Delhi

North East

CC/152/2014

Sh. Anil Kr. Kapoor - Complainant(s)

Versus

S.K.M. Refcon. Pvt. Ltd. - Opp.Party(s)

30 Mar 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NE

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.152/14

In the matter of:

 

		Shri Anil Kumar Kapoor and Smt. Rozita Kapoor W/o Shri Anil Kumar, R/o 313, Mandakini Enclave Alaknanda, New Delhi-110019.		Complainant
		Versus
		S.K.M REFCON PVT.LTD. Through M.D. Sumeet Kumar Malhotra A101, 10th Floor, Himalaya House 23 KG Marg Connaught Place New Delhi-110001.   Also At: Ground Floor 100, Okhla Industrial Estate Phase II New Delhi-110020.		Opposite Party
			DATE OF INSTITUTION:		02.05.2014
			DATE OF DECISION      :		30.03.2016

 

N.K. Sharma, President:-

Nishat Ahmad Alvi, Member:-

Ms Manju Bala Sharma:-

 

Order

 

1.           The facts in brief are that the complainant on misrepresented facts of OP booked a plot of 100 sq. yards in July 2014 and paid Rs. 3,60,000/- by way of cheque  No. 939467 drawn on ICICI Bank on 01.07.2011. Registration form was executed and Unit No. 110, customer No. 20100504 was allotted to the complainant. Since there was no development on the site the complainant offered the OP to cancel the booking and to transfer the proceeds to Raj Nagar Extension  Assured By Back Scheme. Accordingly the complainant and the OP entered into a MOU on 28.1.2013 and subsequently an amount of Rs. 1,40,000/- was given to OP on OP’s assurance to return the same in 6 months. OP gave two cheques to complainant one of Rs. 5,00,000/- and another of Rs. 2,50,000/- with a request to present the same for encashment in the month of July 2013. On 27.07.2013 when both the cheques were presented the same were dishonored for the reason ‘funds insufficient’. The OP, despite demanding the refund several times by complainant, is avoiding the complainant and did not pay heed to the demand of the complainant. Pleading complainant as a ‘consumer’ within the definition of Consumer Protection Act who took services from the OP and OP failed to perform or fulfill its obligation, the complainant prayed that OP be directed to refund Rs. 7,50,000/- with 18% p.a. interest, Rs. 50,000/- on account of damages and Rs. 20,000/- as litigation cost.
2.           Notices was sent to OP and vide order dated 27.08.2014 the OP was proceeded ex-parte stating that as notice sent to OP not received back either served or unserved, it is presumed to be served U/S 28A of the Consumer Protection Act.    
3.           Evidence by way of affidavit filed by complainant reiterating the facts stated in the complaint. The complainant has produced on record receipt of Rs. 3,60,000/- issued by OP as Ex-C-1, Transfer of proceeds to Raj Nagar Extension Assured Buy Back Scheme with MOU as Exhibit C-2, Copy of cheque of Rs. 1,40,000/- in favour of OP as Exhibit C-3, Copy of post dated cheques issued by OP in favour of complainant alongwith bank certificate regarding dishonor of cheques for the reason ‘funds insufficient’ as Exhibit C-4.
4.           Heard the counsel for the complainant and carefully gone through the documents placed on record. Counsel for complainant has filed certified copies of the documents on 3.12.2014 such as MOU dated 28.1.13 (Exhibit CW1/1), Cheque bearing No. 419493 dated 27.7.13 drawn on Yes Bank, D-12 South Extn Part II, New Delhi-49 (Exhibit CW1/2), Cheque bearing No. 419494 dated 27.7.13 drawn on Yes Bank, D-12 South Extn Part II, New Delhi-49 (Exhibit CW1/3), Return Memo dated 30.07.2013 of HDFC Bank reasons for return showing Insufficient Funds i.e. dishonor of cheque (Exhibit CW1/4), Return Memo dated 30.07.2013 of HDFC Bank reasons for return showing Insufficient Funds i.e. dishonor of cheque (Exhibit CW1/5), Notice dated 23.07.2013 with company stamp (Exhibit CW1/6), Authority via e-mail dated 4.10.2013 (Exhibit CW1/7) which were placed before the court of Metropolitan Magistrate, Saket Courts and  exhibited as  Annexure CW1/1 to CW1/7 by the Hon’ble Court on 08.10.2013 alongwith a copy of the order dated 8.10.13 which reads as under:-

 

              “Fresh case received on assignment. It be checked and registered.

 

Present:        Complainant with counsel Sh. Sudhir Mahajan.

          

           I have carefully perused the complaint and documents brought on the record by the complainant. The factum of issue and dishonour of cheque is fully established. Legal notice as per law has been duly served. However, no payment has been made. The complaint has been filed within statutory period. I am of the view that prima facie offence punishable u/s 138 NI Act is deemed to have been committed. I take cognizance of the same.

           Evidence by way of affidavit tendered alongwith documents exhibited.

           Arguments heard. Accordingly, accused S.K.M Refcon Pvt. Ltd be summoned on filing of PF/Reg.AD/Speed post within 7 days returnable on 20.01.2014”.  

 

5.           From the perusal of the abovesaid order it is clear that the complainant has availed of the another remedy on the same cause of action by filing a case under Negotiable Instruments Act before a Criminal Court having jurisdiction over it and the Ld. Magistrate has accordingly taken cognizance of the same on 08.10.2013 whereas the complainant has filed the present complaint on 02.05.2014. Once a matter is sub judice the complainant cannot take recourse to another forum on the same cause of action seeking same relief by way of instant complaint in which the complainant has prayed that the respondent be directed by way of decree to return/refund a sum of Rs. 7,50,000/- alongwith 18% p.a. interest till realization alongwith damages and cost of litigation. Hence the present complaint is not maintainable and is hereby dismissed. There is no order as to costs.
6.           Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7.           File be consigned to record room.

          (Announced on 30.03.2016)     

 

(N.K. Sharma) President

(Nishat Ahmad Alvi) Member

(Manju Bala Sharma) Member