Haryana

StateCommission

A/844/2014

Smt.Vimlesh Sant - Complainant(s)

Versus

M/s Omaxe Limited - Opp.Party(s)

Mr.Tanmoy Gupta, Advocate counsel for the appellants

11 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                First Appeal No.844 of 2014

                                                          Date of Institution: 15.09.2014                         Date of Decision: 11.01.2017

 

1.      Smt.Vimlesh Sant Wife of Shri Ajay Sant, R/o 1459, Sector  23-A, Faridabad.

2.      Shri Ajay Sant S/o S.J.Kishore R/o 1459, Sector 23 A Faridabad.

 …..Appellants

                                      VERSUS

1.      M/s Omaxe Limited, office at: Omaxe House-7, Local Shopping Centre, Nehru Place, Kalka Ji, New Delhi through its Director.

2.      M/s Omaxe Limited Branch Office at: Omaxe Happy Home, Mathura Road, Palwal, through its Managing Director Palwal, Haryana.

                                                …..Respondents

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.                                   

For the parties:  Mr.Tanmoy Gupta, Advocate counsel for the appellants

Mr.Pawan Kumar, Advocate counsel for the respondents.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

          It was alleged by the complainants  that they booked flat with the opposite parties (O.Ps.) having value of Rs.21/- lacs and deposited Rs.4,30,815.72. They assured to deliver possession by the end of Year 2011.  As they required money due to kidney failure of my bhabi i.e. (real brother’s wife). Vide letter dated 27.09.2011 was written to them for cancellation of allotment.  After deducting Rs.1,50,000/- O.Ps. refunded the remaining amount. He signed receipt qua payment under duress and pressure. The O.Ps. did not disclose the contents of the receipt. So they be directed to refund the remaining amount of Rs.1,50,000/- besides compensation to the tune of Rs.50,000/- qua mental harassment etc.

2.      O.ps. filed reply controverting their averments and alleged that Rs.2,80,816/- were refunded vide cheque dated 13.03.2012 after deducting earnest money of Rs.1,50,000/-. They received that money as full and final settlement without any objection and issued receipt cum discharge letter dated 24.03.2012.  There was no pressure upon them and averments to this effect were altogether wrong. When once the amount was refunded they were not entitled for any other amount. Objections about maintainability of complaint, locus standi, etc were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Dispute Redresal Forum, Palwal (in short “District Forum”) dismissed the complaint vide order dated 13.08.2014.

4.      Feeling aggrieved therefrom, complainants/appellants have preferred this appeal.

5.      Arguments heard. File perused.

6.      Learned counsel for the appellants-complainants vehemently argued that as they were in dire need of money so they executed receipt cum discharge letter dated 24.03.2012 Annexure A-5.  Had they not signed discharge letter, O.ps. would not have paid even this much amount. So it cannot be presumed that they received amount as full and final settlement under free will.  O.Ps. did not tell that on what basis they deducted Rs.1,50,000/-. So impugned order dated 13.08.2014 be set aside and O.ps. be directed to refund remaining amount of Rs.1,50,000/-.

7.      This argument is of no avail.  From the perusal of the application Ex.R-1 it is clear that the complainants requested for refund due to ailment of brother’s wife.  None of them was having this ailment which forced them to accept money under duress.

8.      More-over they have not only executed receipt cum discharge voucher Annexure A-5 qua full and final settlement they also executed affidavit cum undertaking Ex.R-2 about receipt of this amount as full and final settlement. This affidavit was attested by Notary public.  As per this affidavit they were aware about all the contents. Complainants are educated persons and cannot be presumed that they were not aware about the contents of this affidavit or receipt cum discharge letter. 

9.      More so when once the complainants have got encashed the cheque unconditionally there ceased to be relationship of consumer or service provider in between them as opined by Hon’ble National Commission in Indu Bala Satija Vs. HUDA 2013 (3) CPJ (NC) 475. The deduction cannot be considered as unreasonable keeping in view the opinion of Hon’ble National Commission in revision petition No.3860 of 2014 titled as DLF Vs. Bhagwanti Narula decided on 06.01.2015, wherein it is opined that forfeiture beyond 10% of the sale price is unreasonable and not less than the same.  In this case price of the flat was Rs.21/- lacs. 10% of which comes to Rs.2,10,000/- whereas O.Ps. have deducted only Rs.1,50,000/-. The findings of learned District Fora are well reasoned based on law and facts and cannot be disturbed.  Resultantly the appeal fails and the same is hereby dismissed.

 

January 12th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K