JUSTICE SUDIP AHLUWALIA, MEMBER

          This Revision Petition has been filed by the Petitioner/ Complainant against Respondents / Opposite Parties challenging the impugned Order dated 01.08.2018 passed by the State Consumer Disputes Redressal Commission, Panchkula, Haryana, in First Appeal bearing No. 770 of 2016. Vide such Order, the State Commission dismissed the Appeal while upholding the Order dated 26.07.2011 passed by the District Consumer Disputes Redressal Forum, Faridabad in Consumer Complaint No. 251/2011.

2.      The brief facts of the case are that the Complainant had booked two bed room Flat of 1170 sq. ft. in the Group Housing Project namely, ‘Park Floors’ situated in Sector 77, Faridabad, under their Pre-launch Scheme and had deposited Rs. 2,00,000/- vide cheque bearing No. 876251 dated  26.07.2008. The Complainant had deposited another sum of Rs. 2,00,000/- on 04.10.2008 vide receipt No. 1400017004 with the Opposite Party No.1. After the draw of lots was held, the Complainant came to know vide letter dated 03.01.2009 that her name did not appear in the first draw and Opposite Parties were in the process of second phase of allotment through computerized draw of lots for which the Complainant had to deposit another sum of Rs.3,29,375/-. However, the Complainant being no more being interested in the Flat, wanted refund of Rs. 4,00,000/- along with interest @18% p.a. Consequently, she filed her  Complaint bearing No. 404 of 2009 before the Ld. District Forum, Faridabad. During the pendency of the said Complaint, the Opposite Party entered into an MOU dated 10.08.2009 wherein it admitted the claim of the Complainant and agreed to adjust/ transfer the sum paid of Rs. 4,00,000/- towards the application for allotment of another Flat/new Unit measuring approx. 1128 sq. ft. in another  ‘Park Elite Premium Housing Complex’ at Park Land Faridabad, Haryana in Sector - 85, Faridabad. The Complainant also deposited an additional sum of Rs.50,000/- vide cheque No.096730 dated 03.07.2009 along with application for allotment of the new Unit. Despite the said MOU, Opposite Parties were dilliy-dallying the allotment of new Unit. Consequently, a Legal Notice dated 05.05.2011 was issued on the Opposite Party to issue new allotment letter, after which the Complaint was filed before the District Forum seeking issuance of the new allotment letter in respect of allotment of the new Unit, damages of Rs.1,00,000/- and Rs.11,000/- as litigation expenses.               

3.      The Opposite Party No.1 appeared before the District Forum and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended that the present complaint is not maintainable as it was filed during the pendency of earlier filed Consumer Complaint against the Opposite Party on exactly the same grounds (being Consumer Complaint No. 404 of 2009) which was later withdrawn by the Complainant as late as on 30.01.2014 without seeking liberty from the Forum to continue with the second similar complaint. The Complainant based its second complaint on the MOU on the premise that same has been executed by the Opposite Party.  However, the same is false as it is also evident from perusal of the MOU that the same does not even bear any signature of the Opposite Party. It was stated that the Complainant had approached the Opposite Party after filing of the first Complaint with a request for settlement of the matter by adjusting the sum paid towards the new allotment and it was also agreed between the parties that as per the terms of settlement, the Complainant would also withdraw the first Complaint. However, the Complainant, despite herself requesting the settlement, backed out of her commitment and did not execute the MOU and hence, the settlement talks broke down. Consequently, the Opposite Party had sent Demand Letters asking for payments, and the Complainant again defaulted in making such payments. Therefore, the Opposite Party No.1 prayed for dismissal of the complaint with exemplary costs.

4.      The Ld. District Forum vide its Order dated 26.07.2011 allowed the Complaint by observing that the demand of Rs.3,29,375/- from the Complainant after her being unsuccessful in first draw was unjustified and even after sending of the Legal Notice dated 11.01.2009, the Opposite Party had demanded more sums from the Complainant instead of refunding the deposited amount. It was also observed that the Complainant was allotted a flat No. W-G-001 in the second draw, but the Complainant did not pay any further amount except Rs.50,000/-, therefore the Opposite Party No.1 was not liable to issue allotment of said Flat to her.  Hence, the Ld. District Forum directed the Opposite Party to refund Rs.4,50,000/- along with interest @ 9% p.a. from respective date payment till its realization, Rs.5,500/- for mental agony and Rs. 200/- towards litigation.

5.      Aggrieved by the above Order, First Appeal bearing No. 770 of 2016 was filed by Appellant/ Complainant against the Respondents/ Opposite Parties before the State Consumer Disputes Redressal Commission, Haryana, Panchkula, seeking modification in the Order passed by the Ld. District Forum to the effect  that the Opposite Parties be directed to issue Allotment Letter in favour of the Complainant for a Flat measuring 1128 sq. ft. in the project ‘Park Elite Premium’, or,  in the alternative, to modify the Order by ordering refund of earnest money along with 18% interest instead of 9%.

6.      The Ld. State Commission vide its impugned Order dated 01.08.2018 dismissed the Appeal while upholding the order of Ld.  District Forum and observed inter alia:- 

“11. Under these circumstances, the appeal as such is modified as no direction could be issued to modify the order passed by learned District Forum to allot a unit instead of refunding the amount as the second complaint cannot be instituted for the same cause of action between the same parties when the previous complaint has been withdrawn from the learned District Forum without seeking the permission to file the fresh compliant. Hence the appeal as such is devoid of merits and stands dismissed.”

7.      Hence, the present Revision Petition has been filed by the Petitioner/ Complainant against the above-mentioned impugned Order of the Ld. State Commission.

8.      This Commission vide Order dated 04.03.2022, allowed the Interim Application bearing No. 1191 of 2022 and deleted the Opposite Party No.2 from array of parties.

9.      Heard the Ld. Counsels for Petitioner and Respondent. Perused the material available on record.

10.    The original Complaint No. 404 of 2009 filed by the Petitioner was withdrawn by her on 30.1.2014.  So, that part of the earlier litigation between the parties is only academic as the relevant Order passed by the District Forum had attained finality.

11.    In respect of the second complaint filed by the Petitioner i.e. Complaint No. 251 of 2011, the Ld. District Forum was of the opinion that the Complainant was entitled to refund of amount of Rs. 4,50,000/- alongwith interest @ 9% thereupon from the date of each respective payment, apart from Rs. 5,500/- towards mental agony and some additional amount towards litigation expenses.  But no favourable  Order on his principal prayer for issuance of a new allotment letter in respect of a new Unit measuring 1128 sq.ft. was passed.

12.    It is noteworthy that in his Legal Notice (Annexure P-12) issued to the Respondents/Opposite Parties on 5.5.2011, it was claimed that the Complainant was entitled to a fresh allotment in view of the Memorandum of Understanding entered into between the parties on 10.8.2009.  But, the demand of the Complainant was refused on behalf of the Opposite Party/Respondent through its reply (Annexure P-13) dated 19.5.2011.  In Paras 8 to 10 of its Parawise Reply to the Complainant in the Written Statement, the Respondent/Opposite Party had specifically denied that it had ever entered into any Memorandum of Understanding with the Complainant on the given date as alleged by her.  Copy of the Memorandum of Understanding is on record as part of Annexure P-11 which happens to be the Petitioner’s own application for allotment of a residential Flat measuring about 1128 sq. ft. dated 2.7.2009.  But, there is no signature whatsoever anywhere of any one on behalf of the Respondent/ Opposite Party on the Memorandum of Understanding, which is on running Pages 141 to 147 of the Paper Book, which clearly supports the claim of the Respondent that it had never entered into such Memorandum of Understanding. Consequently, there was no occasion for the Ld. Fora below to grant any relief by way of directing the Opposite Party to allot such type of Flat to the Complainant.

13.    The other contention raised on behalf of the Complainant is that the quantum of interest awarded on the refund amount is insufficient and that in such eventuality, he ought to have been granted interest @ 18% p.a. This Commission is not in agreement with such submission/contention.  This is so because the rate of interest actually granted by the Ld. District Forum i.e. 9% p.a. is certainly just and proper, and also in consonance with the interest rate as ordered by the Hon’ble Supreme Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019 With Civil Appeal No. 7149 of 2019, decided on 7.4.2022 -

“…32. We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts.  The Commission in the Order impugned has granted interest from the date of last deposit.  We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.

33. At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just and we find no reason to interfere in the appeal filed by the consumer for enhancement of interest……”

14.    For the aforesaid reasons, this Commission finds no grounds to interfere with the well-reasoned Orders of both the lower Fora below.  The Revision Petition is, therefore, dismissed; Parties to bear their own costs.

15.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.