Delhi

East Delhi

CC/842/2014

RAJ DIKSHIT - Complainant(s)

Versus

ANTHEM INFRA. - Opp.Party(s)

14 Aug 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

 

C.C. NO. 842/14

 

Dr. Raj Dikshit

S/o Shri Santosh Dikshit

R/o H. No. 2-3, Parwana Road

Khureji Khas, Delhi – 110 051                                      ….Complainant

Vs.    

 

1. Anthem Infrastructure Pvt. Ltd.

Through its Directors

Regd. Off.: 501, Sachdeva Corporate Tower

Plot No. 17, DDA Commercial Complex

Karkardooma, Delhi – 110 092

 

2. Shri Brijesh Kumar

Director/Board Member of OP-1

 

3. Shri Manish Gupta

Director/Board Member of OP-1

 

4. Shri Shashak Bindal

Director/Board Member of OP-1

 

5. Shri Prashant Bindal

Director/Board Member of OP-1

 

6. Shri Shiv Kumar Gupta

Director/Board Member of OP-1

 

7. Shri Ankit Gupta

Director/Board Member of OP-1                                       …Opponents

 

Date of Institution: 10.09.2014

Judgement Reserved on: 14.08.2018

Judgement Passed on: 24.08.2018

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By: Sh. Sukhdev Singh (President)

 

JUDGEMENT

            This complaint has been filed by Dr. Raj Dikshit against Anthem Infrastructure Pvt. Ltd. (OP-1) and its Directors (OP-2 to OP-7) under Section 12 of the Consumer Protection Act, 1986 with allegations of unfair trade practice and deficiency in service. 

2.         The facts in brief are that the complainant Dr. Raj Dikshit alongwith his brother Dr. Sanjeev Dikshit met Mr. Vivek of Real Player Associates, the agent of Anthem Infrastructure Pvt. Ltd. (OP) who explained to them about the pre-launching scheme of the project “French Apartments” situated in GH078, Sector 16B, Greater Noida West by Anthem Infrastructure Pvt. Ltd.  The complainant decided to book a flat measuring 1125 sq. ft. area and his brother Dr. Sanjeev Dikshit decided to book a flat measuring 965 sq. ft. @ Rs. 1435/- per sq. ft. in the said project.  Total cost of both the flats were Rs. 16,14,375/- and Rs. 13,84,775/- respectively. 

            It has further been stated that in pursuance of oral agreement, the complainant made the booking payment of Rs. 11,000/- on 28.10.2010 and his brother Dr. Sanjeev Dikshit also made the booking payment of             Rs. 25,000/- on 09.11.2010 for which receipt of dated 28.10.2010 was issued.  The complainant was allotted unit no. E-401 and his brother, unit no. D-406 in “French Apartments” situated in GH-078, Sector 16B, Greater Noida West by OP.  They continued to make payments as per demand till June 2013.  When they asked for buyer agreement, they were told to wait. 

            The complainant made payment of Rs. 50,000/- on 15.12.2010,    Rs.1,00,000/- on 17.11.2012, Rs. 1,00,000/- on  14.06.2013,  Rs.2,00,000/- and Rs.30,968/- on 04.07.2013 making a total of Rs.4,91,968/- (including booking amount of Rs. 11,000/-).  The complainant’s brother Dr. Sanjeev Dikshit made payment of Rs.25,000/- on 10.01.2011, Rs.1,30,000/- on 30.04.2011, Rs.1,00,000/- on 20.11.2012 and Rs.1,00,000/- on 18.06.2013 making a total of Rs.3,80,000/- (including booking amount of Rs. 25,000/-).  The complainant and his brother Dr. Sanjeev Dikshit went to the office of Anthem Infrastructure Pvt. Ltd. (OP) on 30.07.2013 to make the payment in pursuance of their letter of dated 26.07.2013, however, to their utmost surprise, they were shocked when office of OP conveyed that both the flats booked by them stands cancelled and handed over the cancellation letters of dated 30.07.2013.  They approached Shri Shashank Bindal, Director of OP who refused to accept the payments and informed that prices have been increased and if they want to continue the booking of their flats in their project “French Apartments”, they have to make the payments as per the increased rates.  The complainant and his brother tried to persuade        Shri Shashank Bindal, Director OP to restore the booking, but he did not agree and turned down their requests. 

            He has further stated that after few days, the complainant received a cheque of dated 02.08.2013 for Rs. 4,91,968/- from Anthem Infrastructure Pvt. Ltd. (OP).  The complainant approached Shri Shashank Bindal, Director OP to return the said cheque and requested for the restoration of his booking who agreed to restore one flat of the complainant’s brother subject to complainant and his brother jointly giving an affidavit that the complainant and his brother have voluntarily agreed to cancel flat No.       E-401 and would not claim anything from the OP in future. 

            Further, the complainant was also to give an affidavit that they want his money back.  The complainant and his brother Dr. Sanjeev Dikshit under pressure gave joint affidavit as well as one another affidavit by the complainant of dated 19.09.13 as per the direction of Shri Shashank Bindal, Director of OP.

            It has further been stated that OP restored one flat of complainant’s brother Dr. Sanjeev Dikshit and gave a formal Buyer’s Agreement dated 24.09.2013.  They sent a RTGS of Rs. 4,91,000/- in complainant’s account on 03.10.2013. 

            Aggrieved by the behavior of OP, the complainant gave a legal notice to Anthem Infrastructure Pvt. Ltd. (OP) for restoration of flat.  He has further stated that case of the complainant was dismissed on 05.02.2014 due to non filing of allotment terms and conditions and some other reason with liberty to file the case before any other court if so warranted.  Thus, the complainant have stated that there has been deficiency in service as well as unfair trade practice by not giving the flat to the complainant and unlawful and wrong cancellation of flat.       

3.         The complaint was dismissed at the admission stage by the order of this Forum on 07.10.2014, however, this order was set aside by the Hon’ble State Commission by its order of dated 01.12.2014.  The matter was remanded.  After considering the material on record, this Forum issued notice to OP who moved an application for dismissal of the complaint on the ground of jurisdiction.  They did not file any written statement and their right to file the same was closed.  The complainant filed reply to this application, however, the application was not disposed of as this forum did not consider it appropriate to express any opinion on this. 

            During the course of proceedings, the complainant also moved an application under Section 13(3B) of the Act for interim order, reply to which was not filed by counsel for OP.  This application was also not disposed of as the matter was at the final stage.

4.         In support of its case, the complainant have examined himself.  He has deposed on affidavit.  He has narrated the facts which have been stated in the complaint.  He has got exhibited documents such as copy of receipt dated 28.10.2010 (Ex.-A/1), copies of receipts of payments made by Dr. Raj Dikshit (Ex.-A/2 to A/6), copies of receipts of payments made by  Dr. Sanjeev Dikshit (Ex.-A/7), copy of letter dated 26.07.2013 written to the complainant and his brother  (Ex.-A/8 and A/9), copies of cancellation letter dated 30.07.2013 (Ex.-A/10 and A/11), copy of joint affidavit (Ex.-A/12 and A/13), copy of Buyer agreement  dated 24.09.2013 (Ex.-A/14), copy of legal notice (Ex.-A/15) and copy of dismissal order dated 05.02.2014 (Ex.-A/16).     

            Anthem Infrastructure Pvt. Ltd. (OP) have also examined              Shri Anshuman Garg who was also deposed on affidavit.  He has also got exhibited documents such as photocopy of application form (Ex.CW-1/A),  copy of letter dated 03.09.13 requesting the company on behalf of            Dr. Sanjeev Dikshit and Dr. Raj Dikshit (Ex.CW-1/B), copy of cancellation letter dated 30.07.2013 (Ex.CW-1/C), copy of request letters for refund of booking amount (Ex.CW-1/D and 1/E) and reply filed by the company to the IO dated 25.11.2014 (Ex.CW-1/F).  Though, Anthem Infrastructure Pvt. Ltd. (OP) have examined Shri Anshuman Garg, but their affidavits cannot be read as their right to file the written statement was closed.

5.         We have heard Ld. Counsel for the parties and have perused the material placed on record.  The first and foremost argument which has been advanced on behalf of Anthem Infrastructure Pvt. Ltd. (OP) has been that complaint was barred on the principal of resjudicata.  He has stated that the complainant earlier filed a complaint bearing no. 31/14 which was against Anthem Infrastructure Pvt. Ltd. (OP) for the same relief. 

            On the other hand, Ld. Counsel for the complainant have argued that the earlier complaint was not decided on merit.  Hence, the principal of resjudicata was not applicable to the present complaint.

            To appreciate the arguments of Ld. Counsel for the parties in respect of bar of the present complaint on the principal of resjudicata, a look has to be made to the earlier complaint no. 31/14 and the order passed on that complaint.  Admittedly, the earlier complaint was for the same relief, however, the order states that “we are constrained to dismiss the complaint in limine with liberty to the complainant to take up his claims to any other court of law, if it so warranted”.  The complaint has been dismissed in limine which means that the complaint has not been dismissed on merit.  When the complaint has not been dismissed on merit, the question of applicability of the principal of resjudicata does not arise; therefore, this plea of Anthem Infrastructure Pvt. Ltd. (OP) does not survive. 

            Now it has to be seen as to how far the complainant have succeeded in showing any deficiency on the part of Anthem Infrastructure Pvt. Ltd. (OP).  The only plea which has been taken on behalf of OP has been that the complainant was given time to deposit the amount and before the date fixed, they cancelled the flat.  For this, he has made reference to letter of dated 26.07.2013 whereby complainant has been given time to pay a sum of Rs. 3,77,547/- on or before 01.08.2013.  In the second letter of dated 30.07.2013 unit no. E-401 has been cancelled.  However, counsel for OP have drawn attention of this Forum to the documents executed by the complainant Dr. Raj Dikshit and Dr. Sanjeev Dikshit whereby they have made a request for cancellation of unit no. E-401 and its refund.  These documents have been got executed on 19.09.2013.  Thus, he has argued that when the complainant have already executed these documents and have got the refund amount, the principal of waiver applies and he was no more a consumer under the Consumer Protection Act.

            On the other hand, Ld. counsel for complainant have placed reliance on a judgement of National Consumer Disputes Redressal Commission (NCDRC) in Oriental Insurance Company Ltd. vs. Western Nutrients Ltd., First Appeal no, 142 of 2002 – Decided on 22.03.2007; where it has been laid down that discharge voucher was not a bar in filing a complaint before the consumer forum. 

            Before analyzing the evidence on record, a look has to be made to the judgement of NCDRC in Oriental Insurance Company Ltd. (supra) on which the reliance has been placed by Ld. Counsel for the complainant.  It has been laid down in this judgement that the discharge voucher was not a bar in filing a complaint before the consumer forum.  While holding so, the Hon’ble NCDRC have placed reliance on a judgement of Apex Court in United Indian Insurance vs. Ajmer Singh Cotton & General Mills and Ors., where it was laid down that:

            “The mere execution of the discharge voucher would not always deprive the consumer from preferring claim with respect to the deficiency in service or consequential benefits arising out of the amount paid in default of the service rendered.  Despite execution of the discharge voucher, the consumer may be in 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.  If in a given case the consumer satisfies the authority under the Act that the discharge voucher was obtained by fraud, misrepresentation, under influence or the like, coercive bargaining compelled by circumstances, the authority before whom the complaint is made would be justified in granting appropriate relief.  However, where such discharge voucher is proved to have been obtained under any of the suspicious circumstances noted hereinabove, the Tribunal or the Commission would be justified in granting the appropriate relief under the circumstances of each case.  The mere execution of the discharge voucher and acceptance of the insurance claim would not estopple insured from making further claim from the insurer but only under the circumstances as noticed earlier.” 

            Thus, the law as stands today has been that mere execution of the discharge voucher would not deprive the consumer from preferring a claim under the Consumer Protection Act, but the consumer has to show that this discharge voucher was executed under coercive bargaining, compelled by the circumstances, fraud or misrepresentation or under undue influence.

            In the present case, admittedly, complainant was given time to deposit the balance amount of Rs. 3,77,547/- by 01.08.2013 through letter of dated 26.07.2013.  Immediately after 4 days, i.e. on 30.07.2013, a letter has been written by Anthem Infrastructure Pvt. Ltd. (OP) to the complainant informing him that his unit no. E-401 has been cancelled.  Admittedly, the cancellation has been before his time for making payment on or before 01.08.2013.  However, the complainant have executed documents whereby he has made a request for refund of Rs. 4,91,968/- in lieu of unit no. E-401.  Not only this, he has made a request alongwith his brother                         Dr. Sanjeev Dikshit whereby they have stated not to cancel both the units, but otherwise cancel unit  i.e. E-401 and revive other unit D-406 and also refund the total amount given against the said unit.  He has further stated in the said documents that after such cancellation, Dr. Raj Dikshit will not be having any right or dues pending against this unit with Anthem Infrastructure Pvt. Ltd. (OP). 

            Thus, from these documents, it comes out that complainant            Dr. Raj Dikshit have himself made a request for cancellation of unit no.      E-401 and got refund all the amount.  He has further waived his right against this unit.  When the complainant himself have executed the documents for cancellation and have forego his right and have made a request for refund of the amount against this unit and in the absence of any other documents on record to show that these documents have been got executed by playing any fraud, misrepresentation, under influence or coercive bargaining, the refund taken by the complainant take his complaint out of purview of Consumer Protection Act.

            During the course of arguments, it has also been stated on behalf of Anthem Infrastructure Pvt. Ltd. (OP) that complainant have got the refund amount.  The fact that complainant have taken the refund, though he has got these documents later on, on the principal of waiver, the complainant have waived his right.  Thus, the complainant no more remains a consumer under the Consumer Protection Act.  The judgement relied on behalf of complainant does not come to his rescue. 

            In view of the above, we are of the opinion that there is no merit.  Hence, the complaint of the complainant deserves its dismissal and the same is dismissed.  There is no order as to cost.  

            Copy of the order be supplied to the parties as per rules.

            File be consigned to Record Room.

 

 

 

(HARPREET KAUR CHARYA)                                          (SUKHDEV SINGH)

       Member                                                                                President