JUSTICE V.K.JAIN, PRESIDING MEMBER (ORAL)

          Late Sh. Hans Raj Puri, father of the complainants/respondents was allotted a residential plot by the petitioner at Dilshad Garden (Delhi) in the year 1957, for a consideration of Rs.1,200/-.  The entire sale consideration was duly paid by the father of the complainants to the petitioner.  He was asked to pay a sum of Rs.115.50/- on account of registration expenses and Corporation duty.  The said amount is also alleged to have been paid by the father of the complainants.  However, the possession of the said plot was not given to him.  The father of the complainants having died on 11.02.1998, the complainants approached the concerned District Forum by way of a consumer complaint instituted in November 2004 with the following prayers:

          i) Direct the OP to allot the plot no.C-11, Dilshad Colony, Dilshad Garden, Delhi to the complainants or to allot an alternative plot in lieu thereof. 

(ii) Direct the OP to pay interest @ 18% p.a. to the complainants from the date of deposit till the date of delivery of possession, on the amount of Rs.1,200/-.

(iii) Award compensation to the tune of Rs.1 lakh on account of mental agony and harassment.

(iv) Grant costs of litigation to the tune of Rs.10,000/-.

2.      The complaint was resisted by the petitioner which took a preliminary objection that it was hopelessly barred by limitation.  It was further stated in the reply filed by the petitioner that the father of the complainants had encashed the cheque of Rs.1,200/- as was certified by the bank of the petitioner and having accepted the said amount without any protest, the party was estopped from raising any dispute after a lapse of 17 years. 

2.      The District Forum having dismissed the complaint on the ground of limitation, the respondents/complainants approached the concerned State Commission by way of an appeal.  Vide order dated 06.04.2005, the State Commission inter-alia held and directed as under:

Till 1987 possession was not handed over.  Rather a letter of cancellation was sent to the respondent with a draft of Rs.1,200/-. The matter could not be pursued by the appellants as tragedy after tragedy had befallen on them.  Firstly, the brother-in-law of the appellant expired due to which their father lost mental balance and then he also expired in 1998.  The documents were not available with the appellants.  Later on they could lay hands upon the papers pertaining to the property and documents relating to the communication as far back as 1957 and 1960.  It is the date of knowledge about any fact that determines the limitation and the existence thereof. 

3.      Be that as it may, the fact remains that the flat was cancelled after 27 long years, and the District Forum without calling upon the respondent to prove service of cancellation letter and refund of Rs.1,200/- and show and explain the deficiency or unfair trade practice on its part, dismissed the complaint.  We allow the appeal at the outset, set aside the impugned order with the direction to the District Forum to decide it on merits.

3.      The petitioners preferred a revision petition before this Commission against the order of the State Commission dated 06.04.2005.  The said revision petition however, was dismissed. 

4.      Thereafter, the District Forum vide its order dated 03.10.2007, directed as under:

1. The complainants are real brothers and sons of late Hans Raj Puri, OP should give possession and register the plot of the same dimension and if possible the same locality at old rates in which it was sold to Late Sh. Hans Raj Puri to both the complainants jointly as right to acquire property also amounts to property and is heritable.

2. OP has indulged in unfair trade practice and has caused undue mental agony and harassment to both the complainants for which OP will pay Rs.2,00,000/- as compensation to both the complainants in equal share.

3. OP will pay Rs.10,000/- as cost of litigation to both the complainants in equal shares.

5.      Being aggrieved from the order passed by the District Forum, the petitioner again approached the concerned State Commission by way of an appeal.  Vide impugned order dated 25.03.2009, the State Commission dismissed the appeal filed by the petitioner.  Being aggrieved, the petitioner is before this Commission by way of this revision petition. 

6.      It is not in dispute that a residential plot of land was allotted to Late Sh. Hans Raj Puri, father of the complainants.  It is also not in dispute that the sale consideration for the said plot was agreed at Rs.1,200/- which Late Sh. Hans Raj Puri had paid. Urban Land (Ceiling & Regulation) Act, 1976 then came into force. In order to obtain exemption in terms of Section 20 of the said Act, the petitioner allegedly asked Late Sh. Hans Raj Puri to submit the requisite documents so that it could obtain exemption from the competent authority and thereafter, execute the Sale Deed of the allotted plot in his favour.  That having not been done, the petitioner claims to have cancelled the allotment and refunded the entire sale consideration of Rs.1,200/- to Late Sh. Hans Raj Puri.

7.      The learned counsel for the respondents submits that the amount of Rs.1,200/- which the petitioner claims to have sent to Late Sh. Hans Raj Puri, was never received by him.  This contention however, is contrary to the specific averments made in the consumer complaint itself in this regard.  Para 12 of the consumer complaint instituted by the respondents reads as under:

12.    That the acts of the OP amounts to grave deficiency in service also for the reason that the amount of Rs.1,200/- paid by the father of the complainants between 1957 to 1960 was refunded in 1987 i.e. after about 27 years and no interest has been paid thereon.  The father of the complainants would have earned interest on the said amount.  Equity and fair play required that the OP should have taken necessary steps to enable the late father of the complainants in getting possession of the plot.  On the contrary the OP has created technical hurdles at all stages without considering the difficulty of the late father of the complainants that he used to come to Delhi from a distant place.  Furthermore, even when the OP refunded the amount of Rs.1,200/- the same should have been refunded alongwith interest.  The OP cannot deny liability to pay interest because the OP must have earned interest on the said amount.

8.      It would thus be seen that in the above referred paragraph, the complainants/respondents expressly admitted the refund of Rs.1,200/- to their father in the year 1987.  Though they expressed a grievance that no interest had been paid on the said amount, they pleaded that their father would have earned interest on the said amount and the OP should have refunded the amount of Rs.1,200/-, the same should have been refunded alongwith interest.  They also stated that the OP could not deny liability to pay interest because it must have earned interest on the said amount.  In view of the said specific averment in the consumer complaint itself, which the complainants later on sought to dispute in the rejoinder filed by them, I have no hesitation in holding that the entire sale consideration of Rs.1,200/-, which Late Sh. Hans Raj Puri had paid to the petitioners, was refunded to him way back in the year 1987.  There is absolutely no evidence of Late Sh. Hans Raj Puri having protested against the aforesaid refund at any point of time, till he died in the year 1998, about 11 years after receiving the amount of the refund.  In fact, he executed a will on 10.04.1996 in which he made no reference at all to the above referred plot.  This clearly indicates that Late Sh. Hans Raj Puri was no more claiming any right, title, interest or claim in the above referred plot. Even otherwise, having received the entire sale consideration without any demur or protest and having thereafter, kept silent for about 11 years, Late Sh. Hans Raj Puri is deemed to have accepted the said refund and therefore, was estopped from claiming possession of the plot which the petitioner had allotted to him.  Being his successors-in-interest, the complainants/respondents are bound by the aforesaid conduct of Late Sh. Hans Raj Puri. 

9.      For the reasons stated hereinabove, I hold that by accepting the refund of Rs.1,200/- from the petitioner, Late Sh. Hans Raj Puri and being his successors-in-interest, the petitioners are estopped from claiming any right, title, interest or claim in the plot which the petitioner had allotted to Late Sh. Hans Raj Puri.  The orders passed by the fora below therefore, cannot be sustained and the same are accordingly set aside.  The consumer complaint is consequently dismissed with no order as to costs.

          The amount if any, deposited by the petitioner with the State Commission, shall be refunded to the petitioner alongwith interest which may have accrued on that amount.