Quorum:  Sh. K.S. Mohi, President

                  Sh. Vikram Kr. Dabas, Member                          

                 Mrs. Manju Bala Sharma, Member

ORDER                                                        

Sh. K.S. Mohi, President

1. The complainant has filed the present complaint on 28.07.2016 against the O.P  under section 12 of Consumer Protection Act, 1986.  The facts as alleged in the complaint are that the complainant  invested in the residential project of OP namely i- Home Studio Apartment at Kessel-i-Valley in Tech Zone Plot no. 9, Greater Noida.     It is alleged that complainant had  paid hard earned amount of Rs. 2,00,000/- towards  booking of the said apartment.  It is further alleged by the complainant that due to personal constraints he cancelled the booking vide letters dated 04.12.2013 and 21.04.2014 sent to OP.  Complainant also made personal visits to OP on 11.04.2014 and 14.04.2014  whereby the OP had agreed, promised and assured the complainant that after deducting administrative expenses  only Rs. 1,94,005/- will be  refunded against the aforesaid booking.  But it did not do so. Legal notices dated 17.10.2015 and 06.04.2016 were sent by the complainant in this regard but OP did not even bother to answer them. Hence complainant prays that O.P be directed to refund the entire consideration sum of Rs. 2,00,000/- paid by the complainant for booking  of the said apartment , Rs. 25,000/- as compensation towards mental agony and to award  Rs 50,000/- as cost of litigation in their favour.
2.   Notice was sent to OP  who has entered appearance but did not file the reply within the statutory period of 45 days hence his right to file the reply was closed on 01.12.2016.
3.  Affidavit of evidence has been filed by the complainant no.2 reiterating the facts stated in the complaint along with documents i.e.  Death Certificate in original, copy of Death registration certificate , copy of death certificate issued by Apollo Hospital , copy of application form etc .
4. On 12.09.2017 OP was directed to address his arguments if any within 10 days but nobody appeared on his behalf.
5. Admittedly, no allotment of apartment was made in favour of the late  complainant by the O.P.  In case reported as Yashwant Rai Puri Vs. Bhatinda Development Authroity & Ors. Revision Petition No.3193 of 2015 wherein the Hon’ble National Commission held that where earnest money was deposited with the Authority and the complainant could not get the plot allotted during draw of lots, it was held that complainant being not consumer having been not allotted the flat, the complaint was dismissed.  In another judgement reported as Delhi Development Authority Vs. Praveen Kumar & Ors. Revision Petition No.3649 of 2014 in which again the Hon’ble National Commission held that where the complainant applied for allotment of a residential flat in his name and in the name of his father, his application was rejected on account of violation the terms and conditions of the scheme by submitting more than one application, earnest money deposited was forfeited.  The Hon’ble National Commission held that the complainant was not entitled to refund of earnest money because no allotment was made in his favour. 
6. We have considered the contention and perused the record and have also read the judgment filed by the counsel for complainant.  Principally, it has been laid down by Hon’ble National Commission, that until  and unless allotment is made in favour of an individual by the builder, such person does not fall within the category of a ‘Consumer’.
7. In view of the judgments cited above and in view of the facts and circumstances of the case we are of the opinion that complainant is not a  “Consumer” under Section 2(1)(d) of the Consumer Protection Act as no allotment has been issued in his favour by the OP. Hence the complaint is dismissed with no order as to cost.  Copy of this order be sent to the parties as per rules. File be consigned to record room.

                   Announced this ___________day of __________2017.