ORDER
SH. RAKESH KAPOOR, PRESIDENT

Both the aforementioned complaints have been filed against the same OP
and arise out of identical facts. They are , therefore, being disposed
of by this common order.   The facts are as under:-

The OP had sought investment in its upcoming project by the name of
“Earth Titanium Studios”.  Both the complainants had booked separate
flats in the said project of the OP and had paid a sum of Rs. 181021/-
each at the time of booking.    Both of them had further paid another
installment of the same amount.    It is alleged by the complainants
that neither any allotment of the flat was received by them nor the
project had made any headway. They have claimed that the OP on the
other hand had raised demands on account of the cost of this flat
which they were not bound to pay unless the project was in progress.
They have sought the refund of the amount deposited by them as there
is no sign of  the project coming up.   Since the OP had refused to
refund  the amounts deposited by the complainants, the complainants
approached this forum with these complaints.
      The OP has contested both the complaints and has filed separate
written statements.   It has denied any deficiency in the service and
has claimed that the complaints are without merits and are liable to
be dismissed.
   The defence of the OP is contained in the  preliminary objection
no. 1 of  the written statement which inter-alia reads as under:





1.XXX     XXXX    XXXX    XXXX  XXXX
          XXX     XXXX    XXXX    XXXX  XXXX
       XXX     XXXX    XXXX    XXXX     XXXX
'It is further stated that the complainant booked a studio on SEZ
measuring 495 sq ft at a rate of Rs.3850/- per sq ft. The complainant
was given a discount and the net booking price was agreed to at
Rs.3657/- per sq ft. The complainant after understanding and going
through the SEZ policies and the governing Act made provisional
booking and paid only 10% amount on 1.8.2012 amounting to
Rs.1,81,021/- vide cheque no. 9065 dated 1/8/2012 and further 10%
amount of Rs 1,81,021/- vide cheque no. 9066 dated 07/11/2012.
Thereafter the complainant did not pay any further amount despite
repeated requests and demands for payment. The OP raised demands vide
letter dated 1st July 2013 calling upon the complainant to pay the
balance amount to complete 25% of basic sale price on or before 15th
July 2013. The demand letter was further followed with demand letter
dated 09th Sep 2013 but no response was rec  eived from the
complainant. Further the complainant was informed vide reminder letter
dated 9th Sept 2013 that Boomi Poojan ceremony of the project had
taken place and further reminded the complainant that the complainant
was yet to complete 25% of Basic Sale Price payment to the OP .
However, the complainant continues to be a defaulter and has filed the
present complaint making false and frivolous allegations against the
OP and its JMD. There has been no deficiency on the part of the OP and
the complainant has chosen to urge imaginary oral allegations to in
his attempt to make out a case under consumer Protection Act, 1986.
Hence the complaint deserves to be dismissed.
  The OP has contested the complaint on merits. It has , however,
admitted the booking of the flats by the complainants and the receipt
of  the amounts allegedly deposited by them as claimed in the
complaints.
        We have heard arguments advanced at the bar and have perused the record.
        The learned counsel for the OP has first contended that both the
complaints are not maintainable in the present forum as the
complainants had taken the services of the OP for commercial purposes.
The learned counsel has contended that  the complainants have taken
the services of the OP for commercial purposes and , therefore, they
do not qualify as “consumers” in this forum.    It has been contended
that the complainants have booked commercial flats and the complaints
are liable to be dismissed.  In order to counter the said argument the
learned counsel for the complainants has drawn our attention to the
replies received to the notice  sent to the OP by the complainant
wherein it has been clearly mentioned that the OP had launched a
residential project titled “ Earth Titanium Studio”.  It is,
therefore, clear that the project launched by the OP was residential
in nature and the complainants had booked residential flats with the
OP. They had, therefore, not taken the services of the OP for
commercial purposes.
  The learned counsel for the OP has further contended that the
complainants were themselves at the fault as they had failed to pay
the installments towards the cost of the flats as per the agreed terms
and conditions.  He has contended that the complainants had agreed to
the Construction linked plan and despite the fact that demands were
raised on them through letters , they had failed to make payment. He
has contended that the OP had no alternative  but to cancel the
booking made in favour of the complainant.   We have considered the
contention of the learned counsel with which we do not agree.   The OP
has failed to place on record the agreement entered into between the
parties.  No document showing what was the payment plan agreed to
between the parties has been placed on record.  No document has been
placed on record that the complainants were obliged to make payment of
25 % of the basic sale price of the flat as has been alleged by the
OP.    The OP has also not placed on record any evidence to show that
the project had taken off and was in progress.     We are , therefore,
inclined to accept the contention of the complainants that the project
had not taken off and had not made any head way.  The complainants
were , therefore, within their rights not to pay any further sum to
the Ops in the absence of any development at site.  At any rate the
OP has failed to justify its action of raising of further demands on
the complainants and cancelling the booking  made in their favour.
We are, therefore, inclined to hold that the OP was the guilty of
deficiency in services towards the complainants .  It appears to us
that having collected money from the complainants, the OP had not used
it for the purpose for which it had been collected and had rather used
it for some other project .  we, therefore, direct the OP as under:-
Complaint no. 365/14
1.      Pay to the complainant a sum of Rs. 362042/- along with interest at
the rate of 10% p.a. from deposit till payment.
2.      Pay to the complainant a sum of Rs. 40,000/- as compensation for
pain and agony.
3.      Pay to the complainant a sum of Rs. 5,000/- as cost of litigation.
Complaint no. 366/14
1.Pay to the complainant a sum of Rs. 362042/- along with interest at
the rate of 10% p.a. from deposit till payment.
2.Pay to the complainant a sum of Rs. 40,000/- as compensation for
pain and agony.
3.Pay to the complainant a sum of Rs. 5,000/- as cost of litigation.
The original order shall be kept in Case no. 365/2014 and a copy shall
be kept in case no. 366/14.
  The OP shall pay this amount within a period of 30 days from the
date of this order failing which they shall be liable to pay interest
on the entire awarded amount @ 10% per annum.  IF the OP company fails
to comply with this order, the complainant may approach this Forum for
execution of the order under Section 25/27 of the Consumer Protection
Act.