CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.52/2013
MR. SANJAY KUMAR
S/O SH. RATI RAM
R/O VILALGE & P.O. SASROLI,
TEHSIL MATANHEL,
DISTT. JHAJJAR, HARYANA
…………. COMPLAINANT
Vs.
- M/S OMEGA ASSOCIATES
THROUGH SH. MUKESH SHARMA, PARTNER,
603 , DEEPALI BUILDING, 92, NEHRU PLACE,
NEW DELHI-110019
- M/S SRISHTI ANAND BUILDERS & COLONIZERS LTD.,
THROUGHT ITS DIRECTOR/MD
H-15, JAGAN PATH, CHOMU HOUSE,
C-SCHEME, JAIPUR-302001, RAJASTHAN
…………..RESPONDENTS
Date of Order:19.12.2018
O R D E R
A.S. Yadav - President
The case of the complainant is that he booked a plot measuring 250 sq. yds. in the upcoming project of OP by the name of “Green City” situated at Jaipur Ajmer Road, Rajasthan and paid a sum of Rs.2,62,500/- which was duly acknowledged by OP-2 vide receipt dated 12.11.2007.
It is further stated that the complainant, after coming to know that the plots are not being carved out and there was hardly any progress in the project, sought cancellation of the plot and refund of the amount. As asked by OP, the complainant submitted original documents of the registration. OP-2 paid only a sum of Rs.2,25,015/- vide cheque no.486209 deposited in the account of the complainant. A sum of Rs.37,485/- remained balance and the same was not paid despite repeated requests and demands made by the complainant. OPs are liable to pay a sum of Rs.37,485/- alongwith interest @ 18% p.a. from 12.11.2007 and also interest of 18% p.a. on a sum of Rs.2,62,500/- from 12.11.2007 till 03.11.2011. The complainant sent notice dated 14.12.2012 and 01.01.2013 to OP-2 thereby asking to pay the balance amount but OP-2 neither replied the said notice nor paid the balance amount. Terming the action of OP as deficiency in service, the present complaint has been filed whereby the complainant sought a total sum of Rs.1,84,187/- as well as compensation to the tune of Rs.20,000/-.
OP-2 was proceeded ex parte.
OP-1 it its reply took the plea that the complaint is liable to be dismissed in view of law of estoppels as the complainant has accepted the amount refunded to him as per the rules. It is stated that it is the complainant who has asked for refund of the amount and clause 8 of the registration form clearly provides that in case of any default of payment or request for refund, the members are only entitled for actual payment made to respondent company after necessary deduction as per rules. In fact the complainant has given an undertaking that he is willing to accept the payment after necessary deductions. Therefore, the complainant is not liable for any further payment. It is further stated that no cause of action has arisen in favour of the complainant against OP-1 as there is no privity of contract between OP-1 and the complainant. The complainant neither paid any amount to OP-1 nor OP-1 is liable for allotment of plot. The complainant has failed to deposit the installment in time as demanded by OP company, therefore, he sought refund of the amount which was refunded as per rules. It is prayed that the complaint be dismissed. It is also stated that this Forum lacks territorial jurisdiction as well as the complaint is barred by limitation.
We have gone through the case file carefully.
So far as territorial jurisdiction is concerned, the complainant has placed on record the letter dated 08.08.2011 written by OP-1 to OP-2 and this is bearing the address of 603, Deepali Building, 92 Nehru Place, New Delhi which is within the territorial jurisdiction of this Forum. The complainant has specifically stated that entire transactions took place in this office and the payment was made in this office hence this Forum has got territorial jurisdiction to entertain the present complaint.
So far as limitation is concerned, the amount was refunded on 03.11.2011 and the complaint has been filed on 30.01.2013 hence the same is within limitation.
Now the question is whether there is deficiency in service on the part of OP. The case of the complainant is that he paid an amount of Rs.2,62,500/- in respect of booking of his plot to OP-2 on 12.11.2007 and after coming to know that the plots are not being carved out and there was no drastic progress in the project, sought cancellation of the plot and refund of the amount vide application dated 06.08.2011. The refund application is placed on record by the complainant wherein he has specifically stated that due to non payment of installment, he has not been allotted any plot against aforesaid advance registration and now due to personal necessary and unavoidable circumstances, he wants refund of the amount as per rules of the firm after deduction of necessary expenses on this advance registration. It is further stated that he is ready to accept his refund amount against his receipt issued at the time of advance registration after deduction of necessary expenses on this advance registration and he or his legal heirs shall have no right, claim or interest left on the said receipt and/or advance registration.
So it is evident that it is the complainant who sought refund of the amount as he was unable to pay the installment and has agreed to get the amount refunded after deduction of necessary expenses.
OP-1 has specifically stated that in fact the complainant has purchased the aforesaid plot from one Mrs. Vandana r/o B-1568, Freedom Fighter Enclave, Neb Sarai, New Delhi. Clause 8 of the registration application clearly provides that “amount shall be refunded after deduction of miscellaneous expenses such as commission etc.” The complainant has himself placed on record the letter dated 08.08.2011 written by OP-1 to OP-2 whereby OP-1 has specifically stated that he has no objection if the amount is refunded after deducting 7.14% of total sale consideration which is paid as commission to Mr. Rajesh of OP-1. As per clause 8, OP was justified in deducting this amount. The total cost of the plot was Rs.5,25,000 and 7.14% was to be deducted which amounts to Rs.37,485/-. The amount was refunded vide cheque No.486209 which was duly encashed by the complainant. The complainant has not made any protest at that time and he for the first time is writing a letter regarding non deduction of this amount on 14.12.2012 i.e. after 13 months of receipt of the amount. Thereafter he filed the present complaint on 30.01.2013.
The complainant has taken a plea in the rejoinder that in fact a fraud was played on him and it was got written by him that he is not able to pay the installment and he sought the refund after deduction of miscellaneous deduction.
First of all, the complainant has not stated so in his complaint. Secondly he has not stated so even in his evidence. The very fact that the cheque was encashed and the complainant kept silent for at least 13 months. It shows that he voluntarily accepted the amount. He has moved the application for refund after deduction of miscellaneous charges and the same has been done.
No case of deficiency is made out against OP. Hence the complaint is dismissed.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (H.C. SURI) (A.S. YADAV)
MEMBER MEMBER PRESIDENT
