NAGENDER Vs. EXECUTIVE ENGINEER CENTRAL DIVISION

JUDGEMENT

(1.) The Petitioner/Complainant, who is an Advocate, paid Rs.5000/- through demand draft on 1.10.2002 as registration fee for allotment of flat pursuant to advertisement given by the Opposite Parties. The Complainant approached the District Forum by filing C.D. No.339/2004 for direction to the Opposite Party to receive the first instalment and allot the flat. The case of the Complainant was that he had not received any information from the Opposite Parties regarding payment of first instalment and he was ready to pay the said instalment. The Opposite Parties had contested the case of the Complainant on the ground that the Complainant was informed vide letter dated 11.12.2001 that he was allotted MIG flat and was asked to pay first instalment of 10% on or before 15.3.2003 but instead of several letters sent to him, he did not pay first instalment and the allotment was cancelled on 29.3.2003.

(2.) The District Forum vide order dated 5.1.2005 partly allowed the complaint and directed the Complainant to pay instalment amount due to the Opposite Parties and immediately on receipt of the said instalment amount, the opposite parties were directed to allot MIG flat to the Complainant. Subsequently, the Complainant filed P.P. No.50/2005 in C.D. No.339/2004 for punishment of the Opposite Party on the ground that the Opposite Party failed to implement the order of the District Forum. The Opposite Parties had in fact sent letter dated 15.2.2005 to the Petitioner to pay Rs.9,10,750/- which was received by the Petitioner on 18.2.2005. However, the Petitioner did not pay the said amount. By order dated 11.5.2005 the District Forum directed the Petitioner to deposit 50% of the total cost of the flat i.e. Rs.9,10,750/- and after deposit of the said amount before the District Forum, the Respondent was directed to allot MIG flat to the Petitioner. Instead of complying with this order, the Complainant filed F.A. No.382 of 2005 before the State Commission. The first appeal was dismissed by the State Commission by order dated 16.5.2006. Therefore, the Complainant was bound to comply with the order of the District Forum dated 11.5.2005 vide which he was directed to deposit 50% of the total cost of the flat i.e. Rs.9,10,750/- with the District Forum as directed in the said order upon which the Respondent had been directed to allot MIG flat to the Petitioner. However, at this stage it may be noted that the Complainant had sent letter dated 9.1.2005 to the Opposite Parties including two demand drafts for Rs.16,000/- and Rs.49,000/- and to allot the flat upon which the Opposite Parties vide letter dated 15.2.2005 had informed the Complainant that he had to pay Rs.9,10,750/- towards instalment which are due amounting to 90% of the cost. Since the full amount was not paid, Opposite Parties vide letter dated 25.2.2005 returned demand drafts. On the return of the demand drafts by the Opposite Parties, the Complainant filed I.A. No.88/2006 to direct the Opposite Parties to furnish an agreement to sell in token of allotment and issue letter to the Bank to enable him for sanction of loan for payment of full cost of the flat. The Opposite Parties resisted the said application that the Complainant had to make its own arrangement to organize loan. The District Forum allowed I.A. No.88/2006 directing Opposite Parties to issue letter of allotment so that Bank may be willing to sanction the loan. Subsequent to orders in I.A.88/2006, Opposite Partys Counsel filed memo before the District Forum stating the provisional allotment letters were already sent to the allottees and on the said letter, the Complainant ought to have made arrangement to secure loan amount and paid the outstanding amount of Rs.9,10,750/-. It may be mentioned at this stage that Petitioner had argued before us that he had not received provisional allotment letter which is at page-39 of record since wrong address was mentioned on it. In the said letter correct address is written except for that instead of Sangareddy, S.R. Nagar was written. However, on the cover under which the said letter was sent by certificate of posting Sangareddy is written which is at page-40 of record. We do not find any merit in this submission. Thereafter another letter dated 15.4.2002 was sent to the petitioner to make the payment. It was submitted by Opposite Party that no MIG flat was available on 3.9.2007 as there was no direction or interim order to reserve the flat. E.A. No.88/2006 was disposed of by the District Forum vide order dated 4.10.2007 holding that the order passed by the Consumer Forum in favour of the Complainant was a conditional order and the same cannot be enforced/executed unless the conditions were fulfilled. The Complainant himself by latches and default failed to pay the full amount as called for and dragged the matter on one pretext or the other. The District Forum took into consideration Section 51 to 55 of the Indian Contract Act relating to performance of reciprocal promises, its effect and consequences. Relying upon Section 55 of India Contract Act, it was held that the Complainant had failed to fulfil reciprocal promise in specified time and the Opposite Party- Housing Board could not wait for two years without canceling the allotment. It was also pointed out that he who seeks equity must do equity as well as perform his obligation in time. Accordingly, the District Forum held that on failure on performance reciprocal promise by the Complainant, the conditional order became unenforceable and thereby the Opposite Parties were absolved of the liability. This order was challenged by the Petitioner by filing R.P. No.163/2007 against the order passed in E.A. No.88/2006 in C.D. No.239/2004. The State Commission examined the matter and concurred with the findings of the District Forum and dismissed revision petition. This order of the State Commission passed in revision petition is challenged by filing this revision.

(3.) We have heard the Petitioner who is an advocate and we have gone through the record. From the narration of facts given, it is crystal clear that the Petitioner/Complainant did not comply with order dated 11.5.2005 passed by District Forum in P.P. No.50/2005 in C.D. No.339 of 2004 whereby Petitioner was directed to deposit 50% of the total cost of the flat i.e. Rs.9,10,750/- in the District Forum upon which the Respondent was directed to allot MIG flat to the Petitioner. Instead of paying the said amount, the Petitioner kept on delaying the payment by filing some application or the other. In the light of the facts, it is crystal clear that the Complainant has not fulfilled his part of the conditional order to deposit of 50% of the total cost of the flat in terms of order dated 11.5.2005 of the District Forum and the Complainant is not entitled to enforce the conditional direction given therein in the absence of non compliance on his part. We entirely agree with the observation made by District Forum in its order dated 4.10.2007 in E.A. No.88/2006.