J.D. Kapoor, President:
1. Aggrieved by the deficiency in service on the part of the O.Ps. in not completing the construction and handing over possession of the commercial flat, booked by the complainant, by the stipulated time, complainant has filed the instant complaint claiming refund of the amounts already paid to the O.Ps. with interest, compensation and cost of litigation.
2. Being induced by the O.Ps. the complainant, on 25.9.1995, booked one commercial flat having a tentative area of 617 sq. ft. for Rs. 13,88,250 by paying 10% as booking amount. Subsequent payments were construction linked as the commercial flat was to be constructed in a commercial complex of Plot No. 1, J-Block, Commercial Centre, Rajouri Garden, New Delhi. Up to 29.9.1998, the complainant made payment of Rs. 7,65,887. As per the Agreement between the parties, the construction was to be completed by 1999 and the complainant was assured that the construction would be completed by then. But inspite of his having made payment of Rs. 7,65,887 against the construction amount of Rs. 13,88,250, there was no trace of construction at the site. As a result, he asked for the refund of the amount paid with interest. However, the respondent did not refund the amount and consequently the complainant filed the instant complaint before this Commission claiming the following reliefs :
'(a) to direct the respondents to refund Rs. 7,65,887 with interest @ 24% per annum or award of Rs. 7,65,887 with interest @ 24% per annum till the payment of suit amount in favour of the complainant and against the respondents.
(b) award the cost of complaint in favour of complainant and against the respondent.
(c) Award the compensation for irreparable losses and mental agony.
(d) pass such an order as may be deemed fit and proper in the facts and circumstances of the case.'
3. It is pertinent to mention at this stage that during the pendency of this complaint, the respondent had made payment of Rs. 5,05,787 on 11.4.2005 as per interim orders of this Commission.
4. While justifying the non-refund of the aforesaid balance amount, the O.P. has taken the plea that as per the ageement, the O.P. is entitled to forfeit 20% of the basic cost and refund the balance without interest. It was in view of this clause that it has refunded the amount of Rs. 5,05,787 out of Rs. 7,65,887. The O.P. has also justified its forfeiture of 20% of the basic cost on the plea that there was no deficiency on the part of the O.P. in raising the construction by the stipulated time, as by way of a letter the O.P. had asked the complainant to come and take possession of the flat after making the balance payment. It was followed by reminders.
5. We have perused the record. The records show that the allotment was cancelled on 16.12.2003 on non-payment of balance amount. O.P. has not placed any material on record to show that the construction was completed by 1999. As such the question of handing over the possession of the flat did not arise.
6. Wherever the contract for payment of consideration is construction linked, the service provider is required to maintain discipline and proceed as per the agreement and any short-coming or inadequacy in the nature and manner of performance amounts to deficiency in service for which the consumer is entitled for an amount as compensation as to the actual loss or injury which includes the mental agony and harassment suffered by him as provided by Section 14(1)(d) of the Consumer Protection Act.
7. It is not understandable and beyond our comprehension that had the O.P. completed the construction in the year 1999 or say in 2000, why the allotment of the complainant should have been cancelled for the non-payment of subsequent instalments which were payable on 13.1.1997. On the contrary, it retained the amount received by it and cancelled the allotment on 16.12.2003. This conduct of the O.P. was not only unfair but amounts to deficiency in service. If the service provider does not adhere to the terms and conditions of the contract, which in this case was, completion of construction by 1999 and handing over possession to the consumer by then, it could not have availed of any other terms or clause that entitles him to forfeit 20% of the basic cost. No person can be allowed to take advantage of his own acts of omission and commission and put the consumer in jeopardy or in a disadvantageous position. O.P. was entitled to deduct 20% had he completed the construction by 1999 and offered the possession in 1999. Not otherwise.
8. The contract between the parties has to be read as a whole and no part of the contract can be read in isolation. No person can pick and choose one term or the other which is to his advantage and ignore the other terms that cast certain obligations upon him.
9. Proceeding on the aforesaid premise, we allow the complaint by holding that the O.P. was not entitled to deduct 20% of the basic cost because of the deficiency in service on its part, which is writ large on its face, and was, therefore, liable to refund the entire amount to the complainant when he made a request for refund on the ground that there was no posibility of the completion of construction of the commercial space booked by the complainant.
10. Even as per its own perception, the O.P. was required to dispatch or make the payment of Rs. 5,05,787 immediately on receipt of the legal notice by the complainant. The legal notice was received on 20.6.2000 by the O.P. But it did not do so and it was by way of an interim order of this Commission that the O.P. made the payment in the year 2005. Thus, the retention of Rupees 5,05,787 for five long years was unauthorized and illegal.
11. In the given facts and circumstances of the case, we allow the complaint in the following terms:
(i) the O.P. s
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hall refund the total balance amount of Rs. 2,60,100 with interest @ 9% w.e.f. 8.5.2005 till the date of this order and in addition shall pay interest @ 9% on Rs. 7,65,887 from the date of filing of the present complaint till the date of payment of Rs. 5,05,787 i.e., till 7.5.2005; (ii) the O.P. shall also pay a sum of Rs. 10,000 as cost of the proceedings to the complainant. 12. The order to be complied with by the O.P. within one month from the date of its receipt. 13. A copy of this order, as per statutory requirement, be forwarded to the parties and thereafter the file be consigned to record. Complaint allowed.