Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member

          These three consumer complaints filed by father Mr.Bhushan Chimanlal Jain, his son Mr.Sandeep Bhushan Jain and his wife Mrs.Veena Bhushan Jain (wife of complainant-Mr.Bhushan C. Jain) respectively bearing complaint Nos.70/2010, 71/2010 and 72/2010 since involved identical facts and common question of law are disposed by this common order.

2.       Undisputed facts are that the opponent-City & Industrial Development Corporation of Maharashtra Ltd. (‘CIDCO’ in short) is a limited company duly registered under the Companies Act and responsible for development of new township at Navi Mumbai as a part of its housing project.  It started developing Seawoods Estate, Phase-II, Part-I&II situated at Sector-54,56,58, Nerul (West), Navi Mumbai.  Complainant-Mr.Bhushan C. Jain, his son Mr.Sandeep Jain and wife Mrs.Veena Jain by depositing `5,000/- each as Demand Registration Charges (DRC) booked their demand for the proposed or coming housing project in future.  This payment was made on 19/11/2004 and receipts accordingly were issued.  DRC was paid as per demand service scheme of CIDCO for housing complex known as ‘Seawoods Estate’.  Consequent to it on 05/10/2007 respective complainants made an application for purchase of apartment in Seawoods Estate, Phase-II [Part-I, Sector-54,56,58 (Part)], Nerul, Navi Mumbai and also deposited earnest money of `6 Lakhs each as per said scheme to get allotment of the apartment having area in between 1230 to 1563 sq.ft. (Saleable) of 2 BHK/Deck/Terrace as per allotment letters issued respectively for each one of the complainants dated 05/10/2007 following allotment is made :-

          Complaint No.70/2010 (Complainant-Mr.Bhushan C. Jain)

          Complaint No.71/2010 (Complainant-Mr.Sandeep Bhushan Jain)

          Complaint No.72/2010 (Complainant-Mrs.Veena Bhushan Jain)

3.       Each apartment is having built up area of 1230.610 sq.ft. and except complainant-Mr.Bhushan Jain, complainant-Mr.Sandeep Jain and complainant-Mrs.Veena Jain’s apartments have a deck area of 102.470 sq.ft.  Sale price is accordingly mentioned in the respective allotment letters dated 05/10/2007 which for complainant-Mr.Bhushan Jain comes to `45,53,257/- and after adjusting demand registration charges and earnest money deposit of `6,05,000/-, balance amount payable was `39,48,257/-.  Said amount was payable in four installments of `9,87,064/- and last installment is `9,87,065/- payable respectively on 04/01/2008, 04/04/2008, 04/07/2008 and 03/10/2008.

4.       Sale price for the apartment of complainant-Mr.Sandeep Jain is `48,71,011/- and after adjusting DRC and earnest money deposit of `6,05,000/-, balance amount payable was `42,66,011/-.  Said amount was payable in four installments of `10,66,503/- and last installment is `10,66,502/- payable respectively on 04/01/2008, 04/04/2008, 04/07/2008 and 03/10/2008.

5.       As far as complainant-Mrs.Veena Jain is concerned, sale price of her apartment is `54,79,887/- and after adjusting DRC and earnest money deposit of `6,05,000/-, balance amount payable was `48,74,887/-.  Said amount was payable in four installments of `12,18,722/- and last installment is `12,18,721/- payable respectively on 04/01/2008, 04/04/2008, 04/07/2008 and 03/10/2008.

6.       Besides the sale price, miscellaneous payment of `61,835/- is agreed to be made by complainant-Mr.Bhushan Jain and `62,297/- each by complainant-Mr.Sandeep Jain and Mrs.Veena Jain at the time of taking possession of the apartment as detailed in their respective allotment letter dated 05/10/2007.

7.       In the allotment letter of complainant-Mr.Bhushan Jain, name of complainant-Mrs.Veena Jain was also mentioned while in an allotment letter of Mr.Sandeep Jain, name of Mrs.Veena Jain is also mentioned.  The grievance made to correct the names deleting the name of Mrs.Veena Jain in those respective allotment letters was accepted and on 31/12/2007 CIDCO accordingly informed the complainants.  As far as request of the complainants to issue corrected allotment letters after deletion of name of Mrs.Veena Jain, supra, it was clarified by the CIDCO by their letter dated 05/05/2008 and the relevant portion therefrom reads as under :-

“1.    The allotment letter issued on 05/10/2007 was authenticated and free from any mistakes.  You have signed office copy of the allotment letter after verifying the contents.  On that day you have not raised any doubts or complaints regarding authentication of the allotment letter.  As you have pointed out in the letter dated 23/04/2008, regarding omission of Mrs.Veena Jain’s name from the allotment letter, the same has been corrected vide our letter No.CIDCO/MM-I/SE2/539 dated 31/12/2007.  The addition and omission in allotment letter being done as per the terms and conditions of the scheme.

2.       You have requested for second fresh allotment letter on your name only.  We would like to inform you that whole system of Marketing Section run on SAP i.e. computerized Net Working.  The dates of the installments are calculated automatically, from the date of EMD.  Hence to issue a fresh second allotment letter is not possible at this stage.

3.       The name of Mrs.Veena Jain has been omitted from our record vide our letter No.CIDCO/MM-I/SE2/539 dated 31/12/2007 and the same has been communicated to you.”

8.       It is the case of respective complainants that in spite of their repeated requests and in spite of making fees of `200/- to get the duplicate copy of amended allotment letter, the same was not issued by the CIDCO.  Levelling some allegations against the Marketing Manager-I, it is submitted that CIDCO is to be blamed for unfair and illegal monetary gain on frivolous ground and ulterior motive as by end of February 2008 prices of the apartment raised to `7,500/- per sq.ft. from `3,700/- per sq.ft. at which the apartments were allotted to the respective complainants.

9.       It is also alleged by the complainants that cancellation of allotment letters dated 13/08/2008 by CIDCO on the ground of defaults in making payment is an erroneous and arbitrary act and relief against the same is claimed by filing these consumer complaints.  The complainants firstly, claimed possession of the allotted apartment as per allotment letter dated 05/10/2007, secondary to it further relief is claimed against the Managing Director of CIDCO (opponent No.2) and Marketing Manager –I of CIDCO (opponent No.3) to either revoke or revive the allotment of apartment with original payment terms and conditions effective from the date of revival order with interest free waiver or else compensate and pay the amount towards costs for the apartment rate difference as per present market value (`7,500/- per sq.ft.) along with value, earnest money deposit and registration charges with interest.  Further compensation of `6 Lakhs towards expenses incurred each by all the complainants towards rents of the flats, conveyance charges, etc. since CIDCO failed to give possession of the apartment due to their severe documents defects.  In addition to it, each complainant has claimed `15 Lakhs as compensation towards mental torture and harassment and `25,000/- as costs.

10.     Opponent Nos.1to3, namely, CIDCO, its Managing Director and Marketing Manager-I opposed respective complaints as per their written version and pointed out that correction in the allotment letters deleting the name of Mrs.Veena Jain (which arises in case of two complaints, supra) was already intimated to the complainants and further pointed out that the complainants did not avail any loan facility from either of the 44 financial institutions intimated to them by issuing no objection letter along with the allotment letter to raise such finance by mortgaging allotted apartments and further pointed out that because of the defaults committed by each of the complainant in spite of earlier warning, they ultimately had to cancel the respective allotment by their letter dated 13/08/2008.  They justified their action of cancellation of the allotments and further claimed that consumer complaints as such are not maintainable and further asked to dismiss the consumer complaints.

11.     At the time of arguments, complainant-Mr.Bhushan Jain preferred to argue the matter for himself as well as for his wife-Mrs.Veena Jain and son-Mr.Sandeep Jain while opponents are heard through their Advocate Mr.Hemant Prabhulkar.  It may be pointed out at this stage that opponent No.4-State of Maharashtra through its Secretary, Urban Development Department is ex-parte.  Opponent No.4 is only a formal party and no reliefs are claimed against it.

12.     The nature of complaints and the allegations made will not fall within meaning of Section 2(1)(r) of Consumer Protection Act, 1986 and it is not a case of unfair trade practice from any point of view.

13.     The complainants accepted the allotment as per the respective allotment letters dated 05/10/2007 and the prices offered and agreed upon accordingly.  It may be pointed out that at no point of time, CIDCO asked any enhanced price than the one which was mentioned in their respective allotment letters.  It may be further pointed out that rectification in two allotment letters of Mr.Sandeep Jain and Mr.Bhushan Jain, deleting the name of Mrs.Veena Jain was already carried out in the records and accordingly intimated to the respective complainants by the CIDCO, supra.  It was further clarified by their letter dated 05/05/2008 that fresh allotment letter incorporating the amendment could not be issued for the reasons mentioned.  It is not the case of the complainants that at any point of time they approached either of those 44 financial institutions mentioned in letter dated 05/10/2007 along with allotment letter issued to each one of the complainants and which communicated no objection of CIDCO for mortgaging the allotted apartment to raise the finance.  Therefore, grievance made by the CIDCO to that effect that at no point of time complainants tried to raise any finances if at all they needed it and the financial institutions did not consider their application for any so called defect in the allotment letters, is fully justified.  In fact it is not a case of either of the complainants that any defect in the allotment letter had prevented them from raising the finance from the financial institutions.

14.     Prior to cancellation of the allotment after three consecutive defaults occurred in making payment as per schedule, supra, the CIDCO had also warned the complainants of their defaults by their letter dated 09/04/2008 addressed to each one of the complainants.  They have invited attention of each one of the complainants to condition No.3 which speaks for power of CIDCO to cancel the allotment in case of default and also further invited their attention about further clauses whereby the earnest amount deposited could be forfeited in case of cancellation.  In spite of this the complainants only preferred to engage themselves in exchange of correspondence.  By their communication dated 05/05/2008 addressed to each of the complainants, it was further brought to the notice of the complainant by the CIDCO that their explanation for non-payment of the due installment was not satisfactory and they were expected to make the payment and it also mentioned to one time extension granted to pay the first installment to the complainants which they failed to avail.  In this background when by their letter dated 13/08/2008, the CIDCO cancelled the respective allotment of the complainants they perhaps cannot be blamed and their action of cancellation of allotment cannot be held as arbitrary.  Once cancellation of the allotment occurred, there is no subsisting relationship as a consumer and service provider between the respective complainants and CIDCO.  Furthermore, since the cancellation of the respective allotment cannot be held arbitrary or capricious; no deficiency in service on the part of the CIDCO can be inferred.  Under these circumstances, the consumer complaints are not maintainable and at the second instance, since no deficiency in service on the part of the CIDCO or its Managing Director or Marketing Manager-I could be inferred or established, the complaints deserve to be dismissed.

15.     Intention of the complainants to gain unjust enrichment could be seen from the complaints as well as from their letter dated 27/08/2008 whereby they air their intention to cash on the enhanced price of the apartment or houses by them since then prevailing rate was of `7,500/- per sq.ft.  This is how they tried to claim more than `60 Lakhs from the CIDCO against their respective allotments.  Thus, we find that the complaints are filed with malafide intention and this would justify imposition of cost on the complainants as per the final order below :-

                             -: ORDER :-

1.                 Consumer Complaint Nos.70/2010, 71/2010 & 72/2010 stand dismissed.

2.                 Each one of the complainants to bear their own costs and each one of the complainant shall pay `25,000/- as costs to opponent No.1-CIDCO.

3.                 Copies of the order be furnished to the parties.

Pronounced

Dated 24^th January 2013.