JASWINDER SINGH vs SWASTIK CONSTRUCTION

THIS appeal by the complainants is directed against the order dated 27.3.2002 of Consumer Disputes Redressal Commission UT, Chandigarh dismissing complaint and simultaneously directing the respondent/opposite party to refund the deposited amount of Rs. 3,23,750 with interest @ 9% p.a. from 23.11.1995 to the appellants.

FACTS giving rise to this appeal lie in a narrow compass. Respondent allotted to the appellants SCO No. 38, Swastik Vihar consisting of ground, first and second floors against the price of Rs. 12,95,000. Allotment was communicated vide letter dated 31.5.1994. Appellants paid amount of Rs. 3,23,750 representing payment of 25% of the price of the SCO. Balance amount was to be paid in four equal half yearly instalments and first instalment was to be paid by 30.11.1994. It was alleged that by the letter dated 21.7.2004 the number of instalments was reduced from four half yearly to three half yearly. By means of demand draft dated 23.11.1994 the appellants paid the revised amount of the first instalment. Second revised instalment fell due on 30.5.1995 which the appellants did not pay. Accordingly, the respondent issued notice dated 31.7.1995 to Jaswinder Singh, one of the appellants calling upon him to pay the amount of second instalment within 15 days failing which the allotment was to be cancelled. Still the amount of second instalment not being paid, the respondent cancelled the allotment and cancellation was communicated by the letter dated 23.11.1995 to the appellants. SCO was allotted to other eligible persons, namely R.S. Randhawa, Mrs. Vijay Lakshmi Randhawa and Ms. Z.S. Randhawa who later on transferred it to Abhishek Garg, Smt. Sarla Devi and Madan Lal. It was further alleged that the appellants got the demand drafts prepared dated 9.8.1995 for Rs. 83,750, dated 29.8.95 for Rs. 1,62,500 , dated 31.8.95 for Rs. 77,500 , dated 6.9.1995 for Rs. 83,750 , dated 7.9.1995 for Rs. 1,62,500 and dated 7.9.1995 for Rs. 77,500 in favour of respondent company. However, the managing director of respondent avoided to accept the drafts saying that those be deposited at the time of taking possession of the SCO. It was stated that terms of allotment letter dated 31.5.94 were revised unilaterally to the dis-advantage of the appellants by the respondent. In the amended complaint, the appellants sought the setting aside of cancellation of allotment of the said SCO; to hand over possession thereof. In the alternative, to allot another SCO of the same size and area in the same locality constructed upto the level of SCO No. 38 and in the event of non-availability of such a SCO, to pay market price thereof together with interest. Respondent contested the complaint by filing written version. Allotment of SCO No. 38, receipt of Rs. 3,23,750 from the appellants, issuance of letters dated 31.5.1994 and 21.7.1994 and cancellation of allotment on 23.11.1995 were not disputed by the respondent. It was, however, denied that the number of instalments of the balance amount was reduced from four half yearly to three half yearly unilaterally and the six demand drafts were offered to the managing director of respondent company who allegedly avoided to receive them. It was stated that as the appellants committed default in payment of the revised second instalment, the respondent was justified in cancelling the allotment of SCO No. 38 under the terms and conditions of allotment and sale of the SCO. The State Commission returned the finding that the number of instalments of the balance amount was not revised unilaterally and the appellants did not offer six demand drafts towards payment of second instalment to the managing director of the respondent as alleged.

Main thrust of argument advanced by Mr. K.P.S. Rao for appellants was that six demand drafts covering the amount of second instalment were got prepared by the appellants much before 23.11.1995 on which allotment was cancelled and there was no occasion for the appellants not to have tendered them to the respondent company. R.S. Randhawa and two others whom the SCO in question was later on allotted, had not made payment of the instalment(s) on due date(s) still the respondent did not cancel allotment in their favour. On the other hand, while justifying the cancellation of allotment on ground of non-payment of the amount of second instalment despite service of notice, by the appellants, Mr. Sanjiv Sachdev for respondent placed reliance on the decision in Smt. Shashi Kiran Rattan and Anr. v. M/s. Swastik Construction, 1986-2002 CONSUMER 5584 (NS). It is not in dispute that the appellants had not raised any objection to the number of instalments of balance amount being reduced from four to three half yearly by the respondent and even payment of the amount of first instalment was made by the appellants as per the revised schedule of payment. State Commission had, thus, rightly found that the appellants had agreed to the revised schedule of payment for instalments of the balance amount. Discussion made in the later part of the impugned order on internal page No. 5 would show that on tender of six demand drafts by the appellants to the managing director of respondent company, the appellant No. 1 had filed his affidavit while respondent had filed affidavit of V.P. Singh by way of evidence. In his affidavit the appellant No. 1 had not given the date, place and the name of managing director whom the demand drafts were allegedly offered. In his affidavit, V.P. Singh had averred that neither the appellants nor any one on their behalf met the managing director and tendered payment of instalment which fell due on 30.5.1995. In absence of details to the said effect in the affidavit of appellant No. 1 and also considering the affidavit of V.P. Singh, the State Commission had rightly returned the finding of the demand drafts not having been tendered. To be only noted that six demand drafts were got prepared much after 30.5.1995 when second instalment was payable.

PAYMENT schedule as given in aforesaid letter dated 21.7.1994 as also the Terms and Conditions of allotment & Sale - Exhibit R-1 (at page 93) being the terms of contract are binding on the appellants. Assuming for the sake of argument that payment of instalment(s) was not made on time by said R.S. Randhawa and two others, the appellants cannot derive any advantage therefrom they being bound to make payment under the contract of the second instalment by 30.5.1995. Decision in Smt. Shashi Kiran''s case (supra) fully supports the order of the State Commission. There is no infirmity in the impugned order warranting interference under Section 21(a)(ii) of the Consumer Protection Act, 1986. Accordingly, the appeal is dismissed. No order as to costs. Appeal dismissed.