IMPORTANT POINT
Inordinate delay in filing appeal cannot be condoned without assigning any satisfactory explanation.

ORDER

This appeal has been filed by the appellant Dwarkadhish Projects Private Limited challenging the order dated 16th November 2018 passed by the Delhi State Consumer Disputes Redressal Commission (in short ‘the State Commission’) in consumer complaint No. 588 of 2014.

2. The brief facts of the case are that on the application of the respondent the appellant allotted apartment No.111 on 11th floor in Tower D-6 with area of 1200 sq.ft. to the respondent complainant on 25th October 2007. On 26th June 2012, the opposite party sent letter to the complainant along with the builder buyer agreement to return duly signed within 15 days from the date of the letter, however, the complainant failed to execute the builder buyer agreement. It is the case of the appellant that the appellant sent various reminders for making the payment of due installments and on 30.08.2013, third and final reminder was sent calling upon the respondent to make the payment of pending installments within a period of 15 days from the date of receipt of the letter otherwise the appellant will be constrained to cancel the allotment and forfeit 10% of the total consideration as earnest money. The respondent neither replied to this letter nor paid any amount. The appellant then cancelled the allotment vide letter dated 24.12.2013. Aggrieved, the respondent complainant filed consumer complaint No. 588 of 2014 before the State Commission on 22nd November 2014. The complaint was resisted by the appellant/opposite party by filing the written statement to the complaint. The State Commission vide it’s order dated 16.11.2018 allowed the complaint and directed the appellant/opposite party to refund the amount of Rs.9,66,000 with simple interest @9% per annum.

3. Hence, the present appeal.

4. Heard the learned counsel for the appellant at the admission stage. The learned counsel for the appellant stated that the main reason for filing the present appeal is that the State Commission has not allowed deduction of earnest money. It was argued that first of all, the complainant did not execute the builder-buyer agreement which was sent to the complainant on 26th June 2012. The complainant did not pay any installment from 20.11.2008 till April 2012 when the complainant paid Rs.2,00,000 only. Thus, the complainant defaulted at every stage in making the payment of installments and therefore ultimately, the appellant having no choice cancelled theagreement. A common corollary of cancellation of the agreement for non-payment of installments is that the amount paid or 10% of the consideration whichever is smaller will be forfeited as arrest money. There is a clear cut provision in the builder buyer agreement for forfeiture of the earnest money though it is a different matter that the complainant has not executed the builder buyer agreement due to reasons best known to him. The complainant cannot get any advantage for not executing the builder buyer agreement and in fact, all the provisions of the builder buyer agreement should be enforced on the complainant including the forfeiture of the earnest money.

5. I have carefully considered the arguments advanced by the learned counsel for the appellant and examined the record. The admitted facts by the appellant are that the appellant cancelled the allotment on 24th December 2013 allegedly for default of the complainant in paying the installments in spite of the reminders sent by the appellant. it is also admitted that the builder buyer agreement has not been signed between the parties though it has been alleged that the builder buyer agreement was sent by the opposite party on 26 June 2012 to the complainant but the complainant failed to execute the same. The possession was due in the year 2010, however, the same could not be delivered in time and even the builder buyer agreement was sent to the complainant in the year 2012. Thus, clearly the project was inordinately delayed and therefore the complainant may have been justified in stopping th