S.A. Siddiqui, Member (Judicial):
1) Complainant Sh. Amit Chawla has filed this Consumer Complaint u/s 17 of the Consumer Protection Act 1986 (hereinafter called the Act) against the OP-Parsvnath Developers Ltd. for payment of Rs. 24,49,276/- comprising Rs. 14,49,276/- as interest calculated @ 24% plus Rs. 10,000/- as compensation. The complainant further claimed a sum of Rs. 5 Lac towards compensation on account of deficiency of service/negligence and cost as well.
2) Relevant facts of the case are that the OP is a developer who constructs flats, villas, houses etc. the OP issued a pre plan of residential project in the year 2006. The complainant booked three bedroom apartment in the above mentioned upcoming project and paid a sum of Rs. 4,50,000/- as advance payment. Complainant filed an advance registration form consisting of terms and conditions. One of the terms was that OP will offer a residential apartment to buyers within a period of six months and this advance amount will be adjusted against the booking amount payable by the buyer when residential apartment is allotted to buyer. In case OP failed to allot an apartment within a stipulate period of six months from the date of making the payment, OP shall be liable to pay interest @ 9% p.a. Initial payment/advance payment of Rs. 4,50,000/- was made through cheque No. 437706 dt. 11.04.2006 and the OP issued a receipt No. PX000781 dt. 12.04.2006 (receipt-annexure A1). After expiry of six months period the OP did not issue any allotment letter of three bedroom residential flat. However, on 14.03.2007, OP issued a provisional allotment letter of three bedroom flat No. T19-1102 in the project name œParsvnath Pleasant Dharuhera, Haryana? to the complainant. The payment plan was also enclosed with allotment letter. (copy of the provisionally allotment letter is annex-A2). As per statement OP demanded Rs. 50,850.50/- after adjusting the advance payment (Rs. 4,50,000/-) out of total demand of Rs. 5,00,850/- which is first instalment from the 15% of the total cost of flat No. T19-1102. The amount of Rs. 50,850/- was paid through cheque No. 228277 dt. 31.05.2007 and receipt No. 50047406 dt. 04.04.2007 was issued thereafter second, third and fourth instalment as per demand of the OP were paid totalling to Rs. 16,02,720/- (Rs. Sixteen Lac Two Thousand Seven Hundred Twenty Only) till 01.11.2008. The payment were confirmed in account statement given by OP on 05.05.2011 (Annex-A9).
3) After making aforesaid payments the complainant visited the construction site several times and tried to know the progress of the construction and was surprised to see that there was no progress in the project, it raised a reasonable doubt/apprehension in the mind of the complainant that he was going to loose his hard earned money. The complainant further received proposal letter dt. 06.12.2008 offering a special concession of 10% rebate on advance payment. It was shocking as the construction on the site has totally stopped. No assurance was given by the OP that the project was going to be completed soon, but while company was shrewdly and that fraudulently trying to extract money from buyers/customers. The complainant therefore, decided to take back his money and tried hard to meet the OP but its officials refused to meet or give any satisfactory reply when efforts continued on the part of the complainant including the other buyers. One Mr. Sunit Sachar (V.P.Marketing and COMML.). Met Complainant and other buyers and told about the companys inability to complete the project in near future. Complainant requested to refund the amount deposited with interest but the OP refused. After lot of patience was exhausted by the complainant and other persuasion Sh. Sunit Sachchar offered settlement proposal to complainant and told that the company was willing to pay actual amount with a condition that the complainant will surrender all his rights, claim and interest. The complainant was clearly told that if he does not accepted the settlement proposal he will get nothing and will return empty handed.
4) OP sent letter dt. 05.05.2011 in this regard offering to pay principal amount without interest on surrender of all the rights and claim by the complainant. (Copy of the letter anned-A11). The complainant being under distress and under fear of loosing his hard earned money agreed to letter dt. 05.05.2011. He surrendered all his original documents. The OP obtained complainants signature as per their convenience and paid back principal amount of Rs. 16,02,720/- through cheque No. 005697 dt. 0707.2011 of Axis Bank. (Copy of the cheque annex-A13).
5) Thereafter complainant sent a legal notice dt. 27.07.2011 to OP requesting the payment of the interest of Rs. 16,02,720/- @ 24% p.a. Notice was received by the OP but no reply was sent. (copy of the notice and acknowledgement receipt are annex-A14 and 15 respectively). The complainant thus suffered a lot of harassment, mental agony and pain at the hands of OP who was guilty of deficiency of service and indulgence to unfair-trade-practice. The complainant therefore claimed interest of Rs. 14,49,276/- calculated @ 24% p.a. till receiving principle amount of Rs. 16,02,720/- from the OP and a compensation of Rs. 10 Lac totalling to Rs. 24,49,276/-.
6) The OP filed written statement and maintained that the complaint was baseless and flagrant abuse of process of law, besides being frivolous and vexatious. It was liable to be dismissed. It was further maintained that complainant was barred by principles of estopple also. The complainant received principle amount of Rs. 16,02,720/-(being principle amount) towards full and final settlement vide receipt dt. 11.07.2011. The complaint is barred as no cause of action was available to the complainant. The complaint deserves to be dismissed on this very ground. The OP never violated or breached any terms and conditions of flat buyer agreement. OP was neither guilty of any deficiency of service nor indulged in any unfair-trade-practice. The OP has however, not specifically denied the alleged payment made by the complainant. It was stated that the complainant was no longer a customer/consumer with the OP as the amount deposited by the complainant has already been refunded to him. A sum of Rs. 16,02,720/- was received by the complainant vide receipt No. 11.07.2011. The Complainant is therefore no longer a consumer within the definition of section 2(d) of the Act. It was further mentioned that due to recession in the economy the construction schedules, which were supposed to be adhered to by the builders were affected and the construction on various sites could not completed within stipulated time. It is pertainent to note that complainant Sh. Amit Chawla availed the facility of advance registration for the upcoming project of the OP was fully conservant with the terms and conditions. The complainant was provisionally allotted a flat No. T-19-1102 on 14.03.2007. It was an important feature of the advance registration that in the event of the allotment of residential apartment not made within a period of six months, the complainant had an option to withdraw the money paid by him. However, the complainant did not opt to withdraw his money and therefore was provisionally allotted a flat in the said project. Later on, the complainant voluntarily received a sum of Rs. 16,02,720/- towards full and final settlement of his booking and duly executed receipt dt. 11.07.2011 and therefore the complaint merits dismissal at the very outset. Since the OP was a customer friendly organisation it decided to refund entire amount deposited by the complainant without making any deduction whatsoever.
7) It was further stated that OP never misused its position by dictating the terms and conditions of the agreement in its favour. The matter has been amicably settled and the complainant had executed the refund of the amount receipt and has signed it. He was therefore estopple from filing the present compliant and the complaint deserves to be dismissed with exemplary cost.
8) Both the parties led evidence in support of their cases. They also filed written statement. 9) We have heard Sh. Krishan Murari Ld. Counsel for the Complainant and Sh. Rakesh Bhardwaj Ld. Counsel for the OP.
10) We have also gone through the rulings cited by them in support of their cases. Complainant relied upon following two rulings:
1. United India Insurance V/s Ajmer Singh Cotton General Mills and Ors. (1999) 6 SCC 400.
2. Ghaziabad Development Authority V/s Balbir Singh (2004) 5 SCC 65.
11) In United India Insurance case, it was held by the Honble Supreme Court that despite execution of discharge voucher, the consumer may be in a position to satisfy the Tribunal or the Commission under the Act that such discharge voucher or receipt had been obtained from him under the circumstances which can be termed as fraudulent or exercise of undue influence or by misrepresentation or the like.
12) If in a given case the consumer satisfied the authority under the Act that discharge voucher was obtained by fraud, misrepresentation, undue influence or the like coercive bargaining compelled by the circumstances, the authority would be justified in granting appropriate relief. The Honble Court further held that in appropriate case the forum and the Commission under the Act are authorised to grant reasonable interest according to the facts and the circumstances of each case.
13) The Ld. Counsel for the complainant argued that completion period of the project was only 36 months but possession of the residential flat was not given even after expiry of 53 months. The project remained incomplete and builder has expressed its inability to complete the project in near future. The buyer could not be compelled to wait for indefinite period and he has a right to get back his money refunded alongwith appropriate interest. In cases like this the builders dictate the terms with position of strength. In the present case builders has taken handsome amount from the complainant and even after expiry of 53 months the OP expressed inability to complete the project in near future. The builder utilised the hard earned money of the complainant and kept him waiting for 53 months in vain. The flat buyer agreement was shrewdly couched in a manner which benefitted the builder most. On one hand it had excluded itself from the liability and obligations, on the other hand, it has put the buyers/allottees in extremely disadvantages condition.
14) He further maintained that the complainant was in distress and accepted the refund of the principal amount under threat and apprehension exerted by the conduct of the builder that his hard earned money will be lost in vain; therefore he agreed to refund of entire principal amount and surrendered all his rights and documents with the builders, he executed a discharge voucher dt. 11.07.2011. Immediately thereafter he sent a legal notice demanding interest @ 24%. As a matter of fact the discharge voucher was obtained under exercise of undue influence and coercive bargain compelled by the circumstances. Therefore the ratio of the judgment of the Honble Supreme Court in United India Insurance V/s Ajmer Singh Cotton and General Mills will be squarely be applicable and the complainant will be atleast entitled for appropriate rate of interest. The conduct of the builder in the present case was totally arbitrary and unethical and burden of proof that it was free from undue influence shall lie upon the builder, as held by the Honble National Commission in S.R.Murthi V/s National Insurance Company ltd. 1 (2003) CPJ 37.
15) On the other hand, the counsel for the OP argued that the complaint was not maintainable. The complainant received a refund of the principal amount deposited by him unconditionally through cheque and encashed the same, he was no more a consumer within the definition of the Section 2(d) of the Act. Also after acceptance of the refund without any pretext their existed no privity of contract between the parties. The complaint was barred by principle of estoppel. It is an admitted case of the parties that the complainant received a sum of Rs. 16, 02,720/- on 11.07.2011 through pay order dt. 07.07.2011 in full and final settlement and later on encashed the cheque. He executed the receipt dt. 11.07.2011 wherein he stated that he received the said amount in full and final settlement of his account in the said booking. He received the said amount on his own volition and request and has no rights, claims against the company whatsoever.
1. Indu Bala Satija Vs HUDA III (2013) CPJ 475 (NC).
2. A.P.Jos Vs ICICI Lombard General Insurance Company Ltd. II (2013) CPJ 386 (NC).
16) Ld. Counsel for the OP further relied upon the ruling of the National Commission in Sandeep Kumar Vs New India Insurance Company Ltd. In the first two cases quoted above Honble National Commission held that privity of contract or relationship of consumer and service provider came to end. Once the allottee has accepted refund amount and got the cheque encash. In the third case, it was held by the Honble National Commission where discharge voucher was not obtained by fraud, misrepresentation, undue influence or coercion, the District Forum or the State Commission could be justified in dismissing the complaint. In the present case, it has not been disputed by the complainant that principle amount of Rs. 16,02,720/- was refunded/paid by the OP through cheque No. 005696 dt. 07.07.2011 and receipt of amount received was executed on 11.07.2011 towards full and final settlement of his account. One Photocopy of the receipt annexure OP-1, Colly-Pg-19 is available on record. It has been duly executed by the complainant Sh. Amit Chawla. It bears his signature his name address and telephone number. It is mentioned in the receipt that complainant has received the amount of Rs. 16,02,720/-on his own volition and on receipt of the same, he has no rights/claims against the company. And his rights, in the said booking stands surrendered/extinguished.
17) In view of these facts and circumstances and evidence on record we are not convinced that the complainant has accepted the refund amount under any kind of undue influence or coercion. He ceases to be a consumer, the moment he received the principle amount through cheque and encashed the same.
18) He is therefore estopped from filing the present complaint, which is not maintainable and is liable to be dismissed.
19) The complaint is accordingly dismissed.
20) The judgment of this complaint case shall mutatis mutandis apply to Complaint Cases No. 315/11 and 316/11. These complaint cases will also stand dismissed on the same very grounds and copies of the judgment of this complaint case will be placed on record of these two complaint cases.
21) Let a copy of the order be provided to the parties free of cost as per law and case file be consigned to record room.