AVM J. RAJENDRA, AVSM, VSM (RETD.), MEMBER

1.      The present First Appeal has been filed under Section 51 of the Consumer Protection Act, 2019 (hereinafter referred to as “the Act”) against the Order dated 04.05.2021 passed by the learned State Consumer Disputes Redressal Commission, Delhi (hereinafter referred as “the State Commission”), in Consumer Complaint No.17 of 2013 filed by the Appellant/ Complainant wherein the State Commission partly allowed the complaint and directed the Respondent/Opposite Party to refund an amount of Rs.4,30,000/- to the Appellant/ Complainant on or before 31.07.2021 failing which, the Opposite Party will be liable to pay an interest @ 9% p.a. on the said amount calculated from 31.07.2021 till the actual realization of the amount.

2.      The delay of 13 days in filing the present Appeal has been dealt with vide Order dated 28.07.2022 passed by this Commission and the delay has been condoned.

3.      Brief facts of the Case are that the Complainant’s sister, Ms. Shirley Nita Singh (hereinafter referred to as  “the sister”) was working as Assistant Nursing Superintendent and was looking for a suitable accommodation for herself and her brother Mr. Anil Franklin (the Appellant/Complainant). Allegedly, she was approached by the executives of the Opposite Party, who offered booking in their project by the name “Paramount Golfforeste Villas”. Impressed by the representations made by the OP, Ms. Shirley Nita Singh booked two residential units, one for herself and one for the present Complainant, since the Complainant was not having any source of his own. Two cheques amounting to Rs.50,000/- were issued by the sister to book two flats, out of which, Unit No. C-151, was booked in the name of the Complainant. However, the cheque No. 462801 for Rs.50,000/- issued for the booking of unit No. C-151 was returned by the bank on the ground of Overwriting. Thus, another cheque No. 462805 for Rs.50,000/- was issued in favour of the OP as the booking amount. Thereafter, another payment of Rs.3,80,000/- was made to the OP for the flat in question, vide cheque No. 462806 on 20.04.2011 by the Complainant’s sister.  

4.      On 21.10.2011, the Hon’ble Allahabad High Court issued a stay on all the housing projects going on in Greater NOIDA area and no construction work was allowed till further order. The Appellant and his sister were upset and did not release the payment to the Respondent, keeping in view the future of the project. The stay order was vacated on 24.08.2012.

5.      On 04.11.2011, the OP issued demand notice of due payments/installment of Unit No.C-151, which as per the Complainant, was illegal and malafide since the stay order of the Hon’ble High Court of Allahabad was in operation. With the fear of losing the consideration paid, the sister got in touch with the executives of the OP and she was informed that at least Rs.6,00,000/- needs to be deposited by the Complainant to avoid the cancellation of booking. The said demand was met as the sister issued a cheque dated 09.11.2011 drawn on Bank of Baroda, Dr. RML Hospital Branch. However, despite the receipt of the said cheque, the Complainant’s booking was cancelled.

6.      The Complainant and the sister took up the matter with the OP and they were informed that the Unit No.C-151 stands cancelled and nothing can be done to renew the allotment. However, the Complainant can be allotted another Unit i.e. C-252 which is vacant but not on the rates as originally agreed. Vide letter dated 07.09.2012, on behalf of the Complainant, the sister wrote a letter to the OP to renew the allotment of the Complainant and allot Unit No.C-252 as offered. However, the OP did not respond to the same.

7.      After waiting for the reply of the above said letter from the OP for a considerable time, on 16.10.2012, a legal notice was served by the Complainant on the OP, mentioning that the above act of the OP was unlawful, unjust, arbitrary and contrary to the terms of agreement and ethics of business, and sought that the Unit No.C-252 shall be reallocated to the Complainant at the same rate at which Unit No.C-151 was originally allotted and unlawfully cancelled by the OP. The OP did not respond to the said legal notice. Thus, left with no other option, alleging deficiency of service and unfair trade practice on the part of the Opposite Party, the Complainant filed a Complaint before the State Commission, with the following prayers:

(a) Pass an Order to re-allot Unit No.C-252 in favor of Complainant on the same rates and terms on which Unit No.C-151 was allotted and adjust the payments already paid against Unit No.C-151 and/or

(b) Direct refund of the amount deposited i.e. Rs.10.30 Lac along with interest and the rate of 24% per annum from the date of deposit and/or

(c) Pay compensatory amount of Rs.21,00,000/- to the Complainant for deficiency in services and suffering caused to the Complainant against the Respondent and/or

(d) Pay litigation expenses and/or

(e) Pass such further order or orders which the Hon’ble court may deem fit and proper and in the interest of justice.

8.      The Opposite Party in its Written Statement has contended that the Complainant was at default since he failed to make the payment as per the schedule inculcated in the Allotment Letter. In spite of the same, the Opposite Party offered to refund the entire amount paid by the Complainant i.e. Rs. 4,30,000/- on 21.11.2011 vide cheque No. 004727 dated 21.11.2011 drawn on Central Bank of India, which was declined by the Complainant. There was no deficiency of service on the part of the OP and the OP sought for dismissal of the Complaint at the outset.

9.      The State Commission vide Order dated 04.05.2021 considered that the OP was well within its right to cancel the booking of the Unit which was allotted to the Complainant, since the Complainant failed to abide by the terms of the Allotment Letter to make timely payment for the Unit in question. The OP had already offered to refund the amount of Rs. 4,30,000/-. The learned State commission has directed the Respondent/OP to refund an amount of Rs.4,30,000/- to the Appellant/ Complainant on or before 31.07.2021 failing which, the Opposite Party will be liable to pay an interest @ 9% p.a. on the said amount calculated from 31.07.2021 till the actual realization of the amount.

10.    Being aggrieved by the impugned Order dated 04.05.2021 passed by the learned State Commission, the Appellant filed the present First Appeal with the following prayers:

“It is therefore, most respectfully prayed that the Hon’ble Commission may be pleased to allow the present appeal and set aside the Order of the State Commission.

Pass any such other and further orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of appeal, in the interest of justice.”

11.    The Respondent/OP, in its reply, vehemently opposed the Appellant’s contentions and asserted that the OP is a leading and reputed real estate developer in NCR Region with credibility for quality and probity. The Appellant approached the OP on 24.03.2011 and booked Unit No. C-151 in a project developed by the OP under the name of Paramount Golf Forester at Plot No. BGHA site C(Ext.) Phase-I Surajpur, Grater Noida, UP and paid Rs. 50,000/- vide cheque No. 462805. For booking confirmation, he was to deposit 10% of the basic cost i.e. Rs.3,80,000/- which was deposited on 19.04.2011. Thereafter, the Allotment Letter was issued in the name of the Appellant, who duly accepted and signed for the terms mentioned thereat. After paying the booking amount, he had to pay 30% of the total basic sale price, within 30 days from the date of booking i.e. 24.03.2011. However, no payment was done and he started defaulting.

12.    In terms of Clause-A(1) of the Allotment Letter dated 08.05.2011, in case of default in payments, the booking of the Appellant (C-151) was liable to be automatically cancelled. Even though the Appellant was a chronic defaulter, the OP provided a reasonable opportunity for clearing his outstanding dues. However, as he never made payments, the OP issued a demand letter/ reminder dated 11.07.2011 requiring him to clear the dues forthwith. But no payment was made. After waiting for a long time, the OP had issued a Final Notice on 04.11.2011 intimating the Appellant to clear all his outstanding dues within five days, failing which the unit booked by the Appellant would be cancelled as per the terms of the Allotment Letter dated 08.05.2011. But he failed to make any payment. Thereafter, the Unit was cancelled for non-payment of dues vide cancellation letter dated 24.11.2011, forwarded by speed post along with cheque No. 004724 dated 21.11.2011 for Rs.4,30,000/- drawn in the name of the Appellant. Pertinently, one Mr. Deepak Singh S/o Ms Shirley Nita Singh (real sister of the Appellant) had booked Unit No. C- 252 in the same project on 22.04.2011 and paid Rs. 1,50,000/- as token booking amount. However, as 10% of the basic sale price i.e. Rs.4,89,440/- was to be paid for confirmation, the OP issued a demand Notice to Mr. Deepak Singh for the balance vide letter dated 26.07.2011 and it was also intimated that if payment was not made within five days, the allotment of Unit No. C-252 shall be cancelled. Mr. Singh failed to clear the dues. Thus, the allotment of C-252 was cancelled vide letter dated 12.10.2011 and the amount paid was refunded vide cheque No. 480706 dated 10.10.2011 and the same was encashed by Mr.Deepak Singh on 12.11.2011. Further, a separate Unit No. A-230 in the same project was booked on 23.06.2011 in the name of Mr. Deepak Singh and Mrs. Shirley Nita Singh for total consideration of Rs. 74,05,696/-. Cheque No. 476793 dated 23.06.2011 for Rs.1,00,000/- was paid to the OP as part booking amount. But it was dishonoured and another cheque dated 25.06.2011 for Rs.50000/- was issued for Unit No. A-230. The allottee of Unit No. A-230 again issued a cheque of Rs.584921 in the name of OP and it was also bounced. Thereafter Cheque No. 000003 dated 12.11.2011 for Rs.1,00,000/- and Cheque No. 000002 dated 09.11.2011 for Rs. 6,00,000/- were paid and Receipt No. 04307/11-12/GF was issued by the OP towards Unit No A-230 and the Allotment Letter dated 24.11.2011 in the name of Mr. Deepak Singh and Mrs. Shirley Nita Singh was issued, stating that the amount received by the OP was towards Unit No A 230. They duly signed and accepted the terms and conditions.

13.    The Appellant had not made payments towards his booked Unit, while being bound by the terms of payment in the allotment letter. He failed to pay the dues even after the time was allowed by the OP. After waiting for a long time, the OP issued a final notice dated 04.11.2011 intimating him to clear the outstanding dues within five days, failing which the Unit so booked shall stand cancelled. However, no payment was made. Accordingly, the allotment was cancelled for nonpayment vide cancellation letter dated 24.11.2011, forwarded by speed post along with a cheque of Rs.4,30,000/- in his favour.

14.    The OP never assured the Appellant of allotment of Unit C-252. C-252 booked by Mr Deepak Singh was also cancelled for non-payment on 12.10.2011 and the amount was refunded to Mr. Deepak Singh. Mrs. Shirley Nita Singh (allottee of A-230) issued two cheques for Rs. 6,00,000/- each, towards Unit No. A-230 against the demand for scheduled payment and accounted against the Unit purchased by her. She issued no payment instruction whatsoever to make any other credit. The OP followed the due process in accounting for payments. No cheque was issued/signed by the Appellant and the story that was cooked up is blatantly false and fabricated to extort money and harass the Respondent.

15.    The said project was on the land allotted by the UPSIDC and there was no stay whatsoever in operation as alleged. Further, the work was completed in January 2015 itself. After completion of construction, the Competent Authority (UPSIDC) granted Completion Certificate dated 07.01.2015 for 1988 villas in the project and the OP handed over the possession to other allottees who made complete payments and registered the properties. No cause of action ever arose against the OP as it was the Appellant who was a defaulter from the very beginning and the unit was cancelled on account of his default in payment. 

16.    The Appellant filed his Rejoinder wherein he has brought out that the contentions in the Reply filed by the Opposite Party are false and reiterated the submissions in the Appeal.

17.    The learned Counsel for the Appellant/Complainant in his arguments asserted that the sister of the Appellant had booked two villas No.C-151 and C-152 in the name of the Appellant and her son Deepak Singh respectively. These two were booked in the inaugural discount @ Rs.1950/- per Sq Ft. Accordingly, two cheques for Rs.50,000/- and Rs.3,80,000/- were paid with respect to the C-151. The Respondent provided an unregistered agreement and registration form wherein the rate of villa per Sq Ft was enhanced from Rs.1950/- to Rs.2240/-per Sq Ft. On 21.10.2011, Hon’ble High Court of Allahabad issued stay of housing projects in Noida and the Appellant came into dilemma. Subsequently, the Respondent again approached the Appellant’s sister and convinced her to book Unit No.A-230 which is bigger and thus cancelled the booking of C-252. On 04.11.2011 the Respondent issued a notice for clearing the arrears by 11.11.2011. Accordingly, the Appellant issued two cheques for Rs.6 Lakh each on 09.11.2011 along with a covering letter for two separate Units. The Respondent presented only one cheque and did not present the second and issued only one receipt in the name of Mr.Deepak Singh with respect to Unit No.A-230.  The sister of the Appellant objected because the payment intended to make for C-151 which was not actioned by the Appellant as the Respondent intended to mislead of the sister of the Appellant.  However, the Respondent transferred the amount due with respect to both the cheques in the units No.A-230.  Accordingly, default of the Appellant with respect to the C-151.

18.    The learned Counsel for the Respondent/OP asserted that the Impugned Order passed by the State Commission is as per facts and law and sought the Appeal to be dismissed as the Respondent has already agreed to refund the deposited amount.

19.    We have examined the pleadings placed on record and the associated records and thoughtfully considered the arguments advanced by the learned Counsel for the Parties.

20.    The main issue for consideration is whether cancellation of allotment of the Unit by the Respondent/OP is within the scope of the contract and law and whether the Appellant is entitled for re-allotment of a Unit in the same project of the OP. As per the Allotment letter dated 08.05.2011, the total consideration agreed between the parties for the Unit in question was Rs.48,94,400/-. The terms and conditions as well as the schedule of payment have also been stipulated in the said Allotment Letter. Accordingly, in terms of the allotment letter dated 08.05.2011, after payment of the booking amount for the Unit i.e. Rs.50,000/- on 24.03.2011 and Rs.3,80,000/- on 19.04.2011, totaling Rs.4,30,000/-, the next installment of 30% amounting to Rs.14,68,320/- was due within 30 days of booking i.e. on 08.06.2011. This payment was not done by the Appellant. The Appellant claimed that there was a stay by the Hon’ble High Court of Allahabad on construction activity where the project is located. However, as per the admission of the Appellant himself, the said stay order was subsequently vacated by the Hon’ble High Court on 24.08.2012. Therefore, it is admitted position that the amount of installment that was due to be paid by 08.06.2011 was not paid. It is a matter of record that the Opposite Party had issued two notices dated 11.07.2011 and 04.11.2011 for payments of dues as per the Allotment Letter. In the absence of the Appellant making the necessary payments, the Opposite Party cancelled the booking vide letter dated 24.11.2011.

21.    Notwithstanding any stay on the construction activity in the area or its impact on the project in question, there was no allegation of any delay in the progress or completion in the project. It has been specifically stated by the OP that the project was completed in time, Completion Certificate from the Competent Authority was duly received and the possessions to large number of the allotees who were complied with the terms of contract was made in time.

22.    It was obligatory for the Appellant and the OP to abide by the stipulations agreed upon in the Allotment Letter dated 08.05.2011. It was necessary for the Appellant to pay the amount due to the builder in time, which was not done. The explanation in the form of uncertainty created due to the stay order issued by the Hon’ble High Court of Allahabad is entirely untenable and, in any case, the said order was as per the Appellant himself was issued on 21.10.2011 i.e. about five months after the payment was due 08.06.2011 and was vacated on 24.08.2012. In spite of extended time, reminder and final notice the payment of outstanding due was not done. Therefore, the Opposite Party was well within its right to cancel the booking of the Unit allotted to the Complainant on account of the failure of the Complainant to adhere to the payment schedule. The Respondent/ Opposite Party consistently admitted its liability refunding the amount of Rs.4,30,000/- to the Complainant and offered to refund the same accordingly.

23.    As regards the claim for allotment of an alternative Unit by the Respondent/Opposite Party, it is essentially an independent transaction between the parties for which the offer made by the Appellant needs to be accepted by the Opposite Parties at the terms mutually agreed upon. As per the terms of the said Agreement in question, when an allotment is cancelled for non-payment of dues, there is no obligation on the Respondent/OP to provide an alternative Unit to the Appellant at the original price as demanded.

24.    In view of the foregoing, we do not find any infirmity in the Order dated 04.05.2021 passed by the learned State Commission.  The present Appeal is therefore dismissed for being devoid of merit and substance.

25.    There shall be no order as to costs. All the pending Applications, if any, also stand disposed of.