Renu Bansal vs ALAKNANDA PROPERTIES PRIVATE LIMITED

WHETHER the transfer of the possessory title for small areas of shops and the offices in a proposed multi-storeyed building on a commercial site by a promoter-builder, would be deemed as ''fragmentation'' in contravention of Para 17 of Form ''C under regulation 5(3) of the Haryana Urban Development Authority regulations? This inter alia is the somewhat significant question in the present complaint.

THE complainant Mrs. Renu Bansal has alleged that M/s. Alakananda Properties Private Limited and M/s. Phoenix Properties Private Limited are inter-linked Companies having the same Directors as well as the Chairman who are engaged in the business of promoter-builders in the matter of housing, commercial sites and complexes etc. By an advertisement dated March 22, 1987 (Annexure C. 1), the opposite party offered for sale shops/ offices and show rooms in the Gurgaon Plaza of the HUDA Commercial Centre, Sector 14 situated on the Palam-Gurgaon road. Attracted by this lucrative offer, the complainant applied for the allotment of a shop/office in the proposed site vide application Form Annexure C-2 and was allotted a shop/office G-l, measuring 165 sq.ft. THE sale price therefore was finalised at Rs. 1,56,750/- only at the rate of Rs. 950/- per sq.ft. and the terms of payments were settled by instalments specified in the terms and conditions. THEreafter, the complainant paid a sum of Rs. 54,862.50 paise vide receipts Annexures C-3 to C-5. This sum was equivalent to 35% of the total settled price. THEreafter some correspondence ensued between the parties. On being assured that the opposite parties had complied with all the necessary formalities of the Haryana Urban Development Authority (hereinafter called the HUDA) and had also obtained the requisite sanction for the construction of the commercial complex (vide Annexures C-6 & C-7), the complainant vide letter dated April 7,1988 paid another sum of Rs. 39,187.50 paise towards the instalments due for payment. THEreafter a further payment of Rs. 14,862/- was also made on June 16,1988. After some hesitation, an allotment letter was executed betwixt the parties on June 20, 1988 vide Annexure C-l 1. It is the complainant''s case that the terms and conditions thereof were somewhat one-sided in favour of the opposite party. Having executed the said allotment letter, the complainant later sought a refund of the sum of Rs. 1,08,912.50p deposited by her but was informed that she could get the same only after a reduction of 25% of the total cost there from. It is the somewhat curious case that the complainant got assured of the true intention of the opposite parties of having committed a fraud, she shelved her plans to go ahead with the said venture and proceeded further only with the object to have her refund from the opposite parties. Consequently she sought certain clarifications from the opposite parties vide her letter dated July 30,1988 (Annexure C-13). It is the complainant''s own case that she was put off and deeply concerned by certain Press reports in ''THE Indian Express'' and ''THE Times of India'' dated August 13,1988. Extracts thereof are Annexures C-14 and C-15. THEse indicated that the very legitimacy of the HUDA plans for the commercial complex were in doubt because of the geographical proximity of the Indian Air Force Ammunition Depot. It is the complainant''s own case that she was rendered in a fix about the possible outcome of the whole venture and it is further alleged that there was no progress on the site since May, 1988 apart from the basic superstructures of bricks and cement without woodwork and flooring etc. THE complainant Consequently stopped the payment of further instalments whilst the opposite party vide Annexure C-16 demanded the instalment amount due for payment to the tune of Rs. 54,862.50 paise. Again, vide Annexure C-17, the opposite party as a very special case offered to charge no interest on the delayed payments till August 10,1988 in view of the complainant''s commitment to make the balance payment of Rs. 40,000/- against 95% payment due already. Eliciting no response the opposite party forwarded a detailed communication Annexure C-18 dated November 16,1990. It is then alleged that at the aforesaid stage, the complainant became aware of the fact that certain complications had arisen between the HUDA and the opposite parties. The complainant obtained a copy of the allotment letter issued by the HUDA in favour of the opposite party in Form ''C (Annexure C-19) under regulation 5(3). It was alleged that the opposite party had not complied with the terms and conditions of the said allotment letter and in particular with paras 10 to 12 and 17 thereof. Particularly, reference was made to the stipulation in the last para which mandatorily provides that no fragmentation shall be permitted. It is the case that the opposite parties had kept the complainant in dark with regard to their transaction with HUDA and thereby inflicted mental and physical hardship upon her occasioned by repeated false promises and assurances. Specific reliance again was placed on Clause 17 of the allotment letter for alleging that bifurcation of the building was barred and this was likely to lead a resumption of the plot by the HUDA. Sentimental averments are made that the complainant''s dreams to have risen in life, have been muffled by the inaction and shortcomings of the opposite parties and she has lost the opportunity of investing her money in other lucrative transactions. By way of relief, the refund of the deposit amount of Rs. 1,08,912.50 paise is sought alongwith penal interest, escalation of the price of the property of similar nature, and damages etc. thereby raising, a tall claim of Rs. 1,35,640/- in all.

On notice being issued, the opposite party first filed an application purporting to be under Section 34 of the Arbitration Act praying for the Stay of proceedings and later also filed a detailed reply to the complaint dated the 25th of October, 1991 wherein apart from merits six preliminary objections were sought to be raised. It is unnecessary to refer to the application aforesaid or the preliminary objections because the learned Counsel for the opposite parties as recorded on November 12,1991 categorically stated that there was no jurisdictional objection at that stage and the matter may be decided on merits. Consequently neither of these were pressed before the Commission.

ON merits the burden of the song on behalf of the opposite parties is that the complainant is an educated lady who was fully aware of the terms and conditions in the application form and the allotment letter and in particular Clause 5 thereof. Thereby the terms and time of payment and the instalments due were clearly specified and it was made clear that these were the essence of the contract. It is the case that the complainant has deliberately and unequivocally committed patent contravention of these terms of payment and consequently is herself guilty of serious default. In the parawise reply virtually all the averments made on behalf of the complainant are controverted. It is first pointed out that the opposite parties are independent commercial organisations duly incorporated under the Companies Act and in no way a charitable organisation engaged in serving the public at large. It is however, admitted that opposite party No. 2 had made the bid for the purchase of the land from Haryana Urban Development Authority (hereinafter called the HUDA) and the same had been duly confirmed by it, whereafter possession was duly handed over to the opposite parties and they invited applications from prospective allottees. It is first pointed out that the application form itself clearly stated that the applicants were bound by the terms and conditions imposed by HUDA as mentioned in Clause 4 on the page of the rate list which was duly signed by the applicant after full comprehension. The said application equally contained categoric terms pertaining to the payments and the time thereof and it is pointed out that the complainant had not made any. payment whatsoever after the 16th of June, 1988. It is the case that she made deliberate default as regards the subsequent instalments and contravened the terms of both the application form as also the subsequent letter of allotment. It is averred that payment of instalments was the essence of the contract as specified in Clause 5 of the letter of allotment dated 20th of June, 1988 and the complainant had made deliberate and wilful default therein.

IT is then the opposite partie''s case that no assurance apart from those contained in written communications was ever extended by any one on their behalf to the complainant. She was also kept informed at all stages as regards the HUDA and even a copy of the building sanction plan given by the latter was supplied to her. In reply to para 10, it is categorically averred that there was no sale agreement to be executed and the letter of allotment had been duly received by the complainant on the 20th of June, 1988 after she having signed the same. IT is then averred that the complainant is an educated lady who is herself resident in Sector 14 in Gurgaon where the present commercial complex was to be built and where also the offices of the HUDA are located and consequently she was more than fully aware of all the developments with regard thereto. Being an educated lady and on her own showing being interested in lucrative business investment she had agreed to the terms and conditions of the letter of allotment apparently after obtaining due legal advice and cannot now make a grievance thereof or to seek a re-writing of the contract she had voluntarily made. IT is the case that she cannot now disown the agreement or to pretend that she was forced against her will to become a party thereto and is thus bound by the terms and conditions thereof. It is then pointed out on behalf of the opposite parties that the complainant had at no stage asked for a refund of her amount and indeed the opposite parties have been making due refund to all the persons who have applied for the same and were always willing to do so as regards the complainant also in accordance with the terms and conditions as contained in the allotment letter. Inevitably it is vehemently denied that the respondents had ever committed any fraud or cheated the complainant at any stage and instead the case is that the boot is on the other leg. As regards the newspaper items in the Indian Express and the Times of India, it is the firm case that this had been got inserted by some unscrupulous persons. It is denied that the M.R.T.P. ever restrained the opposite parties with regard to any one of their construction ventures. Instead the case is that the commercial complex is almost ready and delay has been only occasioned by the non-fulfilment of certain formalities and conditions by HUDA and they are not providing clarifications with regard to the mischievous report appearing in the press. It is reiterated that the complainant till date had never sought for refund of the amount of money deposited and far from there being no progress on the site, since May 1988 the commercial complex is almost complete and ready in every respect including flooring, windows, shuttering, sanitary and electrical fitting and other allied works. It is submitted that the complainant was never kept in the dark about the outcome of the press report and the fact is that she is herself a resident of Sector 14, where both the complex and the HUDA''s own offices are located. It is then pointed out that even though the complainant sought condonation of the payment of interest for the delay in instalment which was duly granted, she failed to make the requisite payments etc. which could entitle her to secure possession. It is categorically denied that the opposite parties ever gave any assurance to the complainant regarding completion and delivery of the space to her within 18 months of the date of the application. Somewhat assertively, the opposite parties stated that the complainant''s cancellation of application for booking of space through the notice referred to in Para 20 is confirmed and she is welcome to apply for refund, which will be paid to her promptly as per the opposite parties Company''s policy. It is then averred that the payments due to HUDA by the opposite parties have been fully made and in any case the transactions between HUDA and the opposite parties or their balance of payment is irrelevant to the issue because the complainant is not a party to the same. It is forcefully asserted that the opposite parties have not breached any of the conditions of the HUDA and there is no question of the Estate Officer resuming the land or buildings etc.

SOMEWHAT fairly, it is pointed out that the HUDA vide memo No. 14264, dated 20th of July, 1987 did serve the respondents with a show cause notice to which they replied to the entire satisfaction of the said authority and unequivocally stated that there had been no violation of any terms and conditions by the opposite parties and this position was accepted and no further action taken. The allegations in Para 25 are expressly denied and it is stated that the opposite parties had only received an amount of nearly six lacs in all from seven applicant and as against that they had spent more than Rs. 22 lacs on this project as on the 31st of March, 1991 from their own resources. This would substantiate that the allegations made by the complainant were fully false and without substance. In the end it is reiterated that whilst the complainant had wilfully contravened the agreed term of Clause 5 of the allotment letter, the opposite parties had wholly complied with their obligations under the contract. The prayer is that the complaint be dismissed with costs throughout.

IN support of her case, the complainant rested herself content with the briefest averments in the four small paragraphs in her affidavit dated the 25th of November, 1991 and reliance was placed on the documents C-l to C-20. Learned Counsel for the complainant cross-examined her, wherein she admitted that she had applied for the space in the commercial complex of her own volition and had signed the application in her own hand and was aware of the terms and conditions for the allotment. She conceded that she could not name the person who had allegedly assured her on behalf of the Alaknanda Properties Pvt. Limited and also admitted that she was a graduate of the Delhi University. In rebuttal, the opposite parties first placed on record the counter-affidavit of Smt. Anjali Sehgal, Director of M/s. Alaknanda Properties Pvt. Ltd. Therein she stoutly challenged the veracity of Annexures C-1 to C-20 and prayed that the complainant be put to strict proof thereof and further that these were inadmissible in law and could not be treated as evidence, unless the complainant discharged the burden of proof and these are duly exhibited. It was her case that only those documents can be read in support of the allegations which were admitted by the opposite parties and they had made no such admission whatsoever and these documents were thus wholly irrelevant and inadmissible in law. The said Smt. Anjali Sehgal also filed her affidavit by way of evidence and placed particular reliance on the Annexure E-1 dated the 16th of June, 1988 thereto, which was a communication from the complainant to M/s. Alaknanda Properties saying in express terms that the balance payment of Rs. 40,000/- by her will be paid by the 10th of August, 1988 and herself praying for a waiver of the over due interest on the delayed payments upto that date. Smt. Anjali Sehgal was cross-examined on behalf of the complainant and in her spirited replies, she reiterated the opposite parties''s stand in full by her sworn testimony. It was asserted that they had fulfilled all requisite formalities with the HUDA for the purpose of the commercial complex and the building and the hall is complete. However until the Company receives 95% of the total amount of the shop/office, they do not sub-divide the area, therefor. She asserted that there was no restriction on making shops or sub-division of constructed buildings by the HUDA. It was her case that the construction of buildings was completed in 1988, but because of the failure of the applicants to make full payment, there was as yet no occupant. Even in her cross-examination, she categorically refused to admit documents attached to the complaint and alleged that some of them may be false. She categorically stated that no demolition notice, whatsoever had been received from any one including HUDA.

This Commission in order to ascertain the practice and policy of the HUDA, as regards the promoter-builders of commercial plots auctioned by it, and the possessory titles offered by them to applicants, issued a notice to the said authorities. In compliance therewith the HUDA filed a detailed reply thereto alongwith the guidelines issued in this context.

FROM the aforesaid resume of pleadings and the evidence of the parties, the admitted or the virtually established position that emerges is that the opposite party M/s. Phoenix Properties Private Limited had successfully bid for the purchase of the commercial site auctioned by the HUDA and the bid having been duly confirmed the said site was taken over possession by them and later they invited applications from the prospective allottees. The complainant being an educated lady of apparently sound financial means was designs to invest in the lucrative scheme of the commercial plaza and applied for the same vide detailed application from Annexure C-2. Admittedly she had signed the same and was fully aware of the terms and conditions thereof. Nor is it in dispute that the complainant was herself residing in Sector 14, Gurgaon, where the plaza was to be located and not only that the offices of the HUDA were also functioning from that very sector. Thereafter she paid the stipulated instalments till the 16th of June, 1988 and in all paid a sum of Rs. 1,08,912.50 p. It is again common ground that the complainant thereafter executed the allotment letter under her own signatures containing as many-as 28 detailed terms and conditions. She has admitted that she knew the contents and import thereof and did so with her eyes open. On her own showing the complainant was put off by certain newspapers reports appearing in the Indian Express, The Times of India (C-14 and C-15) way back in August, 1988. Indeed she averred in para 13 in her own words. "But the complainant by now having got assured of the true intention of committing fraud and having felt cheated by the respondents, shelved her plans to go ahead with the said venture and pursued further only with the object to have her refund from the respondent. "Equally her own case is that the allotment letter was also deliberately agreed to by her in order to strengthen her stand for refund etc. The letter Annexure E--1, which the complainant herself addressed to the opposite parties on the 16th June, 1988 admitted that a balance of Rs. 40,000/- was due and would be paid by the 10th August, 1988 against the allotment to her and she expressly sought the waiver of the over-due interest on the delayed payments upto that date. It is common ground that after 16th June, 1988 she did not pay any further instalments and indeed refused to do so despite repeated requests and demands and has now claimed a sum of Rs. 7,35,000/- odd by way of relief.

AGAINST the aforesaid background of admitted and established facts, the crucial question is whether the opposite parties are guilty of a patent deficiency in the services offered by them with regard to the commercial space in the Gurgaon plaza. Now the sheet-anchor of the argument of Mr. Rao Ranjit, the learned Counsel for the complainant herein was that the opposite parties were wholly unauthorised to invite applications for the allotment of small areas for shops/offices in the Gurgaon Plaza. It was pointed out that the commercial site-cum-office plot No. 30 allotted to the opposite parties was in form ''C prescribed by. Regulation 5(3) of the HUDA and this did not in any way warrant the opposite parties to further allot smaller areas to their prospective customers like the complainant or otherwise so situated. The whole thrust of the argument was that under para 17 of the aforesaid form ''C allotment letter any ''fragmentation'' of land or building was prohibited. It was the case that the opposite parties were acting contrary to their own charter and being unauthorised to do so there was the gravest deficiency in the services they were offering with regard to the construction of the Gurgaon Plaza or allocation of areas therein. In order to appreciate the aforesaid submission it has to be recalled that the question of transfer of rights is governed by Regulation 15 of the HUDA (Disposal of land and buildings) Regulations, 1978 as amended from time to time. The aforesaid regulations in turn have been framed in accordance with Section 15 of the Haryana Urban Development Act, 1977. Regulation 5(3) then provides that allotment letters in case of residential/industrial/commercial plots/buildings disposed of by allotment are to be in the shape of prescribed form ''C''. Para 17 of the said Form ''C around which the whole argument turns deserves notice in extenso:- "17. You will have to complete the construction within two years of the date of offer of possession after getting the plan of the proposed building approved from the competent authority in accordance with the regulations governing the erection for building. This time limit is extendable by the Estate Officer if he is satisfied that non-construction of the building was due to reasons beyond your control otherwise this plot is liable to be resumed and the whole or part of money paid, if any, in respect of it forfeited in accordance with the provision of the said Act. You shall not erect any, building or make any alteration/addition without prior permission of the Estate Officer. No fragmentation of any land or building shall be permitted."

IN view of the above provision, the focal issue in the present case is whether the opposite parties in inviting applications and making allotment of space for offices and shops in the Gurgaon Plaza were guilty of fragmentation of the site of land allotted to them by HUDA or the building which they were constructing thereon.

THE clue to the aforesaid question has inevitably to be found basically from the standard form of the application and the allotment letters being issued in turn by the opposite parties to their clients. However, before adverting to the detailed provisions thereof it has to be noticed that the word ''fragmentation'' used with regard to the land or building in para 17 is not precisely defined and has therefore, to be understood in its ordinary dictionary meaning. Herein it is common ground that the basic land site has not been further sub-divided or bifurcated as such. All that has to be determined is whether there has been any fragmentation of the multi-storeyed building constructed on the said site. Now a reference to the detailed application form Annexure C-2 relied upon by the complainant herself would show that the said application was for allotment of shops/offices and basement etc. Even at the application stage, it is not as if the sale of a legal title is being offered but at the highest, it is a booking for the allotment of shops and offices etc. Of particular significance is para 4 in the said application form which deserves notice in full:- "4. All the terms/conditions imposed by HUDA or any other authority from time to time and also all the terms and conditions as laid down by the promoters towards purchase of the aforesaid space and agree to sign the Agreement on the promoters standard form as and when required by the promoters."

It is somewhat plain from the above that the application form, far from violating or concealing the terms and conditions imposed by HUDA expressly made prominent reference, thereto. It was patently enough, an allotment of shops/offices subject to the terms and conditions imposed by HUDA or any other authority from time to time. Again, the last paragraph of the application form provided that the applicant would abide by the terms and conditions as and laid down by the Company towards the aforesaid space in the Company''s standard form as and when required by the Company. It is manifest that the foundation document of the application form does not even suggest far from prove that there was to be any fragmentation of the building in contravention of para 17 of Form ''C.

Again a reference to Annexure C-11, the allotment letter duly executed betwixt the parties (bearing the signatures of the complainant) is a pointer to the same effect. The heading again prominently mentions only the allotment of commercial offices or shops etc. Particular reference is made to the fact that the site had been purchased from HUDA on the terms and conditions spelt by it. The allotment is subject to the flat owner accepting the terms imposed by it and the prominent standard terms and conditions. Far from passing any ownership title, para 1 thereof states that the allotment is provisional. Of particular significance is para 6 which is as under:- "6. The allotment is subject to the Flat-Owner accepting the terms imposed by the HUDA and the Promoters standard "terms and conditions."

THOUGH some loose terminology has been used, but that is purely for convenience. It is stated therein that the shops/offices or basements will be referred as a Flat, and the allottee thereof is referred to hereinafter as the flat owner. From the above, it is again somewhat plain that the allotment letter as its name indicates was no more than the allotment of the areas specified therein (namely 105 sq. ft. on the ground floor in the proposed building of plot No. 30 at the rate of Rs. 950/- only per square foot in the case of the complainant.) It cannot possibly be construed as the passing of any legal title of ownership thereby. It is somewhat axiomatic that legal title to immovable property patently worth more than one lac of rupees can only be passed by a registered deed and that too in accordance with law. Neither the original application nor the allotment letter therefor in any way, could transfer the legal title of ownership in small areas nor were they ever intended or pretended to be so. In essence, these documents and the basic tenor of the transaction betwixt the parties was the passing of a possessory title to the complainant and other applicants. The opposite parties had undertaken to demarcate and hand over possession of the prescribed area and the applicants had agreed to take the possession thereof, with at best a contingent possibility of a subsequent sale when and if permissible under the law. It was not denied before us that in the adjoining area of the Union Territory of Delhi and also in Maharashtra, the law under the Commercial Apartments Ownership Act, provides for the transfer of legal ownership for small areas in multi-storeyed structures. That perhaps is not as yet the position in the State of Haryana. Consequently as yet no question of legally passing the ownership title to the allottee could arise. All that was permissible under the law (and the citizens are presumed to know the same) was the allotment and the delivery of possession of small areas for offices and flats. It is common ground that the whole development of commercial and residential multi-storeyed complexes by promoter-builders is rested on the self-financing schemes of allotment of space in the proposed structures. This is so now in all the Metropolitan centres of the country. In the present set-up, it seems a somewhat inconceivable concept that a large multi-storeyed building consisting of 20 to 25 floors would remain not only in single ownership but equally in the single individual possession also. To sum up, it appears from the application form Annexure C-2 and the allotment letter (Ann. C-l 1) as also the surrounding circumstances that herein what was being passed on was merely a possessory title to the applicants for their respective small areas of shops/offices. The stand taken by the HUDA in the notice issued to it is somewhat ambivalent. It is their case that the sale of small areas and shops would amount to fragmentation. There is no dispute to that proposition but the passing on of merely possession or a possessory title cannot be deemed to be a sale or proprietory ownership in a immovable property. Even otherwise it would appear that the Regulations contemplate a transfer of title with the prior permission of the competent authority even before the full price of the plot has been paid to the HUDA implying thereby that after the same has been done it would be permissible. As a matter of practice, it could not be denied that promoter-builders are inviting applications, and passing possessory title for a consideration to finance the multi-storeyed structures. It is significant to notice that in the present case also, way back on the 20th July, 1987, HUDA issued notice to M/s. Phoenix Properties Pvt. Ltd. with regard to the alleged proposal to sell the property, but were fully satisfied by the explanation rendered by the opposite party and no further action in this regard was taken despite the passage of more than five years.

IN the context of the aforesaid discussion, the answer to the question posed at the very outset is rendered in the negative. It must be held that the mere transfer of possessory title for small areas of shops and offices in a multi-storeyed building by a promoter-builder would not be deemed as ''fragmentation'' in contravention of para 17 of form ''C'' under Regulation 5(3) of the Urban Development Authority Regulations. Now once it is held as above, the main plank of the complainant falls to the ground. It cannot therefore, be held that in inviting applications for the Gurgaon Plaza and executing agreements in the standard form of allotment letters vide Annexure C-l 1, the opposite parties were in any way contravening the HUDA Regulations or violating the terms of allotment of the commercial S.C.O. plot No. 30 in their favour. In view of the above, the main pillar of the complainant''s case collapses and the rest of the allegations must necessarily crumble. It is not in dispute, and in fact it had to be conceded in the cross-examination of the complainant that being an educated Graduate lady of sizeable financial means, she was fully aware of the terms and conditions in the application form and in greater detail in the allotment letter Annexure C-11. The opposite party in the present case were doing no more than holding her to her word and the stipulations contained in the documents aforesaid. In doing so, one cannot easily hold them guilty of a deficiency in the services they were rendering as promoter-builders. In the recent case of M/s. Oriental Insurance Company v. M/s. Lakhi Ram Steels Private Limited decided by State Commission Haryana, this Commission has held in a slightly different context that strict conformity with the terms of the policy cannot possibly be labelled as a deficiency in performing the services undertaken by an Insurance Company. That ratio applies by way of analogy equally to an agreement between an allottee and the promoter-builders. Herein it is common ground that the payment of instalments at the prescribed time was the essence of the contract. On the complainant''s own showing she did not make any further payment after the 16th of June, 1988. Her own communication Annexure E-1 is an admitted document on the record and is a tall-tale one and requires notice in extenso:- "Dear Sir, I would like to inform you that against your total demand of 95% payment, I have already paid Rs. 1,08,912.50 and balance of Rs. 40,000/- will be paid by 10th August, 1988, against the above unit. I request you to please waive overdue interest on delayed payments upto 10th August, 1988. Please confirm. Thanking you,"

IT has to be recalled that the opposite party generously offered to forego the overdue interest on the delayed payments but despite that the complainant chose to make no further payment, in direct contravention of the terms and conditions of the application form as also the allotment letter. IT is not in dispute that the possession of the area was to be given only on the full payment or at least 95% of the price thereof, and on the basis of the agreed price for more than Rs. 50,000/- was still due. IT is the firm case of the opposite party in the sworn evidence of Smt. Anjali Sehgal that the structure was virtually complete but until payment of 95% is made, the opposite party does not partition the area. Consequently, in declining to handover possession against the adamant attitude of the complainant in not paying any further instalments in direct contravention of the terms and conditions of the allotment letter cannot possibly be termed as a deficiency in the performance of services undertaken by the promoter-builders.

THE broader perspective of the case makes it manifest that even prior to the execution of the allotment letter (Anne. C-11) dated 20th June, 1988, the complainant''s acting on some suspicion and wholly unproved grounds had already decided to back-track from the agreement she had entered in. In para 12 of her complaint she has herself stated that she designly concealed her resentment to the opposite party and executed the allotment letter aforesaid only to strengthen her case, as she thought it was necessary for supporting her claim for the refund. Indeed, her own averment in the complaint is that she had already shelved her plans to go ahead with the venture and was only interested in the refund. Yet again the complainant has chosen to rest her case on the shifting sands of mere newspaper reports Annexures C-14 and C-15. Patently enough, mere press cutting cannot be tantamount to proof, and in particular the case of the opposite party''s stand that these were got inserted by hostile interested parties. No attempt was made to conclusively prove that the Gurgaon Plaza was an unauthorised structure. Despite the passage of four years since the alleged press reports it is common ground that there has been no demolition of any building and structure in Sector 14 of Gurgaon. Smt. Anjali Sehgal''s stand was categoric that the opposite party had ever been issued any demolition notice at all. In any case, there is no manner of doubt that the opposite party had validly purchased the site from the HUDA on specific terms and conditions and had been duly authorised to construct the building according to the plans duly sanctioned by the authorities. In this context, if there was any lacuna, the same could be laid at the door of the HUDA but not at that of the opposite parties who had bona fide purchased the site and completed the structure thereon. On the present record, we are unable to find any proof or factor which can possibly be brought within the ambit of a patent deficiency as defined in the Consumer Protection Act. In the light of the aforesaid somewhat exhaustive discussion of the case, the present complaint must fail and is hereby dismissed. We would however, not burden the consumer complainant with any costs.

Before parting with this order, we may notice the somewhat fair stand taken by the opposite parties in the context of the complainant''s case for refund. In the counter-version it was stated unhesitatingly that they had always been ready and willing to make a refund if the complainant so desire in accordance with the terms and conditions of the contract. Even in the course of the proceedings before us and the final stage of arguments, the offer to refund was reiterated in good faith. We do hope that in case the complainant is still primarily interested in her claim for the refund of her amount, the opposite parties will keep their word and do so if she applies or demands the same. Appeal allowed.