STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                    U.T., CHANDIGARH 

Sanjeev Dewan S/o Sh.Madan Gopal Deewan, aged 48 years, resident of H.No. 1129, Sector 11, Panchkula, Haryana.

                                                                               ……Appellant

                                       V e r s u s

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

                                                                                ...Respondent

           Appeal under Section 15 of the Consumer Protection Act,1986     against order dated 06.02.2018 passed by District Consumer        Disputes Redressal Forum-I, U.T. Chandigarh in             C.C.No.No.76/2016..

Argued by:  Mr. Sukaam Gupta, advocate for the appellant

BEFORE:       JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                       MR.DEV RAJ, MEMBER

                       MRS. PADMA PANDEY, MEMBER

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                     Appellant/complainant has filed this appeal against order dated 6.2.2018, passed by the District Consumer Disputes Redressal Forum(I), U.T. Chandigarh (for short the Forum only), dismissing his complaint.     

 2.            Before the Forum, it was case of the complainant that   on making payment of an amount of Rs.5,00,000\- on 4.8.2014  he booked one flat with the OP in the pre-launch scheme of  their project. When OP failed to provide any allotment letter, terms & conditions of the said sale and did not get Buyers’ agreement executed, he sought refund of the amount paid.  When nothing was done, he sent letter dated 27.2.2015 demanding an amount of Rs.9,06,116.90p from the OP towards refund of principal amount and interest accrued thereon. Thereafter, when he approached the OP, he was asked to submit fresh application alongwith certain documents for refund, which he did, but he was shocked to see that only an amount of Rs.4.00 lacs was credited in his account, instead of making payment as demanded above. He  then sent legal notice on 17.11.2015 seeking payment of the balance amount but nothing was done.  Alleging deficiency in providing service and adopting unfair trade practice, a consumer complaint was filed before the Forum. 

3.             Upon notice, reply was filed. It was specifically stated that by moving an application supported by an affidavit, the complainant sought refund of the amount paid. It was further stated that after getting initial booking done the complainant failed to make payment of the outstanding amount despite various reminders, taking note of which, his flat was cancelled. It was further stated that the complainant had concealed the facts when filing the above said consumer complaint.   

4.            Both the parties led evidence.  The Forum, on analysis of pleadings of the parties, evidence on record, and the arguments addressed, dismissed the complaint, vide order under challenge, by observing as under ;

“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.

        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.

        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.

        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. 

5.              After hearing  counsel for the appellant and perusing  the record, we are of the opinion that  the order passed by the Forum is quite justified. It is on record that initially the flat was booked on 4.8.2014 by making payment of Rs.5.00 lacs and a specific Unit was allotted to the appellant. Thereafter, notice was sent to the appellant/complainant on 25.9.2014  to deposit further amount of Rs.9,49,102.81p, which he failed. Then as many as 5 reminders were sent to him to deposit the outstanding amount, but he failed to take any action. Faced with the situation, it appears that the OP cancelled his allotment vide letter dated 26.3.2015(Annexure R-7). Thereafter, the appellant approached the OP and moved an application seeking refund of the amount paid.  It is on record  that as per terms and conditions of the allotment, entire amount could have been forfeited, however, as a goodwill gesture only Rs.one lac equal to 20% of the amount was forfeited and balance amount was refunded to the appellant by way of cheque which he got encashed without raising any protest. Perusal of the contents of the complaint indicates that there was concealment of material facts. By making the averments an impression was given that the amount of refund was directly credited to the account of the appellant, whereas the said amount was received through cheque by filing an affidavit. Before encashment of the said cheque, no objection was raised.  It has come on record that when allotment was made vide R-1 dated 28.11.2014 payment schedule was mentioned therein. It is also on record that the total basic price of the unit was more than Rs.82.00 lacs, and as such, as per law, deduction of an amount of Rs.one lac equal to 20% from the amount deposited, appears to be justified. No case is made out to interfere in the order, under challenge.

6.              Otherwise also, appeal is barred by limitation of  69 days. To condone delay, following reason has been given ;

      “That the said counsel after accepting the entire documents assured the appellant that the needful will be done with the prescribed time period and thereafter appellant waited very patiently and when nothing was heard by said counsel as engaged by the appellant, appellant contacted him and asked about the progress of the case, but appellant was shocked to know that the entire documents as handed over, were misplaced by the said counsel somewhere in High Court while same were given for Photostat.

         That the appellant received a telephonic call from Sh.Dheeraj Mahajan, Advocate last week and said advocate intimated the appellant that somehow his documents pertaining to the present consumer case are with him, as ame were located from one of his personal briefs, as the contact number of complainant was mentioned in said documents. 

               In the application  for condonation of delay, virtually no sufficient cause  has been made out. The application is vague, non-specific and appears to be an afterthought. There is no affidavit of the advocate who misplaced the case file and then located from his own brief.  A litigant has to explain each day’s delay and this fact is lacking in the application.   No doubt, the Courts are very lenient in condoning the delay.  However, in cases, where no explanation is offered, such a compassion cannot be shown in favour of the litigant.   Accordingly we find  no justification to condone the delay and the application, thus, stands dismissed.  

7.            For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs.   The order of the District Forum is upheld. 

 8.             Certified copies of this order, be sent to the parties, free of charge.

9.           The file be consigned to Record Room, after completion.