Chandigarh

DF-I

CC/76/2016

Sanjeev Dewan - Complainant(s)

Versus

M/s OMAXE Chandigarh Extension developers Ltd. - Opp.Party(s)

Sukaam Gupta

06 Feb 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/76/2016
Date of Institution	:	03/02/2016
Date of Decision	:	06/02/2018

 

Sanjeev Dewan, resident of H.No. 1129, Sector 11, Panchkula.

…..Complainant

 

V E R S U S

 

M/s OMAXE Chandigarh Extension Developers Limited, SCO 139-140, 1^st Floor, Sector 8-C, Chandigarh, through its Authorized Signatory.

……Opposite Party

 

QUORUM:	MRS.SURJEET KAUR	PRESIDING MEMBER
	SH.SURESH KUMAR SARDANA	MEMBER

                                               

                                                                       

ARGUED BY	:	Sh. Sukaam Gupta, Counsel for Complainant.
		Sh. Nihal Singh, Proxy Counsel for Sh. Munish Gupta, Counsel for Opposite Party

 

PER SURESH KUMAR SARDANA, MEMBER

1.         Shri Sanjeev Dewan, complainant has preferred this Consumer Complaint u/s 12 of the Consumer Protection Act, 1986, against M/s OMAXE Chandigarh Extension Developers Limited (hereinafter called the Opposite Party), alleging that he booked one flat with Opposite Party in the pre-launch scheme of their project “The Lake” and paid Rs.5,00,000/- vide Cheque No. 301688 dated 04.08.2014. Subsequently, when the Opposite Party failed to provide any allotment letter, terms & conditions of the said project and also did not get the Buyer’s Agreement executed, the Complainant sought refund of the amount paid, but the Opposite Party always dilly dallied the matter and eventually, vide letter dated 27.02.2015 demanded Rs.9,06,116.90P from the Complainant as per commitment of allotment. After receiving the said letter, the Complainant immediately approached Opposite Party and on their asking again submitted fresh application along with certain documents as required for refund.  However, to the utter shock of the Complainant, the Opposite Party refunded only Rs.4,00,000/- after forfeiting 20% i.e. Rs.1,00,000/- from the total deposited amount of Rs.5,00,000/-. Faced up with this situation, the Complainant even sent a legal notice dated 17.11.2015 to the Opposite Party, but to no success. Hence, alleging the aforesaid act and conduct of the Opposite Party as deficiency in service and indulgence into unfair trade practice, the Complainant has preferred the present Complaint.     
2.         Notice of the complaint was sent to Opposite Party seeking its version of the case.
3.         In its written reply, Opposite Party has pleaded that at the time of seeking refund, the Complainant had voluntarily submitted affidavit-cum-undertaking to the effect that refund be made to him after making appropriate deductions as per the policy of the company.  It has been asserted that despite various reminders being sent to the Complainant, he did not come forward and resultantly, cancellation was done by the company and entire earnest money was forfeited. However, as a goodwill gesture, the answering Opposite Party refunded Rs.4,00,000/- to the Complainant, which was encashed by him and thereafter, filed the instant Complaint as a malafide gesture. Pleading that there is no deficiency in service or unfair trade practice on its part, Opposite Party has prayed for dismissal of the complaint.
4.         The parties led evidence in support of their contentions.
5.         We have gone through the entire evidence, written arguments submitted by the Opposite Party and heard the arguments addressed by the Ld. Counsel for the Parties. 
6.         There is no dispute about the fact that the Complainant was provisionally allotted Unit No. TLC/CASPEAN-A/Eleventh/1102 in “The Lake”. At the time of booking, admittedly, the Complainant deposited sum of Rs.5,00,000/-. It has come on record that on 25.09.2014 (Annexure R-2), the Opposite Party sent a demand letter to the Complainant for deposit amount of Rs.9,49,102.81P towards outstanding installment amount but the Complainant failed to deposit the same. Thereafter, the Opposite Party sent various reminders to the Complainant for deposit of the due amount on dated 29.10.2014 28.11.2014, 24.12.2014, 27.01.2015 and 27.02.2015; however, despite the same, the Complainant failed to deposit the outstanding amount, due to which the Opposite Party cancelled the unit of the Complainant vide letter dated 26.03.2015 (Annexure R-7). On being approached by the Complainant on 25.05.2015 vide his request Annexure R-8, the Opposite Party refunded an amount of Rs.4,00,000/-, out of deposited/forfeited amount of Rs.5,00,000/- as a bonafide gesture, despite the fact that the unit of the Complainant was cancelled and the earnest money stood forfeited.
7.         Annexure R-10 is an affidavit-cum-indemnity bond (Annexure R-10) submitted by the Complainant at the time of seeking refund. A perusal of the same shows that the Complainant had voluntarily submitted to the effect that refund be made to him after making appropriate deductions as per the policy of the Company. Interestingly, the Complainant has got the refund Cheque encashed and purposely concealed the said affidavit-cum-undertaking (Annexure R-10) from this Forum. This clearly shows malafide intention of the Complainant in filing the present consumer complaint.
8.         It is important to mention that once the Complainant received the amount unconditionally and got the Cheque encashed, under these circumstances, Complainant ceases to be a consumer as per the Consumer Protection Act, 1986 as the privity of contract or relationship of consumer and service provider between the parties, if any, comes to an end the moment Complainant accepted the refund amount and got the Cheque encashed.
9.         At any rate, there is nothing on record to show that the Complainant had accepted/encashed the Cheque under protest. It is well settled law that once the Cheque already issued in favour of the Complainant has been encashed, no further cause of action exists in favour of the Complainant as the encashment of the Cheque amounted to acceptance of the amount in full and final settlement of the claim. 
10.         Taking into consideration all the facts and circumstances of the case, we have no hesitation to hold that the Complainant has failed to prove that there has been any deficiency in service on the part of the Opposite Party or that the Opposite Party adopted any unfair trade practice. As such, the Complaint is devoid of any merit and the same is hereby dismissed, leaving the parties to bear their own costs.
11.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
06/02/2018	[Suresh Kumar Sardana]	[Surjeet Kaur]
	Member	Presiding Member
“Dutt”