PER MR. JUSTICE RAM SURAT RAM (MAURYA), MEMBER 

1.      Heard Mr. Tarun Sharma, Advocate, for the complainants and Mr. Pravin Bahadur, Advocate, for the opposite party.

2.      Nayantara Mehta and Deepa Mehta have filed above complaint for directing the opposite party to (i) pay Rs.18000000/-, as interest @18% per annum on their deposits of Rs.1500000/- on 29.03.2012 and Rs.18188719/- on 28.04.2012, from date of deposit till the date of refund of these amounts on 11.01.2017, with pendent-lite and future interest; and (ii) any other relief which is deemed fit and proper in the facts and circumstance of the case.

3.      The complainants stated that the opposite party was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing projects and selling its unit to the prospective buyers. The opposite party launched a project of plotted township, in the name of “DLF Garden City” at Sectors-91 & 92, Gurgaon, in the year 2011 and made wide publicity of its facilities and amenities. The complainants booked a residential plot of 500 sq. yards, BSP @ Rs.45000/- per sq. yard on 29.03.2012 and deposited booking amount of Rs.1500000/- through cheque. The complainants opted for “down payment plan” under which rebate of 8.25% of sale price was given. The opposite party issued Allotment Letter dated 10.04.2012, allotting Plot No. E-11/19, to them. The complainants deposited Rs.18188719/- on 28.04.2012. Balance amount was payable on offer of possession. As per Application for Allotment, the opposite party has to confirm the allotment within one year. The opposite party, vide letter dated 07.03.2016, invited the complainants to inspect Plot No.E-11/19, whose final area was reduced to 479.33 sq. yards and deposit balance amount of Rs.2102760/-, for taking possession. The opposite party issued another dated 10.03.2016, informing that letter dated 07.03.2016 was issued due to oversight and treat it as withdrawn. The complainants did not receive any message for possession for a long time therefore, they through email dated 05.01.2017, requested to refund their amount with interest. The opposite party, vide letter dated 11.01.2017, cancelled the allotment of the complainants and gave a cheque of Rs.19688719/- dated 10.01.2017, stating that this amount was towards full and final settlement. The complainant gave a legal notice dated 24.01.2017, for payment of interest on their deposits. In spite of service of the notice, the opposite party did not respond. Then this complaint was filed on 08.03.2017, alleging unfair trade practice.

4.      The opposite party filed its written reply on 21.08.2017 and contested the matter. The facts relating to the project, allotment of the plot to the complainants and payments made by them, have not been disputed. The opposite party stated that the complainants, vide email dated 05.01.2017, asked to refund their amount. The opposite party, vide letter dated 11.01.2017, cancelled the allotment of the complainants and refunded Rs.19688719/- through cheque dated 10.01.2017, stating that this amount was towards full and final settlement. Expression “full and final settlement” is equivalent to discharge under the contract. The complainants en-cashed the cheque as such they no more remained the consumer of the opposite party. There was neither any deficiency in service nor unfair trade practice. Otherwise also it was a sale of plot and does not fall within the purview of Consumer Protection Act, 1986. Exorbitant amount has been claimed without any basis. The complaint is liable to be dismissed.

5.      The complainants filed Rejoinder Reply, Affidavit of Evidence, Affidavit of Admission/Denial of documents of Nayantara Mehta and documentary evidence. The opposite party filed Affidavit of Evidence Affidavit of Admission/Denial of documents of Enakshi Kulshrestha and documents. The complainants have filed their written arguments.

6.      The counsel for the opposite party submitted that the complainants, vide email dated 05.01.2017, asked to refund their amount. The opposite party, vide letter dated 11.01.2017, cancelled the allotment of the complainants and refunded the entire amount of Rs.19688719/- through cheque dated 10.01.2017, stating that this amount was towards full and final settlement. The complainants en-cashed the cheque and thereby accepted full and final settlement. Expression “full and final settlement” is equivalent to discharge from liability under the contract. After en-cashing the cheque the contract between the parties are fully discharged and the complainants cannot claim interest subsequently. He relied upon the judgment of Supreme Court in Bhagwati Prasad Pawan Kumar Vs. Union of India, (2006) 5 SCC 311, in which, Bhagwati Prasad Pawan Kumar submitted two claims of Rs.53264/- and Rs.51686/- against Railways and Railway admitted the claims for Rs.9111/- and Rs.9032/- and issued cheques of that amount dated 27.07.1993, which was accepted by the claimants. Supreme Court held that after en-cashing the cheques, letters of protest dated 20.08.1993 were not valid and no further amount can be claimed. He relied upon judgments of this Commission in Smt. Pushpa Singhal Vs. Haryana Urban Development Authority, 2013 SCC OnLine NCDRC 115 and RP/1506/2012, Indu Bala Satija Vs. Haryana Urban Development Authority, (decided on 01.05.2013), in which, the allottee had surrendered her plot and accepted refund, it has been held that consumer complaint is not maintainable. Adarsh Developers Vs. Dr. Geetha Bhat, II (2015) CPJ 382 (NC), in which, the allottee failed to deposit the amount, demanded through letter dated 22.08.2006 and reminder dated 26.09.2006. Then the agreement was cancelled on 05.10.2006 and amount deposited was refunded through cheque dated 18.10.2006, which was en-cashed. It was held that subsequent complaint filed on 14.09.2007, for setting aside of letter dated 05.10.2006 was not maintainable. In CC/102/2014 Mohanesh Malik Vs. Puri Construction Pvt. Ltd. (decided on 08.09.2022), in which, allotment was cancelled on 06.03.2014 for the acts of the allottee against warrantee and the amount was refunded through cheque dated 02.05.2014, which was en-cashed on 31.07.2014. The complaint filed on 15.04.2014, for revoking cancellation dated 06.03.2014 was dismissed holding that there was no deficiency in service.   

7.      We have considered the arguments of the parties and examined the record. The case law relied upon by the counsel for the opposite party has no application in the facts of the present case. Section 75 of Contract Act, 1872 provides that a party who rightfully rescinds a contract is entitled to compensation for any damage, which he has sustained through the non-fulfilment of the contract. In the present case, the complainants booked plot on 29.03.2012 and deposited booking amount of Rs.1500000/- through cheque and Rs.18188719/- on 28.04.2012 under “down payment plan”. Balance amount was payable on offer of possession. When the possession was unreasonably delayed, the complainants, through email dated 05.01.2017, requested to refund their amount with interest. The opposite party, vide letter dated 11.01.2017, cancelled the allotment of the complainants and gave a cheque of Rs.19688719/- dated 10.01.2017 (i.e. principal money), stating that this amount was towards full and final settlement. The complainant gave a legal notice dated 24.01.2017, for payment of interest on their deposits and then filed this complaint on 08.03.2017. Thus it well within the right of the complainants to seek refund of their money with interest due to unreasonable delay in handing over possession. Supreme Court in Banglore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 442, Fortune Infrastructure Vs. Trevor D’Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438, held that a home buyer cannot be made to wait for possession of the flat for indefinite period.

8.      In the present case, the opposite party tendered principal amount through cheque dated 10.01.2017. The complainants gave legal notice dated 24.01.2017, for payment of interest on their deposits immediately after accepting principal amount and thereafter filed the present case. As such, it cannot be said that the complainants have waived their right. The word “estoppel” has been defined under Section 115 of Evidence Act, 1872, which has no application in the present case. Acquiescence means passive acceptance or give implied consent to act. Waiver means intentional relinquishment of right. Supreme Court in Bank of India Vs. O.P. Swarnkar, (2003) 2 SCC 721, Krishna Bahadur Vs. Purna Theatre, (2004) 8 SCC 229, Pratima Chaudhary Vs. Kalpana Mukherjee, (2014) 4 SCC 196, Kanchan Udyog Ltd. Vs. United Spirit Limited, (2017) 8 SCC 272 and Kalpraj Dharamshi Vs. Kotak Investment Advisor Ltd., 2021 SCC OnLine SC 204, held that for constituting acquiescence and waiver, it must be established that though a party knows the material facts and is conscious of his legal rights in a given matter but fails to assert its right at the earliest possible opportunity.

9.      The opposite party was in position of a debtor. It had no right to put any condition for return of money along with interest under the law. Use of phrase “full and final settlement” in the letter dated 11.01.2017 does not affect the right of the complainants to claim refund of their money along with interest. The opposite party has refunded principal amount and is liable to pay interest @9% per annum on the deposit of the complainants in the form of restitutory and compensatory compensation as held by Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushama Ashok Shiroor, 2022 SCC OnLine SC 416. 

ORDER

ln view of aforesaid discussions, the complaint is allowed with costs of Rs.one lac. The opposite party is directed to refund interest @9% per annum on the deposits of the complainants from the date of respective deposits till the date of encashment of cheque dated 10.01.2017 and thereafter, shall pay interest at the same rate on such amount of the interest till the date of actual payment, within two months from the date of this judgment.