IMPORTANT POINT
Not handing over possession of plot in question, not supplying approved lay out plans to complainants and not carrying out development work at site amounts to deficiency in service on part of builder.

R.C. Jain, Presiding Member—Common order dated 6.12.2007 passed by A.P. Consumer Disputes Redressal Commission, Hyderabad (for short the ‘State Commission’) in FA No. 1639 of 2007 is sought to be impugned in these revision petitions. By the impugned order the State Commission has dismissed the appeals filed by the petitioner builder against the order passed by the District Forum Nizamabad in complaint case No. 41 of 2006, 43/2006 and 44-2006. The District Forum had allowed the complaint filed by the respondent-complainants and directed the petitioner-builder to repay the amount received by him from the complainants with 9% interest from the date of deposit till realization. The complaints were filed by the respondents with the allegations that they joined and became members in the scheme of OP No. 2 through OP No. 1 at Nizamabad by paying membership fee of Rs. 500 and booked plots by paying Rs. 7,000 towards 1st installment on 29.8.2003 by the complainant No. 1 and was issued pass book No. 618 and complainant No. 2 became a member paying Rs. 500 towards membership fee and booked a plot No. 207 paying Rs. 7,000 on 28.9.2003 and was issued pass book No. 622 located at Kallakal village, Toopran Mandal, Medak District. Therefore, the complainant No. 1 paid Rs. 45,000 and complainant No. 2 paid Rs. 53,650 until 13.8.2004. In CD No. 43/2006, the complainant paid Rs. 53,200 towards plot No. 223 and Rs. 20,000 towards plot No. 153 until 30.6.2004 and second opposite party issued pass book Nos. 620 and 1042 respectively. In CD No. 44/2006, the complainant paid Rs. 70,000 towards plot No. 236 and Rs. 70,000 towards plot No. 271 until 20.5.2004 and the second opposite party issued pass books Nos. 477 and 623 respectively. Thereafter, the opposite parties failed to collect the money. No approved plan was supplied to the complainants and no execution of developmental works started. As the amount was not refunded even after legal notice dated 29.5.2006, hence the complaints.

2. The petitioner-builder herein admitted the factum of receipt of amounts as stated by the respondents but resisted the complaints primarily on the ground that the complainants had committed default in payment of subsequent instalments as per schedule and, therefore, in terms of clause 7 of the agreement, the petitioner builder was within its rights to forfeit the amount deposited by the respondents and, therefore, the complainants were not entitled to the refund of the amount. The District Forum on a consideration of the respective pleas, material brought on record and also on a thorough consideration of the matter and condition No. 7 of Ex. B 1, however allowed the complaints with the aforesaid directions to the petitioner-builder. Aggrieved by the said order, the petitioner-builder filed appeal before the State Commission but without success. Hence these revision petitions.

3. We have heard Mrs. Sanjeev Kumar, learned counsel representing the petitioners and have given our thoughtful consideration to his submission. Once again before this Commission, the counsel for the petitioner has reiterated the plea in regard to their liability not to refund the amount received by them on the basis of clause 7 of the agreement to sell which is to be following effect:

“Monthly installment and Special installments have to be paid before 10th of every month and Company’s official printed receipt should be obtained. In the event of any delay in the payment of any installment, it has to be paid together with 2% interest per month till the date of payment. Any installment once paid is not refundable. In case of any default in the payment of three consecutive ordinary installments or two special installments, his/her member shall be cancelled without further notice and all amounts paid by such members till then shall be forfeited as agreed compensation and liquidation damages for such breach of trust”.

4. On the strength of the above clause, learned counsel appearing for the petit