Per Mr.S.R.Khanzode, Hon’ble Presiding Judicial Member This consumer complaint pertains to alleged deficiency in service on the part of a builder/developer for not handing over possession of the flat. Undisputed facts are that complainants agreed to purchase flat no.1201 situated on 12th floor in a building known as ‘Polaris’ from the O.P./builder (herein after referred as ‘builder’) for a total consideration of Rs.8,70,000/. The terms are reflected in allotment letter/Memorandum of Understanding. Complainants had paid Rs.1,74,000/- as an initial payment vide cheque nos.962876 dated 17/5/1995 and 705253 dated 22/5/1995. According to complainants, possession was to be delivered within a period of two years sometime by September 1997. It is the grievance of the complainant that in spite of having received 20% of the amount of consideration and even though draft of the Agreement of sale prepared by M/s.Parimal K.Shroff & Co. was shown to them, the builder failed to execute Agreement of sale. Possession as agreed was also not handed over. On visit to the builder, complainants requested the builder either to hand over possession or in the alternative, to refund the amount of consideration paid but in vain and, hence, this consumer complaint was filed on 13/6/2000 with the following prayers (prayer clauses (b) to (d) are as per amendment effected on 02/9/2004) :- “a. To hold and declare the opposite party guilty of deficiency in service as per provisions of the said Act. b. To direct the Opposite party to handover the vacant and peaceful possession of the flat no.1201 on 12th floor in building known as ‘Polaris’ along with interest @ 18% on the amount of Rs.10,44,000/- (Rs.8,70,000/- paid by cash plus Rs.1,74,000/- paid by cheque) w.e.f. October 1997 till the date of possession or finality of this complaint, paid by the complainants in cash and cheque towards the cost of the said flat OR to refund the complainants an amount of Rs.10,44,000/- paid by the complainants towards the cost of the said flat along with interest @ 18% w.e.f.28 August, 1995 (Date of payment) till the date of final disposal of this complaint. c. To direct the opposite party to pay the complainants an amount of Rs.1,00,000/- each towards cost, compensation, mental agony suffered/incurred by the complainants. d. To direct the opposite party to pay the complainants an amount of Rs.4000/- per month towards monthly rent of the alternate accommodation, which the complainants are paying from October 1997 till today, along with interest @ 18% Annexure “A” colly copies of rent receipts. e. To direct the opposite party to pay the complainants an amount of Rs.4000/- per month towards monthly rent paid by the complainant on and from October 1997 till date. f. For such other and further relief’s as the nature and circumstances of this case may deem fit and proper.” At the outset it may be mentioned that in the amended prayer clause (b) a statement is made to the effect that Rs.8,70,000/- paid by cash. However, there is no such statement made in the body of complaint and as per statement made in the complaint only consideration paid is the initial payment of Rs.1,75,000/-. This consumer complaint is opposed by the builder as per its written version dated 24/5/2001. According to builder, the payment schedule was fixed as per the allotment letter and 16 installments of Rs.46,000/- each were to be paid on completion of each floor slab (total 16 slabs) and the last payment of Rs.10,000/- was to be made at the time of handing over the possession. On completion of first slab by letter dated 02/12/1996, the complainants were requested to make the payment of first installment of Rs.46,000/-. No payment was however made. Subsequently, on completion of each slab by communication dated 03/02/1997, 12/5/1997, 20/8/1997, 29/10/1997, 09/12/1997, 14/01/1998, 19/2/1998, 18/3/1998, 08/04/1998, 25/6/1998, 12/09/1998, 06/11/1998, 03/02/1998, 03/04/1999, 02/06,1999, further payments were requested but in vain. Completion certificate of the building was obtained on 27/9/2000 and this fact was also informed to the complainants by letter dated 31/10/2000 demanding the balance of payment and requesting them to take possession of the flat. The complainants failed to take possession by making the payment. Since the complainants failed to pay consideration in installments as agreed, complainants were liable to pay interest on delayed payments, as agreed, @ 24% p.a. The same was demanded from time to time but in vain. Even by letter dated 28/12/1997, complainants were requested to get execute the agreement but in vain. Thus, it is the complainants who failed to discharge their obligations and failed to pay the amounts due from time to time. Builder further denied any deficiency in service on its part and asked to dismiss the complaint. Complainants have filed their rejoinder dated 02/11/2001 to the written version. We heard Ms.Rashmi Manne h/f.Mr.U.B.Wavikar-Advocate for the complainant and Mr.S.R.Singh –Advocate for the opponent. Following points arises for our consideration and we record our finding against each of them for the reasons to follow:- 1. Whether complainants establish the deficiency in service on the part of the builder for not handing over possession of the flat as alleged? Answer : NO 2. Whether complainants are entitled to the reliefs as prayed? Answer : NO 3. What order? Answer: As per final order below. Except the words on solemn affirmation by way of verification to the complaint and rejoinder, supra, no other claim affidavit appears to have been filed on behalf of the complainant. Builder filed affidavit of Mr.Niranjan Hiranandani in support of their claim. Though no formal agreement was executed and registered whatever was settled is well reflected in letter of allotment/Memorandum of Understanding dated 28/8/1995, copy of which is placed on record. It clearly spelt out the payment terms as under :- “Earnest Amount Rs.1,74,000/- On completion of plinth Rs. 46,000/- 16 equal installments of Rs.40,000/- each payable on completion of every slab, commencing from 1st flab upto 16th slab Rs.6,40,000/- On possession Rs. 10,000/- --------------- Total …. Rs.8,70,000/- ======= As well as clause regarding interest on delayed payment is as under:- “Without prejudice to the above right of termination, if any payment delayed, interest at 24% per annum shall be charged on all payments which are due.” There is in fact no dispute about these terms and conditions between the parties to this dispute. It is the grievance of the complainants that in spite of having received payment of 20% of the agreed consideration, the builder failed to execute the agreement as per draft shown to them. It is the case of builder that by letter dated 28/12/1997 they in fact asked the complainants to get execute the agreement. Complainants in their rejoinder stated in respect of this communication as under:- “ii) We say, from 28/08/1995 upto date, the opposite party has totally failed to execute the agreement for sale even after accepting 20% of the total amounts from us and further, we also deny of not receiving the letter dated 28th December 1997 as falsely alleged by the opposite party whereby the opposite party had called upon us, to execute the agreement.” ( underlining provided). Thus, it means that the complainants have not denied having received the letter dated 28/12/1997? It is pertinent to note that there is no communication from the complainants till their reply letter dated 04/12/1999 either complaining of not executing an agreement as agreed or enquiring about the stage of construction, which in fact the complainants themselves could have verified on visiting the site or offering any payment. In fact even as per the reply dated 04/12/1999, complainants did not agree to pay the amount but in effect intended to charge the builder for delayed possession and indicated that in fact no amount were due from them. It only indicates that the complainants were not ready and willing to pay balance of consideration and fulfill their part of agreement at any time. Furthermore, as earlier pointed out, while amending the prayer clause it is only stated that Rs.8,70,000/- were paid in cash. Neither in the body of the complaint nor in the rejoinder anywhere making such payment in cash is alleged. This speaks for falsity of the case of the complainants and this also speaks for their tendency to speak lies. On the contrary, the conduct of the builder appears consistent. Builder placed on record various communications demanding the payments on completion of each slap. These communications were sent under certificate of posting to the complainants like other flat purchasers from the said building. All those documents are placed on record. Except denial there is no rebuttal to this piece of evidence pleaded by the builder supported by an affidavit of Mr.Niranjan Hiranandani. Therefore, considering preponderance of probabilities, we find no reason to disbelieve the case of builder on this count. This establishes one fact that all the while in spite of making demands to make the payment as per stage of construction, complainants never paid any heed to such demands. They were sitting idle and remaining silent throughout. They never showed any communication or exhibit their willingness to perform their part of contract, particularly, to discharge obligation to make payment as scheduled. After their attention was invited by letter dated 15/11/1999 by the builder to their attitude and non payment, they for the first time complainants replied on 04/12/1999. They even failed to give response to the letter dated 31/10/2000 whereby builder informed them about completion of the building, obtaining of the Completion certificate and requested them to take the possession on making the balance payment of `12,99,989.67ps. In this background it is quite clear that it is the complainants who are to be blamed through out and since they failed to tender scheduled installments of amounts for purchase of flat, the complainants cannot now complain about alleged deficiency in service on the part of the builder for not handing over possession or for delayed possession. A useful reference can be made to Prashant Kumar Shahi v/s. Ghaziabad development Authority reported in (2000) 4 Supreme Court Cases 120. For the reasons stated above, we hold and answer point no.1 for determination in the negative. As far as consumer complaint is concerned, it is to be scanned and examined within the four corners of Consumer Protection Act, 1986, particularly, the relief which can be granted in view of section 14 of the said Act. Since the complainants failed to establish any deficiency in service on the part of the builder, they are not entitled to any relief, as prayed. Thus, point no.2 for determination is answered in negative. For the reasons stated above on point nos.1 & 2, supra, we pass following order:- ORDER 1. Consumer complaint no.249/2000 stands dismissed. 2. However, in the given circumstances, both the parties to bear their own cost. 3. Copies of the order be furnished to the parties. | 
