Susheel Kumar and Another Vs. Unitech Limited and Another - Court Judgment

Excerpt:

consumer protection act, 1986 - section 2(1)(g) - cases referred: 1993 (3) cpj 7 (sc)=1986-95 consumer 278 (sc). 1991 (1) cpj 1 (nc). 1997 (1) cpj 108 (nc). comparative citations: 2001 (1) cpc 602, 2001 (2) cpr 210, 2001 (1) cpj 377.....deserved to be suitably compensated for the harassment and mental torture caused to them. as already stated, the learned counsel for the opposite parties stated that the complainants themselves committed default in payment of instalments and when the amount outstanding was not paid by the complainants despite repeated requests and reminders, the allotment/allocation, made in favour of the complainants was cancelled and the amount was refunded to the complainants in terms of the conditions of allotment as incorporated in the application and accepted by the complainants. in our opinion, in the given facts, the above contention advanced by the learned counsel for the opposite parties, is not without substance. as already stated it is not in dispute that payment of instalments in terms of condition no. (15) (as per construction linked instalment plan b) was to be made by the complainants to the opposite parties and in the event of default the opposite parties, in terms of condition no. (7) were entitled to forfeit the amount of earnest money and cancel the allotment. on the basis of material on record, it is apparent that there were perpetual defaults on the part of the.....

Judgment:

Lokeshwar Prasad, President:

1. Shri Susheel Kumar and Smt. Asha Susheel Kumar (for short the complainants), have filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter refered to as ‘the Act), averring that allured by the advertisements, issued by the opposite parties for the booking of built-up houses in the South City Complex, Gurgaon (Haryana), the complainants applied for booking of a plot/house and also made initial deposits as required by the opposite parties. It is stated that thereafter opposite party No. 1 demanded first instalment of Rs. 84,148/- vide letter dated 27.7.1990. It is further stated that opposite party No. 1, thereafter, vide letter dated 18.8.1990, intimated the complainants the Customer Code Number of the complainants. It is stated that on 30.9.1990, the opposite parties demanded second instalment which was due on 23.10.1990. It is further the case of the complainants that opposite party No. 1, on 31.10.1992, sent a Statement of Account in respect of built-up house, bearing No. 112, Block N, measuring 150 sq. metres, South City Complex, Gurgaon (Haryana) to the complainants. It is further averred that on 5.12.1992, a letter was sent by the opposite parties to the complainants for the execution and registration of sale deed and also for payment of dues. It is stated that on 1.11.1995, the opposite parties sent a letter indicating the outstanding amount of Rs. 5,83,220/- and advised the complainants to clear dues at the earliest and not later than 15.11.1995 failing which, the complainants allotment was to be cancelled automatically as per Clause (7) of the terms and conditions of the allotment of the abovesaid property. It is stated that the abovesaid letter dated 1.11.1995 was received by the complainants on 15.11.1995 and the complainants requested opposite party No. 1 for extension of time stating that the balance payment would be made within 15 days. It is stated that on 28.11.1995, the complainants personally visited office of opposite party No. 1 alongwith two Pay Orders/Demand Draft Nos. 901694 dated 28.11.1995 for Rs. 1,65,000/- and No. 596094 dated 28.11.1995 for Rs. 1,35,000/- and another Pay Order dated 27.11.1995 bearing No. 758895 for Rs. 2,00,000/- drawn in favour of the opposite parties alongwith a sum of Rs. 80,000/- in cash for registration charges but the staff of the opposite parties refused to receive the same on the ground that allotment made in favour of the complainants had already been cancelled. It is stated that the complainants even approached opposite party No. 2 with the request to accept the payment but he also refused to accept the same on the abovestated ground. It is stated that complainant No. 1 Shri Susheel Kumar received a cancellation letter dated 16.11.1995. It is further stated that the complainants thereafter also made repeated requests and representations for the restoration of the allotment but the opposite parties refused to restore the allotment and returned the drafts/cheques to complainant No. 1. It is stated that the complainants from 23.7.1990 to 30.12.1992 in all had made a payment to the extent of Rs. 4,16,038/- as detailed in para 12 of the complaint. It is stated that as per the initial agreement, the total sale consideration, agreed between the parties, was only of Rs. 5,60,980/-. It is stated that as against the abovesaid total sale consideration, the complainants had already paid a sum of Rs. 4,16,038/- but the construction was not completed by the opposite parties as promised and as such the demand of the opposite parties communicated vide letter dated 1.11.1995 asking for the payment of Rs. 5,83,220/- was absolutely illegal and was not in accordance with the contract entered into between the parties.

2. It is further stated that the letter dated 1.11.1995 was received by the complainants on 15.11.1995. The time given by the opposite parties to the complainants for making the payment was inadequate and not in accordance with the terms and conditions of the contract. It is stated that even otherwise also, in terms of letter dated 1.11.1995, the complainants should have been given 15 days clear time and therefore, the complainants after the receipt of letter dated 1.11.1995 on 15.11.1995 requested further time of 15 days which the complainants were fully justified to request. It is stated that the opposite parties received the abovesaid letter but no reply was given to the complainants and the complainants were informed orally that they could make the payment within 15 days. It is stated that the complainants tendered the amount of Rs. 5,80,000/- without prejudice to their rights which the opposite parties refused to receive on the ground that a letter for cancellation of allotment had already been sent to the complainants. It is stated that the above action of the opposite parties, more particularly, the action of cancelling the allotment is illegal and not in accordance with the terms of contract as no amount was payable by the complainants and the complainants had to pay only the balance amount of the total consideration of Rs. 5.80 lacs, when the work, as promised, was completed. It is stated that the work, as promised, was not yet completed. It is stated that despite the above-mentioned defects/shortcomings the complainants were always willing to pay the amount and therefore, the letter dated 1.11.1995 and subsequent letter dated 16.11.1995 are illegal, null and void. It has been prayed that the complaint filed by the complainants, be allowed and the cancellation letter of the allotment of residential house, bearing No. 112 in Block N, measuring 150 sq. yards in the South City Complex, Gurgaon, be declared illegal, null and void and the opposite parties be directed to hand over the physical possession of the abovesaid house to the complainants and to execute the documents of sale and get the same registered in favour of the complainants in the office of the Sub-Registrar against valid payment as per terms and conditions of the agreement. The complainants have also prayed for awarding compensation of Rs. 50,000/- for harassment and mental torture. They have also claimed the cost of the proceedings.

3. The claim of the complainants in the present complaint is being resisted by the opposite parties who have filed a joint written statement/written submissions dated 2.9.1996. In the written version filed on behalf of the opposite parties, the opposite parties have taken certain preliminary objections stating that the present complaint filed by the complainants is bad in law; that the complainants are not consumers within the meaning of Section 2(1)(d)(ii) of the Act; that the complaint in the present form is not maintainable as the complainants want to take advantage of their own wrongs/defaults/breaches and failures. On merits, it is stated that the complainants vide their application dated 24.7.1990 applied for the allotment by sale of a residental built-up house in the Unitech, South City Complex, Gurgaon (Haryana), a residential township, being promoted by the opposite parties, also deposited a sum of Rs. 78,448/- on 23.7.1990 opted/agreed to pay the balance amount in instalments as per construction linked instalments plan B as stipulated in the said application. It is further stated in the written version that the opposite parties vide letter dated 27.7.1990 demanded from the complainants a sum of Rs. 84,148/- towards first instalment, payable by 23.8.1990 in accordance with the payment plan opted by the complainants. It is stated that the abovesaid instalment was not paid by the complainants on due date. It is stated that thereafter the opposite parties vide letter dated 30.8.1990, sent through registered post, called upon the complainants to pay the second instalment of Rs. 84,148/- which was due on 23.10.1990. However, the abovesaid instalment was also not paid on due date as per the case of the opposite parties. On 29.10.1990, a reminder was sent by the opposite parties to the complainants for the payment/outstanding instalments, followed by another reminder dated 1.12.1990 which was also sent by registered post for the payment of outstanding instalments of Rs. 1,68,295/- together with interest of Rs. 7,580/- accrued thereon. It is stated that on 5.12.1990, complainants made a payment of Rs. 1,68,296/- towards instalments. On 3.1.1991 another demand was raised by the opposite parties for payment of instalment of Rs. 56,098/-, which was payable by 15.2.1991. On 4.4.1991 demand for the payment of another instalment of Rs. 58,098/- was raised which was payable by 15.5.1991 which was followed by a reminder dated 21.5.1991. On 21.6.1991, the complainants made a payment of Rs. 56,098/-. On 7.9.1991, another reminder was sent through courier by the opposite parties to the complainants with the request for paying the outstanding instalment/amount totalling Rs. 66,073/-. The complainants were also requested to pay another instalment amounting to Rs. 56,098/- due on 27.9.1991. Another reminder was sent on 2.12.1991, followed by reminders dated 9.6.1992, 17.7.1992. On 30.10.1992, the opposite parties sent a statement of account to the complainants, followed by letter dated 5.12.1992 requesting the complainants to pay the amount for the execution and registration of sale deed alongwith all outstanding dues. On 30.12.1992, the complainants paid an amount of Rs. 56,098/-. It is stated that on 15.4.1993, 30.6.1993, 30.6.1994 and 16.7.1994, reminders were sent by the opposite parties to the complainants requesting them to clear the outstanding amount as detailed in the abovesaid communications.

4. It is stated that in accordance with the terms and conditions of the allotment the opposite parties vide letter dated 1.11.1995, sent by registered post, called upon the complainants to pay the entire outstanding amount together with interest accrued thereon, totalling Rs. 5,83,220/- by 15.11.1995. It is stated that in the abovesaid communication, it was specifically mentioned that in the event of complainants failure to pay the abovesaid amount by the abovesaid date, automatic cancellation of the allotment of the abovesaid property was contemplated. It is stated that the opposite parties received no such communication as stated in para 8 of the complaint from the complainants. It is stated that since the complainants failed to make the payment by 15.11.1995, the allotment of the property in question was automatically cancelled and a sum of Rs. 3,36,890/- was refunded to the complainants by the opposite parties being the amount payable by the opposite parties as a result of cancellation. It is further stated that as the allotment of the property in question stood cancelled there was no occasion for the opposite parties to receive any amount from the complainants. In the written version/written submission, the opposite parties have specifically denied that either on 28.11.1995 or on any other date, the complainants visited the office of the opposite parties. It is stated that the allotment in question was cancelled in accordance with the terms and conditions agreed upon between the parties and the terms and conditions did not contain any provision for restoration of the cancelled allotment. The opposite parties have denied the other allegations levelled by the complainants in the complaint. It is stated that the complainants are not entitled to any relief and the present complaint filed by the complainants, deserves to be dismissed with costs.

5. The complainants filed rejoinder to the written version filed on behalf of the opposite parties controverting the pleas taken in the written version and reiterating the averments made in the complaint.

6. The parties have adduced evidenec by means of affidavits. The complainants, in support of their case, have filed the affidavit of complainant No. 1, Shri Susheel Kumar, whereas on behalf of the opposite parties, an affidavit of Shri M.N. Saxena, Manager (Legal) of opposite party No. 1 has been filed.

7. We have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record. During the course of arguments, it was stated by the learned Counsel for the complainants that there was deficiency in service on the part of the opposite parties in the given facts and the cancellation letter issued by the opposite parties, cancelling the allotment of the residential house in favour of the complainants, is illegal, null and void. It was stated by him that in terms of the agreement, entered into between the parties, the opposite parties be directed to hand over the possession of the house in question to the complainants and be also directed to execute the documents of sale and have the same registered in favour of the complainants. It was further stated by him that the complainants also deserve to be awarded a compensation of Rs. 50,000/- for the harassment and mental torture caused to them and damages/losses suffered by them.

8. On the other hand, the learned Counsel for the opposite parties submitted that the present complaint, filed by the complainants is not maintainable before a FORA established under the Act because the complainants are not ‘consumers within the meaning of Section 2(1)(d)(ii) of the Act and the opposite parties were not providing any ‘service to the complainants within the meaning of Section 2(1)(o) of the Act. It was stated by him that the complainants, by filing the present complaint, are seeking to enforce the specific performance of a contract which relief cannot be allowed to the complainants by this Commission under the provisions of the Act. It was further stated by him that even on merits there is no substance in the case of the complainants as the complainants themselves committed defaults and thus are not entitled to any relief. It was stated by him that the present complaint filed by the complainants, is devoid of substance and therefore, deserves to be dismissed with exemplary costs.

9. First of all we will deal with the preliminary objection, taken by the learned Counsel for the opposite parties. As already stated, it was contended by the learned Counsel for the opposite parties that the present complaint filed by the complainants, is not maintainable before a FORA, established under the Act because the complainants are not consumers within the meaning of the Act and the opposite parties were not providers of any ‘service to the complainants within the meaning of Section 2(1)(o) of the Act. On the other hand, it was contended by the learned Counsel for the complainants that the complainants were ‘consumers as they were availing ‘services of the opposite parties for consideration. Thus, the question for ‘consideration, before this Commission, at the very threshold is as to whether in the given facts the complainants can be treated as ‘consumers within the meaning of Section 2(1)(d) of the Act and whether the opposite parties were providing any ‘service to the complainants within the meaning of Section 2(1)(o) of the Act.

10. The term ‘consumer has been defined in Section 2(1)(d) of the Act and therefore, it would be appropriate for us to refer to that definition of the word ‘Consumer at this stage, which reads as under :

“`consumer means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person.

Explanation—For the purpose of Sub-clause (i) “commercial purpose” does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood by means of self-employment.”

11. The term ‘Service has been defined in Section 2(1)(o) of the Act which runs as under :

“ ‘Service means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both housing construction entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

12. On a bare perusal of the above provisions of the Act, it is apparent that definition of the word ‘Consumer as defined in Clause (d) of Sub-section (1) of Section 2 and that of the word ‘Service as defined in Clause (o) of Sub-section (1) of Section 2 of the Act, is of a wide sweep. The above provisions of the Act as contained in Section 2(1)(d) and 2(1)(o) came up for consideration before the Honble Supreme Court in case Lucknow Development Authority v. Shri M.K. Gupta, III (1993) CPJ 7 (SC)=1986-95 CONSUMER 278 (SC), and their Lordships of the Supreme Court in the abovesaid case have held :

“To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, `to provide for the protection of the interest of the consumers. Use of the word `Protection furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this objective have to be construed in this light without departing from the settled view that a preamble cannot control otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory.”

xxxxxx     xxx

“The word `consumer is a comprehensive expression. It extends from a person who buys any commodity to consume either as eatable or otherwise from a shop, business house, corporation, store, fair price shop to use of private or public services. In Oxford Dictionary a consumer is defined as a `purchaser of goods or ‘services. In Blacks Law Dictionary it is explained to mean, one who consumes. Individuals, who purchase, use, maintain and dispose of products and services. A member of that broad class of people who are affected by pricing policies, financing, practices, quality of goods and services, credit reporting, debt collection, and other trade practices for which State and federal consumer protection laws are enacted.”

xxxxxx     xxx

“The legislature has taken precaution not only to define `complaint `complainant, `consumer but even to mention in detail what would amount to unfair trade practice by giving an elaborate definition in Clause (r) and even to define `defect and `deficiency by Clauses (f) and (g) for which a consumer can approach the Commission. The Act thus aims to protect the economic interest of a consumer as understood in commercial sense as a purchaser of goods and in the larger sense of user of services. Common characteristics of goods and services are that they are supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services.”

xxxxxx     xxx

“What is the meaning of the word service. Does it extend to deficiency in the building of a house or flat Can a complaint be filed under the Act against the Statutory Authority or a builder or contractor for any deficiency in respect of such property. The answer to all this will depend on understanding of the word `service. The term has variety of meanings. It may mean any benefit or any act resulting in promoting interest or happiness. It may be contractual, professional, public, domestic, legal, statutory etc. The concept of service thus is very wide.”

xxxxxx     xxx

“In other words service which is not only extended to actual users but those who are capable of using it are covered in the definition. The clause is thus very wide and extends to any or all actual or potential users. But the legislature did not stop there. It expanded the meaning of the word further in modern sense by extending it to even such facilities as are available to a consumer in connection with banking, financing etc. Each of these are wide ranging activities in day-to-day life. They are discharged both by statutory and private bodies. In absence of any indication, express or implied there is no reason to hold that Authorities created by the Statute are beyond purview of the Act. When Banks advance loan or accept deposit or provide facility of locker they undoubtedly render service. A State Bank or Nationalised Bank renders as much service as private Bank. No distinction can be drawn in private and public transport or Insurance Companies. Even the supply of electricity or gas which throughout the country is being made, mainly, by Statutory Authorities is included in it. The legislative intention is thus clear to protect a consumer against services rendered even by statutory bodies. The test, therefore, is not if a person against whom complaint is made is a statutory body but whether the nature of the duty and function performed by it is service or even facility.”

xxxxxx     xxx

“What remains to be examined is if housing construction or building activity carried on by a private or statutory body was service within meaning of Section 2(o) of the Act as it stood prior to inclusion of the expression `housing construction in the definition of `service by Ordinance No. 24 of 1993. As pointed out earlier the entire purpose of widening the definition is to include in it not only day-to-day buying and selling activity undertaken by a common man but even to such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer. Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire service of a builder or contractor. The latter being for consideration is service as defined in the Act.”

(Emphasis supplied)

13. In case U.P. Aawas Evam Vikas Parishad (Housing and Development Board) v. Garima Shukla and Ors., I (1991) CPJ 1 (NC), a question came up for consideration before the National Commission, as to whether the Housing and Development Board, engaged in service the public in the matter of providing houses by acquisition of land, development of sites, construction of houses thereon and thereafter allotment of plots/houses to the public, was rendering ‘service to the public for consideration within the meaning of Section 2(1)(o) of the Act and whether those who were allotted plots/houses were ‘consumers within the meaning of Section 2(1)(d) of the Act. It was held by the National Commission in the abovesaid case that those who were allotted plots/houses from the Board were clearly ‘consumers falling within the definition in Section 2(1)(d) of the Act and the Board was rendering ‘service to the public for consideration within the meaning of Section 2(1)(o) of the Act.

14. Almost a similar question as to whether a person who had booked space in response to an advertisement from a builder was a ‘consumer and whether the builder was providing ‘service, came up for consideration before the National Commission in case-Dr. P.V. Asha Bai v. M/s. K.N.W. Builders and Anr., I (1997) CPJ 108 (NC), and the National Commission in the abovesaid case has held :

“The first point taken in the grounds of appeal is that the State Commission ought to have held that the case related to purchase of immovable property and not a contract of service and therefore, it was not within the scope of the Consumer Protection Act.

We have considered this aspect in the light of the material placed on record by the parties.

On this point, the State Commission returned the finding that the first opposite party was a building promoter and it had promoted these buildings in Door Nos. 9-10 Ramanathan Steet, T. Nagar, Madras and the complainant had applied for the allotment of Room No. 5. Therefore, the opposite party was doing a service within the meaning of Section 2(1)(o) of the Consumer Protection Act, which after the amendment included housing construction. The complainant had hired or availed of the services of the first opposite party in the allotment of Room No. B5 and was, therefore, a Consumer and entitled to maintain the complaint.”

(Emphasis supplied)

15. The above decisions of the Apex Court and that of the Apex Commission virtually clinch the matter finally and placing reliance on the above decisions of the Honble Supreme Court and that of the National Commission we hold that in the given facts and circumstances, the complainants in the above complaints are decidedly ‘consumers within the meaning of Section 2(1)(d) of the Act and the opposite parties were providing ‘service for consideration within the meaning of Section 2(1)(o) of the Act.

16. Now coming to the merits of the present complaint the admitted facts are that the complainants in pursuance of an advertisement, issued by the opposite parties, applied for allotment by sale for a residential built-up house in the Unitech South City Complex, Gurgaon, Haryana, a residential township, being promoted by the opposite parties with a plot area of 150 sq. metres at the basic price of Rs. 5,60,983/- plus external development and other charges vide their application dated 24.7.1990, which contained the terms and conditions of the said allotment which was duly signed by the complainants. The complainants, at the time of submitting the said application had also paid a sum of Rs. 79,448/- as registration amount (earnest money) and in pursuance of their application House No. 112, Block-N was allocated/allotted to the complainants by the opposite parties.

17. As already stated the application dated 24.7.1990, submitted by the complainants, contained the terms and conditions for the allotment of the built-up house in South City Complex, Gurgaon (Haryana). Condition No. (7) and Condition No. (15) of the abovesaid application are of utmost significance and the same read as under :

“7. The time of payment of instalments is the essence of this agreement. It shall be incumbent on the intending allottee(s) to comply with the terms of payment and the other terms and conditions of sale. In case the instalments are delayed, the intending allottee(s) shall have to pay the interest on the amount due as follows :

(i) Upto 1 months delay from the due date of outstanding amount @ 18% p.a.

(ii) Upto 3 months delay from the due date of outstanding amount @ 24% p.a.

Even then if the intending allottee(s) fails to pay the instalments with interest, the Company shall forfeit the entire amount of earnest money deposited by him/her and the allotment shall stand cancelled and he/she be left with no lien on the built-up house. The amounts if any paid over and above the earnest money shall be refunded to the intending allottee(s) without any interest.

15. The intending allottee(s) shall pay the instalments as under :

Down payment instalment Plan ‘A - Rebate 10%

At the time of booking :

Earnest money     10%

Instalment Amount         85%

At the time of possession          5%

Construction Linked instalment Plan B

At the time of booking :

(A) Earnest Money          10%

(B) EDC @ Rs. 130/- per sq. yd.

Within one month of the date of booking         15%

Within 3 months of the date of booking 15%

On construction reaching Lintel Level     10%

On casting of Roof          10%

On completion of brick work and internal plaster work           10%

On completion of flooring (except final grinding and polishing)          10%

On completion of external plaster and internal Electrification   10%

On construction of internal plumbing      05%

On possession      05%”

(underlined by us)

At the end of the abovesaid documents there is a declaration to the following effect signed by both the complainants :

“I/We have read and fully understood the abovementioned terms and conditions and agree to abide by the same.”

18. In terms of the above conditions, as incorporated in the abovesaid document, the complainants were under an obligation to make timely payment of the instalment in respect of the house allotted/allocated by the opposite parties in their favour. During the course of arguments, it was stated by the learned Counsel for the complainants that out of the total amount of Rs. 5,63,983/-, which was to be paid by the complainants on account of basic price of the house, the complainants had paid a sum of Rs. 4,16,038/- till 30.12.1992 and there was no default on the part of the complainants. It was further stated by him that letter dated 1.11.1995, issued by the opposite parties, threatening cancellation of the allotment, was received by the complainants on 15.11.1995 and the complainants requested for 15 days more time for paying the amount in question because in terms of the abovesaid letter also payment was to be made within 15 days. It was stated by him that in the first place the time given vide letter dated 1.11.1995 was thoroughly insufficient and inadequate. Secondly the complainants requested for granting 15 days more time for making the payment in question, which should have been given to the complainants because letter dated 1.11.1995 mentioned that payment was to be made within 15 days. It was stated by him that since the letter dated 1.11.1995 issued by the opposite parties was received by the complainants on 15.11.1995, the complainants were fully justified in requesting for 15 days extension for making the balance payment. It was sated by him that much before the expiry of the abovesaid requested/extended date, the complainants on 28.11.1995 personally visited the office of opposite party No. 1 alongwith pay orders/demand drafts for Rs. 5,00,000/- and a sum of Rs. 80,000/- in cash as detailed in para 9 of the complaint but the staff of the opposite parties refused to receive the same on the ground that the allotment in favour of the complainants had already been cancelled. It was stated by him that in the given facts the cancellation of allotment resorted to by the opposite parties was illegal, unjustified, null and void. It was stated by him that in the given facts the complainants are entitled to the possession of the house in question and the opposite parties, therefore, be directed to hand over the possession of the house in question to the complainants, to execute the document and have the same registered in favour of the complainants in the office of the Sub-Registrar against valid payment in terms of the agreement. It was also stated by him that the complainants also deserved to be suitably compensated for the harassment and mental torture caused to them. As already stated, the learned Counsel for the opposite parties stated that the complainants themselves committed default in payment of instalments and when the amount outstanding was not paid by the complainants despite repeated requests and reminders, the allotment/allocation, made in favour of the complainants was cancelled and the amount was refunded to the complainants in terms of the conditions of allotment as incorporated in the application and accepted by the complainants. In our opinion, in the given facts, the above contention advanced by the learned Counsel for the opposite parties, is not without substance. As already stated it is not in dispute that payment of instalments in terms of Condition No. (15) (as per Construction Linked Instalment Plan B) was to be made by the complainants to the opposite parties and in the event of default the opposite parties, in terms of Condition No. (7) were entitled to forfeit the amount of earnest money and cancel the allotment. On the basis of material on record, it is apparent that there were perpetual defaults on the part of the complainants in paying the instalments in time and much before the issue of letter dated 1.11.1995, the opposite parties had sent letters dated 15.4.1993, 30.6.1993, 30.6.1994 and 16.7.1994 to the complainants requesting the complainants to make the payment of outstanding amounts but no action was taken by the complainants. In para 11 of the written version/written statement, filed on behalf of the opposite parties it has been stated that prior to issuance of letter dated 1.11.1995, the opposite parties vide letter dated 30.6.1995 called upon the complainants to make the outstanding payment amounting to Rs. 5,45,707/- and also informed the complainants that in the event of failure by the complainants to make the payment in that event the allotment would be cancelled. It is also stated that despite the issue of letter dated 30.6.1995, the complainants continued to neglect and failed to make the payment in accordance with the terms and conditions of the allotment. The correctness of the above contention, advanced by the opposite parties, in their written version; has not been denied by the complainants in the rejoinder filed by them. In other words the receipt of letter dated 30.6.1995 stands admitted by the complainants. As already stated, during the course of arguments it was stated by the learned Counsel for the complainants that the complainants on 28.11.1995 personally visited the office of opposite party No. 1 alongwith pay orders/demand drafts for Rs. 5,00,000/- and a sum of Rs. 80,000/- in cash as detailed in para 9 of the complaint but the staff of the opposite parties refused to accept the same on the ground that allotment in favour of the complainants had already been cancelled. In our opinion, on the basis of material on record, it is apparent that the above contention, advanced by the learned Counsel for the complainants, is far from truth because on record, there is a letter dated 1.1.1996, which is of utmost significance. The same reads as under :

“This is in reference to your letter No. UL:RED:8974/95 dated 1.11.1995, which was received by me only on November, 1995. I had informed you about the same in my letter dated 15.11.1995.

On 28.11.1995, I came to your office personally alongwith the payments, but your staff refused to receive the same. After that I approached to Mr. Sanjay Mathur (Sr. Manager) and requested him to accept the payment but he also refused to accept the same stating that my allotment has been cancelled and shown his unability to help me in the matter.

Once again I am forwarding you two drafts No. “901694” dated 28.11.1995 for Rs. 1,65,000/- and “596094” dated 28.11.1995 for Rs. 1,35,000/-. I am also sending back your Cheque No. “363137” dated 16.11.1995. I request you to accept the payment and restore my allotment as do not own any other residential property. I assure you to pay all your balance payment alongwith the total interest within a months time.

I am extremely sorry for the inconvenience caused to you and humbly request to bear with me and consider my case sympathetically.”

19. On a perusal of the contents of the abovesaid document which is complainants own document, two things are clear. Firstly, that even on 1.1.1996 i.e., much after November, 1995, the complainants had forwarded only two drafts - one for Rs. 1,65,000/- and the other one for Rs. 1,35,000/- (total Rs. 3,00,000/-) and not for Rs. 5,00,000/- as averred in para 9 of the complaint. Secondly, in the abovesaid letter also the complainants, while requesting for a sympathetic consideration, had given an assurance to pay the balance amount with interest within a months time. The above document virtually clinches the issue finally and establishes that there was default on the part of the complainants in paying the instalments in terms of the conditions of the allotment in time. Even in para (4) of the affidavit, filed by the complainant, Shri Susheel Kumar by way of evidence, it is stated that in December, 1992, he met with an accident and had to undergo an operation and was under financial constraints. The above, is an indirect admission on the part of the complainants that owing to financial constraints, the instalment could not be paid by the complainants in time.

20. In view of the above discussion, it is established that there was a default on the part of the complainants in paying the amount in time in accordance with the terms and conditions contained in the application for registration and the opposite parties, in the given facts were fully justified in cancelling the allotment and forfeiting the amount of the earnest money in terms of conditions contained in Clause (7) of the terms and conditions. No fault can be found with the same.

21. For the above reasons, in our opinion, there was no deficiency in service on the part of the opposite parties. As a matter of fact, the boot was on the other leg. The default was on the part of the complainants. However, the opposite parties in accordance with the terms and conditions of the allotment letter are liable to refund the amount paid over and above the earnest money by the complainants. Thus, no relief, as prayed for, can be granted to the complainants by this Commission on their complaint which is liable to be rejected. However, the opposite parties are liable to refund the amount paid over and above the earnest money to the complainants. Accordingly, in terms of the conditions, contained in allotment letter, the opposite parties are directed to refund the amount paid over and above the earnest money to the complainants, if not already refunded, within 30 days from the date of this order, failing which, that amount shall carry interest @ 12% per annum from the date of order till actual payment.

The complaint, filed by the complainants, stands disposed of in above terms.

Complaint disposed of.