SHASHI KIRAN RATTAN vs SWASTIK CONSTRUCTION

IN reponse to an advertisement published in the newspaper the complainant deposited a sum of Rs. 10,000/ - by means of Cheque No. 906674 dated 6.2.88 which was received by the respondent. The total price of the built up house was Rs. 2.95 lacs. The respondent demanded a sum of Rs. 65,000/ - which was deposited vide Receipt No. 7 on 28.3.88. The other instalments paid on 5.11.88 and 23.5.89 in the sum of Rs. 36,666/ - each and in all a sum of Rs. 1,48,332/ - was deposited by 22.5.89. The details thereof are given in the letter dated 9.11.91. It has been alleged that the respondent cancelled the allotment vide letter dated 18.6.90 mainly on the plea that the 3rd instalments which was due on 11th September, 1989 was not received. Thereafter the complainant sent a draft of Rs. 68,000/ - on 23rd September, 1991 but it was not accepted by the respondent. The relief claimed in this complaint briefly is as under : (i) Possession of Flat No. 7 or any other house of same size in the locality which was originally advertised; (ii) Compensation in the sum of Rs. 4 lacs and refund of the entire deposit together with 24% interest; (iii) Respondent be restrained from executing any document in favour of the person other than the complainant; (iv) And other damages.

IN reply it has been averred that the complaint was not maintainable under the Consumer Protection Act, 1986. Besides this it has been averred that the allotment for the complainant was cancelled on account of non -payment of instalments which were due from the complainant since long and it violated the terms and conditions of the allotment. The respondent has by now already allotted the flat in question to some other eligible person and the complaint became infructuous. It shall be useful to refer to letter of allotment dated 10.2.88 which is as under : Subject : Allotment of a House at the Swastik Vihar. Madam/Sir We acknowledge with thanks the receipt of your application dated the 6th Feb., 1988, on the subject cited above, forwarding therewith a cheque for Rs. 10,000/ - being the earnest money for the booking of house at the Swastik Vihar. 2. We are pleased to inform you that house No. 7 has been allotted to you in the Swastik Vihar at the cost of Rs. 2.95 lacs. You are now requested to remit a sum of Rs. 65,000/ - which would after adjusting Rs 10,000/ -work out to be Rs. 75,000/ -. Kindly send a Demand Draft for Rs 65,000/ - in favour of M/s. Swastik Construction on any bank at Chandigarh, by the 11th March, 1988, the latest. The balance of Rs. 2.20 lacs would be payable by you in six half yearly instalments of Rs. 36,666/ - each; the first instalment being due on the 11th September, 1988. Assuring you of our best cooperation. Yours faithfully, FOR SWASTIK CONSTRUCTION Sd/ - (G.S. Matwala) Administrative Officer''

THIS would go to show that the complainant was required to pay six half yearly instalments of Rs. 36,666/ - each and first instalment was due on 11.2.88. The letter dated 9.11.91 written by the complainant contains the details of the deposits made by the complainant and the relevant para thereof is as under : ''2. In this connection, we have to request you as under : - (a) That I was allotted House No. 7 in the abovesaid complex vide your allotment Letter No. SC 659 dated 10.2.88 and I have made the payments as under : Particulars Amount Your Receipt No. Date (i) On application Rs. 10,000/ - 45 6.2.88 (ii) On allotment Rs. 65,000/ - 70 28.3.88 (iii) First instalment Rs. 36,666/ - 222 5.11.88 (iv) Second instalment Rs. 36,666/ - 281 23.5.89 Rs. 1,48,332/ -

A perusal thereof shows that after depositing the 2nd instalment of Rs. 36,666/ - on 23.5.89 there were prominent defaults by the complainant. The complainant had specifically written on 25.4.89 Annexure V that the 2nd instalment of Rs. 36,666/ - which was due on 11.3.89 was outstanding. It was on 18.6.90 that the respondent issued letter cancelling allotment of Flat No. 7 to the complainant and this letter R -6 is also reproduced as under : ''Subject : Cancellation of allotment of House No. 7 in the Swastik Vihar. ¦ ¦ Madam/Sir, House No. 7 was allotted to you in the Swastik Vihar on 10th Feb. 1988. In the allotment letter it was, inter alia, made clear that the balance of Rs. 2.20 lacs would be payable by you in six half yearly instalments; the first instalment being due on the 11th Sept., 1988. In response to these specific instructions, you had remitted your first instalment late by one month and six days, and the second, late by two months and twelve days. Your third instalment, which was due on 11th Sept., 1989, was not remitted to us inspite of the fact that you were reminded to do so vide our letter dated 21st Sept., 1989. As per clause 4 of the agreement executed by you - ''The time of payment of instalments as stated above is essence of this contract. It shall be incumbent on the intending pur chaser to comply with the terms of payment and the other terms and conditions of sale failing which he shall loose to the Promoter the entire amount of earnest and additional earnest moneys deposited by him and the agreement of sale shall stand cancelled and he shall be left with no lien on the house/flat. The amount(s), if any, paid over and above the earnest and the additional earnest monies shall be refunded to the intending purchaser without any interest.'' Keeping in view the facts stated above, the allotment of your house is hereby cancelled and no further correspondence in this behalf will be entertained by us. FOR SWASTIK CONSTRUCTION Sd/ - (G.S. Matwala) Administrative Officer'' A perusal of this letter shows that though the 2nd instalment was due on 11.9.89 but still it remained outstanding and it was on 18.6.90 i.e., after about 9 months that the cancellation was ordered.

THE learned Counsel for the complainant has referred to proceedings of the Writ Petition No. 11173 of 1988, Sham Sunder v. The State of Haryana and Others, where the respondent had approached the High Court against the demand of some external development charges but this order did not debar the customers/allottees from depositing the instalments. On the contrary there is a specific mention in this order that the coloniser was at liberty to receive the instalments of the flats already allotted and could even utilise the said amount for the internal development and construction of the flats. This order of 27.10.88 gave no liberty to the complainant to withhold the payments of the instalments. In the circumstances there was no deficiency on the part of the respondent.

THE learned Counsel for the complainant has referred to Smt. Lajya Gupta of Chandigarh v. Sham Sunder and Another, complaint No. 30 of 1991 decided on 26.3.92 by Haryana State Commission wherein the respondent was ordered to allot some other 10 marlas plot in the adjacent area. However in the case now in hand the respondent has specifically brought on record the continuous default made by the complainant in depositing the instalments. The learned Counsel for the respondent has referred to Vikas Gupta of Chandigarh v. Swastik Construction Company, Chandigarh (Complaint No. 10 of 1992 decided on 11.1.93 by Haryana State Commission) wherein it was observed that the complainant failed in depositing money after the second instalment, it resulted in patent breach and it was also observed that the ratio in Smt. Lajya Gupta of Chandigarh v. Sham Sunder and Another, was not helpful. After considering all these aspects we hold that since there were defaults by the complainant himself the respondent cannot be held liable to make available an alternative plot. However it is ordered that the total amount deposited by the complainant together with interest @ 18% p.a. from the date of deposit till realisation shall be paid to the complainant within thirty days of the receipt of a copy of this order. Announced. The order be communicated to the parties free of charges. Complaint disposed of accordingly.