BEFORE

SH. RAKESH KAPOOR, PRESIDENT

NUPUR CHANDNA, MEMBER

V. K. DABAS, MEMBER

ORDER

Per Sh. RakeshKapoor, President

   Complainant booked a residential flat in the housing schme of the OP named as “ Earth Town”. After booking , the OP provisionally allotted flat in Tower name –I, 14^th Floor Unit 1402 of 1295 Sq. Ft. having 3BHK  42T to the complainant.  The complainant alleged that he paid a total sum of Rs. 3,07,778/- towards the provisional allotment of the above said flat vide five part payments through cheques which was duly acknowledged by the OP.  It is further alleged by the complainant that vide letter dated 25/4/2911, the OP had informed him that it had made new allotment and the same will be proceeded with issuance of final allotment letter/ builder buyer agreement to the complainant.    It is further alleged by the complainant that instead of fulfilling the assurance given vide letter dated 25/4/2011 the OP  company had cancelled the provisional allotment of the alone said flat of the complainant and refunded the booking amount through three cheques dated 20.7.2012, without giving any notice or information to him.  The complainant had , therefore, approached to this forum for the redressal of his grievance.

The OP has contested the complaint and has filed a written statement.  The OP has claimed that the complainant himself is the defaulter. He did not pay the amount he was supposed to pay as per the payment plan opted by reproduce para 4 and para 5 of the written statement.  It reads as under:

4.That the conetns of para no. 6 of the complaint apart from those which are matter of record are false and hence denied.  There was no such message by the OP to the complainant wherein the complainant was told to pay the balance amount at the time of registration, moreover as per the payment plan i.e. Construction Linked Payment Plan agreed and accepted by the complainant, the complainant was supposed to pay 20 % (10% at the time of booking plus 10% within next 45 days of the booking ) of the total consideration within 45 days of his booking i.e. before 7^th November 2010.  This was made very clear in the application form which was read, understood and signed by the complainant. Further more, it was clearly mentioned in the application form that the timely payment is  the essence of booking.

5. That the contents of Para no. 7 of the complaint apart from the refund of the booking amount are false , misconstrued and frivolous.  The total amount paid by the complainant till date of refund was Re. 3,07,778/- which as per the increased area to which the complainant consented amounted to 10.2 % of the total consideration.  The complainant did not ever both to pay for the remaining balance, evern after the repeated reminders by the OP.  The after the long wait of almost two years was left with no other option other than cancelling the booking.  Moreover instead of being shocked and surprised the complainant should appreciate the acts of the OP company as the OP company even after cancelling the complainant’s acted in the interest of the complainant by refunding the total amount without deducting the earnest money, to which the OP company was illegally entitled.

    The complainant has filed rejoinder to reiterate the fact as pleaded in the complaint. 

The complainant has filed evidence by way of his affidavit. He has relied upon the document Ex. P1 to Ex. P8. 

Pooja Dubey, AR of the OP company has filed her affidavit. 

We have heard learned counsel for the parties and have examined the record.

The OP counsel had contended that they had already given to the complainant construction linked payment plan which accepted and chosen by the complainant  himself. It is further contended by the counsel for the OP that till date the complainant had paid only 10.2 % of the BSP as per the increased area accepted by the complainant and had not made any further payment.  It was further contended by the counsel for the OP that the OP company has already refunded back the entire amount taken from the complainant against their booking before the proceedings were brought before this Hon’ble Forum , even the earnest money has not been deducted, no claim stands against the OP, has before infractions. 

In the case of Haryana State Cooperative Supply and Marketing Federation Ltd V/s Iffco Tokyo Gen. Insurance Co. Ltd 2013 STPL (CL) 1519 (NC), the Hon’ble National Commission approved the following finding of the state commission and held that :

The petition cannot be allowed to accept the offer of the respondent in  part and reject the condition subject to which the offer was made.

The State Commission had held as under:

We found force in the contention raised on behalf of the appellant. The content of the above said letter make it clear that the demand draft bearing number 143718 dt. 5.2.2009 for Rs 4,72,263/- was sent by the OP to the complainant toward full and final settlement of the complainant claim. Admittedly, the complainant got encashed the above said demand draft. Meaning thereby, the complainant had recived the amount in full and final settlement and, therefore, no further cause of action arose in favour of the complainant to reopen its claim.  If the complainant was not agreed with the payment of Rs. 4,72,263/-then the demand draft could have been returned. Thus, it is not the case where the claim of the complainant can be reopened for any further payment.

    In the present case also , the complainant was very well aware about the construction linked payment plan, as the same was placed on record as Exhibit P1 by the complainant himself.  Despite, the knowledge of the payment plan, the complainant failed to make the further payment to the OP, and when the complainant received the cheques dt. 30.7.2012 from the OP, instead of returning back the cheques, the complainant encashed the cheques and later on sent his protest against the amount.

     In view of this, the complainant by its own conduct forfeited by its own conduct forfeited his right to approach, the forum for restoration of the flat.  Thus, no further course cause of action arose in favour cause of action arise in favor of the complainant to reopen his claim.  We are conniced with the contention  of the counsel for the OP that as they have already returned back the entire deposit amount without deducting earnest money, no claim stands against the OP.

     We, therefore, finds no merits in the complaint and the same is hereby dismissed.

The petition cannot be allowed to accept the offer of the respondent in part and reject the condition subject to which the offer was made. 

In the present case also, the complainant was very well aware about the construction linked payment plan, as the same was record as Exhibit P1 by the complainant himself. Despite the knowledge of the payment plan, the complainant failed to make the further payment to the OP, and when the complainant received the cheques dt.   We see no merits in this complaint. The same is hereby dismissed.

A copy of this order be made available to both the parties free of cost as per law.

File be consigned to R/R.

Announced in open sitting of the Forum on_____________