(PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER) This revision is directed against the order of the State Consumer Disputes Redressal Commission Haryana (hereinafter referred to as State Commission) dated 03.08.2012 whereby the State Commission dismissed the appeal of the petitioners (OP Nos. 1, 2 & 4) and confirming the order of the District Forum Gurgaon. 2. Briefly stated facts relevant for the disposal of this revision petition are that the respondent/complainants filed a consumer complaint claiming that he applied for a residential flat with super area of 1760 sq. ft. in the project launched by the petitioners known as New Town Heights, DLF Gurgaon, Sector 90. The flat was booked through respondent no.2 (OP No.3). Booking amount of Rs.5,00,000/- was paid alongwith application vide cheque dated 08.02.2008 drawn on Oriental Bank of Commerce, Tagore International School Branch, Qutub Enclave, Gurgaon. The respondent complainant had also applied for one parking slot but there was no demand for preferential location. It is the case of the complainant that the petitioners/opposite parties instead of allotting him an apartment in ew Town Heights, Sector 90, Gurgaon allotted him apartment No.GBB 080 alongwith two parking slots in another project with the similar name located in Sector 91 Gurgaon and demanded further payment of Rs.10,62,500/-. The complainant was not interested in the allotment of flat in the project at Section 91, so he sent a legal notice to the opposite parties seeking refund of his money. The opposite parties failed to refund the booking amount. Claiming this to be deficiency in service, the respondent complainant approached the District Forum, Gurgaon. 3. The petitioners opposite parties no. 1, 2 & 4 in the written statements took the stand that initially they had launched a scheme under the name ew Town Heights in Sector 90 Gurgaon. The scheme was a great success. Therefore, the petitioner no.1 company launched other scheme under same name in Sector 91 Gurgaon. According to the petitioners, the complainant respondent had actually booked a flat in ew Town Heights Sector 91, Gurgaonbut due to inadvertence the marketing department of the opposite party company used the printed application form relating to sector 90 project without making necessary correction by striking out Sector 90 Gurgaon and replacing it with Sector 91 Gurgaon. According to the petitioners the booking pertaining to ew Town Heights Sector 90, Gurgaonwas already closed on 07.02.2008 and the complainant respondent who had applied for allotment on 08.02.2008 could not have booked the flat in sector 90 project. The petitioners have admitted that a sum of Rs.5.00 lakh was deposited by the respondent alongwith his application form for allotment of apartment having super area of 1760 sq. ft. alongwith parking. It is alleged that since no apartment of 1760 sq. ft. was available in the project at Sector 91, with the consent of the complainant he was allotted a bigger size apartment having super area of 2125 sq. ft. The OPs have claimed that they sent various letters dated 16.04.2008, 03.05.2008, 10.05.2008 and 04.06.2008 informing the respondent complainant about the allotment but the complainant remained silent and instead of making payment as per the demand, he sent a legal notice on 09.06.2008. The petitioners claim that the complainant never objected for allotment of apartment measuring 2125 sq. ft.in Sector 91 project and the complaint has been filed in order to wriggle out of the terms and conditions of the contract between the parties. Thus, the sum and substance of the stand of the petitioners is that they have acted strictly in terms of the contract and there is no deficiency in service. 4. District Forum on consideration of the pleadings as also the evidence adduced, allowed the complaint. Relevant portion of the order of the District Forum reads as under: e have heard the parties and appraised the material on record carefully. There is no denial of the facts that initially the opposite parties have launched their scheme - New Town Heights, DLF, Gurgaon in Sector 90, Gurgaon for apartments with super area of 1760 sq.ft.. It is admitted fact that the complainant has applied for it vide his Application (Annexure-A1) by depositing a sum of Rs. 5,00,000/-vide Cheuqe dated 8.2.2008 for super area of 1760 sq.ft. and in the scheme New Town Heights, DLF, Gurgaon in Sector 90, Gurgaon is very much mentioned in it. Copy of Application Form is (Annexure A-1). Even the opposite parties have also further admitted that due to success of their first scheme of Sector-90, Gurgaon, they have immediately launched a new scheme under the same name and style of New Town Heights, DLF, Gurgaon in Sector 91, Gurgaon with a bigger area of 2125 sq.ft. (two parking spaces) instead of one on a preferential location with higher rates. Thus, opposite party has instead of allotting the apartment for which the complainant has applied on 8.2.2008 has started corresponding with the complainant informing him about the Provisional Allotment of Apartment No.4 on 8th floor in building No. GBB, Phase-III New Town Heights, DLF, Gurgaon in Sector 91, Gurgaon vide their letter dated 29.3.2008. (Annexure-A5) by issuing the receipt of his payment as per his application. But as per his application, he has never applied for it (Annexure A1) on 8.2.2008. Thereafter, the opposite party has started writing time and again about allotment of the said apartment to him vide their letter dated 16.4.2008 (Annexure A-4) and letter dated 3.5.2008 (Annexure A-6) by asking him to make the payment in 2.5 years in installments as per payment plan and demanded Rs.10.62,500/-. Finally, legal notice was sent by the complainant dated 9.6.2008 (Annexure A-8). Postal receipt dated 19.7.2008 (Annexure A-20) and so on. But the opposite party started giving reminder of their said disputed allotment vide letter dated 27.6.2008 (Annexure A-18). Reply of the legal notice of the opposite party dated 27.8.2008 (Annexure -29) regarding impugned allotment is also on the file. In view of the above discussion, we are of the considered opinion that though the complainant has applied for a smaller Apartment measuring 1760 sq.ft. with one Parking only in Sector 90, DLF, Gurgaon which found corroboration from the documents placed on record by the complainant but the respondents have wrongly and illegally has allotted the complainant an apartment of bigger size of 2125 sq.ft. with two parking and on preferential location though in the same name of scheme of New Town Heights but in Sector -91, DLF Gurgaon with higher rates and higher price and have casually informed him about allotment on 29.3.2008, 16.4.2008, 3.5.2008 asking him to pay accordingly. The respondents, however, failed to seek the consent of the complainant in writing about changing the allotment of smaller Apartment of Sector 90 with one Parking as against the bigger Apartment for which the complainant has never applied. The onus to prove was on the opposite party that the complainant has changed his option from smaller apartment to bigger apartment and in their different scheme and in different Sector at higher price which it failed to discharge. Consequently, the opposite party is deficient in service by wrong allotment of the apartment to which the complainant has never applied vide his application dated 8.2.2008 (Annexure A-1). Thus, the complainant is entitled to allotment of an apartment measuring 1760 sq.ft. with one Parking in New Town Heights Sector-90,. DLF, Gurgaon with same terms and conditions as of that scheme within 30 days failing which the complainant is entitled to refund of his amount of Rs.5,00,000/- deposited by him with them alongwith his application on 8.2.2008 with interest at the rate of 12% p.a. from the date of deposit till its realization. The complainant has also been harassed by the opposite party causing mental agony, facing litigation since long. Thus, he is entitled to compensation of Rs.20,000/- and litigation charges of Rs.3000/-. 5. Being aggrieved of the order of the District Forum, the petitioners/opposite parties approached the State Commission in appeal. State Commission after hearing the parties dismissed the appeal with following observations: he controversy between the parties is with respect to the allotment of Apartment No.GBB084 alongwith its parking (two) in New Town Heights, DLF, Gurgaon in Sector 91, Gurgaon instead of allotment of apartment in New Town Heights, DLF, in Sector 90, Gurgaon for a super area of 1760 sq. ft. The complainant had applied for allotment of apartment in New Town Heights, DLF, in Sector 90, Gurgaon, for a super area of 1760 sq. ft. but the appellants-opposite parties without taking the consent of the complainant had allotted him bigger size apartment of 2125 sq. ft. in Sector 91, Gurgaon. The appellants-opposite parties have failed to prove on the record by leading any cogent and convincing evidence to show that they had taken the consent of complainant for allotment of bigger size apartment in Sector 91, Gurgaon. Thus, the appellants-opposite parties have rightly been held deficient in service. Having taken into consideration the facts and circumstances of the case and the finding recorded by the District Forum, we hardly find any ground to interfere in the impugned order. 6. Shri H.L. Tikkoo, Sr. Advocate for the petitioners has assailed the impugned order of the Fora below on the ground that the State Commission has failed to appreciate that this is a case of bonafide mistake. Actually the complainant had applied for booking of a flat in ew Town Heights, Sector 91, Gurgaonbut due to inadvertence the left over application forms for booking of flats in ew Town Heights, Sector 90, Gurgaonwas used without making necessary deletion and correction in respect of sector number. It is argued that initially the complainant had applied for allotment of a flat of 1760 sq. ft. super area and since flats of said area were not available in the project, with the knowledge and consent of the complainant, he was allotted a larger flat having area of 2150 sq. ft. super area with two parkings at a preferential location. It is further argued that the State Commission has failed to appreciate that the complainant is a speculator. He has booked the flat with the intention to earn profit by selling it in the event of appreciation of the price and when the anticipated appreciation did not take place the complainant filed the consumer complaint with a view to wriggle out of the contract which confer the right upon the petitioners to forfeit the amount of Rs.5 Lakhs deposited by him alongwith the application. It is also argued that the dispute raised in this complaint relates to the breach of terms and conditions of the contract. Therefore, the Consumer Fora has no jurisdiction to deal with the matter. In this regard, counsel for the petitioners has relied upon the judgments of Sourabh Prakash vs. DLF Universal Ltd. (2007) 1 SCC 228 and Bharathi Knitting Company vs. DHL Worldwide Express Courier Division of Airfreight Ltd. (1996) 4 SCC 704. 7. On perusal of photocopy of the application form for booking of flat, it transpires that the flat in question was booked through the broker Narender Kalra. The application form admittedly is in respect of booking of flat in ew Town Heights, Sector 90, GurgaonStand of the petitioners is that actually the complainant had booked the flat in Sector 91, Gurgaon but due to inadvertence the left over forms pertaining to the booking in the project at Sector 90 was used without making necessary corrections. The onus of proving this fact obviously is on the petitioners. This controversy could easily have been resolved by examining the broker Narender Kalra who is the best person to prove whether the respondent complainant had applied for booking of flat in ew Town Heights, Sector 90, Gurgaonor Sector 91. Narender Kalra has not been examined by the petitioners. Since the petitioners have withheld the best evidence, we are inclined to draw an adverse presumption that had the broker Narender Kalra been examined as a witness, his version would not have supported the claim of the petitioners. 8. Looking from the other angle, on perusal of application form, we find that complainant had applied for apartment of 1760 sq. ft. super area alongwith one parking. As per the petitioners, 1760 sq. ft. flat was not available in Sector 91. Therefore, with the consent of the respondent complainant he was offered an apartment of excess area with two parking. The petitioners have not pointed out any evidence to indicate that non availability of the flats of 1760 sq. ft. was ever brought to the notice of the complainant and his consent was obtained before allotting the flat of excess area with two parking to the complainant and demanding further payment from him. Thus, in our considered view, allotment of flat of higher area with two parking lots by the opposite parties to the complainant against his request for allotment of apartment of 1760 sq. ft. can at best be taken as counter offer to the application of allotment submitted by the complainant and it cannot be termed as a concluded contract unless the proposal is accepted by the complainant. Thus, in our view petitioner have no right to forfeit the amount of Rs.5.00 lakh deposited by the petitioner at the time of applying for the flat. The judgments relied upon by the petitioners, in our considered view, are of no avail to the petitioners for the reason that no concluded contract for allotment of the flat of 2125 sq. ft. with two parkings in Sector 91 project came into force. 9. Further, it is contended that the consumer complaint by the respondent/complainant is not maintainable for the reason that he booked the flat for speculative reasons and as such he is not a consumer. In support of this contention, learned counsel for the petitioners has drawn our attention to the letters dated 16.4.2008, 3.5.2008, 4.5.2008 and 4.6.2008 and submitted that vide these letters respondent/complainant was informed that he has been allotted a flat in Sector 91, DLF, Gurgaon but he deliberately did not respond to those letters and waited for increase in property price and when there was no escalation in price, he served the legal notice on the petitioners. There is no basis for the above-said submission. Petitioners have failed to point out any evidence, which may lead to the conclusion that the respondent/complainant had booked the flat for speculative reasons. Admittedly, respondent/complainant had applied for a flat measuring 1760 sq. ft. super area with one parking lot without option for preferential location and the petitioners/opposite parties offered him booking of a bigger flat measuring 2150 sq. ft. super area with two parkings and also of preferential location. This was not what the complainant had applied for. Therefore, the refusal of the complainant to accept the offer of the petitioners in Sector 91 cannot be taken as a decision motivated by the speculative design. 10. It is further argued that the orders of the Foras below are without jurisdiction for the reason that the value of the flat was much beyond pecuniary jurisdiction of Rs.20 Lakhs of the District Forum. We do not find merit in this contention. On perusal of complaint, we find that the complainant has prayed for direction to the petitioners to withdraw the demand of payment for second parking as also demand of Rs.10,62,500/- for preferential location or to return his booking amount of Rs.5 Lakhs with interest. Looking from any angle, the claim in the complaint is not beyond Rs.20 Lakhs. Therefore, we find no merit in this contention that the District Forum has acted without pecuniary jurisdiction in allowing the complaint. 11. In view of the discussion above, we do not find any infirmity or illegality in the impugned orders of the Foras below which are well reasoned and based upon the pleadings and the evidence adduced by the parties. The petitioners have not been able to point out any jurisdictional error or material irregularity, which may persuade us to interfere with the impugned order in exercise of the revisional jurisdiction. 12. Revision petition is, therefore, dismissed with cost of Rs.25,000/- (rupees twenty five thousand only) to be paid by the petitioners to the respondent/complainant.