MOHAN KUMAR , ANSAL HOUSING FINANCE And LEASING CO. LTD vs MOHAN KUMAR , ANSAL MOUSING FINANCE And LEASING CO. LTD.

THIS order will dispose of both the above titled appeals as these cross appeals arise out of an order dated 10.11.1992 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh at Lucknow in Case No. 112/SC/1990. Shri Mohan Kumar, Appellant in First Appeal No. 57/92 and who is Respondent in First Appeal No. 72/92 was the Complainant before the State Commission while the Respondent in the former First Appeal and Appellant in the latter First Appeal, M/s. Ansal Housing Finance and Leasing Co. Ltd., was the Opposite Party. In this appeal the parties will be referred to their original nomenclature.

ACCORDING to the allegations of the Complainant, he had booked plot No. 5 in Sector'' M'' in Aashiana Colony which was being developed by the Opposite Party. The total price of the plot was Rs. 3,14,280/-. The Complainant paid Rs. 31,428/- being advance money of 10% of total price vide cheque dated 15th May, 1988. On receipt of the said advance money the Opposite Party assured the Complainant to show him the said plot. However, the plot booked by the Complainant had not been demarcated in the site plan. He has been constantly requesting the Opposite Party to show him the plot of land at the site. In the meantime the Opposite Party continued to compel the Complainant to deposit the balance price of the plot i.e. Rs. 2,82,852/- failing which threatened to cancel the plot. The Complainant every time explained the Opposite Party that he had deposited advance money in right earnest as he was interested in purchasing the plot of land and to construct a house thereon but the would not pay the balance amount without seeing the plot of land. As there was no Plot No. 5 in Sector ''M'' in Aashiana Colony, the Opposite Party did not show the plot till the end. When the Complainant put heavy pressure on the Opposite Party it admitted that in fact no such plot was available under the Aashiana Scheme for which advance money had been deposited by the Complainant but he would be given some alternative plot. However, the Opposite Party was not willing even to show the alternative plot. In spite of the positive assurance by the Complainant to pay the balance amount on seeing the plot, the Opposite Party vide letter dated 24th April, 1990 cancelled the allotment of the plot to the Complainant. On receipt of the said letter the Complainant invited the attention of the Opposite Party to his letter dated 7th May, 1990 as well as his talks with the Opposite Party held on 1st January, 1990 in which plot of land under "A" type or ''C'' type was promised to be allotted to hjm and he requested the Opposite Party for allotment of that plot. The Opposite Party sent a letter dated 14th May, 1990 reiterating that the allotment has been cancelled. The Complainant again contacted the various officers of the Opposite Party but he was not shown any plot. The grievance of the Complainant is that the cancellation of the allotment is arbitrary and mala fide and has caused miscarriage of justice. He, therefore, prayed that the Opposite Party be ordered to allot him a plot in Sector-M similar to tht; one booked by him at the rates fixed earlier. He also claimed compensation as damages to the extent of Rs. 3.50 lakhs as the construction cost of house has since escalated. He also claimed damages to the tune of Rs. 1.00 lakh for his mental and physical sufferings. The Opposite Party contested the complaint. It admitted that the Complainant had deposited a sum of Rs. 31,428/- as advance money and it was promised to him that he would get allotment of a plot of land measuring 810 square metres at the rate of Rs. 388/- per square metre in Aashiana Colony and would deposit the full amount under the condition of allotment. The Complainant had deposited the advance amount, after reading understanding all the conditions and he had taken the form fill up and hand over the same as it was to be the agreement of conditions of allotment. At that time he was told that plot No. 5 in Sector-M would be allotted to him but this allotment was temporary as plot number, its position and area could be changed afterwards in urgent circumstances as is clear from the condition Nos. 3 and 10 of the form of agreement. No assurance was given to the Complainant to show the plot. The question of showing the plot of land for the first time was raised by one Harish Kumar on 26th May, 1990 whereas the booking of the complainant had been cancelled on 14th April, 1990 as he had not deposited any instalment. The price of the plot of land of Rs. 3,14,280/- was to be paid as under : - (i) 10% of the amount at the time of booking of the plot; and (ii) the balance amount in nine equal quarterly instalments w.e.f. 1st May, 1988. Last instalment was due 1st May, 1990.

The plot of land was shown in the site plan and is still in existence. However, when the site plan was sent to Lucknow Development Authority for granting permission to raise colony this plot of land was renumbered as 539 in place of M-5. Reminder was sent to the Complainant to pay the instalment on 15.5.88, 24.10.88, 23.9.88, 1.5.89, 25.9.89 and 18.10.89. The request for inspection after the booking had been cancelled was a conspiracy to file a false claim. The letter for inspection said to be sent by the Complainant on 1.1.1990, 7.5.1990 and 26.5.1990 was not signed by him and therefore, no action was taken. Booking could be cancelled on default of payment of instalments for which the Complainant was reminded by repeated reminders. The booking was cancelled because of the lapses on the part of the Complainant and his whole money was repaid without any deduction under letter dated 29th June, 1990 but he complainant refused to receive the money. Other allegations of the Complainant were also denied.

THE Complainant filed rejoinder to the counter of the Opposite Party and pleaded that the Opposite Party had not obtained the signatures on the terms and conditions and the agreement and therefore, the conditions Nos. 3 and 10 are not applicable to him. THE Complainant was given site plan but later on another plan was sent to him by the Opposite Party. Perusal of this shows that thea was no plot in Sector-M and therefore, he did not pay any further money to the Opposite Party except the payment of the advance. THE Complainant reiterated the allegations of his complaint and denied the other allegations of the Opposite Party. The State Commission vide impugned order held that the Opposite Party never informed the Complainant that the old plan has been changed and this fact was not even disclosed in the letter of cancellation of the booking of the plot. The State Commission, therefore, ordered that plot No. 539 shall be demarcated by the Opposite Party at the latest by 31st January, 1992 and information to that effect would be sent to the Complainant. Formal order of allotment shall be made by the Opposite Party in the name of the Complainant by 29th February 1992. The total cost of that plot would be calculated at the rate of Rs. 399/-per sq. metre. The complainant shall pay to the Opposit party interest at the rate of 18% per annum on the balance amount which was to be deposited by the Complainant from 1st May, 1988 to 1st May, 1990. The said payment shall be paid by the Complainant in three instalment. The first instalment shall be paid latest by 31st January, 1992, the second one by 30th April, 1992 and the third one by 31st July, 1992.

FEELING aggrieved by the said order both the parties have filed the above titled appeals. The grievance of the Complainant against the order of the State Commission is that it has only directed him to pay interest at the rate of 18% per annum on the balance amount when he was always ready and willing to pay the instalment to the Opposite Party subject to showing him the demarcated plot M-5. The Opposite Party should have been penalised for changing the plan unilaterally and he was never informed about the changed plan. He had booked plot No. M-5 which was shown in the site plain in view of certain facilities, narrated in the memorandum of appeal but none of those facilities existed in respect of the plot No. 539. He, therefore, prays that the Opposite Party be also directed to pay compensation for depriving him of the facilities which were available to him in the original plan. The Opposite Party in its memorandum of appeal has pleaded that the terms and conditions of the allotment had been brought to the knowledge of the Complainant and the said terms and conditions clearlly laid down that time was essence of the contract and failure to make the necessary payment would entitle the Opposite Party to cancel the allotment in the name of the allottee. The State Commission did not take into account the conduct of the Complainant-respondent who failed to honour his commitment as per the terms and conditions contained in the allotment letter by not making the necessary payment towards the single instalment in spite of various reminders. The State Commission did not appreciate the fair and reminders. The State Commission did not appreciate the fair and generous offer made by the Opposite party for plot No. 539 which had been originally stood in the name of the Complainant and had been subsequently cancelled for non-payment and which still remained with them and this could be reallotted to the Complainant only after making the payment at the current rates. As the Complainant did not accept that the offer stood withdrawn. The State Commission wrongly relied on the offer made by the Opposite Party and wrongly treated its willingness to allot the plot to the Complainant at the old rates. We have heard the parties and have gone through the record. We ,are of the opinion that in the present case the Opposite Party was entitled to cancel the booking for the allotment of the plot to the Complainant and therefore, it is not guilty of any deficiency in the rendering of service. The relevant documents are on the record of First Appeal No. 72. Application Form for purchase of plot signed by the Complainant is at page 47 of that file. He agreed to pay further instalments of the sale price as stipulated by the Company i.e. Opposite Party. The terms and conditions for allotment are at page 45. According to it 10% of the amount was payable at the time of booking earnest money and the first instalment of 10% was to be paid on 1st May, 1988. The dates of payments of other instalments are also given in these terms and conditions. These terms find reflection in the allotment letter issued to the Complainant and it is at page 90. It is of the same date on which the Complainant had deposited the said cheque. It is dated 15th May, 1988. As the booking was made on 15th May, 1988 the amount due was shown as Rs. 62,856/- being 20% of the total price of the plot. As noticed earlier 10% was payable at the time of booking and the first instalment was payable on 1st May, 1988 and thus 20% has been mentioned in this letter as the amount due. As the Complainant had paid Rs. 31,428/- as earnest money the remaining amount to be paid was calculated as Rs. 31,428. The Complainant was also asked to pay further instalment. It was also mentioned in this letter that if payment of instalment was not received within 15 days from the due date, it may result in the cancellation of allotment without further intimation.

THE Opposite Party has produced letters on the file to show that it has been issuing call notices to the Complainant to pay the instalments and in each letter amount outstanding was also mentioned. A final reminder was given to the Complainant on 5th December, 1989 and it is at page 74. Admittedly, the Com- plainant never paid the amount due as shown in the allotment letter nor the future instalments. Ultimately vide letter dated 24th April, 1990 (at page 71) the allotment of the plot in favour of the Complainant was cancelled in terms of the Clause 3 of the terms and conditions. THEreafter, the Complainant appears to have come in motion and wrote certain letters to the Opposite Party. Surprisingly those letters were not signed by the Complainant, but by one Harish Kumar representing himself to be the son of the Complainant to show the plot at the site. As noticed earlier in the complaint itself the Complainant has admitted that he was sent a revised plan. THEreafter, the Complainant did not write any letter to the Opposite Party objecting about the change in the plan. At least no copy of any such letter put on the file.

HENCE we were of the opinion that in the circumstances of the present case the Opposite Party was entitled to cancel the allotment of the plot made in favour of the Complainant. Before the State Commission, the Opposite Party had made an offer to allot Plot No. 539, which still remains unallotted, to the complainant at the current rates. This offer does not appear to have been accepted by the Complainant. The State Commission appears to be in the wrong to order the Opposite Party to allot Plot No. 539 to the Complainant at the old rates. In view of the above discussion we hold that the Opposite Party is notguilty of any deficiency or negligence in rendering the services. Consequently we accept the appeal filed by the Opposite Party i.e. First Appeal No. 72 of 1992 and set aside the order of the State Commission and dismiss the complaint filed by the Complainant. The appeal filed by the Complainant i.e. First Appeal No. 57 of 1992 automatically fails and the same is hereby dismissed. We order the Complainant to pay Rs. 1,000/- as consolidated cost in respect of both the appeals & the Opposite Party i.e. M/s. Ansal Housing Finance & Leasing Company Ltd. F.A. No. 72 of 1992 allowed. F.A. No. 57 of 1992 dismissed.