Delhi

StateCommission

A/613/2015

MRS. KIRAN GARG - Complainant(s)

Versus

EARTH INFRASTRUCTURE LTD. & ANR. - Opp.Party(s)

V.K. GOEL

12 Feb 2016

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                    Date of Arguments: 12.02.2016                                             Date of Decision: 15.02.2016

First Appeal No. 613/2015

(Arising out of the order dated 26.11.2015 passed in Complaint Case No. 119/2014 by the District Consumer Disputes Redressal Forum, (Central) Kashmere Gate, Delhi)

In the matter of:

Mrs. Kiran Garg

W/o Sh. P.K.Garg

Shriji Kunj, Pech Paras Ram

Mall Godam Road

Rohtak

Haryana                                   ...........Appellant

 

Versus

 

1. The Chairman/Managing Director

Earth Infrastructure Ltd.

26, 1^st Floor, Pusa Road

Near Karol Bagh, Metro Station

New Delhi-110005

 

2. Sh. Amardeep Rana

C/o Earth Infrastructure Ltd.

26, 1^st Floor, Pusa Road

Near Karol Bagh, Metro Station

New Delhi-110005                             ..........Respondents

                                                                  

                                                                  

CORAM

 

O P GUPTA                              -                  MEMBER (JUDICIAL)

 

1.         Whether reporters of local newspaper be allowed to see the judgment? Yes

2.         To be referred to the reporter or not? Yes

 

O P GUPTA -  MEMBER (JUDICIAL)

 

JUDGEMENT

1.          The present appeal challenges order dated 26.11.2015 passed by the District Forum (Central) dismissing the complaint. Brief facts of the case are that the appellant/complainant booked a flat with OP and deposited Rs. 5,00,000/- at the time of booking. He further paid Rs. 10,00,000/- making the total Rs. 15,00,000/-. In June 2012, complainant received a demand for Rs. 6,22,983/-. On 11.08.2012 he went to the office of the OP-1 to deliver cheque of Rs. 7,00,000/- which was not received by the OPs but later on the same was collected from the residence of the complainant by an official of OP-2. The said cheque was not presented for encashment which shows malafide on the part of the OPs to cancel the booking. The complainant filed a civil suit for mandatory injunction and permanent injunction in Civil Court Rohtak, Haryana which was rejected for want of territorial jurisdiction. Thereafter the complainant filed a complaint in District Forum.
2.          The OPs contested the complaint and pleaded that it never accepted the cheque of Rs. 7,00,000/-. The demand letter dated 23.06.2012 was reminder to earlier letter sent on 24.05.2012 demanding Rs. 16,45,649/- alongwith interest within ten days. The complainant did not disclose the said letter. Demand letter of Rs. 6,22,983/- reflected only balance payment which was payable at the time of excavation. The flat was cancelled due to non payment of the balance amount. The OP had already refunded the amount vide cheque dated 11.09.2012 without deducting earnest money which OP was entitled to do.
3.          After evidence the District Forum found that OP acted in accordance with terms and conditions of the contract, complainant was defaulter in payment of the due instalment, the OP had cancelled the booking and had also refunded the entire amount deposited by him. There was no deficiency of service on the part of the OP. Hence the complaint was dismissed.
4.          We have gone through the material on record and heard the arguments for the purpose of admission. Once the complainant had accepted the amount of refund, he was left with no right to canvass the deficiency on the part of the OP.
5.          Moreover, we directed the appellant to file copy of the plaint and order passed in the Civil Suit in Rohtak, Haryana. The appellant filed the same. Perusal of the same reveals that the said suit was based on same allegations. Once the appellant had resorted to a Civil Suit, he cannot be allowed to come to the Consumer Court. It is true that the civil suit was not decided on merits but plaint was rejected for want of territorial jurisdiction. But in that event the plaintiff ought to have filed civil suit in court having territorial jurisdiction i.e consumer court in Gurgaon where the project was to be developed and flat was situated.
6.          There is no infirmity in the impugned order. The appeal fails and is dismissed.
7.          Copy of the order be made available to the parties free of costs as per rules and thereafter the file be consigned to Record Room.
8.          One copy be sent to the District Forum concerned for information.

 

(O P Gupta)

Member (Judicial)​