CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.274/2016
- SH. RAJESH SETHI
S/O SH. P.R. SETHI
- SH. VIJAY KUMAR SETHI
S/O SH. SUDERSHAN SETHI
BOTH PERMANENT RESIDENT OF:-
2/41 NEHRU NAGAR, OPPOSITE SRI NIWAS PURI,
NEW DELHI-110065
BOTH AT PRESENT RESIDENT OF:-
12928, MAY FAIR DRIVE, LEMNOT IL-60439,
UNITED STATES OF AMERICA
THROUGH SPECIAL POWER OF ATTORNEY SH. TUSHAR GUPTA
…………. COMPLAINANTS
Vs.
LAND MARK APARTMENTS PVT. LTD.
THROUGH ITS MANAGING DIRECTOR
HEAD OFFICE:- A-11, C.R. PARK, NEW DELHI
CORPORATE OFFICE:-
17, VIPUL SQUARE SUSHANT LOK-1, GURGAON
…………..RESPONDENT
Date of Order: 29.11.2017
O R D E R
A.S. Yadav, President
The case of the complainants is that they are NRI /Person of Indian Origin and are permanently residing in USA. The complainants booked a shop in the new project “Landmark The Mall” of OP on 20.03.2008 and initially paid a sum of Rs.2,50,000/-. At the time of booking the complainants were assured that the possession will be delivered within two years and it was further stated that in case of any delayed possession, damages would be paid to the complainants. In fact the complainants were duped. The complainants through repeated letters/emails/personal visits and meetings with the staff of OP, failed to get any concrete answer regarding tentative date of completion of the project and further date of handing over of possession of the aforesaid unit booked by them for their personal use and to meet out the business requirements. It is submitted that the complainant No.1 being Human Resource Consultant intends to use the aforesaid booked units for opening his office in India and on account of delay without any apparent reason, has caused severe financial loss to the complainants. The complainants visited the office of OP at Gurgaon on 27.05.2014 and since nothing concrete has taken place and the officials of OP were evasive and not confirming anything. Rather complainants were threatened and the complainants thereafter went back to America and lodged a complaint with the police and also with EOW Cell of Delhi police. The complainants were called to record their statement after the matter was reported to the EWO Cell. The staff of OP in collision with the police officials agreed to resolve the issue and made a proposal to refund the entire amount deposited by the complainants and got the signatures of the complainants that they shall not seek any interest over the amount illegally retained/withheld by OP for seven years. The complainants were forced to accept the same under pressure in an alien atmosphere as the police officials colluded with the staff of OP company for malafide reasons. The said principal amount of Rs.20,79,600/- was refunded on 12.07.2015 without any interest. The staff of OP company has cheated the complainants. Terming the action of OP as unfair trade practice and deficiency in service, the present complaint has been filed whereby the complainants have sought interest @ 24% p.a. from the date of payment till 12.07.2015 when the principal amount was refunded and also sought compensation and litigation expenses.
OP has placed on record the Compromise Deed that the matter was settled between the parties. Clause 3 and 4 of the Compromise Deed state as under:-
“3. That thereafter with the intervention of the respectable persons, compromise has been effected and MoS was executed in between the First Party as well as with the company and in terms of said MoS, First Party has received Demand Draft for Rs.2079600/- drawn on IDBI Bank Ltd. Gurgaon of already paid amount as interest & compensation from the company and the First Party has agreed to leave all rights and interest in the said shop/allotment in favour of the Second Party.
4. That after receiving of the said cheques as full an final payment in toto, nothing is due towards the company and now the First party has no grievance against the company.”
A memorandum of settlement is also duly signed by the parties. It is clear from the memorandum of settlement and Compromise Deed that the complainants have settled the amount for a sum of Rs.20,79,600/- towards full and final settlement. That amount was duly received by the complainants and the cheque has been encashed.
Once the complainants have received the amount towards full and final settlement and that amount has been encashed thereafter, the complaint is not maintainable.
Reference is placed on the case of Indu Bala Satija Vs Haryana Urban Development Authority 111(2013) CPJ 475(NC) where it was held that once petitioner received amount unconditionally and got cheque enchased petitioner ceases to be ‘consumer’. There was nothing on the record to show that petitioner was compelled by the respondent at any stage either to surrender the plot or take refund. Hence complaint is dismissed. In that case Hon’ble National Commission has relied upon the decision of Hon’ble Supreme Court in case of Bhagwati Prasad Pawan Kumar Vs Union of India (2006) 5 SCC 311 – wherein it was concluded that the encashment of the cheques amounted to acceptance of the amount in full and final settlement of the claim. It was further laid down by the Hon’ble Apex Court that the protest and non-acceptance must be conveyed before the cheques were encashed and if the cheques were encashed without protest, then it must be held that the offer stood unequivocally accepted and offeree cannot be permitted to change his mind after unequivocable acceptance of the offer.
Keeping in view the above facts, the present complaint is not maintainable hence the complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (A.S. YADAV)
MEMBER PRESIDENT
