Haryana

Panchkula

CC/313/2020

SATISH KUMAR GOYAL. - Complainant(s)

Versus

MANAGING DIRECTOR/CHAIRMAN,M/S INVESTORS CLINIC INFRATECH PVT.LTD. - Opp.Party(s)

IN PERSON

16 Nov 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	313 of 2020
Date of Institution	:	09.10.2020
Date of Decision	:	16.11.2023

 

 

Satish Kumar Goyal, age 70 years, s/o Sh. B.R.Goyal, 402, GH-5, MDC Sector-6, Panchkula-134114.

    ..….Complainant

Versus                                                                  

Managing Director/Chairman, M/s Investors Clinic Infratech Pvt. Ltd. 5the Floor, Tapasya Building, Noida Expressway, Sector-126 Noida, 201303(U.P.)

                                                                         ……Opposite Party

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

                         Dr. Sushma Garg, Member.

                         Dr. Barhm Parkash Yadav, Member. 

 

For the Parties:   Complainant in person.

                        Sh.Ankur Bali, Advocate for the OP.      

 

                       

ORDER

(Satpal, President)

1.The brief facts, as alleged, in the present complaint are that the complainant had applied for the allotment of a 3BHK flat only but the Opposite party(hereinafter referred to as OP) had allotted a bigger flat i.e. 3BHK+Servant (A-05/704) and when he(the complainant) objected about this unwanted allotment and asked for the refund of booking amount, the OPs told to him (the complainant) that refund was not possible and so, at last, he accepted it and continued making further payment to the builder i.e. M3M. Thereafter, both the employees of OP, namely, Mr.Mutneja and Mr.Prince Grover, had backed out from their promise of 45% cash back discount on the basic price and Ultimately, the OP issued  a credit note in his favour of the complainant with 2% cash back discount of Rs. 2,16,200/-. The OP got full commission from M/s M3M (the builder) against complainant’s flat in 2013, but the complainant was paid an amount of Rs.1,08,100/- only after many mails and telephonic requests. As per the terms of credit note, the OP had to pay Rs.2,16,200/- to the complainant on payment of 60%  qua flat cost and that 65% payment was due qua flat cost on 15.07.2014. The complainant demanded his money i.e. discount/ commission regularly through various mails and phone calls but OP did not give any satisfactory response. It is averred that the complainant sent various emails dated i.e. 03.10.2014, 16.01.2015, 06.02.2015, 16.03.2015, 27.06.2015 and 30.07.2015 and made personal visits to OP’s Noida office seeking the payment of his due amount but the OP did not give any satisfactory reply or solution regarding his balance payment. It is stated that Ms. Pooja Gupta(Senior Executive) on behalf of the OP vide her email informed the complainant on 07.08.2015 that the complete brokerage had been received from the builder i.e. M3M and the OP is in the process of resolution of his concern. It is stated that a consumer complaint no.527 of 2016 was filed by the complainant seeking his due amount from the OP but the same was dismissed vide order dated 09.10.2017 on the ground that the same was not maintainable due to lack of pecuniary jurisdiction. The said order was challenged before the Hon’ble State Commission by filing First Appeal No.377 of 2018, which was dismissed on 11.04.2018. It is stated that a sum of Rs.54,050/- was received from the OP qua balance payment on 09.08.2018 and thereafter, the complainant continued to remind the OP through emails and telephones and the response was received on 30.07.2020 from OP. It is alleged that OP had received the brokerage of Rs.9,57,258/- from the builder i.e. M3M in the year 2013-14 itself. The builder i.e. M3M had also advised the OP vide email dated 12.03.2015 to settle the matter with the complainant but the OP has failed to pay the due amount as assured to the complainant. Due to the act and conduct of OP, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint has been filed wherein the following reliefs has been claimed:-

A)       To pay the balance principal amount of Rs.54,100/- plus interest as follows:-

i.        Interest @18% p.a. on pending amount of Rs.1,08,100/- from   29.09.2014 to          09.08.2018.

ii.       Interest @18% p.a.  on pending  amount of Rs.54050/-  from 09.08.2018 till   the date of payment.

B)       To pay a sum of Rs.40,000/- as advocate’s consultancy  fees and litigation      charges.

C)       To pay a sum of Rs.2,00,000/- as compensation for the harassment, mental agony, torture and humiliation.

D)      Any other relief this Hon’ble Forum may deem fit and proper in the peculiar     circumstances and facts of this complaint and the complainant is found entitled     by this Hon’ble may also be granted. 

2.Notice was issued to the OP through registered post, which was received back with the report of refusal  and accordingly, it was ordered to be proceeded ex-parte vide order dated 12.01.2021. However, the ex-parte order dated 12.01.2021 was set aside vide order dated 10.03.2021 and written statement filed by the OP through it counsel was taken on record, wherein preliminary objections has been raised qua complaint is not maintainable; the complainant has not approached the Commission with cleans hands as he has suppressed the true material facts from the Commission. It is stated that the complaint is time barred. The relief sought by the complainant revolves around the alleged non receipt of payment of amounts under the Credit note dated 02.09.2013 and thus, the claim is simpliciter money claim, for which, the complainant should have knocked the door of the Civil Court by moving a money suit. It is submitted that consumer forums and commissions are not meant to be a substitute for Civil Courts for recovery of money/damage/compensation. The complainant has deliberately approached the Consumer Commission because no ad valorem court fees is payable in a consumer court for a claim below Rs.5,00,000/-, whereas in a civil court, the complainant  will have to pay thousands  of rupees  as court  fees. This amounts to taking undue advantage and is gross misuse of the provisions of the Consumer Protection Act, 2019 by the complainant. It is submitted that, in 2013, the complainant approached the OP desirous of investing in a property, pursuant to which, the OP showcased various lucrative properties in various projects to the complainant. On being satisfied with the information duly provided by the OP, and after conducting due diligence, the complainant  had decided  to invest, on his own free will and volition in “M3M WOOD SHIRE” a residential group  housing project, in Sector-107, Gurgaon, being developed by M3M. The OP, on 02.09.2013, issued a credit note, in favour of the complainant, for a total sum of Rs.2,16,200/-, which was a separate and independent agreement between the two parties, on mutually agreed terms and conditions encapsulated therein. It was agreed by way of the terms and conditions  of the credit note that once  the builder i.e. M3M, receive the payment of 60% of the total  cost of the unit from the complainant, the OP would release 100% of the credit note amount in favour of the Complainant. This release of amount by the OP was further subject to, inter-alia, the complainant making timely payments to the aforesaid builder, and the OP receiving the amounts as commission due from the builder. It is submitted that the complainant has failed to make timely payment to the builder, and thus, he was issued a demand-cum-pre-cancellation notice dated 15.07.2014 from the builder wherein the demand of the balance payment was raised from him. It is submitted that the OP, on the assurances of the complainant to make timely payments to the builder, proceeded to make a payment of Rs.1,08,100/- on 29.09.2014 towards the credit note amount. The OP, however, further proceeded to make another payment of Rs.54,050/- on 09.08.2018 to the complainant as full and final payment of the amounts due under the credit note in view of the aforesaid material breach of the terms and conditions of the credit note by the complainant..

                On merits, it is denied that OP had assured the cash discount of 4.5% to the complainant on the basic price of the flat. It is submitted that the OP only issued a credit note in favour of the complainant to the extent of Rs.2,16,200/- as discount, and  made no additional/extra offers to the complainant. It is submitted that allotment of the alternative flat/unit was within the purview of the builder, wherein the OP being a real estate agent had no role to play. It is denied that the OP had got the Commission i.e. brokerage from the builder in 2013 against the complainant’s flat. It is submitted that the OP has made payments to the extent of Rs.1,08,100/- on 29.09.2014 & Rs.54,050/- on 09.08.2018, which was in lieu of  full and final payment  of the sum as mentioned vide the Credit note, as the complainant  had failed to make timely  payments  to the builder, i.e. M3M as stipulated in the terms and conditions of the credit note. In view of the material breach of the terms of the Credit Note, the aforesaid payments would be deemed to be full and final. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OP and as such, the complaint is liable to be dismissed.

3.Replication to the written statement of the OP was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OP.

4.The complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-23 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP has tendered affidavit as Annexure R-A along with document as Annexure R-1 and closed the evidence.

5. We have heard the complainant and the learned counsel for the OP and gone through the entire record available on file including written arguments filed by the complainant as well as OP, minutely and carefully.

6. During arguments, the complainant reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) and contended that the OP had received the complete brokerage from the builder i.e. M3M as conveyed  by Ms. Pooja Gupta(Senior Executive) vide her email dated 07.08.2015 (Annexure C-8) but the OP  has failed to fulfill its promise of making the payment  of balance amount of Rs.54,100/- along with interest. It is contended that the terms and conditions of the credit note dated 02.09.2013(Annexure C-1), which says about the payment of the discount only after making of 60% total cost of the unit, was unfair, one sided and unreasonable. It is argued that the credit note dated 02.09.2013(Annexure C-1) is not liable be read in isolation as the complainant was assured of more discount on the basic price of the flat/unit by the OP’s executive. It is contended that the credit note dated 02.09.2013(Annexure C-1) cannot be termed as the separate and independent agreement between the parties, rather, it was unilateral and arbitrary on the part. It is vehemently argued that the OP had no valid justification to withhold of the balance amount of Rs.54,100/-, out of the total amount of Rs.2,16,200/-, after having received the complete brokerage from the builder and thus, the complaint is liable to be accepted by granting the relief  as claimed for in the complaint.

7.On the other hand, the OP has contested the complaint, apart from merits, by raising preliminary objections. The learned counsel raised the strong objection qua the maintainability of the complaint on the ground that the complaint was time barred and thus, the same is liable to be dismissed. It is argued that the payment of sum of Rs.54,050/- out of total amount of Rs.2,16,200/- on 09.08.2018 by the OP to the complainant did not extend the period of limitation. Reliance has been placed on the case laws titled as Sant Lal Mahton Vs. Kamla Prasad & Ors. Manu/SC/0043/195/: AIR 1951 SC 477 and J.C.Budhraja Vs. Chairman, Orissa Mining Corporation Ltd. & Anr reported in 2008 (1) R.C.R (Civil) 934(SC).

                The above objection is dismissed in view of the fact that Mrs.Pooja Gupta(Senior Executive) on behalf of the OP vide email dated 07.08.2015 i.e. within two years from 02.09.2013, when the credit note  (Annexure C-1) was issued, had assured the complainant about the resolution of his grievances. Thereafter, the complainant had received the email on 08.12.2015, wherein he was assured about the redressal of his grievances. We also find that the Consumer Complaint bearing no. 527 of 2016 was filed in District Consumer Forum, Gurgaon on 17.08.2016 by the complainant, against the OP, seeking the release of the payment as assured vide credit note(Annexure C-1). Thereafter, the complainant is also found having filed the First Appeal No.377 of 2018 before the Hon’ble State Commission, Haryana, Panchkula, which was decided on 11.04.2018. Thereafter, the OP had made the payment of Rs.54,050/- on 09.08.2018 i.e. after the decision of the appeal in the Hon’ble State Commission. The present complaint has been filed on 09.10.2020 and thus, there was no delay on the part of the complainant in filing the present complaint as he is continuously pursuing the matter with the OP as mentioned above. Thereafter, Mrs.Pooja Gupta (Senior Executive) on behalf of the OP vide her email dated 30.07.2020 had agreed to settle the matter with the complainant and thus, the objection raised is liable to be dismissed being frivolous, baseless and meritless.

8.On merits, the learned counsel argued that the complainant has already been paid a sum of Rs.1,60,150/- out of the total amount of Rs.2,16,200/-. The learned counsel argued that the payment of Rs. 1,08,100/- was made on 29.09.2014 and a payment of sum of Rs.54,050/- was made on 09.08.2018; thus, a total payment of Rs. 1,60,150/- has been made to the complainant out of the total sum of Rs.2,16,200/-. The learned counsel argued that the complainant has failed to make the 60% payment of the total cost of the unit to the builder as required vide credit note dated 02.09.2013(Annexure C-1). The learned counsel argued that the 100% payment i.e. Rs.2,16,200/- as assured vide credit note was liable to be paid only after the receipt of 60% of the total cost of unit from the complainant and thus, the complainant, having  failed to abide by the terms and conditions of the credit note  dated 02.09.2023(Annexure C-1), is not entitled  to any further payment from the OP. Reliance has been placed on the case law  titled as Bank of India & Anr. Vs. K.Mohandas & Ors. and some other similar cases reported in 2009 (5) SCC 313.

9.As per the rival contentions raised by the complainant on one hand and the learned counsel for the OP on the other hand, it is found that the terms and conditions qua payment of discount etc. were reduced into writing, after having full discussion and deliberation between the parties vide credit note dated 02.09.2013(Annexure C-1) and thus, the terms and conditions of the said credit note is of utmost significance and importance to sort out the controversy between the parties.

10.The complainant has admittedly received the payment of Rs.1,60,150/- out of the total sum of Rs.2,16,200/- as assured vide credit note dated 02.09.2013 (Annexure C-1), which is about 74% of the total assured discount. In the present complaint, the complainant has prayed for the release of the balance payment of Rs.54,100/- along with interest, whereas he has, admittedly, paid only 30% amount of the total cost of booked unit to the builder in place of 60% as required vide credit note dated 02.09.2013(Annexure C-1). As per terms of the said credit note (Annexure C-1), 100% payment of the discount was liable to be paid to the complainant only after the receipt of 60% of total cost of unit from him. As such, the complainant has failed to adhere to the terms of the credit note dated 02.09.2013(Annexure C-1), wherein he was required to make the payment of 60% of the total cost of the unit to the builder.

11.The complainant has claimed the balance payment only on the ground that the aforesaid condition of payment of 60% of the total cost of unit by him is not applicable to him as the same is arbitrary and one sided. During arguments, the complainant has argued that the OP had received the complete brokerage amounting to Rs.9.57 lakhs from the builder.

12.We find no merits in the said contentions as the credit note dated 02.09.2013(Annexure C-1) specifically and categorically states that the discount/commission of Rs.2,16,200/- was to be paid to the complainant only after the receipt of 60% of the total cost of the unit. The complainant is not an illiterate or semi literate or a rustic villager, who was not aware about the terms and conditions of the credit note dated 02.09.2023(AnnexureC-1).We find no emails or communications, which was ever sent by the complainant to the OP mentioning that the condition qua making of 60% of the total cost of unit by him to the builder was incorporated against his will or imposed upon him by playing foul play etc. In the entire complaint as also in the affidavit (Annexure C-A) of the complainant, no averments has been found that the condition qua making of payment of 60% of the total cost of the unit by him was invalid or incorporated in the credit note dated 02.09.2023 (Annexure C-1) against his knowledge or will. As such, the complainant cannot run away from the terms and conditions as contained in the credit note dated 02.09.2013(Annexure C-1). Since, the complainant himself has been found not adhering to the terms and conditions of the credit note 02.09.2013(Annexure C-1), no merits are found in the complaint.

 13.In view of the aforesaid discussion, we find no force and substance in the version of the complainant; hence, the complaint of the complainant deserves to be dismissed and accordingly, the same is hereby dismissed with no order as to cost. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 16.11.2023

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                         Member                        President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President

 

 

CC.313 of 2020

Present:             Complainant in person.

                        Sh.Ankur Bali, Advocate for the OP.

                       

                                         

 

                       Arguments heard. Now, to come upon 16.11.2023 for orders.

Dt.03.11.2023

 

 

 

        Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                       Member                            Member                         President

 

Present:             Complainant in person.

                         Sh.Ankur Bali, Advocate for the OP.

                         

                                         

 

                                Vide a separate order of even date, the present complaint is hereby dismissed with no order as to cost.

                         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt. 16.11.2023

 

 

       Dr.Barhm Parkash Yadav       Dr.Sushma Garg             Satpal

                       Member                            Member                         President