nowhere alleged that he did not receive any such letters. Rather in reply to the letters of the appellant, the complainant has requested for fixation of other dates for registration of the Sale Deed etc. Since, there was no agreement in writing, therefore, change of flat could have been made with the consent of parties without any further writing. This finding is incorrect that the allotted flat was changed without the consent of the complainant. Now the question is whether the appellant was entitled to deduct 25%. We have already discussed that there was no agreement in writing. A typed paper was produced which does not appear in signature nor it can be said that there was an agreement in writing. Unless there was any agreement in writing, the appellant was not entitled to duduct 25%. As a result, the complainant was entitled to refund of the full amount when the allotment was got cancelled. Since the appellant has not paid that amount, he did not even pay the sum of Rs. 20,924/- to which he was admitted to be liable to pay. Therefore, the complainant was entitled to interest and compensation as granted. After all the appellant is a builder. He was making constructions for financial gain. It does not lie in his mouth to say that he will earn handsome profits out of sale of the flats but will not pay anything to the depositor if it wants to take back his money on which he has earned profit. The interest of 15% appears to be appropriate as awarded by the learned Forum. The compensation as granted is also not excessive. There could be no doubt that the complainant has been put to unnecessary litigation and harassment. This appeal is to be dismissed. ORDER The appeal is hereby dismissed. However, in the facts and circumstances of the case, cost of the appeal shall be easy. Appeal dismissed.