SUSHEEL KUMAR Vs. UNITECH LIMITED

JUDGEMENT

(1.) Shri Susheel Kumar and Smt. Asha Susheel Kumar (for short the complainants), have filed the present complaint under Sec.17 of the Consumer Protection Act, 1986 (hereinafter refered to as 'the Act'), averring that allured by the advertisements, issued by the opposite parties for the booking of built-up houses in the South City Complex, Gurgaon (Haryana), the complainants applied for booking of a plot/house and also made initial deposits as required by the opposite parties. It is stated that thereafter opposite party No.1 demanded first instalment of Rs.84,148/- vide letter dated 27.7.1990. It is further stated that opposite party No.1, thereafter, vide letter dated 18.8.1990, intimated the complainants the Customer Code Number of the complainants. It is stated that on 30.9.1990, the opposite parties demanded second instalment which was due on 23.10.1990. It is further the case of the complainants that opposite party No.1, on 31.10.1992, sent a Statement of Account in respect of built-up house, bearing No.112, Block N, measuring 150 sq. metres, South City Complex, Gurgaon (Haryana) to the complainants. It is further averred that on 5.12.1992, a letter was sent by the opposite parties to the complainants for the execution and registration of sale deed and also for payment of dues. It is stated that on 1.11.1995, the opposite parties sent a letter indicating the outstanding amount of Rs.5,83,220/- and advised the complainants to clear dues at the earliest and not later than 15.11.1995 failing which, the complainant's allotment was to be cancelled automatically as per Clause (7) of the terms and conditions of the allotment of the abovesaid property. It is stated that the abovesaid letter dated 1.11.1995 was received by the complainants on 15.11.1995 and the complainants requested opposite party No.1 for extension of time stating that the balance payment would be made within 15 days. It is stated that on 28.11.1995, the complainants personally visited office of opposite party No.1 alongwith two Pay Orders/demand Draft Nos.901694 dated 28.11.1995 for Rs.1,65,000/- and No.596094 dated 28.11.1995 for Rs.1,35,000/- and another Pay Order dated 27.11.1995 bearing No.758895 for Rs.2,00,000/- drawn in favour of the opposite parties alongwith a sum of Rs.80,000/- in cash for registration charges but the staff of the opposite parties refused to receive the same on the ground that allotment made in favour of the complainants had already been cancelled. It is stated that the complainants even approached opposite party No.2 with the request to accept the payment but he also refused to accept the same on the abovestated ground. It is stated that complainant No.1 Shri Susheel Kumar received a cancellation letter dated 16.11.1995. It is further stated that the complainants thereafter also made repeated requests and representations for the restoration of the allotment but the opposite parties refused to restore the allotment and returned the drafts/cheques to complainant No.1. It is stated that the complainants from 23.7.1990 to 30.12.1992 in all had made a payment to the extent of Rs.4,16,038/- as detailed in para 12 of the complaint. It is stated that as per the initial agreement, the total sale consideration, agreed between the parties, was only of Rs.5,60,980/-. It is stated that as against the abovesaid total sale consideration, the complainants had already paid a sum of Rs.4,16,038/- but the construction was not completed by the opposite parties as promised and as such the demand of the opposite parties communicated vide letter dated 1.11.1995 asking for the payment of Rs.5,83,220/- was absolutely illegal and was not in accordance with the contract entered into between the parties.

(2.) It is further stated that the letter dated 1.11.1995 was received by the complainants on 15.11.1995. The time given by the opposite parties to the complainants for making the payment was inadequate and not in accordance with the terms and conditions of the contract. It is stated that even otherwise also, in terms of letter dated 1.11.1995, the complainants should have been given 15 days clear time and therefore, the complainants after the receipt of letter dated 1.11.1995 on 15.11.1995 requested further time of 15 days which the complainants were fully justified to request. It is stated that the opposite parties received the abovesaid letter but no reply was given to the complainants and the complainants were informed orally that they could make the payment within 15 days. It is stated that the complainants tendered the amount of Rs.5,80,000/- without prejudice to their rights which the opposite parties refused to receive on the ground that a letter for cancellation of allotment had already been sent to the complainants. It is stated that the above action of the opposite parties, more particularly, the action of cancelling the allotment is illegal and not in accordance with the terms of contract as no amount was payable by the complainants and the complainants had to pay only the balance amount of the total consideration of Rs.5.80 lacs, when the work, as promised, was completed. It is stated that the work, as promised, was not yet completed. It is stated that despite the above-mentioned defects/shortcomings the complainants were always willing to pay the amount and therefore, the letter dated 1.11.1995 and subsequent letter dated 16.11.1995 are illegal, null and void. It has been prayed that the complaint filed by the complainants, be allowed and the cancellation letter of the allotment of residential house, bearing No.112 in Block N, measuring 150 sq. yards in the South City Complex, Gurgaon, be declared illegal, null and void and the opposite parties be directed to hand over the physical possession of the abovesaid house to the complainants and to execute the documents of sale and get the same registered in favour of the complainants in the office of the Sub-Registrar against valid payment as per terms and conditions of the agreement. The complainants have also prayed for awarding compensation of Rs.50,000/- for harassment and mental torture. They have also claimed the cost of the proceedings.

(3.) The claim of the complainants in the present complaint is being resisted by the opposite parties who have filed a joint written statement/written submissions dated 2.9.1996. In the written version filed on behalf of the opposite parties, the opposite parties have taken certain preliminary objections stating that the present complaint filed by the complainants is bad in law; that the complainants are not consumers within the meaning of Sec.2 (1) (d) (ii) of the Act; that the complaint in the present form is not maintainable as the complainants want to take advantage of their own wrongs/defaults/breaches and failures. On merits, it is stated that the complainants vide their application dated 24.7.1990 applied for the allotment by sale of a residental built-up house in the Unitech, South City Complex, Gurgaon (Haryana), a residential township, being promoted by the opposite parties, also deposited a sum of Rs.78,448/- on 23.7.1990 opted/agreed to pay the balance amount in instalments as per construction linked instalments plan B as stipulated in the said application. It is further stated in the written version that the opposite parties vide letter dated 27.7.1990 demanded from the complainants a sum of Rs.84,148/- towards first instalment, payable by 23.8.1990 in accordance with the payment plan opted by the complainants. It is stated that the abovesaid instalment was not paid by the complainants on due date. It is stated that thereafter the opposite parties vide letter dated 30.8.1990, sent through registered post, called upon the complainants to pay the second instalment of Rs.84,148/- which was due on 23.10.1990. However, the abovesaid instalment was also not paid on due date as per the case of the opposite parties. On 29.10.1990, a reminder was sent by the opposite parties to the complainants for the payment/outstanding instalments, followed by another reminder dated 1.12.1990 which was also sent by registered post for the payment of outstanding instalments of Rs.1,68,295/- together with interest of Rs.7,580/- accrued thereon. It is stated that on 5.12.1990, complainants made a payment of Rs.1,68,296/- towards instalments. On 3.1.1991 another demand was raised by the opposite parties for payment of instalment of Rs.56,098/-, which was payable by 15.2.1991. On 4.4.1991 demand for the payment of another instalment of Rs.58,098/- was raised which was payable by 15.5.1991 which was followed by a reminder dated 21.5.1991. On 21.6.1991, the complainants made a payment of Rs.56,098/-. On 7.9.1991, another reminder was sent through courier by the opposite parties to the complainants with the request for paying the outstanding instalment/amount totalling Rs.66,073/-. The complainants were also requested to pay another instalment amounting to Rs.56,098/- due on 27.9.1991. Another reminder was sent on 2.12.1991, followed by reminders dated 9.6.1992, 17.7.1992. On 30.10.1992, the opposite parties sent a statement of account to the complainants, followed by letter dated 5.12.1992 requesting the complainants to pay the amount for the execution and registration of sale deed alongwith all outstanding dues. On 30.12.1992, the complainants paid an amount of Rs.56,098/-. It is stated that on 15.4.1993, 30.6.1993, 30.6.1994 and 16.7.1994, reminders were sent by the opposite parties to the complainants requesting them to clear the outstanding amount as detailed in the abovesaid communications.