Sri.G.V.Balasubramanya,<br /> Member<br /> <br /> 1. The complainants are the joint owners of the property bearing number 1029, Geeta Road, Chamaraja Mohalla, Mysore. In 1995 they entered into a Memorandum of Understanding with the opposite party for development of the said property wherein it was agreed that the opposite party would be entitled to 60% of the developed area and the complainants to the remaining 40%. Subsequently, in the year 2000 the complainants were coerced to agree for 35% area which enhanced the opposite party’s share to 65%. A new agreement came into being and thereafter they executed a supplementary agreement and an additional supplementary agreement. <br /> 2. The grouses of the complainants are that the construction work done by the opposite party is contrary to the specifications and there was unreasonable delay in handing over possession of their 35% of the built up area. These, according to the complainants, are acts of deficiency in service committed by the opposite party. So far as specifications are concerned, the complainants allege that the opposite party has provided a smaller lift, has not provided teak wood door at the entrance and matti or sal wood doors at other places as promised. So far as the delay is concerned, the complainants have alleged that the opposite party is yet to handover flat No.304 which should have been handed as far back as July, 2003. The complainants have averred that as per the agreement they are entitled to compensation at Rs.10, 000/- per month from the date of default till the date of handing over of their portion in entirety. As far as the non residential portion is concerned they say that they have suffered financial loss on account of the delay in handing over possession of their share which should have been handed over in December, 2003 as per the agreement. They say that a lease agreement was entered into with a tenant for the non residential portion but had to be cancelled owing to the delay. The tenant had agreed to pay Rs.29, 290/- per month and the opposite party is liable to pay this rent the date of default till the date of handing over possession. <br /> 3. The complainants have made other allegations that the opposite party taking advantage of the ill health of the first and the fourth complainants and the tender age of the 2nd, 6th, 7th and 8th complainants coerced them to agree to unreasonable and unrighteous terms in collusion with the bank officials. For obtaining the consent through such coercion, the complainants have sought compensation of Rs.2 lakhs. <br /> 4. The parties have exchanged legal notices before coming to the Forum. No settlement could be arrived at. Hence, this complaint has been filed. The total claim of the complainants is Rs.9, 27,250/- with interest at 12% p.a. They have, also, claimed Rs.10, 000/- per month for the residential and Rs.29, 250/- per month for the non residential portion from the date of complaint till the date of handing over possession. They have prayed that the opposite party be directed to set right those things which are contrary to the agreement specification and get the completion report within a month. <br /> 5. The opposite party, in his version, has raised the question of maintainability of the complaint before this Forum on three grounds, firstly, that it is not a consumer dispute, secondly that since it involves complicated issues like breach of contract without deficiency in service it has to be relegated to the civil court and thirdly that since the relief sought by the complainants is based on breach of contract it falls outside the purview of this Forum. The opposite party has, also, pointed out to the arbitration clause in the agreement between the parties to highlight that the complaint is not maintainable. <br /> 6. On the merits, the opposite party says that the agreement was originally entered into with Late Narayana Swamy in 1995 and after his demise a fresh agreement was executed with the complainants in the year 2000. But the complainants did not handover possession of the site for development in May, 2000. <br /> 7. The opposite party has stated that there are reciprocal obligations in the agreement which the complainants did not fulfill. He says that the supplementary agreement in 2002 was for the purpose of identifying the flats falling to the share of the complainants. The additional supplementary agreement in May, 2003 was for identifying the share of commercial area of both the parties. The opposite party says that the supplementary agreement became necessary as there was change in the nature of development of the property from a purely residential complex to semi commercial complex. Thus, according to the opposite party the original agreement stands superceded by Doctrine of Novatio. <br /> 8. The opposite party has insisted that he has handed over the keys of the complainants’ flats at the time of the house warming ceremony but they never returned them back. <br /> 9. On the allegation that the lift is smaller than promised, the opposite party has averred that he has provided the lift in accordance with the modified blue print done after it was decided to construct a semi commercial complex instead of a residential complex. <br /> 10. Even with regard to the wood used for doors, the opposite party says that the prior consent of the complainants was obtained for providing doors of neem wood.<br /> 11. The opposite party has contended that he is not liable to pay the compensation as claimed by the complainants due to the fact that the original agreement is non est on account of the subsequently executed agreements. <br /> 12. The opposite party has alleged that the 4th complainant has dealt with his share unlawfully in collusion with the bank officials. <br /> 13. Regarding non delivery of flat No.304, the opposite party says that it was withheld due to non payment of EMD and breach committed by the complainants. <br /> 14. Regarding the damages, the opposite party says that after the filing of the complaint a meeting was held between them on 5.8.2005 in the presence of the bank officials where it was agreed between the parties that the opposite party should handover the keys of flat No.304 in exchange for complainants agreeing to execute the sale deed. He, further, states that since the complainants did not co operate a second meeting was held on 13.3.2006 where the opposite party handed over the keys of flat No.304 and the complainants offered 1983 sq.ft of commercial area as alternative security. As a result of this compromise, the complainants had agreed to withdraw this complaint. <br /> 15. The opposite party has submitted that he has raised a loan of Rs.132 lakhs from UCO Bank on the security of land and building and on account of the non co operation of the complainants he has suffered lot of losses. <br /> 16. The opposite party has termed the forfeiture of the EMD by the complainants illegal and untenable. He has prayed for dismissing the complaint.<br /> 17. From the rival contentions, the following points arise for our consideration:<br /> <br /> I. Whether the complaint is consumer dispute?<br /> <br /> II. Whether the complainants prove that opposite party coerced them to agree to an unreasonable agreement?<br /> <br /> III. Whether complainants prove that the opposite party has committed deficiency in service by not handing over possession of their share of the developed property as per the terms of the agreement?<br /> <br /> IV. Whether the complainants prove that the opposite party has committed further deficiency in service by not providing facilities as per agreed specifications?<br /> <br /> V. What relief or order?<br /> <br /> 18. We have recorded elaborate oral evidence wherein the 4th complainant has deposed as CW 1 and the opposite party himself has stepped into the witness box as RW 1. After hearing both parties and perusing the documents we have answered the above points as under: <br /> <br /> Point I : In the affirmative<br /> Point II : In the negative<br /> Point III : In the negative<br /> Point IV : In the negative<br /> Point V : As per final order<br /> <br /> REASONS <br /> <br /> 19. Point I:- This complaint was dismissed by us at the threshold without even issuing notice on the opposite party on the ground that the nature of allegations made in the complaint does not constitute a consumer dispute. The matter was taken to the Hon’ble State Commission by the complainants which remanded the complaint with the following observations<br /> <br /> “No doubt, the dispute is between the owner of the property and the builder or the developer of the property. But the complainants/appellants are the beneficiaries under the Act and the Respondent is the service provider who provides service for considerations under the C.P Act. If the service provider fails to provide service as agreed upon in Memorandum of Understanding entered into between the parties which amounts to deficiency in service on the part of the Respondent. In our view the complainants are consumers and their complaint is maintainable under the C.P.Act. The District Forum is not right in rejecting the complaint at threshold holding that the complaint is not maintainable under the C.P.Act. <br /> Therefore, we are of the view that the matter requires to be reconsidered by the District Forum after affording an opportunity to both the parties and thereafter decide the case on merits”<br /> <br /> The learned counsel for the opposite party has vehemently argued that by very nature the complaint is not a consumer dispute. He has argued that the Hon’ble State Commission has merely observed that the District Forum was not right in dismissing the complaint at the threshold and opportunity should be given to both sides before deciding the case on merits which observations are obiter in nature.<br /> 20. The learned counsel for the complainants has relied upon a number of decisions to press home his point that the complaint is maintainable. We have discussed only the relevant ones here. The first of the citation relied upon by him is the landmark judgment of the Hon’ble Supreme Court in Lucknow Development Authority v/s M.K.Gupta [(1994) I Supreme Court Cases 243]. The Apex Court has observed that “Construction of a house or flat is for the benefit of person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly, when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. When possession of property is not delivered within stipulated period the delay so caused is denial of service. Such disputes or claims are not in respect of immovable property as argued but deficiency in rendering of service of particular standard, quality or grade”. <br /> 21. The other decision is rendered by Maharashtra State Commission in Somnath Ganpathrao Kadam & others v/s Baluwala Builders & Another [II (2005) CPJ 338]. The facts of this case appear to almost similar to the one on hand. The complainants being joint holders of land enter into an agreement for sale of property with the second opposite party and through a supplemental agreement the first opposite party purchases rights in the property. As per the terms of the agreement the property was to be developed and one building was to be handed over to the complainants. The defence raised a similar contention as raised here that the complainants want specific performance of the contract which relief can not be granted by the Commission. The point has been disposed of by the State Commission in one short sentence by saying that the complaints pertain mainly to the deficiency on the part of the opponents in construction of the building. <br /> 22. Yet another case, also, of Maharashtra State Commission, is Hanumant Krishnah Wawant & Another V/s Paramount Builders & Others [IV (2004) CPJ 388]. The complainants in this case are tenants and a tripartite agreement comes into existence for development of the property occupied by the tenants with the owners, tenants and the developer as the parties. There, also, a contention was raised that the complainants are not consumers. It was negatived by the State Commission relying on Section 2(i)o.<br /> 23. Lastly, in Budha View Apartments Owners Society v/s Mansions Today [II (2004) CPJ 457] order rendered by the Andhra Pradesh State Commission, the land lady and the builder enter into an agreement to construct residential apartment and divide the developed property in the ratio 35:65. Flats remained incomplete due to dispute between the landlady and the developer. But, here the complainants are the occupants of the building.<br /> 24. The learned counsel has, also, relied on the word “housing construction” found in Section 2(o) of the Consumer Protection Act.<br /> 25. Not all contracts will have an element of “service” in them. Not all obligations or promises of a party to the agreement can be called “Service”. We will have to go behind the clauses in the agreement to find out the true nature of an agreement. The first and the fore thing is that in a land development agreement the developer does not act as a contractor or service provider to the land owner. On the other hand both the land owner and the developer join hands for developing the property. A land development agreement lists the obligations of both parties. Right from the date of handing over vacant possession of site up to the registration of flats in the name of the purchasers, both the land owner and the builder work together. Their obligation to work arises out of the clauses in the land development agreement. Essentially there are two ways of looking at a land development agreement. Either it can be treated as sale of land by the owner to a developer agreeing to take the sale consideration by way of constructed flats. Or it can be seen as a joint venture between the land owner and the developer wherein one contributes his land and the other invests on construction giving raise to mutual obligations. The developer has to recover the cost of construction of land owner’s share of flats, cost of construction of flats falling to his share and other overheads by selling his share of flats. It must be remembered that the land remains in the name of the owner and even in respect of the developer’s share it is the land owner who conveys the undivided share of land to the purchaser. If we assume that the agreement is an agreement for construction, owner does not pay any consideration to the developer. If we assume that the undivided 35% or 40% of land falling to the share of the land owner itself is consideration to the developer, then a question arises as to the value of remaining 65% or 60% land given to the developer which the developer develops, sell and retains all the profit. In such a case it will have to be deemed that the land owner gave away 65% or 60% of land to the developer free of cost. This leads to disastrous consequences. <br /> 26. The essence of the contract between the parties can be found at page 3 of the Memorandum of Agreement of Sale dated 3.2.2000. It says, “Whereas the second party who are promoters and developers and who have experience in construction of multistoried residential apartments have offered to develop the Schedule A property by constructing apartments/flats therein. The first party agree to the said proposal subject to the conditions that the First party may not contribute by way of cash (sic) at the same time they have to be allotted with flats fully equipped, car parking space both to the extent of 35% and with respect to the remaining 65% the second party shall have exclusive ownership including the right to alienate them so as to enable the second party to meet the cost of construction”. <br /> 27. Consumer Protection Act recognizes only two types of deficiencies viz contractual deficiency and statutory deficiency. Every breach of contract will not give raise to contractual deficiency. Consumer Fora have been set up by carving out a small portion from the civil litigation. It is not the definition of “Service” under Section 2(1) (o) which lists the services users of which can approach a Consumer Forum in case there is any deficiency. The important pre qualifications for approaching a Consumer Forum are that he should be a “Consumer” as defined under Section 2(d) (ii) and should have hired or availed services listed under Section 2(1) (o). A land owner does not hire the services of a builder as already discussed. The word “avail” has been explained as “to help or benefit. To be of use or advantage, to make use of or take advantage of” [The New Penguin English Dictionary, 2000].<br /> 28. The Lucknow Development Authority case is a landmark case because it brought statutory authorities engaged in construction and distribution of houses/flats within the ambit of Consumer Protection Act. Hence, it will not help the complainants. As already noted, the learned counsel for opposite party has relied upon the following observation made by the Hon’ble State Commission while remanding this complaint back to us. <br /> <br /> “Therefore, we are of the view that the matter requires to be reconsidered by the District Forum after affording an opportunity to both the parties and thereafter decide the case on merits”<br /> <br /> 29. However, we would like to rely upon the decision of the Maharashtra State Commission referred to above and the observation of our own State Commission that “the complainants’/appellants are the beneficiaries under the Act and the respondent is the service provider who provides service for considerations under the C.P.Act. In our view the complainants are the consumers and their complaint is maintainable under the C.P.Act”. Therefore, since the Hon’ble State Commission has categorically held that the complainants are consumers, we do not agree with the contention of the opposite party that the observations are obiter. Further, the word “avail” used in the definition of “Consumer” would make the complainants consumers. Hence, we answer the point in the affirmative.<br /> 30. Point II:- It appears from the Memorandum of Agreement of Sale dated 3.2.2000 that there was an earlier agreement in respect of the same property between the opposite party and one A.Narayana Swamy since then deceased. A passing mention about this earlier agreement has been made in the Memorandum of Agreement. It appears that the earlier agreement was executed on 16.2.1995 but it is not on record. The allegation of coercion has been made in the legal notice dated 26.4.2005 sent by the complainants to the opposite party. In fact, the allegation does not find a place even in the affidavit of the 4th complainant. The allegation is that the opposite party had offered 40% of the built area in the agreement dated 16.2.1995 and while executing the Memorandum of Agreement he coerced the complainants to accept only 35%. The opposite party has denied this allegation in his reply notice dated 6.5.2005. It is not even the case of the complainants that the agreement is voidable at their option due to coercion. If the complainants wanted to invoke the provisions of Section 19 of the Contract Act, it should have been pleaded and proved properly. On the other hand, the complainants are seeking all the relief based on this very agreement. Further, a person who pleads coercion has to do it at the earliest opportunity and not 6 years after the execution of the agreement unless, of course, he is able to show that the coercion started only now. In the absence of the any proper pleading and proof, the allegation has to be seen as an off the cuff allegation and dismiss it as not proved. Therefore, answer the point in the negative.<br /> 31. Point III:- The parties have executed in all 3 agreements called “Memorandum of Agreement of Sale” dated 3.2.2000, “Supplementary Agreement” dated 26.12.2002 and “Additional Supplementary Agreement” dated 14.5.2003 and these will be hence forth referred to as the original agreement, second agreement and the third agreement respectively. Clause 3 of the original agreement stipulates that the complainants shall handover vacant possession of the site before May, 2000 and clause 7 stipulates that the opposite party shall construct and handover the owners’ share of 35% within 2 years from the date of giving possession of the site. It is not in dispute that the vacant possession was not handed over before May, 2000. In fact it was handed over on 14.6.2001. Obviously, the opposite party had to get time till 14.6.2003 to construct and handover the owner’s share. The original agreement did not envisage any commercial area as there is no mention about it. The second agreement, as pointed out in the version, was meant to identify the exact area and portion of the owners’ share. The parties realized that the construction was 240 sq.ft more than what was originally envisaged and it was agreed that the complainants shall pay Rs.2, 64,000/- for this excess area. It is obvious that the idea of having commercial struck to the parties between the date of original agreement and the second agreement. When exactly the idea took shape is not known. Any way, it is evident from the second agreement that the idea had taken shape by then and they decided to divide the commercial area at a later date. It was agreed to extend the date of handing over owners’ share till 31st December, 2003. <br /> 32. Trouble appears to have started brewing immediately thereafter. Before the third agreement was executed on 14.5.2003 a meeting was held between the parties on 22.6.2003 wherein the commercial area was calculated at 6003 sq.ft. The third agreement put a raider on the complainant that owners’ share would be handed over on or before 31.8.2003 provided they repaid the opposite party debt to the tune of Rs.14, 39,000/- with interest by that date. Why this amount was paid by the opposite party is not clear because he was required to pay only a refundable deposit of Rs.10 lakhs as per the original agreement. And he had paid Rs.7.5 lakhs as on the date of original agreement. In any case, the 2nd and 4th complainants have given an acknowledgement of debt to the opposite party on the date of execution of the third agreement stating that they owe the opposite party Rs.7,82,000/- and Rs.6,57,000/0 respectively (totaling to Rs.14,39,000/-). The third agreement, also, contains a clause that in the event the complainants are unable to repay this amount, they would give up their claim over flat No.304. The opposite party on his part has undertaken to waive of this amount if he is unable to handover the possession of owners’ share. This is apart from the penalty he has undertaken to pay at Rs.10, 000/- per month for his failure to handover the residential portion of the owners’ share. The third agreement has a clause that the complainants shall execute a power of attorney in favour of the opposite party to enable him to deal with his share of the construction. <br /> 33. Clearly, the third agreement contains several clauses which cast obligations on both parties. The learned counsel for the opposite party submitted that the complainants failed to discharge their obligations leading to the delay in discharging his obligations.<br /> 34. It is absolutely essential to discuss the duties and obligations cast on each party in the third agreement as their in lies the crux of the matter. It is surprising that the opposite party has agreed to handover both the commercial and residential portion of the owners’ share by 30th September, 2003. Obviously, this will supercede the deadlines fixed by the previous two agreements. The first deadline was 30th June 2003. The second was 31st December, 2003 and the third actually brought the deadline forward to 30th September, 2003. But the last deadline was subject to fulfillment of certain obligations by the complainants. These were (i) repayment of debt by the complainants amounting to Rs.14, 39,000/- and (ii) execution of power of attorney to enable the opposite party to deal with his share of the built up area. If the complainants failed to repay the debt, then they were to give up their claim over flat No.304 and if the opposite party failed to deliver possession within the stipulated time the debt would stand liquidated. Lastly, the opposite party agreed in the third agreement that he would have no objection for the complainants getting flat Nos.302 and 303, being owners’ share, released from the Bank. <br /> 35. Pursuant to third agreement the opposite party wrote a letter dated 14.5.2003 to UCO Bank [marked as Ex R 17], giving no objection for releasing flat Nos.302 and 303 belonging to owners’ share for dealing with them as they liked. Apparently, a meeting took place between the Bank officials and the opposite party on 23.6.2003 at the Bank’s Regional Office. It appears from the letter dated 27.6.2003 [marked as Ex R18] that the Bank put a condition that no part of the building should be sold without their knowledge and entire sale proceeds should be deposited towards repayment of the term loan. Consequently there was no progress on the issue of releasing of flat Nos.302 and 303. This is despite the fact that there is a specific clause in the original agreement [clause No.27] which makes only the opposite party’s portion of 65% liable for the bank loan. Any way, the Bank, also, has written letters to 2nd and 4th complainants on 19.1.2004 [marked as Exs R 19 & R 20] that the complainants have to obtain a No Objection Letter from the Bank before dealing with their share. The Bank has, also, asked the complainants to execute a power of Attorney in favour of the opposite party. A more cryptic letter followed from the Bank to the complainants on 20.5.2004 [marked as Ex R 21] asking the complainants to execute a power of attorney in favour of the opposite party and also advising them not to deal with their share of the built up area without obtaining their prior permission as such transaction would make it null and void. <br /> 36. As can be gathered from the documents, the complainants did not repay the debt nor did they execute the power of attorney at least till February, 2004 and the opposite party did not convey to the complainants that construction of their share of the property was complete. Thus, the September, 30th deadline set by the parties was broken by both parties. Then the complainants issued a legal notice on 26.4.2005 which was replied on 6.5.2005. A second notice was sent on 20.11.2005 and the same was, also, replied on 10.12.2005. It is not necessary to go into the stand taken by the parties in their notices. Suffice to say that they have averred whatever they averred before us. <br /> 37. As if this was not enough, the parties continued to negotiate. They met in the presence of the Deputy General Manager, UCO Bank on 5.8.2005 to resolve their differences and this is the most curious part of the dispute. It was decided in the meeting that the opposite party would handover the keys of flat No.304 to the Bank and the complainants shall arrange to sell 4 flats, deposit the sale proceeds to the Bank and take the keys of flat No.304 from the Bank. The complainants, also, agreed to execute a power of attorney in favour of the Bank to enable them to sell 2 more flats. The mystery is why did the complainants agree sell their share and deposit the sale proceeds to the Bank for the repayment of the term loan availed by the opposite party when the original agreement stipulates that only the opposite party’s share is liable for the loan. Unfortunately, there is no answer. The Bank is not a party. We do not have the copy of the term loan agreement to see whether the complainants were parties to the loan availed by the opposite party. They have not explained as to how all this happened. It is, therefore, obvious that there is something more than what meets the eyes. Neither party wants to come out with details of the transaction. <br /> 38. The opposite party ultimately deposited the keys of flat No.304 on 28.2.2006. The parties met once again on 4.12.2006 much when this complaint was pending before us. The minutes of the meeting indicates that the parties agreed to get the complaint withdrawn in view of the impending execution of lease agreement with M/s Spencers Ltd., They, also, agreed to sort out the issue of debts and execution of power of attorney, etc at a later date.<br /> 39. The defence of the opposite party can be summarized in these words. Firstly that execution of three agreements and repeated negotiations between the parties even after this complaint was filed, indicates that the parties did not want to make time as the essence of contract. Secondly, that the original agreement has become non est consequent to execution of two more agreements. Thirdly, that the complainants have to blame themselves for the delay as they have not discharged their part of the obligation under the agreements and fourthly, that the delay is partially attributable to the change in plan.<br /> 40. It is true that from the above narrated events that neither party took their obligations seriously. The intention to make time as essence of the contract is neither evident in any of the agreements executed by the parties nor is it evident by their conduct or deeds. The agreements between the parties do not contemplate issuance of notice for performance. In any case even if the parties did not want to make time as the essence of contract the promisee is entitled to compensation for the loss under Section 55 of the Contract Act. In our view this case falls squarely under Section 51 of the said Act which says that “When a contract consists of reciprocal promises to be simultaneously performed, no promisor need perform his promise unless the promisee is ready and willing to perform his reciprocal promise. The reciprocal promise is found clause 5 of the third agreement which reads as under:<br /> <br /> Both the parties agree that the shares of both the commercial area and the residential flats due to the First party shall be completed and possession of the same delivered by the second party immediately the amounts due by the first party to the second party (as shown in the Appendix C and D herein) are paid, which shall be on or before 31st August 2003. This transaction shall be simultaneous (31st August 2003 is modified as 30th September, 2003 in the same agreement elsewhere)”.<br /> <br /> The first party undertakes to relinquish all rights over flat No.304 to the second party in the event of their inability to perform as aforesaid in para 5.<br /> <br /> The second party undertakes to forfeit all sums due as referred to herein above in para 4 supra in the event of his inability to perform as aforesaid in para 5.<br /> <br /> All the parties of the first party undertake to execute a General power of Attorney in favour of the second party to enable him to deal with his portion of the agreement schedule property as set out in the original agreement at the time of performing the provisions of para 5 supra”<br /> <br /> 41. It is absolutely clear from the above that the performance of promises was intended to be simultaneous and in no case performance was expected first from the opposite party. On the other hand, the former portion of clause 5 stipulates that possession shall be delivered on repayment of debt by the complainants. If that is the case, then the complainants will have to give up their claim over flat No.304 rather than the opposite party forgoing the debt due to him. Anyway, since the later part of clause 5 reads “the transaction shall be simultaneous” the former part “possession of flats will be delivered on repayment of debt” shall have to be overlooked. Thus, the net effect is that since there is a breach of agreed terms by both parties, the penalty clause will have to be overlooked. Our conclusion is more importantly based on the fact that the parties continued to negotiate even after the complaint was filed and both parties have stuck to their ground on the issue of repayment of debt and execution of power of attorney in favour of the opposite party. Though the penalty clause for the delay in handing over possession of residential portion at Rs.10, 000/- per month has been built into the original agreement, clause 5 of the third agreement determines the obligations of each party, and the sequence in which it shall be performed. Hence, to that extent clause No.12 of the original agreement has to be deemed as having undergone novation. The principle of novation under Section 62 of the Contract Act makes it clear that where the substituted clause can not co exist with the original clause then by Doctrine of navation, the original is deemed to have been rescinded. Clause No.12 of the original agreement underwent changes twice, once on execution of the second agreement wherein the time was extended and for the second time on execution of the third agreement when handing over of flats and commercial area was linked to repayment of debt and execution of power of attorney. If there was no novation the complainants had to show only the delay in handing over the possession. The result of novation is that the complainants have got show not only the delay but also show that they have performed their part of the obligation. The novation converted a unilateral clause into a bilateral clause imposing certain obligations on the complainants. But we are not prepared to accept that the entire original agreement has become non est consequent to execution of two more agreements.<br /> 42. The complainants’ case is that the opposite party has not handed over flat No.304 which has fallen to their share. In other words they are admitting to receipt of other flats which have fallen to their share. The opposite party says that he has handed over flat No.304 to the complainants by accepting alternative security in the form of owners’ share in commercial area. In fact, CW 1 who is the 4th complainant has admitted in the cross examination that he has already sold flat Nos.302 and 303 and ,also, received possession of flat No.304 in March, 2006. There is a resolution on record dated 13.2.2006 signed by the complainants offering a demarcated portion of commercial area as alternative security to the opposite party for releasing flat No.304. This settlement was arrived at a meeting held with the Bank officials apparently because the complainants had refused to co operate with the opposite party for registration of flat Nos.206, 306, 201 and 301 falling to the share of opposite party.<br /> 43. Complainants’ claim to damages of Rs.10, 000/- per month is based on failure of the opposite party to handover flat No.304 only. The Bank which has acted as mediator has acknowledged the receipt of the keys to the flat on 28.2.2006. In terms of the resolution dated 13.02.2006, the opposite party handed over the keys of the flat as soon as he received alternative security to his debt in the form of demarcated portion of commercial area. Had the complainants repaid the debt much earlier or had offered an alternative security to the debt and even then the Opposite party had not handed over flat No.304, then there would have been breach of clause 5 of the third agreement which would have given raise to deficiency in service. Even then, the issue of execution of power of attorney remains unfulfilled. This is, also, a precondition for giving possession of flat No.304, as per clause 5 of the third agreement. Before harping on the delay in handing over the possession of the flat and claim huge amount of damages, the complainants should, also, examine whether they have performed their part of the obligation arising out of the same clause in the agreement. Hence, in our view the complainants are not entitled to any damages under the agreement for the delay in handing over the residential portion.<br /> 44. The complainants have not answered the opposite party’s contention that the delay in completing the construction is partly attributable to the change in plan. According to the opposite party there was no idea of constructing commercial portion but it took shape later on and the same is reflected in the second agreement. We do not consider this significant due to the fact that the opposite party has promised to handover the owners’ share on the date mentioned in the third agreement and the complainants have agreed to the same. <br /> 45. So far as the commercial area is concerned most of the above observations will hold good. M/s Kris World Markets Pvt Ltd had shown interest in leasing the commercial area and had entered into an agreement executed jointly by the complainants and the opposite party. They had agreed to pay rent at Rs.85, 005/- per month out of which Rs.29, 750/- was the complainants’ share. For some reason the agreement was terminated. According to the complainants the termination of the agreement was on account of the failure on the part of the opposite party to provide the infrastructure they had demanded. Clause No.5 of the third agreement reproduced above clearly links the discharge of debt and execution of power of attorney to handing over of residential and commercial portion. The opposite party in his evidence has admitted that the commercial portion is not complete. He has volunteered that it was not completed due to termination of agreement with M/sKris World Markets Pvt Ltd. Anyway, the cause of action for the complainants to sue the opposite party for damages arises only after they fulfill their part of the obligation and the opposite party fails to fulfill his part of the obligation under the agreement. We have already held that in so far as the residential portion is concerned the opposite party is not liable as he has handed over the entire share of the complainants even before they performed their part of the obligation. <br /> 46. Let us not forget that the complainants are alleging deficiency in service arising out of failure to fulfill contractual obligation. If the contract provides for fulfillment of an obligation by the complainant himself prior to fulfillment by the opposite party or simultaneously with the opposite party, then the complainant is not entitled to any relief if he has not fulfilled his part of the obligation. In simple terms one who seeks equity must do equity or in simpler terms the complainant must approach the Forum with clean hands. The complainants are approbating and reprobating by hiding their own faults while highlighting the faults of the opposite party. Before we conclude our observations on this point, we must mention that we have taken note of letter dated 19.5.2004 written by the complainant to the opposite party making allegations against him for the delay. We have covered all the allegations except one allegation pertaining to non payment of Rs.2.5 lakhs of advance payable by the opposite party to the complainants at the time of ground breaking ceremony. Clause 5 of the original agreement deals with this. No deficiency in service has been alleged by the complainants in this regard. There is no mention about this even in the complaint and no explanation has been given by the parties as to why they kept quite all these years without demanding this money. Perhaps there is some link between the debt payable to the opposite party and advance amount payable by him to the complainants. The parties appear to have decided to reveal to the Forum only to the extent they think necessary. With these observations, we answer the point in the negative.<br /> 47. Point IV:- Next allegation of the complainants relate to providing a smaller lift than what was originally by the opposite party and not providing teak wood door. The opposite party has explained this as due to change in plan and after obtaining the complainants’ consent. Schedule B of the original agreement provides for a lift of 8 passengers’ capacity. But the opposite party obtained a quotation for a lift of 6 passengers’ capacity as can be seen from the quotation dated 17.10.2002. According to the opposite party the capacity had to be further reduced owing to change in the plan to construct commercial portion. The issue pertaining to the lift has not been contested properly. Whether it was an 8 passengers’ capacity lift or a 6 passengers’ capacity, it serves no purpose to go into it as the opposite party has specifically contended that the capacity of the lift had to be reduced after it was decided to covert the first floor into commercial area. There is no expert opinion or any technical evidence to contradict this which would have helped us to come to the conclusion whether or not the changes in the plan necessitated smaller lift. The case would have been different if there was no change in plan and the opposite party had provided a 6 passengers’ lift instead of 8 passengers’ lift as provided in the original agreement. Alternatively, they should have proved through expert evidence that change in plan does not have anything to do with the size of the lift. They have done neither. The strangest thing is that the 4th complainant was the site engineer there and yet not one protest letter is on record. There was no whisper about this in any of the numerous meetings between the parties and in the legal notices except in the legal notice dated 26.4.2005. In the absence of any specific rebuttal evidence to the opposite party’s contention that smaller lift became necessary owing to change in plan, we are not prepared to conclude that not providing a lift of 8 passengers’ capacity is an act of deficient service.<br /> 48. Schedule B of the original agreement pertaining to the doors states that T.W frames for main door, sal (matti) with TW and commercial flush shutters”. This specification is as cryptic as it can get. There is nothing elicited in this regard from the opposite party during cross examination. However, during his cross examination CW 1 who was also the site engineer has stated that “Ex R 16 is the agreement with one G.Srinivas for supply of honne and neem wood and I have signed the agreement in my capacity as “site executive””. Anyhow, the opposite party who stated in his affidavit that neem and honne wood were used for doors with the consent of the complainants has not produced any proof of such consent. Though unlike the case of the lift, there is no justifiable reason for not providing the wood agreed to be provided in the original agreement, 4th complainant signing the agreement with G.Srinivas does estop the complainants from raising this objection. The 4th complainant can not say that he was not aware where the purchased wood was being used. Agreement with G.Srinivas was executed on 9.11.2002. Since then they did not raise a word of protest but took possession of some of the flats and sold them as well. Doctrine of Acquiescence prevents the complainants at 2 levels. Firstly, when the 4th complainant in his capacity as site engineer supervised fixing of doors and windows made of hone or matti. Secondly, when the complainants took delivery of the flats and sold them as well without raising any protest. The presence of the 4th complainant as site executive/engineer through out the construction and their own consent by way of silence all these years affect the case of the complainants. It is, therefore, our conclusion that both parties have discussed about the lift and wood and approved the changes if not expressly at least tacitly. Hence, we answer the point in the negative.<br /> 49. Before we conclude, we may point out that this is not a case where only one party had to perform. The agreements placed obligations on both parties. The complainants are complaining of deficiency in service arising out of delay in handing over their share in violation of certain clauses in the agreement. But the clauses impose mutual obligations on both parties and the obligations are such that either it to be formed first by the complainants (Sec. 51 and 52 of Contract Act) or simultaneously. Under such circumstances the cause of action arises to the complainants only after they perform their obligations and the Opposite party’s obligations remains unperformed. In so far as the residential portion, the Opposite party has met his obligation even before the complainants performed. In so far as the commercial portion is concerned, since the complainants have not performed, the Opposite party is not obliged to perform. This is, also, a case where considering the nature of case and the direction of the Hon’ble State Commission ample opportunity was accorded to both parties. On evaluation of entire materials placed before this Forum by the parties we are constrained to hold that the complainants have not been able to make out deficiency of service by the Opposite party. For the reasons stated above, the complaint in our view is devoid of merits and liable to be dismissed. With the result, we proceed to pass the following order.<br /> <br /> ORDER<br /> <br />  Complaint is dismissed.<br />  No costs.<br />  Give a copy of this order to both parties according to Rules.<br /> <br />