Quorum:  Sh. K.S. Mohi, President

                  Sh. Vikram Kr. Dabas, Member                          

                 Mrs. Manju Bala Sharma, Member

ORDER                                                        

  Mrs. Manju Bala Sharma, Member

 1. The complainant has filed the present complaint on 05.11.2016 against the O.P  under section 12 of Consumer Protection Act, 1986.  The facts as alleged in the complaint are that in the year 2013 an agreement was signed between him and the OP and  an amount of Rs. 11,84,000.00 deposited by the complainant the same  was acknowledged by OP towards purchase of the apartment  in the OP’s project namely “Earth Elacasa” , Sector 107, Gurgoan, Haryana.     It is also alleged that  as per the  terms and conditions of the agreement OP was bound to handover the possession of the above-mentioned apartment within three years of booking.  It is also alleged that complainant sought a copy of the signed terms and conditions for the purchase of above mentioned apartment from the OP but despite repeated requests OP failed to provide the same.  In October 2014, he visited the construction site and   found  barely any construction work had commenced.  It is further alleged that complainant requested cancellation of the provisional booking of CSN No. EEC-0834  vide e-mail dated 04.11.2014 and refund of the booking amount.  OP acknowledged the mail vide letter dated 23.11.2015 and agreed to refund the amount deposited in accordance with terms and conditions  of the booking.  It is further submitted that the complainant has also not supplied with the copy of the agreement which the parties entered into and has been admitted by OP vide letter dated 13.07.2015 despite several letters and emails. A legal notice was sent by the complainant in this regard and in reply to the legal notice OP admitted that the agreement was signed and despite repeated queries OP failed to  refund the hard earned money of the complainant.  Pleading deficiency in service on the part of OP complainant prays that O.P be directed to refund the entire sum paid by the complainant , Rs. 3,00,000/- as compensation towards mental agony and award  cost of litigation.

2.  Notice was sent to Op but nobody has entered appearance on his behalf.  Hence, proceeded ex-parte on 27/02/2017.  Affidavit of evidence has been filed by the complainant reiterating the facts stated in the complaint.  Complainant filed copy of brochure of OP 1 as agreement Ex CW1/A,  acknowledgement receipt of Rs. 11,84000/- (Eleven Lac Eighty Four Thousand) by OP as Ex CW1/B, copy of claim sent to OP as Ex CW 1/C, copy of the photographs of the site taken by complainant as Ex CW1/D, copy of the consent letter by OP dated 23/01/2015 cancellation of the agreement by the complainant as CW 1/E.  Copy of email sent by OP regarding the refund of deposit amount by the complainant  as EX CW1/F. Copy of the e-mail sent on 16/04/2015 on non compliance of the letter dated 23/01/2015 as EX CW 1/G and legal notice and its reply as EX CW 1/H. 

4. We have heard the learned counsel for complainant as well as counsel for OP though ex-parte and gone though the written argument filed by the complainant. 

5. Counsel for complainant contended that as per the agreement entered between the parties the project was to be completed within three years but when in October 2014 complainant visited the site he was shocked and dismayed to see the state of affairs at the site and took photographs which he has attached with the complaint. Complainant further contended that he contacted the OP several times and sent e-mails and letters and received a letter dated 23/01/2015 from the side on the OP in which they agreed to refund the amount deposited by him in agreement with the terms and conditions of the booking.  But despite consent to refund the same OP has failed to comply the same.  Counsel for OP contended that there was no agreement between the parties vide which it was admitted that construction of the flat in question will be completed in three years and it is the complainant who defaulted in making the payment due to which the provisional booking was cancelled on account of non-payment of due installments on time and it was intimated to the compliant vide letter dated 23/01/2015 (EX CW 1/E). Admittedly no allotment was given by OP therefore complainant was asked to explain as to how complainant comes within the meaning of section  2 (1) (d) (i) of the Consumer Protection Act.  Counsel for complainant has vehementally argued that  he was given false assurances and promises  regarding completion of project within   3 years which  was not done by the OP as per the payment plan  for allotment of residential apartment of OP hence there is   deficiency in services on the part of OP. We have gone through the documents placed on file. Complainant has not placed on record the allotment letter issued by the OP in his favour. In Morgan Stanley Mutual Fund V/s Kartik Dass (1994) 4 SCC 225  the Hon’ble Supreme Court while  dealing with a person who had applied for allotment, but to whom no allotment has been made, the Hon’ble Supreme Court, inter-alia held as under;-

 “Therefore, it is after allotment, rights may arise as per the contract (Article of Association of Company), but certainly not before allotment. At that stage, he is only a prospective investor (sic in) future goods. The issue was yet to open on 27-4-1993. There is no purchase of goods for a consideration nor again could he be called the hirer of the services of the company for a consideration. In order to satisfy the requirement of above definition of consumer, it is clear that there must be a transaction of buying goods for consideration under Section 2(1)(d)(i) of the said Act. The definition contemplates the pre-existence of a completed transaction of a sale and purchase. If regard is head to the definition of complaint under the Act, it will be clear that no prospective investor could fall under the Act.”

In   Delhi Develeopment Authority  Vs. Krishan Lal , First Appeal No. 486 of 2006 decided on 27.09.201 the Hon’ble  National Commission while dealing with a person who had applied for allotment of a plot  under Rohini Residential Scheme of DDA but no allotment  was made to him for more than fifteen years held that mere registration by a person in any scheme for allotment of plots or flats would not make such person a Consumer within the meaning of  Consumer Protection Act.

 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)(i)  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.