DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

C.C. NO.70/2016

Date of Institution: 11.02.2016

Judgment Reserved on: 03.02.2022

Judgment Passed on: 30.05.2022

QUORUM:

Sh. S.S. Malhotra (President)

Ms. Ritu Garodia (Member) – on leave

Sh. Ravi Kumar (Member)

Order By: Shri S.S. Malhotra, President

JUDGEMENT

1. By this order I shall dispose off the present complaint filed by the complainant against O.Ps, inter-alia alleging unfair trade practice by the O.P. No. 1 to 5 with respect to not refunding the amount of Rs.1142000/-  deposited by him with OPs for booking up two units/flats in the project of O.P. No 1 to O.P. no 5.
2. Brief facts as stated by the complainant in the complaint are, that O.P. No 5 approached the complainant and persuaded him to book residential units at O.P. No. 1’s Project and as per his assurance, he in November 2014 singed the application-cum-registration form for booking two units under subvention  plan and opted for 15/80/5 plan and paid Rs. 687000/- to OP5 to be deposited with OP1 to OP4 on 3.11.2014 for two units i.e. unit no F-0401 and F-0402 at ‘Fusion Home project’ Greater NOIDA for which four separate receipts were issued by OP1 dated 3.11.2014 as per annexure B. On further demand he paid Rs.55000/- to the OP1 against both the units for which also two separate receipts were issued which is annexure C. The O.P. no 5 then again asked for Rs 400000/- on 15.12.2014 which were given to him for depositing with O.P. no. 1. However, O.P. No 5 did not deposit the amount with OP1 but when insisted, he/O.P. 5 stated that this amount has been spent by him and he would return the same to the complainant and ultimately O.P. 5 issued Cheque no. 571360 for an amount Rs. 400000/- dated 31.1.2015 to the complainant. He deposited the said cheque in his account, however, the cheque was dishonoured with the remark, ‘fund insufficient’. This fact was brought to the knowledge of OP5 upon which O.P. 5 sought more time for clearing the entire dues and further time was given to him but the O.P. no. 5 didn’t pay the amount at that time and after much persuasion he issued another cheque No. 494684 dated 10.6.2015 for Rs. 400000/- to the complainant but even that cheque was also returned unpaid on 27.6.2015 and then on 10.8.2015. This fact also was brought into the knowledge of O.P. 5 and on his request it was again presented on 7.9.2015 but again it got dishonored. When the complainant brought this fact to the knowledge of O.P. 5 he told the complainant that O.P. 5 has already deposited amount with OP1 to OP4 but no receipt has been issued by the O.P. 1 to OP4. In this regard, the complainant then had filed one criminal complaint against OP5 only under Section 138 of Negotiable Instruments Act before the learned MM, Karkardooma Court.  
3. It is further stated that keeping all the facts in view the complainant requested many times OP1 to OP4 for cancelation of his two units and for refund of his amount of Rs.1142000/- but O.P. 1 to 4 have refused to refund the amount whereafter the complainant served legal notice to the OPs dated 15.12.2015 thereby asking the refund of his amount but despite having received the legal notice no payment was refunded and as such complainant has filed the present complaint with the prayer -

1.  Allow the Complaint and direct the Opposite Parties to pay and return the booking amount i.e. Rs.11,42,000/- (Rupees Eleven Lakh Forty Two Thousand Only) along with interest calculated @ 18 per annum till the date of payment;
2. Order that opposite parties to pay to the Complainant a sum of Rs. 5,00,000/- (Rupees Five Lakh Only) with interest at the rate of 18% p.a. from the date of institution of the present Complaint till the date of realization as compensation of the mental torture and harassment suffered by the Complainant;
3. Order that the Opposite Parties to pay to the Complainant an amount of Rs. 55,000/- (Rupees fifty five Thousand only) with interest at the rate of 18 per from the date of institution of the present Complaint till the date of realization as cost, the legal costs, of the present complaint; and
4.  Pass such other order (s) as this Hon’ble Commission may deem fit and proper in the interest of justice.

4. The OPs were served but none appeared on behalf of OPs and they were proceeded ex-parte vide order dated 21.8.2018. The complainant, thereafter, has filed its evidence and arguments of the complainant were heard. The Commission has perused the record.
5. There are two sets of OPs in this matter, one set is O.P. 1 to O.P. 4 and the other one is O.P. 5. As far as O.P. no. 1 to O.P. 4 are concerned, complainant although has made the payment to the OP5 but OP1 to OP4 have issued the receipts for Rs. 742000/- and as such it stands proved that complainant has paid amount of Rs.742000/- to OP1 to OP4 against the booking of two units i.e. F0401 and F0402. Since this fact has been acknowledged by O.P. 1 to O.P. 4 and they have even issued receipt of Rs.742000/- and further since O.P. no 1 to OP4 have not contested the matter nor have denied this facts and further receipts issued by O.P. no 1 to 4 are on record which also confirm that OP1 to OP4 have received the amount of Rs.742000/- from the complainant and despite the request of complainant they have neither refunded the amount nor made any communication with him nor have given the reply to the notice or reply of the complaint & therefore, the complainant has been able to prove that O.P. no 1 to 4 were the service provider qua him and have neither completed the project nor have refunded the amount of Rs.742000/- to the complainant against booking of two units in their project ‘Fusion Home Project’ and this amounts to deficiency in service by the O.P. no. 1 to 4 towards the complaint.
6. As far as second set of OP is concerned i.e. O.P. no 5, the complainant has alleged that he has paid Rs. 400000/- in cash to the O.P. no. 5 for onward depositing the same with O.P. no. 1 to 4 which O.P. no. 5 admittedly has not deposited with O.P. no. 1 to 4. The complainant told him many times either to return Rs. 400000/- to him or deposit the same with O.P. no. 1 to OP4 and OP5 even issued one cheque to him which got dishonored and then OP5 claims that he has deposited the same with O.P. no. 1 to 4 and again he had issued another cheque to the complainant which also got dishonored and subsequently complainant had filed complaint Under Section 138 of Negotiable Act which proceeding have gone up to the Hon’ble High Court.
7. Admittedly the complainant has no receipt of this amount of Rs.400000/- from O.P. No 1 to OP4 and as far as O.P. No. 5 is concerned he is facing criminal proceeding as initiated by the complainant. The final outcome of the proceedings u/s 138 of Negotiable Act, as filed by the complainant against OP have not been placed on record.
8. The complainant has not been able to prove as to how he is a consumer qua OP5 or how the OP5 is falling within the definition of ‘service provider’ to him. It may be personal transaction between complainant & O.P. 5 or OP5 might have duped the complainant of his amount but he has not been able to prove as to whether he is a consumer qua OP5. OP1 to OP4 i.e. the builder admittedly have not received this amount. Even if we see the memo of parties, O.P. no. 1 is stated to be the company, O.P. no. 2 is its director O.P. 3 is its General manager and O.P. 4 is its director where as O.P. no. 5 has not been described as any of the office bearer or the director or the manager etc. of O.P. no. 1. Therefore, this Commission is of the opinion that complainant is not a consumer qua OP5 nor O.P. 5 is service provider qua the complainant and since this amount has not been deposited by the OP5, with OP1 to OP4 and they have not issued any receipt to the complainant, nor the OP1 to OP4 have acknowledged the receipt of Rs.4,00,000/- the OP1 to OP4 are not liable to return Rs.400000/- to the complainant. As far as OP5 is concerned, the complainant has already initiated the proceedings against OP5 and this Commission is not referring any opinion w.r.t. pending disposal of complaint u/s 138 of N.I. Act against OP5 but it is held that OP5 is/was not a service provider to the complainant nor the complainant is consumer qua OP5.
9. Accordingly the compliant of the complainant against O.P. no 1 to 4 is partly allowed. OP1 to OP4 are directed to refund the amount of Rs.742000/- jointly & severally to the complainant with interest @6% p.a. from the date of deposit alongwith compensation of Rs.40,000/-within three months from the receipt of this order. If the amount is not paid/returned to the complainant rate of interest would be 9% p.a. from the date of deposit the amount till realization and the complaint of the complainant against O.P. no. 5 is dismissed as not maintainable.
10. OP1 to OP4 are also directed to pay legal expenses of Rs.11,000/- jointly & severally to the complainant.
11. File be consigned to Record Room.
12. Announced on 30.5.2022

DELHI