9911796707
TMI Blog2008 (7) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... Commission, New Delhi (for short "the Commission"). By the aforesaid judgment and order the learned Commission made certain observations and recorded findings against the appellant herein, which are under challenge in this appeal. The Commission recorded a finding that the action of the appellant in increasing the cost which forced the respondent from making further payments resulting in the cancellation referred to by the appellant was unfair trade practice and the appellant had no right to forfeit the earnest money. Consequently a direction was issued that the appellant should return the earnest money with interest thereon at the rate of 9 per cent per annum from the date of withholding the earnest money till the date of repayment in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant sent a reply to the legal notice on 25-6-2001 stating that the deductions made were lawful and in accordance with the terms of the agreement. 5. The respondent, however, was not satisfied with the reply sent by the appellant and instead filed an application under section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 before the Commission for payment of compensation on the ground of unfair trade practice. It was contended inter alia, by the respondent that the appellant was not entitled to forfeit the earnest money as they themselves were unable to give delivery of the flat within the stipulated time and more particularly, when the appellant has re-sold the said flat at a good price, therefore, as the appellant d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "8. That the Company and the Apartment Allottee hereby agree that the amounts paid on registration to the extent of 10 per cent of the sale price of the said premises and on allotment or in instalments as the case may be, will collectively constitute the earnest money. Non-fulfilment by the Apartment Allottee of the terms and conditions of application for allotment, terms and conditions of sale and those of this agreement as also in the event of failure to sign this Agreement by Apartment Allottee within the time allowed may entail the forfeiture of the earnest money. 9. That the time of payment of instalments as stated in schedule of payments (Annexure-II) is the essence of this Agreement. It shall be incumbent on the Apartment Allottee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... short span of six months. 9. The aforesaid submission of the respondent was also advanced before the Commission and the same found favour with the Commission. The learned Commission observed that substantial portion of the escalation has been attributed towards creating additional facilities and upgrading the flats, thus putting additional and unforeseen burden upon the allottee and that to, to be fulfilled in short span of time. The Commission further held that the contract was one sided and the respondent was required to sign on the doted lines. While coming to the aforesaid conclusion the Commission has relied upon one of its earlier order dated 2-5-2006 in Grahak Shayak Gurgon Voluntary Consumer Association v. DLF Universal Ltd. wherei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent no liability will accrue upon the appellant due to delay in handing the possession. 12. In the present case we find that the instalments were duly paid for at least five years and payment was stopped thereafter on the ground that the increase in the cost of the flat was beyond the means of the respondent and also the fact that appellant had failed to deliver the possession of the flat in time. On the other hand as submitted there were bona fide reasons on the part of the appellant for their inability to handover the said possession within the stipulated time and the increase in cost was on account of factors specifically enumerated in clause 2(b) and clause 4. 13. Considering the entire facts and circumstances of the case, we are of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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