Per Mrs.S.P.Lale, Hon’ble Member This complaint has been filed by the complainant alleging deficiency in service on the part of O.Ps i.e.Vikas Housing Ltd. and Mr.M.Gupta-Director of Vikas Housing Ltd. Complainant has prayed for refund of amount of `1,02,500/- together with interest, cost and compensation. According to complainant, complainant has booked two flats on 24/2/1995 bearing nos.1903-A and 1903-B both on 19th floor of Tower ‘A’ in the proposed project known as ‘Vikas Enclave’ at Mulund Link Road at Goregaon (East) bearing C.T.S. no.619(part) & 620 (part) for a total consideration of `9,42,500/- for each flat. Accordingly, O.P. issued allotment letters dated 24/2/1995 to the complainant. Complainant paid `25,000/- as earnest money for both the flats. Hence complainant paid total amount of earnest money of `50,000/- to the O.P. According to complainant, thereafter complainant visited office of the O.P. and enquired about progress of construction work and also for execution of regular agreement for sale as per MOFA. While visiting to the office of the O.P., O.P. informed that the work of construction had not started for some technical reason. Complainant vide his letter dated 07/10/1998 addressed to O.P. asked for possession of the said two flats. O.P. vide its letter dated 22/10/1998 replied to the complainant that the said project is abandoned and also sent a cheque of `50,000/- to the complainant. O.P. again vide its letter dated 03/11/1998 addressed to the complainant, requested to take a cheque of `50,000/- since the said project of the complainant, where the complainant has booked the flats has been abandoned. Complainant refused to accept the cheque. Complainant further stated that O.Ps were trying to wriggle out of their obligations of delivering the said two flats as agreed to and recorded in the said allotment letter dated 24/2/1995. Complainant further stated that O.P. was bound to deliver two flats to the complainant and by not delivering the said flats O.P. has committed breach of the letter of allotments. Complainant ultimately vide advocate’s letter dated 19/12/1998 addressed to O.P. called upon them to execute valid agreement and also to do all such things as may be legally required including registration of the Agreement for sale. According to complainant, O.Ps vide its letter dated 21/1/1999 replied to the complainant inter-alia admitting two allotment letters and also admitted having received `50,000/- from the complainant. However, even till today according to complainant, O.P. failed and neglected to hand over possession of two flats and committed breach of letter of allotments dated 24/2/1995. Therefore, complainant was constrained to file the complaint before this Commission and complainant has prayed for following reliefs:- “(a) This Hon’ble Commission be pleased to direct the Opposite Party no.1 to specifically allot the said two flats to the complainant as per the agreement dated 24/02/1995 and as referred in the complaint; a(i) in the alternative, the Opposite Parties be ordered to pay 1,02,500/- by way of refund as per the particulars of complainant’s claim mentioned in Exhibit “M” to the complaint and 17,40,000/- as per the particulars of the complainant’s claim mentioned in Exhibit “N” to the complaint aggregating to 18,42,500/-. a(ii) The Opposite parties be further ordered to pay further interest on 18,42,500/- from the date of the complaint, till payment. 2(b) The Opposite party be ordered to pay to the complainant by way of compensation an amount of 50,000/- for mental agony and suffering caused to the complainant due to delay in completing the project. (c ) The Opposite party be ordered to pay to the complainant interest on the due amount of 50,000/- @ 18% p.a. from 12/11/1994 till repayment. (d) The Opposite party be ordered to pay the cost of this complaint. (e) Such further and other relief as this Hon’ble Commission may deem fit and proper in the circumstances of the case be granted.” O.P. filed its written statement and contested the claim of the complainant. O.Ps pleaded that the plot on which the project was to come up was long back abandoned and money by way of deposit taken from the prospective members was refunded to the prospective members including complainant, but with the ulterior motive, complainant did not encash the cheque which was given to him. O.P. stated that they have not revived the project and there is no project or any revival of the project which is referred for the plot of land as mentioned in the consent terms in the said suit. Since the project was abandoned there is no question of allotting the said flats to the complainant. O.P. further pleaded that vide O.P’s letter dated 22/10/1998 O.Ps have refunded the cheque and the O.P. finally prayed for dismissal of complaint since complainant is not entitled to any claim as prayed in the complaint. We heard submissions of Mr.U.B.Wavikar-Advocate for the complainant and Mr.R.K.Desai-Advocate for the O.P. We perused the documents placed on record by the parties. Now following issues would arise for our determination. Issues and findings thereon are a sunder:- 1. Whether complainant proves that there has been deficiency in service on the part of O.Ps in not giving flats and even not executing agreement in favour of the complainant? ANSWER : NO. 2. Whether complainant is entitled for refund of consideration amount paid to the O.Ps? ANSWER: YES 3. What order? ANSWER: As per final order. It is an admitted fact that complainant had booked two flats bearing nos. 1903-A and 1903-B both on 19th floor for `9,42,500/- each in Tower ‘A’ in proposed project of the construction of the building known as ‘Vikas Enclave’. Area of each flat was 725 sq.ft. Complainant has paid 25,000/- towards each of the flat to the O.P. O.P. issued allotment letter dated 24/2/1995 and it is signed by the O.P.no.2 -Director Mr.M.Gupta. However, said project of the O.P. was abandoned in respect of subject matter for which prospective members were refunded the deposit amount including complainant but the complainant has not encashed cheque no.5597202 dated 16/6/1996 sent by the O.P. Since the O.P. after abandonment of their project immediately informed the complainant and sent the cheque on 16/10/1996, therefore there was no deficiency of service by the O.P. in not handing over the flats to the complainant. Complainant had paid `50,000/- as booking amount towards the price of the two flats agreed to between the parties. As the proposed project was abandoned by the O.P., complainant is left with no other alternative but to accept refund consideration amount together with interest thereon. Therefore, we allow the complaint partly to direct O.P. to refund an amount of `50,000/- paid by the complainant with interest @ 9% p.a. from the date of payment till 16/10/1996 that is the date of refund of cheque by the O.P. In the result, we pass following order:- OPERATIVE ORDER 1. Complaint is partly allowed. 2. We direct O.P. to refund the amount of `50,000/- to the complainant together with interest @ 9% p.a. from the date of payment i.e.24/2/1995 till 16/10/1996. 3. No order as to costs. 4. Copies of the order be furnished to the parties. | 
