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.345/2013
- SH. J.P. KUMAR
S/O LATE SH. K.L. KUMAR
- SMT. ASHA KUMAR
W/O SH. J.P. KUMAR
BOTH R/O : BG-1/182, PASCHIM VIHAR,
NEW DELHI
…………. COMPLAINANT S
VS.
M/S M-TECH DEVELOPERS LTD.,
ANS HOUSE, 144/2, ASHRAM,
MATHURA ROAD, NEW DELHI-110014
THROUGH CEO/MD/PRINCIPAL OFFICER
………….. RESPONDENT
Date of Order:30.05.2016
O R D E R
A.S. Yadav – President
Complainants booked a flat in the project of OP at Dharuhera, Haryana in January 2007. OP assured to complete the project within 2-3 years. Complainant was allotted flat on 07.04.2008. Complainant paid a total amount of Rs.8,52,225/- to OP. Complainant was not given the physical possession of flat. Complainant went to the site and surprised to see that no construction of any type was going on there at the site. Complainant asked for refund of the amount. The amount was not refunded. Accordingly this complaint was filed on 27.06.2013 for refund of amount of Rs.8,52,225/- plus Rs.5 lakhs towards compensation and Rs.55,000/- towards litigation expenses.
OP was proceeded exparte and the matter was listed for final arguments for 31.03.2015. On that day adjournment was sought on the ground that the matter is likely to be settled and the matter was adjourned for 14.04.2015. Thereafter matter was adjourned for outcome of settlement for 21.04.2015. On 21.04.2015, it was informed that the matter has not been settled and the matter listed for final arguments for 21.08.2015. Thereafter it was adjourned for 03.05.2016.
We have heard complainant as well as Ld. Counsel for OP.
Ld. Counsel for OP stated that matter was settled between the parties on 25.04.2014. Complainant, out of free will, settled the matter with OP and received the amount of Rs.8,52,225/- by way of demand draft towards full and final settlement. The copy of the settlement has been placed on record. Complainant has not disputed that he has entered into settlement and the settlement deed bears signature of complainant. Complainant has not disputed that he has received the demand draft and got the same encashed. However, it is stated by complainant that he has not received interest on the amount.
The relevant portions of the settlement deed are clause 1, 2 and 4 which are reproduced as under:-
- That the First Party hereby voluntarily with his free will and consent made by his/her/their vide surrender application/letter dated 01.04.2014 request for cancellation of aforesaid Apartment and the Second Party after considering the request of the First Party hereby agree for the cancellation of aforesaid Apartment. The Parties hereby agree that form the date of this Cancellation Deed, the Registration/Allotment of Apartment No N/A and/or booking shall stand cancelled, determined and made void in all respects. The Second Party shall assume charge, possession control, supervision, administration, management and development of the aforesaid apartment and shall have right to market, sell, transfer, charge or mortgage the same on its sole discretion in the manner it deems fit and appropriate;
- That the Second Party has already made part payment of Rs. NIL and the First Party now hereby voluntarily agree to accept the final/total sum of Rs.852225/- vide cheque/demand draft No.462293 dated 01.04.2014 amounting Rs.852225/- drawn on Punjab National Bank, Shalimar Bagh, Delhi and the receipt of this amount the First Party both hereby admit in respect of full and final discharge of all his/her/their claims ad demands whatsoever, which the First Party may have or might set up in future against the Second Party, either under or by virtue of the said Application Form, Allotment, Letter, Agreement to Sell or other documents issued to with regard to the said Apartment.
- That after cancellation of flat/plot/apartment or receiving the full & final amount, the first party shall be voluntarily recorded their statement for withdrawal of legal proceedings as initiated before the court(s), Forum(s), authorities with respect to filed any kind of criminal complaint/suit/writ/police proceedings whatsoever at own risk, failing which the second party shall be entitled to initiate legal proceedings against the first party before the concerned court of Law or any authorities.
The matter has been settled out of free will during the pendency of this complaint and a sum of Rs.8,52,225/- has been received by complainant. The present complaint does not lie. 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.
For the reasons stated above, complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
