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Justice R.S.Madan President:-

 
The brief facts of the present case are the complainant was allotted Flat No.D-1201 on 12th Floor in JMD Garden Gurgaon for Rs.28,59,375/- vide buyers agreement dated 01.04.2006. She paid Rs.10,67,723/- against receipts, out of which Rs.3,00,000/-

were paid as back as on 07.10.2004, Rs.7,67,723/- were paid on 24.03.2006 and Rs.2 lacs on 22.05.2006 towards installment. The complainant had also paid Rs.5,70,000/- in cash to Mr. Anil Sharma and Mr. Rajesh Soni on 24.03.2006 as premium for adjustment. Thus, the total amount of Rs.16,37,723/- was paid by the complainant to the opposite parties. The copies of the agreement and receipts are Annexure C2.

Upon notice the opposite party No.2 appeared and contested the complaint. In the written statement the opposite party No.2 has taken the preliminary objection that the complaint is misconceived, wrong and illegal and has been filed with ulterior motives to derive illegal gain. The complainant deliberately omitted to pay installments as per the payment plan and defaulted in payment of installments for one year, thereby compelling the opposite party to take step for cancellation of allotment. The complainant has admitted her omissions. The Flat No.D-1201 has already been sold to another purchaser much before even filing of the complaint and possession thereof has already been handed over to him. In view of the fact the relief of restoration of Flat No.D-1201 sought for in the complaint is not maintainable. The complaint is barred by limitation. The complaint is bad for misjoinder of opposite party No.1. Opposite Party No.1 does not exist and opposite party no.2 was earlier as M/s JMD Promoters Ltd. Subsequently, the name of opposite party No.1 had been changed to M/s JMD Limited. The complainant was allotted a Flat No.D-1201, having super area of approximately 1875 sq. ft. on the 12th floor under the Flat Buyers Agreement dated 01.04.2006. The opposite party raised the demand as per opted payment plan by the complainant i.e. construction linked plan. The complainant failed to make payment as agreed inspite of service of several notices for demand and has initiated these proceedings to shield her faults and take undue advantage of her own wrong. The complainant has failed to make payment of 3rd, 4th, 5th, 6th, 7th, and 8th installments, demand letters in respect whereof sent over a period of about one year. The complainant was also sent a reminder on 18.04.2007 drawing her attention to the said default. However, the complainant chose to sleep over the matter for almost one year. In these circumstances, the opposite party invoked clause 7 of the Flat Buyers Agreement and cancelled the allotment. The complainant has herself invited this cancellation. It was recited in the contract that opposite party No.2 was under no obligation to dispatch any correspondence and to call upon complainant to pay the outstanding amount. As a gesture of goodwill letter dated 18.08.2006 was dispatched to complainant by opposite party No.2 whereby complainant was called upon to make the payment of Rs.3,63,773/- being the amount then outstanding.

The parties have led their evidence in support of their respective claims. Affidavit of complainant Meenu Aggarwal is Ex.C-10 and documents Ex.C-1 to Ex.C-9. On the other hand, the opposite parties in their evidence tendered affidavit of Shri P.K. Saxena, Ex.OP-1/A alongwith already tendered document Ex.OP-1.

We have heard learned counsel for the parties and perused the case file.

It is admitted case of the parties that the complainant had booked a flat with the opposite parties and she was allotted Flat No.D-1201 on 12th Floor in JMD Garden Gurgaon against price of Rs.28,59,375/-. It has come on the record that the parties had entered into a buyers agreement dated 01.04.2006. The complainant had paid Rs.10,67,723/- against receipts on different dates, out of which Rs.3,00,000/- were paid as back as on 07.10.2004, Rs.7,67,723/- were paid on 24.03.2006 and Rs.2 lacs on 22.05.2006 towards installment. The amount of Rs.5,70,000/- was paid in cash to Mr. Anil Sharma and Mr. Rajesh Soni on 24.03.2006 as premium for adjustment towards the price of the flat. Thus, in all the complainant has paid a sum of Rs.16,37,723/- to the opposite parties. It is the case of the complainant that due to illness of her mother, she could not pay the instalments of her flat due to which the opposite parties cancelled the allotment of her flat. Thereafter, the complainant requested the opposite parties several times to restore the allotment of her flat but the opposite parties did not accept her request. Even the complainant was ready and willing to make the payment of the balance price of her flat alongwith interest @ 18% per annum. The complainant had also handed over the demand drafts of Rs.12,67,723/- to the opposite parties and also served a legal notice but to no effect. The facts and circumstances of the case as well as the evidence produced on the record establishes that the complainant has always been ready and willing to take possession of her flat on payment of the balance price for the same which she could not pay due to illness of her mother, who subsequently died. The complainant has produced the Death Certificate of her mother Annexure C-3 and treatment record is at pages 47 to 51. Under the facts and circumstances of the case we feel that the complainant should be allotted a flat.