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Judgment
Heard Mr. Anurag Kumar, Advocate, for the appellant. In spite of service of the notice, nobody appears for the respondents.
The complainant has filed above appeal from the order State Consumer Disputes Redressal Commission, Delhi dated 11.05.2021 passed in CC/166/2016, whereby the complaint has been dismissed.
The office has reported that the appeal has been filed with delay of 312 days. The appellant has filed IA/3365/2022 for condoning the delay in filing the appeal. In the IA, the appellant has stated that when the impugned order was passed, second wave of Covid-19, was spread in country. The appeal was filed on 18.04.2022. Supreme Court in Suo Moto Writ Petition No.3 of 2020, waived the limitation till 29.05.2022. IA/3365/2022 is allowed. Delay in filing the appeal is condoned.
Rajeev Kumar (the appellant) filed CC/166/2016 for directing respondent-1 to (i) handover possession of Flat No.E 2/705 in the project “Eldeco Eden Park”, Nimrana, Rajasthan, after receiving balance consideration; (ii) pay Rs.1000000/-, as compensation for mental agony and harassment; (iii) pay Rs.35000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case. The complainant stated that Eldeco Infrastructure and Properties Limited (O-1P) was a company, registered under the Companies Act, 1956 and engaged inhte business of development and construction of group houses. The OP launched a group housing project in the name of “Eldeco Eden Park”, at Nimrana, Rajasthan, in the year 2012 and made wide publicity of it. The complainant booked a flat and paid Rs.145504/- on 10.05.2012. OP-1 executed Allotment Certificate & Agreement dated 11.06.2012, allotting Flat No.E 2/705, for consideration of Rs.1816364/-. The complaint opted for “construction linked payment plan” as contained in the Allotment Certificate. Clause-C provides 40 months period with grace period of six months from the date of approval of the building plan for handing over possession. The complainant paid three instalments and applied for home loan, for paying balance consideration for which a tripartite agreement was executed between the complainant, OP-1 and OP-2 on 16.01.2013, under which OP-2 sanctioned loan of Rs.15/- lacs. Thereafter, OP-2 paid instalments through demand draft in February, 2013, September, 2013, February, 2014 and March, 2014. OP-1 issued a pre-cancellation notice on his email on 05.05.2014, showing that an amount of Rs.379048/- was due towards instalments and interest. The complainant protested the notice immediately as he had no intimation of any instalment being due prior to the email. OP-2 vide letter dated 27.12.2014 communicated to the complainant that his allotment has been cancelled on 14.11.2014 and a cheque of Rs.786893/- dated 13.11.2014 was refunded by OP-1 to OP-2 and his loan account has been settled. The complainant made payment of Rs.187739/- through demand draft No.239299 on 30.09.2013 but it was not en-cashed by OP-1. The complainant did not receive notice dated 09.11.2014, allegedly issued through registered post. On the allegations that the complainant did not receive any demand notice prior to pre-cancellation notice, as such, cancellation is illegal, this complaint was filed on 15.02.2016.
Respondent-1 filed its written reply and contested the complaint. Respondent-1 stated that Allotment Certificate & Agreement dated 11.06.2012, contained “construction linked payment plan”, under which, 15% of the consideration was payable within 45 days of the booking and 10% of the consideration was payable at the time of allotment but it was paid by the complainant on 09.08.2012, in spite of demand letter dated 07.07.2012. OP-1 raised demand of vide letter dated 08.01.2013 and 16.01.2013 of next instalment. The complainant paid deficient amount on 22.02.2013 as such demand letter dated 29.05.2013 was issued for balance amount. Demand letter dated 26.07.2013 for instalment ‘on casting of first floor slab’ was issued, which was paid on 30.09.2013. Demand letter dated 14.09.2013 for instalment ‘on casting of third floor slab’ was issued. Demand letter dated 17.10.2013 for instalment ‘on casting of fifth floor slab’ was issued. Thereafter, reminder dated 30.11.2013 was issued. Demand letter dated 03.12.2013 for instalment ‘on casting of seventh floor slab’ was issued. Thereafter, reminder dated 03.01.2014 was issued. Demand letter dated 13.01.2014 for instalment ‘on casting of ninth floor slab’ was issued. But these instalments were not paid. OP-1 thereafter issued pre-cancellation notice dated 09.04.2014 through registered post which was delivered to the complainant on 11.04.2014. In spite of the time given to deposit balance amount, the complainant failed to deposit balance amount as such his allotment certificate & agreement was cancelled on through registered letter dated 03.05.2014 and the complainant was asked to return original papers and take refund of his deposit (excluding service tax). In spite of service of this letter original papers were not returned. OP-1 thereafter, vide letter dated 23.06.2014, inquired from OP-2 in respect of its dues, which was cleared through cheque dated 13.11.2014. Long after time, cancellation of allotment certificate & agreement through registered letter dated 03.05.2014, this complaint has been filed which is liable to be dismissed.
The complainant filed Rejoinder. Both the parties filed their Affidavits of Evidence. State Commission, after hearing the parties, held that out of total consideration of Rs.1816364/- the complainant paid Rs.934122/- + service tax till 30.09.2013. Demand letters for 6th and 7th instalments were due. But these instalments were not paid. OP-1 thereafter issued pre-cancellation notice dated 09.04.2014 through registered post which was delivered on 11.04.2014. In spite of the time given to deposit balance amount, the complainant failed to deposit balance amount as such his allotment certificate & agreement was cancelled on through registered letter dated 03.05.2014 and the complainant was asked to return original papers and take refund of his deposit (excluding service tax). In spite of service of this letter original papers were not returned. OP-1 thereafter, vide letter dated 23.06.2014, inquired from OP-2 in respect of its dues, which was cleared through cheque dated 13.11.2014. Cancellation of allotment does not suffer from any illegality. On these findings, the complainant was dismissed. Hence the complainant has filed this appeal.
We have considered the arguments of the counsel for the appellant and examined the record. The appellant has filed receipts of Rs.150000/- dated 11.05.2012, Rs.127000/- dated 09.08.2012, Rs.148375/- dated 22.02.2013, Rs.39000/- dated 22.02.2013, Rs.187739/- dated 20.08.2013, Rs.140804/- dated 04.03.2014, Rs.140804/- dated 02.04.2014. Total Rs.1210772/-. As per OP-1, the complainant paid Rs.934122/- + interest on delayed payment + service tax. Up to casting of seventh floor, total Rs.1180638/- was payable as per instalments as given the allotment certificate. OP-1 alleged that demand letter dated 17.10.2013 for instalment ‘on casting of fifth floor slab’ was issued. Thereafter, reminder dated 30.11.2013 was issued. Demand letter dated 03.12.2013 for instalment ‘on casting of seventh floor slab’ was issued. Thereafter, reminder dated 03.01.2014 was issued. Demand letter dated 13.01.2014 for instalment ‘on casting of ninth floor slab’ was issued. But these instalments were not paid. Due to default in payment of three consecutive instalments, OP-1 issued pre-cancellation notice dated 09.04.2014, through registered post, demanding Rs.379048/-,which was delivered on 11.04.2014 to the complainant. In spite of the time given to deposit balance amount, the complainant failed to deposit balance amount as such his allotment certificate & agreement was cancelled through registered letter dated 03.05.2014 and the complainant was asked to return original papers and take refund of his deposit (excluding service tax). In spite of service of this letter original papers were not returned. The complainant took plea that he made payment of Rs.187739/- through cheque No.239299 on 30.09.2013 but it was not en-cashed by OP-1. There is nothing on record to prove that this cheque was delivered to OP-1. The complainant made last payment on 02.04.2014. Through letter of OP-2 dated 27.12.2014, he came to know that his allotment was cancelled but he remained silent for a long time although last payment was made on 02.04.2014. The complaint was filed on 15.02.2016. The appellant has committed breach of the contract. State Commission has rightly held that OP-1 exercised its power of cancellation in terms of the agreement.
ORDER
In view of aforesaid discussions, the appeal has no merit and is dismissed.