REKHA GUPTA Revision petition no. 552 of 2013 has been filed against the judgment and order dated 08.10.2012 passed by the State Consumer Disputes Redressal Commission, Union Territory Chandigarh in First Appeal no. 210 of 2012. 2. The facts of the complaint as per the respondent/ complainant are that in response to the said public advertisement the respondent applied for a house by paying Rs.1,01,000/- as initial deposit (5% of the total tentative cost of Rs.20.18 lakh) vide application no. 711. This initial margin money was financed by State Bank of India, -1- Bhatinda. 3. After scrutiny of the application the respondent received an intimation dated

30.06.2009 regarding the allotment of flat. As per this letter the intimation regarding payment of allotment money was given and no date bound time table for payment of other installments was mentioned. The category 1 flat at Cooperative Housing Complex of Housefed, Punjab at Banur was allotted in response to the application of the respondent and it was further informed to arrange for deposit of the registration money amounting to Rs.2,02,000/-. 4. The respondent went to the office of Housefed, Punjab and sought the information regarding the payment and he was informed that incase he fails to make the payment within the time schedule then interest would be chargeable from the respondent till the date of payment and he was further told by the Superintendent Engineer and the staff of Housefed that the payment could be made with interest at any time. 5. The respondent paid the allotment money of Rs.2,02,000/- and two installments of Rs.1,13,500/- each thereafter. 6. The respondent, thereafter, received a letter dated 16.12.2010 informing him that since 3 consecutive installments amounting to Rs.1,13,500/- each have not been deposited the allotment of flat in his favour vide form no. 711 file no. 314 at Cooperative Housing Complex, Banur was hereby cancelled and 100% amount already deposited was also forfeited as per clause no. 6 of the allotment letter. The said letter was received by the respondent on 27.12.2010 while it was dispatched on 20.12.2010 from Chandigarh. 7. The allotment letter in fact had no clauses. It was a booklet of the voucher containing application form which had incorporated certain terms and conditions alleged to be clauses by the petitioner/ opposite party. The clause no. 6 stated that :- . Mis-representation of suppression of facts. It is found, at any time, that the application has furnished any incorrect or false information or suppressed any material fact in the application form for registration or later on, which makes him/ her ineligible, the registration as well as allotment, if made, shall be cancelled and the total deposit made shall be forfeited. The applicant shall further be liable to penal consequences under the law 8. The case of the respondent was absolutely not covered under clause 6 of the voucher since he had not suppressed any information at all which could make him liable for cancellation of flat and thus the action of the petitioner was totally against law, facts and rules/ covenants of the agreement between the parties. 9. The respondent contacted the Housefed Office many times by telephone as well as visits to the Housefed office to know about the detail of interest and to intimate the calculation of interest to be paid along with the installments by the respondent to the Housefed but there was absolutely no response and the staff as well as Superintendent Engineer of Housefed told the respondent that he could make the payment at any time and the interest would be payable till that date. 10. The respondent approached the Housefed office on 21.02.2011 for payment of all money due from him and moved an application, but again there was no restoration of flat despite the willingness of the respondent to make the payment along with interest. 11. The Superintendent Engineer refused to accept the payment due to it being later than 60 days calculated from the date of passing of cancellation order, i.e., 16.12.2010, while actually it was received much later by the respondent. The requests of the respondent were not at all heeded to by the petitioner. 12. The respondent again gave a written request to the department on 11.03.2011 pleading in detail about the deposits made by him and willingness to make the further deposits along with interest and also bringing to their notice that clause 6 was not applicable to the facts of the present case, but his request was ignored without any rhyme or reasons. 13. A letter no. 2388 dated 10.03.2011 was received by the respondent, the original of which was addressed to Assistant Manager State Bank of India, Sector 17, Chandigarh regarding refund of earnest money and it was intimated that 15% earned money has been forfeited as per clause no. 6 of the allotment letter and cheque no. 613171 dated 09.03.2011 amounting to Rs.2,27,000/- drawn on the HDFC Bank Ltd., was enclosed on account of refund of the said allotment. 14. Against the original cancellation letter intimating forfeiture of 100% amount paid and thus both the letters were contradictory to each other and the stand of the Housefed varied from time to time despite the fact that clause 6 was never applicable to the respondent and as such the cancellation of the flat could not be made at all in any case. 15. It was, therefore, prayed that the complaint may be accepted and the petitioner may be directed to restore the flat of the respondent in Housing Complex at Banur and they may also be burdened with compensation of Rs.2 lakh along with interest and Rs.50,000/- as litigation expenses as damages on account of mental and physical harassment of the respondent. 16. Any other relief to which the Honle Forum deems proper and fair in favour of the respondent in the facts of the case may also be granted. 17. The petitioner/ opposite party in their reply before the District Consumer Disputes Redressal Forum I, Chandigarh (he District Forum while admitting that the respondent was allotted a category 1 flat at Cooperative Housing Complex of Housefed, Punjab at Banur vide allotment letter dated 22.06.2010 stated that condition 6 of the terms and conditions in the allotment letter read as under: . If the allottee does not pay the three consecutive equated quarterly installments after payment of 15% earnest money but before and after the offer of possession, then the flat may be cancelled after deducting 100% of the receipt of earnest money (15% earnest money) 18. In the present case the respondent defaulted in making the installments which stood due on 30.04.2010, 31.07.2010, 31.01.2010. Therefore, in view of the terms and conditions which were duly accepted by the respondent at the time of allotment the flat of the respondent was cancelled. The flat of the respondent stood cancelled on as and when the last installments were due, i.e., 31.10.2010. 19. The letter dated 16.12.2010 dispatched on 20.12.2010 is merely a communication to the respondent that his flat had been cancelled. However, in view of the terms and conditions of the allotment letter as well as the brochure the allotment of the respondent stood cancelled when the third installment which was due was not paid. 20. The respondent in his complaint was relying upon clause 5 ( c) of the brochure which reads as under: he Managing Director, Housefed, is empowered to restore the cancellation of the allotment of flat at any stage and after charging interest @ 18% per annum for the defaulted period within 60 days from the date of cancellation of flat 21. A perusal of this clause shows that within 60 days from the date of cancellation of flat the Managing Director was empowered to restore the cancellation after charging interest @ 18% per annum for the defaulted period. This clause clearly shows that it was a discretion given to the Managing Director as to whether he wanted to restore or not. Moreover, in the allotment letter there was an arbitration clause and the dispute between the parties has to be referred to the arbitrator whose decision shall be final between the parties. 22. In the present case the petitioner was claiming the concession on the basis of the clause 5 ( c) of the brochure. The stand of the respondent was that he had received the communication of cancellation of flat on

27.12.2010 and he, thereafter as per the clause within 60 days represented to the Managing Director for restoration of his flat. The period of 60 days had to be counted from 31.10.2010 and not from 27.12.2010 which was the date when the communication was received by the respondent. Once one of the terms and conditions of the allotment, when 3 consecutive installments were not paid the allotment stood cancelled automatically. Then it will not be in the mount of the respondent to say that he came to know about the cancellation on 27.12.2010.25. The District Forum while partly allowing the complaint in its order dated 11.05.2012 held that: he condition no. 7 of the terms and conditions of the allotment letter provides as under:- . The Managing Director, Housefed is empowered to restore the cancellation of the allotment of flat at any state after charging interest @ 18% per annum for the defaulter period within 60 days from the date of cancellation of flat. The OP no. 1 had cancelled the flat of the complainant vide letter dated 16.12.2010, whereas the complainant made the request for restoration of the flat on

21.02.2011. Thus, the request of the complainant for restoration of the flat was well within the period of 60 days. Hence, he was entitled for restoration of the flat, subject to payment of interest @ 18% per annum for the defaulted period on the defaulted amount. As a result, of the above discussion, we partly allow this complaint with directions to the complainant to pay the defaulted amount to OP no. 1 along with interest @ 18% per annum for the defaulted period, whereupon the OP no. 1 shall restore the flat in question in the name of the complainant forthwith. No order as to compensation or cost 23. Aggrieved by the order of the District Forum, the respondent filed an appeal before the State Commission. The State Commission in their order dated 08.10.2012 observed that: s per clause 5 (b) of the allotment letter, if the allottee failed to pay three consecutive equated quarterly installments after payment of 15% earnest money, but before and after the offer of possession, then the flat may be cancelled after deducting 100% on the receipt of earnest money (15% earnest money). As per this clause, the appellant was certainly entitled to cancel the allotment of flat, but it was nowhere mentioned in the clause aforesaid that the cancellation of flat would be automatic. Hence, it could not be concluded that the cancellation of flat was automatic. Once, the appellant decided to cancel the allotment of flat, then keeping in view the principle of natural justice, it was obligatory on its part to issue prior notice thereof to the complainant. In the present case, no such notice regarding the cancellation of flat, was ever issued to the complainant. Admittedly, the appellant vide letter dated 16.12.2010 informed the complainant regarding the cancellation of flat and the same was received by him on 27.12.2010. Immediately after receipt of the said letter, the complainant as per clause 5 ( c) of the allotment letter made a representation within 60 days to the Managing Director and showed his willingness to pay all the due installments along with interest but the same was rejected without assigning any reasons, whatsoever, in our view, though it was the discretion of the Managing Director, either to accept or cancel the allotment of flat yet the same should have been done in accordance with the terms and conditions, of the allotment letter by giving reasons therefore but, in the present case, the representation was rejected without assigning any plausible reasons. Thus, the appellant was certainly deficient in rendering, the service. In view of the above discussion, we are of the considered opinion that the order passed by the District Forum does not suffer from any illegality or perversity, warranting the interference of this Commission. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with no order as to costs. The order of the District Forum is upheld 24. Hence, the present revision petition. 25. The main grounds for the revision petition are that: The State Commission has erred in holding that the Managing Director of petitioner had been deficient in rendering the service by virtue of not having assigned reasons for rejecting the representation of the complainant. In this regard, it is respectfully submitted that the representation made by the respondent on 21.02.2011 as well as on

11.03.2011 were made after the termination had already taken place on 31.10.2010 and intimated to the respondent on 16.12.2010. The facts regarding default committed by the consumer is not depositing three installments is admitted and therefore, there is no finding that the termination order is contrary to the terms and conditions of allotment. Moreover, there could have been no question of deciding the representing dated 21.02.2011 made by the complainant because the power to restore cancellation of allotment of a flat can be done only within 60 days from the date of cancellation. In the present case the cancellation took place on 31.01.2010, whereas the representation made on 21.02.2011, i.e., the representation is made after 60 days. The District Forum has wrongly read the date of intimation regarding cancellation of the flat as the date of cancellation itself. The action of the petitioner in not restoring the cancellation and instead in returning the deposited installment after forfeiting the earning money cannot be faulted. The State Commission erred in observing that the petitioner was required to issue a letter informing the respondent about payment of installment. It is submitted that in terms of clause 28 of the allotment letter, there was no reasons for the petitioner to issue any letter requesting payment of quarterly/ monthly equated installments, the same being within the knowledge of the respondent to pay on schedule. Clause 28 of the allotment letter reads as under: 28. No separate letter will be issued for any of the payment, i.e. quarterly/ monthly equated installments or any other dues. You shall be responsible for the deposit of installments/ payment on due date at the office of Housefed, Punjab at SCO no. 150-151-152, Sector 34 A, Chandigarh. 26. We have heard the learned counsels for the petitioner as well as the respondent no. 1 and have carefully gone through the records of the case. 27. It is an admitted fact that the respondent was allotted category 1 flat Cooperative Housing Complex of Housefed, Punjab at Banur, vide allotment letter dated

22.06.2010. He had applied for a house by paying Rs.1,01,000/- and thereafter he paid allotment money of Rs.2,02,000/- and second installment of Rs.1,13,500/-. Thereafter due to some personal constraints he did not pay any further installments. Thereafter vide letter dated 16.12.2000 he was informed that the allotment of flat has been cancelled and 15% of the cancellation money would be forfeited as per clause 6 of the allotment letter. He however, stated that the letter dated16.12.2000 was received by him on 27.12.2000 and he sent the envelope to prove the same to the Managing Director. He applied for restoration as per clause 5 (c ) within 60 days of the receipt of cancellation of the letter. In the same he stated that allotment may be restored as he was willing to pay the due installments along with interest of 18%. It would appear that the same was not agreed to for the reasons not on record. Thereafter the letter dated 10.03.2011 was sent to the Assistant Manager of State Bank of India, Sector 17, Chandigarh stating that that : Subject: Regarding refund of earnest money. In this connection, it is intimated that the allotment of flat, form no. 11, file no. 314/ Gen at Cooperative Housing Complex, Banur, allotted to Shri Kuljeet Singh son of Shri Jaswant Singh has been cancelled due to non-deposit of 3 consecutive installments of the flat and 15% earnest money has also been forfeited as per clause no. 6 of the allotment letter. Accordingly, cheque no. 613171 dated 09.03.2011 amounting to Rs.2,27,000/- drawn on the HDFC Bank ltd., Sector 35 B, Chandigarh on account of payment of refund of the above said allottee is enclosed herewith for further necessary action. Encl: As above. Sd/- Superintending Engineer A copy of the above is forwarded to Shri Kuljeet Singh son of Shri Jaswant Singh, Singh Luljit and Associates Near State Bank of India, Satta Bazar, Kotkapura for information and further necessary action. Sd/- Superintending Engineer 28. We have carefully read clause 6 & 7 of the terms and conditions which were allegedly sent to the respondent with the allotment letter. Clause 6 & 7 reads as under: . If the allottee does not pay the three consecutive equated quarterly installments after payment of 15% earnest money but before and after the offer of possession, then the flat may be cancelled after deducting 100% of the receipt of earnest money (15% earnest money). 7. The Managing Director, Housefed is empowered to restore the cancellation of the allotment flat at any stage after charging interest @ 18% per annum for the defaulted period within 60 days from the date of cancellation of flat 29. It is very clear from the reading of the clause that the cancellation of the flat on default of payment was not automatic. Clause 7 states that the flat may be cancelled. Clause 7 also states that the Managing Director, Housefed is empowered to restore the cancellation of the allotment flat at any stage after charging interest @ 18% per annum for the defaulted period within 60 datys from the date of cancellation of flat. It is but logical that when the cancellation is not automatic the respondent should have given notice before the cancellation. Further, the 60 days period should count not from the date of unilateral cancellation of the allotment by the petitioner and the date of dispatch, i.e., 20.07.2010, but the date on which knowledge came to the respondent no.1, i.e., 27.12.2010. It is also a fact that he applied for restoration of the flat within 60 days of the receipt of the letter vide his letter dated 21.02.2011 a fact not denied by the petitioner. 30. On perusal of the affidavit filed by the petitioner it is quite apparent that the decisions and notings on the representations of the respondent no. 1 were made at the level of the dealing assistant. Managing Director has nowhere given a speaking order and reasons for refusal to restore the flat. It was decided to obtain legal opinion on whether the 60 days period was to be counted from 16.12.2010 or from 27.12.2010 which clearly shows that there was ambiguity regarding clause 7 as it did not clearly indicate the date from which the 60 days period would be computed. It is also surprising to note that when the Advocate gave a legal opinion that the limitation should be counted from the date of knowledge it was at the level of Dealing Assistant that the opinion of the counsel was overruled. It appears to us that there is a gross of violation of clauses 6 and 7 to deny restoration of the flat to the respondent. 31. Honle Supreme Court in Mrs Rubi (Chandra) Dutta vs M/s United India Insurance Co. Ltd., 2011 (3) Scale 654 has observed: lso, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora. 32. Thus, no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21 (b) of Act. The order of the State Commission does not call for any interference nor does it suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, present petition is hereby, dismissed with no order as to cost. ......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER