Unitech Limited Vs. H. Kishie Singh and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1111157
CourtUnion Territory Consumer Disputes Redressal Commission UT Chandigarh
Decided OnSep-04-2009
Case NumberAppeal No. 2294 of 2008
JudgePRITAM PAL, PRESIDENT, THE HONOURABLE MR. MAJ. GEN. S.P. KAPOOR, PRESIDING MEMBER & THE HONOURABLE MRS. NEENA SANDHU, MEMBER
AppellantUnitech Limited
RespondentH. Kishie Singh and Others
Excerpt:
consumer protection act, 1986 - section 2(1)(g) - comparative citation: 2009 (4) cpj 497maj. gen. s.p. kapoor, member: 1. briefly stated the case of the complainants is that op-1 through its channel partner i.e. op-2 approached them for selling apartment measuring 1300 sq. ft. in the housing complex named unitech habitat situated at plot no. 9, ph-ii, greater noida, gautam budh nagar (up). the price of the apartment was quoted to be rs. 39,65,000 approximately. it is further the case of complainants that op further assured them that this was a pre-launch of the complex and the floor area of the apartment would not be in any case more than 1300 sq. ft. it was further averred that the complainants paid a sum of rs. 5 lacs vide cheque dated 14.6.2006 and booked the apartment with a specific understanding given by the ops that the apartment should not be more than 1300 sq. ft. and the price of the same would be rs. 39,65,000. as per the complainants, they paid a total sum of rs. 10,52,730 vide three different cheques, which were duly accepted by the ops and for which receipts were also issued. it was further averred that the complainants received allotment letter dated 20.11.2006 through op no. 2 stating that they had been allotted apartment no. 604, floor 6th, area of which was 1693 sq. ft. and the price of the same was rs. 54,60,941. it was next averred by the complainants that they requested ops to get the allotment letter changed and in turn, op no. 2 represented that this was only a formality and the allotment letter would be changed subsequently. thereafter, as per the complainants, they approached op no. 1 for refund of the amount deposited. subsequently, on 2.7.2007, op no. 2 issued a letter giving no objection for the refund of the amount and the complainants were told to approach op no. 1, who kept delaying the payment. upon this, the complainants served legal notice dated 14.9.2007 for the refund of the amount but to no avail. alleging the aforesaid acts of the ops as deficiency in service and unfair trade practice, the complainants had filed the complaint. 2. the version of op no. 1 is that the complainants were fully aware that the super area of the said apartment was 1693 sq. ft. and the same was specifically mentioned on the receipts dated 29.6.2006, 15.9.2006 and 6.10.2006 annexed as annexures r-1 to r-3 issued by the op to the complainants. it was next pleaded that along with letter dated 31.8.2006, it also sent two sets of allotment letters containing the terms and conditions of allotment, which were duly executed by the complainants as well as ops on 20.11.2006. as per this op, the said allotment letter apart from various terms and conditions of allotment, specifications, payment plan etc. also mentioned the super area of the allotment as 1693 sq. ft. it was asserted by op no. 1 that the complainants signed the terms and conditions of allotment and did not raise any grievance or objection. as per op no. 1, an amount of rs. 33,95,478 was still due as consideration and the complaint was an afterthought to wriggle out of their liability to pay under the agreed terms of allotment and as per schedule opted by the complainants. pleading no deficiency in service as well as unfair trade practice on its part, op no. 1 prayed for dismissal of the complaint. 3. the version of op no. 2 is that it had all along been cooperating with the complainants regarding refund of the alleged amount only out of goodwill and hence there had been no misrepresentation on its part. op no. 2 had further pleaded that it was not responsible for any damages/compensation and the same was within the domain of op no. 1. 4. the learned district forum while dealing with the contention of the complainants that they booked a flat of 1300 sq. ft. with op no. 1 through op no. 2 but subsequently allotment letter for 1693 sq. ft. was issued to them, referred to the application form (annexure r-4) filled by the complainant wherein the area of the flat was mentioned to be 1693 sq. ft. the learned district forum also referred to the receipts (annexures r-1 to r-3) issued to the complainants with respect to the deposits made by them wherein the area of the flat was mentioned to be 1693 sq. ft. in view these documents, the learned district forum turned down the contention of the complainants that they booked a flat of 1300 sq. ft. with op no. 1 through op no. 2. 5. the learned district forum further referred to the application form (r-1) submitted by complainants, at page 3 of which, it was apparent that the mode of booking was not direct but through j.d. realtors i.e. op no. 2. as per the learned district forum, this page relates to the office use only and the area 1693 sq. ft. was naturally filled up by the office of op no. 1 and not by the complainants. the learned district forum after perusal of the entire application (r-4) was of the view that the area of the flat was not mentioned anywhere as 1693 sq. ft. and the details of apartment for provisional registration were lying vacant in this respect. it further recorded that when the allotment letter was received by the complainants in which the area was mentioned as 1693 sq. ft, they took up the matter with j.d. realtors through whom the application was submitted. it further observed that op no. 2 through its letter (c-3) admitted that the complainants had requested for an apartment of area 1300 sq. ft. when pre-launch offer price were given to them and this size was available for 02 bed room apartments. it is mentioned that with this understanding, they paid booking amount for 1300 sq. ft. in favour of op no. 1. it further recorded that when the allotment was done the area allotted to them was 1693 sq. ft.. in the view of the learned district forum, since the size of the apartment had increased considerably, it had become beyond the financial reach and savings of the complainants. the learned district forum in the impugned order has also recorded that op no. 2 again wrote another letter (c-4) to op no. 1 wherein it was mentioned that as it was pre-launch, the complainants were made to believe that it would be 1300 sq. ft. area apartment. the learned district forum was of the opinion that the documents produced by op no. 1 showing 1693 sq. ft. area could not be held sufficient to deny the refund of the amount deposited by the complainants. in the view of the learned district forum, there was no evidence produced by the ops on record to prove that a flat with covered area of 1300 sq. ft. was not available with them. on the other hand, as recorded by the learned district forum, op no. 2 in its letter (c-3) clearly mentioned that such a flat with 2 bed room was available with the op no. 1 but the same was not allotted to the complainants for the reasons best known to op no. 1. in the view of learned district forum, ops had no right to sit over the request of the complainants and delay the refund of the amount. the learned district forum allowed the complaint and directed the ops to refund the total amount deposited by the complainants with them along with interest @ 9% per annum from the date of deposit till the date of payment besides rs. 5,500 as costs of proceedings. ops were further directed to refund the amount within a period of 30 days of the receipt of the copy of the order failing which they were held to pay the same along with penal interest @ 18% p.a. from the date of filing the complaint i.e. 7.5.2008 till realization. 6. aggrieved by the said order of learned district forum, op no. 1 has filed the present appeal. the appeal having been taken on board, notice was sent to the respondents/complainants and the record of complaint case was summoned from the district forum concerned. mr. vikas bahl, advocate appeared on behalf of the appellants/op no. 1 whereas mr. jagat narayan and mr. pradip bhandari, advocates represented the respondent nos. 1 and 2/ complainants. 7. mr. vikas bahl, advocate learned counsel for the appellant referred to page no. 40 of the paper book and submitted that it is clearly stated in the document that a sum of rs. 5 lacs had been remitted by the complainants and he further referred to page no. 42 wherein it has been stated that the area of the flat was 1693 sq. ft. approximately. he then referred to page no. 45 of the paper book wherein in this document, which is a “cash down payment plan”, he intimated that the complainants had paid 10% of the booking amount for the price of a 1693 sq. ft. plot. he thereafter referred to page no. 46 (annexure a-3), which is the receipt for a sum of rs. 5 lacs and in this receipt also, he pointed out that the area referred to of the plot was 1693 sq. ft. thereafter, the learned counsel referred to the allotment letter annexed at page no. 48 of the paper book wherein he pointed out that at para no. 1, it had been clearly mentioned that the complainants had been allotted an apartment of 1693 sq. ft. area and the same contention had again been emphasized on the next page of this letter under heading “area” at para 1(a). next referring to page no. 61 of the paper book under heading “breach”, he pointed out that at para no. 11, it had been clearly stated that if the allottee fails to perform or observe all or any of the stipulations contained in the contract, the developer shall have the right to cancel the allotment and the earnest/registration amount along with accrued interest on delayed payment till the time of breach, if any, shall be retained by the developer. the learned counsel further referred to page no. 63 of the paper book wherein it again was clearly indicated that the area of the property in question was 1693 sq. ft and its basic cost was rs. 51,63,650 and the total cost was rs. 54,60,941. thereafter, reference was made by the learned counsel to annexure a-5 (page no. 66 of the paper book), which is receipt no. 1522 and he pointed out that even in this receipt, the area of the property had been shown as 1693 sq. ft and the same had also been showed on the next page in receipt no. 1739. the learned counsel emphatically submitted that from these documents, it was quite clear that the complainants were well aware of the fact that the area of the property in question was 1693 sq. ft. the next reference made to by the learned counsel was of the full brochure i.e. exhibit ex-1 starting from page no. 68 of the paper book and he emphatically submitted that a perusal of this full brochure clearly indicates that ops never had any plan to construct or sell flats having area of 1300 sq. ft. he also submitted that no cogent evidence has been placed on file by the complainants to prove that op no. 1 had any plans to construct flats of the size of 1300 sq. ft. area. to confirm his contention that the complainants were fully aware of the fact that the area of the property in question was 1693 sq. ft., he also made reference to annexure ex-3 (page 95) and annexure ex-4 (page 97) as well, as both these documents, which are demand letters of op no. 1, clearly indicate the area of the flat being 1693 sq. ft. the learned counsel for the appellant thereafter emphatically pleaded that the learned district forum had erred in concluding that there were some flats of 1300 sq. ft. as well and it, therefore, gone wrong in passing the impugned order. the learned counsel for the appellant also emphatically submitted to the bench that op no. 1 has no concern with op no. 2 and op no. 2 in collusion with the complainants is trying to obtain legal gains for the complainants. he prayed that the appeal be allowed and the complaint be dismissed. 8. mr. jagat narayan, advocate, learned counsel for the complainants, on the other hand, submitted that the brochure to which op no. 1 has referred was never before the learned district forum and therefore, the contents of the same could not be read as any piece of evidence by the bench. he thereafter referred to page no. 42 of the paper book and submitted that the details of the area of plot had been filled under the column “for office use only” by op no. 1 later and initially this document in blank had been got signed from the complainants and to prove his contention, he produced before the bench a copy of the same document wherein the column under the heading “for office use only” had been left blank. he thereafter referred to para no. 7 of the reply filed by op no. 1 and submitted that in this para, op no. 1 had admitted that op no. 2 was their broker. he further submitted that the affidavit filed by op no. 1 has not been refuted by op no. 2 and he emphatically submitted that even if any commitment had been made by op no. 2 on behalf of op no. 1, op no. 1 was liable to compensate the complainants for the same. he thereafter referred to annexure c-8, which is joint receipt for payments made and submitted that it had been sent only in the month of september 2006 whereas the payments had been made as early as june 2006. he also submitted that in the receipt, the area of the plot had not been mentioned. the next contention of the learned counsel was that ops had not given any reply to para no. 11 of the complaint wherein it had been stated that ops had refunded money to persons similarly situated as the complainants and one such person to whom the amount had been refunded is sh. karan pal singh sekhon who had been allotted apartment no. 204 in tower no. 6 of the same complex. he finally submitted that the learned district forum had passed a well reasoned order and, therefore, there was no reason for upsetting the same. 9. responding to the submissions of the learned counsel for the respondents/complainants, mr. vikas bahl, advocate, learned counsel for the appellant submitted that admittedly, the column under the heading “for office use only” of the document at page no. 41 had been filled in later by op no. 1 but he pointedly submitted that allotment letter at page no. 48, which is duly signed by the complainant, indicated clearly that the area of the property was 1693 sq. ft. and the complainants had duly signed this letter. he also submitted that reply to para no. 7 of the complaint cannot be construed as an admission of op no. 1 that op no. 2 is their agent. he emphatically submitted that op no. 2 is just a broker and is not an agent of op no. 1. he also submitted that there is no force in the contention of the complainants that the joint receipt dated 21.9.2006 did not indicate the area of the property in question and in this context, he reiterated that all the receipts mentioned by him in his earlier submissions clearly indicate the area of the property as 1693 sq. ft. finally emphatically reiterating that op no. 1 had no plans and has constructed no flats having area of 1300 sq. ft. he prayed that the appeal be allowed. 10. having gone through the documents on record including the impugned order and having listened to the submissions of the counsel for the parties, we find that the issues that need to be gone into are as under: (a) whether the complainants approached ops for the purchase of an apartment measuring 1300 sq. ft and was any assurance given by the ops for allotting the same to the complainants? (b) was the price of the apartment to be purchased was ever quoted as rs. 39,65,000? (c) was any request made by the complainants to ops to change the plot of 1693 sq. ft. and allotted a plot of 1300 sq. ft.? (d) was any assurance given by ops for the change of allotment to flat of 1300 sq. ft? (e) is op no. 2 authorized agent of op no. 1? (f) are there any flats of 1300 sq. ft area being constructed by op no. 1? 11. coming to the first issue as regards “whether the complainants approached ops for the purchase of an apartment measuring 1300 sq. ft and was any assurance given by the ops for allotting the same to the complainants?”, other than a mention in para no. 1 of the complaint that the complainants were approached by op no. 2 for sale of apartment measuring 1300 sq. ft., there is no other document on record indicating that the complainants ever booked a flat of this size. it is on record that the complainants paid a sum of rs. 5 lacs to op no. 1, which as per the payment plan corresponds with the booking amount of a flat of 1693 sq. ft. all payments made by the complainants towards the cost of the flat and the receipts given by the complainants for the same as well as the allotment letter (page no. 48) issued by op clearly indicate the size of the plot to be 1693 sq. ft. in this context, it is also relevant to mention that the learned district forum also correctly came to the conclusion after perusal of annexures r-1 to r-3 and r-5 that the contentions of the complainants that they booked a flat of 1300 sq. ft. with op no. 1 through op no. 2 is not true. 12. coming to the next issue with regard to the price of the flat to be purchased by the complainants being quoted as rs. 39,65,000, we find that there is nothing on record to prove the same. thus, we have no hesitation in holding that the complainants were fully aware of the price of the flat being rs. 54,60,941 and at no stage, were they ever told that a flat worth rs. 39,65,000 as contended by them was available for sale to them. 13. as regards the third and fourth issues, again we find that other than bald assertions, there is no evidence on record placed by the complainants in this regard. there are only three letters i.e. annexures c-2 to c-4 written by j. d. realtors (op no. 2) to op no. 3 in this context but they do not go to prove anywhere that any assurance was ever given by op no. 1 for the allotment of a flat of the size of 1300 sq. ft. and of the value of rs. 39,65,000. since these letters also do not refer to any commitment or assurance given by op no. 1 to either op no. 2 or to the complainants, these letters, therefore, have no meaning as evidence. 14. as regards the fifth issue with regard to the relationship between op nos. 1 and 2, a critical reading of para no. 7 of reply of op no. 1 indicates that op no. 1 has only stated that op no. 2 is a broker and has further clarified that any letter issued by him is not binding on the answering respondent. it is also to be seen that this reply by no stretch of imagination can be taken as an admission on the part of op no. 1 that op no. 2 is their agent or is a broker working on its behalf, more so, because it has been clarified in the reply that op no. 1 is not bound by any action of op no. 2. in this context, it was thereafter incumbent upon the complainants or op no. 2 to rebut this averment of op no. 1 by some documentary proof, which sadly is missing in this case. therefore, from the evidence on record it cannot be construed that op no.2 is an agent of op no. 1 and that op no. 1 is bound by the action or commitments given by op no. 2 to the complainants. 15. coming to the last issue, it has been recorded by the learned district forum that there was no evidence produced on record by ops to prove that flat with covered area of 1300 sq. ft. was not available with them but as per annexure c-3, it has been mentioned that such a flat of two bedrooms was available with the op but the same was not allotted to the complainants for the reasons best known to op no. 1. a perusal of annexure c-3 indicates that it is a letter written by op no. 2 to op no. 1 wherein it is stated that the complainants had requested for an apartment of area 1300 sq. ft. when pre-launch offer prices were given to op no. 2 and this size was available for two bedroom apartments. in our considered view, this by itself does not mean by any stretch of imagination that two bed room flats of size 1300 sq. feet were available with op no. 1. the complainants or op no. 2 has failed to prove by any cogent evidence that op no. 1 did make flats of the size of 1300 sq. ft. area and one such flat was deliberately not given to the complainants despite their request. 16. from the evidence on record, we are constrained to come to the conclusion that the complainants have miserably failed to prove that they ever approached ops for buying a flat of 1300 sq. ft. with value of rs. 39,65,000 as stated by the complainants in the complaint. it is evident from the record that the complainants were allotted a flat of the area 1693 sq. ft. the value of which was rs. 54,60,941 and the complainants were fully aware of both the facts with regard to the area and the cost of the flat and even then they paid subsequent payment as well. it is also quite clear from the evidence on record that the complainants never made any request to op no. 1 for allotting a flat of 1300 sq. ft. area instead of the earlier allotted flat of 1693 sq. ft. area. the complainants have also failed to produce any cogent believable evidence to prove that op no. 1 did in fact construct flats of the size 1300 sq. ft. it is also relevant to mention here that the contention of the complainants that some refunds had been made to some other persons who had booked the flats has no meaning as we are not aware of the facts and circumstances under which such refunds, as alleged, had been made. the complainants cannot seek refund of their amount on similar grounds unless it is proved by evidence that the facts in both the cases are identical. 17. in view of the foregoing discussion, we find that the complainants have failed to prove their case and the order of the learned district forum, therefore, does not stand legal scrutiny in the face of evidence on record. 18. consequently, the appeal is allowed and the impugned order is set aside. the complaint is dismissed. however, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs of litigation. 19. copies of this order be sent to the parties free of charge.
Judgment:

Maj. Gen. S.P. Kapoor, Member:

1. Briefly stated the case of the complainants is that OP-1 through its channel partner i.e. OP-2 approached them for selling apartment measuring 1300 sq. ft. in the Housing Complex named Unitech Habitat situated at Plot No. 9, Ph-II, Greater Noida, Gautam Budh Nagar (UP). The price of the apartment was quoted to be Rs. 39,65,000 approximately. It is further the case of complainants that OP further assured them that this was a pre-launch of the complex and the floor area of the apartment would not be in any case more than 1300 sq. ft. It was further averred that the complainants paid a sum of Rs. 5 lacs vide cheque dated 14.6.2006 and booked the apartment with a specific understanding given by the OPs that the apartment should not be more than 1300 sq. ft. and the price of the same would be Rs. 39,65,000. As per the complainants, they paid a total sum of Rs. 10,52,730 vide three different cheques, which were duly accepted by the OPs and for which receipts were also issued. It was further averred that the complainants received allotment letter dated 20.11.2006 through OP No. 2 stating that they had been allotted apartment No. 604, Floor 6th, area of which was 1693 sq. ft. and the price of the same was Rs. 54,60,941. It was next averred by the complainants that they requested OPs to get the allotment letter changed and in turn, OP No. 2 represented that this was only a formality and the allotment letter would be changed subsequently. Thereafter, as per the complainants, they approached OP No. 1 for refund of the amount deposited. Subsequently, on 2.7.2007, OP No. 2 issued a letter giving no objection for the refund of the amount and the complainants were told to approach OP No. 1, who kept delaying the payment. Upon this, the complainants served legal notice dated 14.9.2007 for the refund of the amount but to no avail. Alleging the aforesaid acts of the OPs as deficiency in service and unfair trade practice, the complainants had filed the complaint.

2. The version of OP No. 1 is that the complainants were fully aware that the super area of the said apartment was 1693 sq. ft. and the same was specifically mentioned on the receipts dated 29.6.2006, 15.9.2006 and 6.10.2006 annexed as Annexures R-1 to R-3 issued by the OP to the complainants. It was next pleaded that along with letter dated 31.8.2006, it also sent two sets of allotment letters containing the terms and conditions of allotment, which were duly executed by the complainants as well as OPs on 20.11.2006. As per this OP, the said allotment letter apart from various terms and conditions of allotment, specifications, payment plan etc. also mentioned the super area of the allotment as 1693 sq. ft. It was asserted by OP No. 1 that the complainants signed the terms and conditions of allotment and did not raise any grievance or objection. As per OP No. 1, an amount of Rs. 33,95,478 was still due as consideration and the complaint was an afterthought to wriggle out of their liability to pay under the agreed terms of allotment and as per schedule opted by the complainants. Pleading no deficiency in service as well as unfair trade practice on its part, OP No. 1 prayed for dismissal of the complaint.

3. The version of OP No. 2 is that it had all along been cooperating with the complainants regarding refund of the alleged amount only out of goodwill and hence there had been no misrepresentation on its part. OP No. 2 had further pleaded that it was not responsible for any damages/compensation and the same was within the domain of OP No. 1.

4. The learned District Forum while dealing with the contention of the complainants that they booked a flat of 1300 sq. ft. with OP No. 1 through OP No. 2 but subsequently allotment letter for 1693 sq. ft. was issued to them, referred to the application form (Annexure R-4) filled by the complainant wherein the area of the flat was mentioned to be 1693 sq. ft. The learned District Forum also referred to the Receipts (Annexures R-1 to R-3) issued to the Complainants with respect to the deposits made by them wherein the area of the flat was mentioned to be 1693 sq. ft. In view these documents, the learned District Forum turned down the contention of the complainants that they booked a flat of 1300 sq. ft. with OP No. 1 through OP No. 2.

5. The learned District Forum further referred to the application form (R-1) submitted by Complainants, at page 3 of which, it was apparent that the mode of booking was not direct but through J.D. Realtors i.e. OP No. 2. As per the learned District Forum, this page relates to the office use only and the area 1693 sq. ft. was naturally filled up by the office of OP No. 1 and not by the Complainants. The learned District Forum after perusal of the entire application (R-4) was of the view that the area of the flat was not mentioned anywhere as 1693 sq. ft. and the details of apartment for provisional registration were lying vacant in this respect. It further recorded that when the allotment letter was received by the Complainants in which the area was mentioned as 1693 sq. ft, they took up the matter with J.D. Realtors through whom the application was submitted. It further observed that OP No. 2 through its letter (C-3) admitted that the Complainants had requested for an apartment of area 1300 sq. ft. when pre-launch offer price were given to them and this size was available for 02 Bed Room Apartments. It is mentioned that with this understanding, they paid booking amount for 1300 sq. ft. in favour of OP No. 1. It further recorded that when the allotment was done the area allotted to them was 1693 sq. ft.. In the view of the learned District Forum, since the size of the apartment had increased considerably, it had become beyond the financial reach and savings of the complainants. The learned District Forum in the impugned order has also recorded that OP No. 2 again wrote another letter (C-4) to OP No. 1 wherein it was mentioned that as it was pre-launch, the complainants were made to believe that it would be 1300 sq. ft. area apartment. The learned District Forum was of the opinion that the documents produced by OP No. 1 showing 1693 sq. ft. area could not be held sufficient to deny the refund of the amount deposited by the Complainants. In the view of the learned District Forum, there was no evidence produced by the OPs on record to prove that a flat with covered area of 1300 sq. ft. was not available with them. On the other hand, as recorded by the learned District Forum, OP No. 2 in its letter (C-3) clearly mentioned that such a flat with 2 Bed Room was available with the OP No. 1 but the same was not allotted to the Complainants for the reasons best known to OP No. 1. In the view of learned District Forum, OPs had no right to sit over the request of the Complainants and delay the refund of the amount. The learned District Forum allowed the complaint and directed the OPs to refund the total amount deposited by the Complainants with them along with interest @ 9% per annum from the date of deposit till the date of payment besides Rs. 5,500 as costs of proceedings. OPs were further directed to refund the amount within a period of 30 days of the receipt of the copy of the order failing which they were held to pay the same along with penal interest @ 18% p.a. from the date of filing the complaint i.e. 7.5.2008 till realization.

6. Aggrieved by the said order of learned District Forum, OP No. 1 has filed the present appeal. The appeal having been taken on board, notice was sent to the Respondents/Complainants and the record of complaint case was summoned from the District Forum concerned. Mr. Vikas Bahl, Advocate appeared on behalf of the Appellants/OP No. 1 whereas Mr. Jagat Narayan and Mr. Pradip Bhandari, Advocates represented the Respondent Nos. 1 and 2/ Complainants.

7. Mr. Vikas Bahl, Advocate learned Counsel for the appellant referred to Page No. 40 of the paper book and submitted that it is clearly stated in the document that a sum of Rs. 5 lacs had been remitted by the complainants and he further referred to Page No. 42 wherein it has been stated that the area of the flat was 1693 Sq. Ft. approximately. He then referred to Page No. 45 of the paper book wherein in this document, which is a “Cash Down Payment Plan”, he intimated that the complainants had paid 10% of the booking amount for the price of a 1693 Sq. Ft. plot. He thereafter referred to Page No. 46 (Annexure A-3), which is the receipt for a sum of Rs. 5 lacs and in this receipt also, he pointed out that the area referred to of the plot was 1693 Sq. Ft. Thereafter, the learned Counsel referred to the allotment letter annexed at Page No. 48 of the paper book wherein he pointed out that at Para No. 1, it had been clearly mentioned that the complainants had been allotted an apartment of 1693 Sq. Ft. area and the same contention had again been emphasized on the next page of this letter under heading “Area” at Para 1(a). Next referring to Page No. 61 of the paper book under heading “Breach”, he pointed out that at Para No. 11, it had been clearly stated that if the allottee fails to perform or observe all or any of the stipulations contained in the contract, the developer shall have the right to cancel the allotment and the earnest/registration amount along with accrued interest on delayed payment till the time of breach, if any, shall be retained by the developer. The learned Counsel further referred to Page No. 63 of the paper book wherein it again was clearly indicated that the area of the property in question was 1693 Sq. Ft and its basic cost was Rs. 51,63,650 and the total cost was Rs. 54,60,941. Thereafter, reference was made by the learned Counsel to Annexure A-5 (Page No. 66 of the paper book), which is Receipt No. 1522 and he pointed out that even in this receipt, the area of the property had been shown as 1693 Sq. Ft and the same had also been showed on the next page in Receipt No. 1739. The learned Counsel emphatically submitted that from these documents, it was quite clear that the complainants were well aware of the fact that the area of the property in question was 1693 Sq. Ft. The next reference made to by the learned Counsel was of the full brochure i.e. Exhibit Ex-1 starting from Page No. 68 of the paper book and he emphatically submitted that a perusal of this full brochure clearly indicates that OPs never had any plan to construct or sell flats having area of 1300 Sq. Ft. He also submitted that no cogent evidence has been placed on file by the complainants to prove that OP No. 1 had any plans to construct flats of the size of 1300 Sq. Ft. area. To confirm his contention that the complainants were fully aware of the fact that the area of the property in question was 1693 Sq. Ft., he also made reference to Annexure Ex-3 (Page 95) and Annexure Ex-4 (Page 97) as well, as both these documents, which are demand letters of OP No. 1, clearly indicate the area of the flat being 1693 Sq. Ft. The learned Counsel for the appellant thereafter emphatically pleaded that the learned District Forum had erred in concluding that there were some flats of 1300 Sq. Ft. as well and it, therefore, gone wrong in passing the impugned order. The learned Counsel for the appellant also emphatically submitted to the Bench that OP No. 1 has no concern with OP No. 2 and OP No. 2 in collusion with the complainants is trying to obtain legal gains for the complainants. He prayed that the appeal be allowed and the complaint be dismissed.

8. Mr. Jagat Narayan, Advocate, learned Counsel for the complainants, on the other hand, submitted that the brochure to which OP No. 1 has referred was never before the learned District Forum and therefore, the contents of the same could not be read as any piece of evidence by the Bench. He thereafter referred to Page No. 42 of the paper book and submitted that the details of the area of plot had been filled under the column “For office use only” by OP No. 1 later and initially this document in blank had been got signed from the complainants and to prove his contention, he produced before the Bench a copy of the same document wherein the column under the heading “For office use only” had been left blank. He thereafter referred to Para No. 7 of the reply filed by OP No. 1 and submitted that in this para, OP No. 1 had admitted that OP No. 2 was their broker. He further submitted that the affidavit filed by OP No. 1 has not been refuted by OP No. 2 and he emphatically submitted that even if any commitment had been made by OP No. 2 on behalf of OP No. 1, OP No. 1 was liable to compensate the complainants for the same. He thereafter referred to Annexure C-8, which is joint receipt for payments made and submitted that it had been sent only in the month of September 2006 whereas the payments had been made as early as June 2006. He also submitted that in the receipt, the area of the plot had not been mentioned. The next contention of the learned Counsel was that OPs had not given any reply to Para No. 11 of the complaint wherein it had been stated that OPs had refunded money to persons similarly situated as the complainants and one such person to whom the amount had been refunded is Sh. Karan Pal Singh Sekhon who had been allotted Apartment No. 204 in Tower No. 6 of the same complex. He finally submitted that the learned District Forum had passed a well reasoned order and, therefore, there was no reason for upsetting the same.

9. Responding to the submissions of the learned Counsel for the respondents/complainants, Mr. Vikas Bahl, Advocate, learned Counsel for the appellant submitted that admittedly, the column under the heading “For office use only” of the document at Page No. 41 had been filled in later by OP No. 1 but he pointedly submitted that allotment letter at Page No. 48, which is duly signed by the complainant, indicated clearly that the area of the property was 1693 Sq. Ft. and the complainants had duly signed this letter. He also submitted that reply to Para No. 7 of the complaint cannot be construed as an admission of OP No. 1 that OP No. 2 is their agent. He emphatically submitted that OP No. 2 is just a broker and is not an agent of OP No. 1. He also submitted that there is no force in the contention of the complainants that the joint receipt dated 21.9.2006 did not indicate the area of the property in question and in this context, he reiterated that all the receipts mentioned by him in his earlier submissions clearly indicate the area of the property as 1693 Sq. Ft. Finally emphatically reiterating that OP No. 1 had no plans and has constructed no flats having area of 1300 Sq. Ft. he prayed that the appeal be allowed.

10. Having gone through the documents on record including the impugned order and having listened to the submissions of the Counsel for the parties, we find that the issues that need to be gone into are as under:

(a) Whether the complainants approached OPs for the purchase of an apartment measuring 1300 Sq. Ft and was any assurance given by the OPs for allotting the same to the complainants?

(b) Was the price of the apartment to be purchased was ever quoted as Rs. 39,65,000?

(c) Was any request made by the complainants to OPs to change the plot of 1693 Sq. Ft. and allotted a plot of 1300 Sq. Ft.?

(d) Was any assurance given by OPs for the change of allotment to flat of 1300 Sq. Ft?

(e) Is OP No. 2 authorized agent of OP No. 1?

(f) Are there any flats of 1300 Sq. Ft area being constructed by OP No. 1?

11. Coming to the first issue as regards “Whether the complainants approached OPs for the purchase of an apartment measuring 1300 Sq. Ft and was any assurance given by the OPs for allotting the same to the complainants?”, other than a mention in Para No. 1 of the complaint that the complainants were approached by OP No. 2 for sale of apartment measuring 1300 Sq. Ft., there is no other document on record indicating that the complainants ever booked a flat of this size. It is on record that the complainants paid a sum of Rs. 5 Lacs to OP No. 1, which as per the payment plan corresponds with the booking amount of a flat of 1693 Sq. Ft. All payments made by the complainants towards the cost of the flat and the receipts given by the complainants for the same as well as the allotment letter (Page No. 48) issued by OP clearly indicate the size of the plot to be 1693 Sq. Ft. In this context, it is also relevant to mention that the learned District Forum also correctly came to the conclusion after perusal of Annexures R-1 to R-3 and R-5 that the contentions of the complainants that they booked a flat of 1300 Sq. Ft. with OP No. 1 through OP No. 2 is not true.

12. Coming to the next issue with regard to the price of the flat to be purchased by the complainants being quoted as Rs. 39,65,000, we find that there is nothing on record to prove the same. Thus, we have no hesitation in holding that the complainants were fully aware of the price of the flat being Rs. 54,60,941 and at no stage, were they ever told that a flat worth Rs. 39,65,000 as contended by them was available for sale to them.

13. As regards the third and fourth issues, again we find that other than bald assertions, there is no evidence on record placed by the complainants in this regard. There are only three letters i.e. Annexures C-2 to C-4 written by J. D. Realtors (OP No. 2) to OP No. 3 in this context but they do not go to prove anywhere that any assurance was ever given by OP No. 1 for the allotment of a flat of the size of 1300 Sq. Ft. and of the value of Rs. 39,65,000. Since these letters also do not refer to any commitment or assurance given by OP No. 1 to either OP No. 2 or to the complainants, these letters, therefore, have no meaning as evidence.

14. As regards the fifth issue with regard to the relationship between OP Nos. 1 and 2, a critical reading of Para No. 7 of reply of OP No. 1 indicates that OP No. 1 has only stated that OP No. 2 is a broker and has further clarified that any letter issued by him is not binding on the answering respondent. It is also to be seen that this reply by no stretch of imagination can be taken as an admission on the part of OP No. 1 that OP No. 2 is their agent or is a broker working on its behalf, more so, because it has been clarified in the reply that OP No. 1 is not bound by any action of OP No. 2. In this context, it was thereafter incumbent upon the complainants or OP No. 2 to rebut this averment of OP No. 1 by some documentary proof, which sadly is missing in this case. Therefore, from the evidence on record it cannot be construed that OP No.2 is an agent of OP No. 1 and that OP No. 1 is bound by the action or commitments given by OP No. 2 to the complainants.

15. Coming to the last issue, it has been recorded by the learned District Forum that there was no evidence produced on record by OPs to prove that flat with covered area of 1300 Sq. Ft. was not available with them but as per Annexure C-3, it has been mentioned that such a flat of two bedrooms was available with the OP but the same was not allotted to the complainants for the reasons best known to OP No. 1. A perusal of Annexure C-3 indicates that it is a letter written by OP No. 2 to OP No. 1 wherein it is stated that the complainants had requested for an apartment of area 1300 Sq. Ft. when pre-launch offer prices were given to OP No. 2 and this size was available for two bedroom apartments. In our considered view, this by itself does not mean by any stretch of imagination that two bed room flats of size 1300 Sq. Feet were available with OP No. 1. The complainants or OP No. 2 has failed to prove by any cogent evidence that OP No. 1 did make flats of the size of 1300 Sq. Ft. area and one such flat was deliberately not given to the complainants despite their request.

16. From the evidence on record, we are constrained to come to the conclusion that the complainants have miserably failed to prove that they ever approached OPs for buying a flat of 1300 Sq. Ft. with value of Rs. 39,65,000 as stated by the complainants in the complaint. It is evident from the record that the complainants were allotted a flat of the area 1693 Sq. Ft. the value of which was Rs. 54,60,941 and the complainants were fully aware of both the facts with regard to the area and the cost of the flat and even then they paid subsequent payment as well. It is also quite clear from the evidence on record that the complainants never made any request to OP No. 1 for allotting a flat of 1300 Sq. Ft. area instead of the earlier allotted flat of 1693 Sq. Ft. area. The complainants have also failed to produce any cogent believable evidence to prove that OP No. 1 did in fact construct flats of the size 1300 Sq. Ft. It is also relevant to mention here that the contention of the complainants that some refunds had been made to some other persons who had booked the flats has no meaning as we are not aware of the facts and circumstances under which such refunds, as alleged, had been made. The complainants cannot seek refund of their amount on similar grounds unless it is proved by evidence that the facts in both the cases are identical.

17. In view of the foregoing discussion, we find that the complainants have failed to prove their case and the order of the learned District Forum, therefore, does not stand legal scrutiny in the face of evidence on record.

18. Consequently, the appeal is allowed and the impugned order is set aside. The complaint is dismissed. However, keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs of litigation.

19. Copies of this order be sent to the parties free of charge.