Delhi

New Delhi

CC/1748/2009

Radhey Shyam Gupta - Complainant(s)

Versus

M/S. DLF New Gurgaon Home Developers Pvt.Ltd. - Opp.Party(s)

19 Feb 2019

ORDER

 

 

 CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC.1748/2009                                        Dated:

In the matter of:

Radhey Shyam Gupta,

Preeti Gupta

Both resident of :

KP 23, 1^st Floor, Pitampura,

New Delhi.                                       

   ..COMPLAINANTS

 

VERSUS

 

DLF New Gurgaon Home Developers Pvt. Ltd.,

DLF Centre Sansad Marg,

Connaught Place,

New Delhi-110001.

           

    ...OPPOSITE PARTY

 

 

ARUN KUMAR ARYA, PRESIDENT

O R D E R

 

 

The complainant has filed the present complaint against the O.P.

under section 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant booked  a flat with the OP and paid  total sum of Rs.18,78,110 /- vide cheques of different numbers commencing from 31.03.2008, against the payment OP allotted apartment no. GAE 214 and its parking in a New Town Heights Project of OP situated at sector  86, DLF, Gurgaon.  It is alleged by the complainant that vide letter dated 25.04.2008,  OP informed him that there was 2.5 years time bound payment plan for the property in question.  The complainant was intimated by OP that as they failed to obtain environment clearance certificate, the construction was put on hold.  OP also informed him that he has an option to withdraw his money from the alleged project.  Complainant opted to the surrender  its flat and asked for refund of money vide letter dated 11.05.2009. The OP cancelled the allotment as per the exit policy and delivered a cheque of Rs. 17,78,694/- instead of Rs. 18,78,110/- making a difference of Rs. 99,416/-.  The complainant made several request to the OP to refund the unauthorised deducted amount of Rs. 99,416/- to him but nothing has been done by the OP till date, hence this complaint.

 

2.     Notice of the complaint was sent to the OP. Now, complaint has been contested by OP. OP denied any deficiency in services on its part. It is stated that the amount was already refunded  to the complainant as per the exit option, the said cheques was accepted by the complainant without any objection or protest and filing of the present complaint is an afterthought just  to harass the OP and getting the monitory benefit, and on this basis prayed for the dismissal of the complaint.     

3.     Both the parties have filed their evidence by way of affidavit.

4.     We have heard argument advance at the Bar and have perused the record.

5.     It is argued by the complainant that  under the false pretext of non procuring of environment certificate OP compel him to get his money refunded.  Only on the persuasion of the OP he wrote for the refund of the money.  The OP arbitrarily and on his own sweet will deducted a sum of Rs.99,416/- and handed over the balance amount to him. He prayed that the reliefs claim be granted in his favour.

 

6.     It is argued on behalf of OP that under the exit policy a sum of Rs. 17,78,694/- was already refunded to the complainant, request was made vide letter dated 22.05.2005 by OP to the complainant to reconsider his exit option as they have got the environment clearance certificate of all the three sector under the project by competent authority  and the construction activity at the site is in full force, but the complainant remain stuck to its decision of exit option and as such OP refunded a sum of |Rs. 17,78,694/- vide letter dated 07.09.2009 through cheque no. 335217 dated 31.08.2009.  The letter also bear the endorsement/ consent/satisfaction given by the complainant on its face which shows that the amount was refunded in full and final satisfaction of the claim of the complainant arising out of the present complaint and nothing survives.    It is argued on behalf of OP that since the matter was already settled and payment was disbursed to the complainant, the complainant ceased to be consumer within the meaning of section 2(1)(d) of CP Act.

7.     The complainant has alleged in his complaint that the OP had arbitrarily sent him an amount of Rs.17,78,694/- after deducting a sum of Rs.99,416/- as per the terms and conditions of the agreement to sell.

8.     It is alleged by the complainant that the aforesaid amount was never acceptable to him and he had made several requests to the OP to pay the entire amount deposited by him, but no response was given by the OP to his request.  The complainant had however; failed to place on record any documents/protest letters to prove his aforesaid submission.  Moreover, the perusal of the letter dated 7.9.2009 shows that the complainant was satisfied and thankful for the cooperation as well as the refund made by the OP.

9.     The complainant had en-cashed the above said cheque, meaning thereby that he had received the amount in full and final settlement and therefore no further cause of action arose in his favour to re-open his claim.  If the payment of Rs.17,78,694/-  was not acceptable to the complainant then he should not have en-cashed the cheque and rather should have returned the same to the OP or in the alternative, enchased the cheque without prejudice to his rights and intimating OP about it in writing.  The complainant having en-cashed the cheque had lost his character as a consumer entitled to receive any further amount from OP.

10.   A similar view was taken by Hon’ble National Commission in the case of Haryana State Co-operative Supply and Marketing Federation Ltd., Jind V/s IFFCO Tokyo General Insurance Company Ltd. through its Manager Revision Petition No. 4713 of 2012  wherein it was held that:-

The petitioner cannot be allowed to accept the offer of the respondent only in part which suited their convenience and reject the condition subject to which offer was made.

11.     In view of the aforesaid judgment and the documents placed on record, we are of the considered opinion that the complainant by his own conducts his forfeited his right to plead that he had not accepted the offer in full and final settlement of his claim against the OP. 

12.     In the light of above discussion we find no merits in the present complaint.  The same is hereby dismissed.

 

A copy each of this order each be sent to both parties free of cost by post. Orders be also sent to www.confonet.nic.in. File be consigned to record room.

Pronounced in open Forum on 19/02/2019.

(ARUN KUMAR ARYA)

PRESIDENT

 

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