State Consumer Disputes Redressal Commission
D.C.M. Limited vs Girish Chandra,(Huf) on 13 May, 2013
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision: 13.5.2013 First Appeal 540/2004 (Arising out of the order dated passed by the District Forum(Central), Kashmere Gate, Delhi in complaint case No. 195/2003) M/s D.C.M. Limited, Vikrant Tower, 4, Rajindra Place, New Delhi .........Appellant VS Shri Girish Chandra,(HUF) (Through Karta of HUF) K-24-D, Hauz Khas Enclave, New Delhi-110 008 ........Respondent CORAM Justice Barkat Ali Zaidi(President) Salma Noor, Member
V.K.Gupta, Member (Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
V.K.GUPTA, MEMBER(JUDICIAL)
1. This appeal by the OP of the case No.195 of 2003 is directed against the order dated 25.6.2004of the District Forum (Central), Kashmere Gate, Delhi directing the appellant to pay interest @ 12% p.a. on 1,50,000/- from 16.1.1991 to 31.10.2002, and compensation of Rs.15,000/- for mental agony and harassment.
2. Briefly stated factual scenario of the case is that respondent/ complainant booked a flat and paid Rs.1,50,000/- to the appellant/OP. On 16.1.97, an agreement was executed between the parties in respect of this transaction. According to the clause 19 of this agreement, if the appellant/OP failed to give the possession of the premises in question, the appellant/OP will pay interest @ 12% p.a. on the said amount.
The project of the appellant/OP did not materialize and after much correspondence between the parties, the appellant/OP refunded the amount of Rs.1,50,000/-, but interest has not been paid, therefore, the complaint was filed for the interest as well as the compensation and litigation charges.
3. The District Forum vide order dated 25.6.2004 directed the appellant/OP to pay interest @ 12% p.a. on the deposited amount from 16.1.91 to 20.10.2002, Rs.15,000/- as compensation together with litigation charges
4. Being aggrieved by the aforesaid order dated 25.6.2004, the OP preferred the appeal.
5. The complaint of the respondent was allowed by the District Forum on 6.11.2007 against the OP preferred the appeal before the State Commission, which vide order dated 30.1.2008 set aside the order dated 6.11.2007 and remanded the case back to District Forum to hear the case a fresh.
6. We have heard Counsel for both the parties and perused the material on record.
7. The main thrust of the Counsel for the appellant is that the deposit of Amount of Rs.1,50,000/- has been refunded to the respondent/complainant on 26.10.2002 through a bank draft of the Standard Chartered Bank, New Delhi, therefore, the complainant is not entitled for any interest and the District Forum committed grave error. On the other hand it is argued by the counsel for the respondent/complainant that of course, this amount has been refunded, but as per the agreement, the complainant is entitled to the interest @ 12% p.a. as specified in the said agreement. The argument of the Counsel for the appellant is devoid of all force.
8. It is the settled position of the law that when an agreement is executed between the parties, such parties are bound by the terms and condition of the said agreement, and even Forum cannot deviate the terms and conditions of the agreement.
9. An agreement dated 16.1.1997 executed between the parties has not been denied by any of the parties at any point nor at any stage of the proceedings.
Clause 19 reproduced as below:-
If for any reason whatsoever, the First Party is not able to construct its entire part nor a part of its entire part of the proposed DCM Techno Plaza complex or the whole or part of the project is abandoned or is unable or fails to give possession of the premises, subject matter of this Agreement, at all within the time specified above or within any further time agreed to between the Second Party and the First Party, the second party shall be entitled to give notice to the First Party terminating this Agreement and the First Party shall its convenience along with simple interest @ 12% per annum refund to the second party all monies paid by it up to date. The second party agree that it shall not be entitled to raise any claim monetary or otherwise whatsoever against the first party and if any so raised shall not be entertained by the first party.
10. On a plain reading of the aforesaid clause, it is apparently clear that in case the plot in question is not delivered within the stipulated time, the appellant/OP shall pay interest @ 12% p.a. There are catena of judgments of Honble Supreme Court and Honble National Commission that both the parties are bound to the terms and conditions of the agreement and even the Forum cannot deviate from these terms and conditions. Our attention has been invited by the counsel for the Appellant towards the receipt dated 26.10.2002, by which the respondent/complainant has received an amount of Rs.1,50,000/- and it is in the full and final settlement. In receipt it is mentioned that the receipt of an amount of Rs.1,50,000/- is in full and final settlement.
11. It has been also been held by Honble Supreme Court in United India Insurance Co. vs. Ajmer Singh General Mills (1999) 6 SCC page 400 wherein it is propounded that despite execution of the discharge voucher, the consumer is entitled to prefer claim in respect of deficiency in service are consequently benefit arisen out of the amount paid in default in service referred, if the consumer executed the discharge voucher with coercive bargaining. It has been observed by Honble Surpeme Court, that if there is an allegation of the coercion in the execution of receipt of the payment of the amount, such person is entitled to the benefits.
12. As stated earlier, both the parties are bound by the terms and conditions of the agreement and the receipt dated 26.10.2002, is not in discharge of the full and final satisfaction, therefore, the District Forum committed no error in granting the interest @ 12% p.a. on Rs.1,50,000/- from 16.1.1991 to 3.10.2002.
13. So far as the amount of compensation is concerned, it cannot be said to be excessive at any stretch of imagination. Similar is the case with regard to litigation charges.
14. This appeal has no force, therefore, dismissed.
15. FDR, if any, deposited by the appellant, be released in his favour after completing due formalities and record be consigned to the record room.
(Justice Barkat Ali Zaidi) President (Salma Noor) Member (V.K.Gupta) Member (Judicial) Arya