Delhi

East Delhi

CC/571/2015

NISHAT AHMAD - Complainant(s)

Versus

VARDHAMAN PRO - Opp.Party(s)

17 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO. 571/15

 

1. Shri Nishant Ahmed

S/o Shri Zameer Hasan

 

2. Shri Shaan Mohammad

S/o Shri Hakeemuddin

 

3. Shri Z Babar Chauhan

All at 251A, J&K Pocket

Dilshad Garden, Delhi – 110 095                                           ….Complainants

Vs.

M/s. Vardhman Properties Ltd.

Through its Chairman/Managing Director

Off.: G-9, Vardhman Trade Centre

Nehru Place, New Delhi – 110 019                                  ….Opponent

 

Date of Institution: 03.09.2015

Judgment Reserved on:17.10.2016

Judgment Passed on: 07.11.2016

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari  (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By : Shri Sukhdev Singh (President)

 

JUDGEMENT

The complainants Shri Nishant Ahmed, Shri Shaan Mohammad and Shri Z Babar Chauhan have filed a complaint under Section 12 of the Consumer Protection Act for refund of Rs. 5,19,000/-, being the balance principle amount alongwith interest @ 18% p.a. and litigation cost of    Rs. 50,000/- on account of deficiency in service.

2.        It has been stated that in the earlier complaint of complainant  no. 67/14, OP made the payment of Rs. 12,40,600/- by way of account pay cheque bearing no. 683686 dated 09.05.2015 in favour of the complainant out of his admitted principle amount of Rs. 17,64,600/-.  It is stated that the complainant got en-cashed the cheque without prejudice to their rights because they were legally entitled to get refund back of their hard-earned money from the OP and entitled to get suitable compensation on account of deficiency in service and unfair trade practices, committed on the part of OP with the complainant @ 18% p.a. on the principle amount alongwith the balance principle amount of Rs. 5,19,000/- w.e.f. unlawfully holding the amount of the complainants till its release. 

It is stated that the complainants were introduced by OP that the shop bearing no. G-42, Vardhman AC Market, Plot No. CSC, Vigyan Vihar, Delhi and approximate 173 sq. ft. was under sale and was booked by  Mr. Shankar Lal Pipil for sale.  The shop was got transferred under an agreement to sell for a total sale consideration of Rs. 20,76,000/-.  All necessary documents were got executed.  The respondent did not construct the shop in question and the complainants asked for refund of amount, which was promised, but not paid.  It is stated that their earlier complaint no. 461/15 was dismissed in default, hence, through present complaint, complainants have asked for refund of Rs. 5,19,000/- being the balance principle amount alongwith interest @ 18% p.a. and             Rs. 50,000/- as cost of litigation.

3.        In the reply, filed on behalf of respondent, they have taken various pleas stating that during the pendency of their earlier complaint case no. 67/14, respondent by its letter of dated 09.05.2015 cancelled the allotment of the unit in question and after deducting 25% of the total cost of the unit, an amount of Rs. 12,45,600/- was refunded through cheque no. 683686, which was got en-cashed by the complainants.  Thus, it is stated that in law, the complainants were estopped from re-agitating their grievances.  It has also been stated that the unit in question being a commercial unit, the complainants were not consumer under the Consumer Protection Act.  The complainants were defaulter in making the payment.  After transfer of the allotment from the name of            Shri Shankar Lal Pipil, the complainants were under obligation to make the balance payment.  Other facts have also been denied.

4.        The complainants have filed rejoinder to the WS of OP-1, wherein they have controverted the pleas taken in the WS and reasserted his pleas.

5.        In support of its case, the complainants have examined themselves.  They have narrated the facts, which have been stated in the complaint.   Shri Nishant Ahmed have got exhibited his Aadhar card (Ex.CW-1/A), agreement to sell (Ex.CW-1/1) and receipt of payment of Rs. 17,300/- (Ex.CW-1/2).  Similarly, complainant Shaan Mohammad have got exhibited his Aadhar card (Ex.CW-2/A), agreement to sell (Ex.CW-2/1) and receipt for an amount of Rs. 17,300 (Ex.CW-2/2).  Complainant Z. Babar Chauhan have also got exhibited his voter ID card (Ex.CW-3/A), agreement to sell (Ex.CW-3/1) and payment receipt of      Rs. 17,300 (Ex.CW3/2).

6.        M/s. Vardhman Properties (OP) have examined Shri Ajit Singh, General manager (Administration).  He has also narrated the facts, which have been stated in the written statement.  He has also got exhibited copy of letter dated 09.05.2015 alongwith copy of cheque and statement of account (Ex.RW-1/2), letters demanding maintenance from complainants (Ex.RW-1/3), copies of letters as well as acknowledgement due cards sent to the complainants (Ex.RW-1/4), allotment letter in favour of Shri Shankar Lal Pipil (Ex.RW-1/5), default letters issued to   Shri Shankar Lal Pipil (Ex.RW-1/6), request of complainants (Ex.RW-1/7), agreement signed by the complainants (Ex.RW-1/8), reminders and letters sent to the complainants (Ex.RW-1/9), copies of dishonour cheques (Ex.RW-1/10), copies of letters of complainants (Ex.RW-1/11), copies of letters asking the complainants to surrender the original documents (Ex.RW-1/12), copy of completion certificate dated 20.11.2007 (Ex.RW-1/13) etc. 

7.        We have heard Ld. Counsel for the parties and have perused the material placed on record.  It has been argued on behalf of                  M/s. Vardhman Properties (OP) that the complainants were not consumer as the property was commercial unit.  It has further been argued that since the complainants have accepted and got en-cashed cheque for an amount of Rs. 12,45,600/- in complaint case no. 67/14, they were estopped. 

            On the other hand, Ld. Counsel for the complainants have argued that the unit in question was not commercial as they have taken the unit for their livelihood.  Further, their accepting the amount of                     Rs. 12,45,600/- does not debars them from claiming the balance amount.

8.        The first and foremost point that arises from consideration is as to whether the complainants were competent to file the present complaint after accepting an amount of Rs. 12,45,600/- in the earlier complaint case no. 67/14, which they withdrew.  It is the case of the complainant himself that they received an amount of Rs. 12,45,600/- during the pendency of their complaint case no. 67/14.  The fact that they have received an amount of Rs. 12,45,600/- by way of account payee cheque bearing no. 683686 dated 09.05.2015 and got it en-cashed, they cannot be said to be consumer.  Not only that, once they have accepted the amount of Rs. 12,45,600/- in complaint case no. 67/14, they were estopped from filing the present complaint.  When the complaint of the complainants fails on the first ground, there is no point in going into the other pleas, raised on behalf of the parties. 

9.        In view of the above, we are of the opinion that the complainants have failed to prove their case, therefore, their complaint deserves dismissal and the same is dismissed.  There is no order as to cost. 

            Copy of the order be supplied to the parties as per rules.

File be consigned to Record Room.

 

(DR. P.N. TIWARI)                                                (HARPREET KAUR CHARYA)

Member                                                                                  Member   

           

            (SUKHDEV SINGH)

             President