State Consumer Disputes Redressal Commission
Dr. Navdeep Walia vs 1. Senior General Manager, Omaxe, ... on 7 March, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UNION TERRITORY, CHANDIGARH
Complaint No.
60 of 2012
Date of Institution
22.11.2012
Date of Decision
07.03.2013
Dr. Navdeep Walia, 18 Monica Lane, Malwa Colony, Patiala 147001, Punjab.
.Complainant
Vs.
Senior General
Manager, Omaxe, Chandigarh Extension, SCO 143-144, First Floor, Sector
8-C, Madhya Marg, Chandigarh 160008.
Mr. Rohtas Goel,
Chairman Omaxe Ltd., 7 LSC, Kalkaji, New Delhi- 110019.
.
Opposite Parties
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT
MRS.
NEENA SANDHU, MEMBER
Present: Dr. Navdeep Walia, Complainant in person.
Sh. Munish Gupta, Advocate for the OPs.
MRS. NEENA SANDHU, MEMBER Briefly stated, the facts of the case, are that the complainant lured by the attractive advertisement of the Opposite Parties, in respect of booking of duplex villas in their Mullapur Chandigarh Extension Township in April 2012, approached office of the Opposite Parties at Sector 8 Chandigarh and met their officials, namely Mr. Depinder Singh and Mr. Rakesh Chopra, who gave her a detailed attractive brochure for the proposed project. It was stated that attracted by the rosy pictures, projected by the said officials and impressed with the details given in the brochure, the complainant decided to invest her hard earned money for purchasing the Mulberry Villa and paid Rs.Rs.14.00 lac as booking amount, against receipt dated 19.5.2012 (Annexure-4). It was further, stated that thereafter, the complainant paid Rs.23,75,673/- to the Opposite Parties, as per their demand and, as such, this amount including the booking amount, which came to be 25% of the basic sale price of the Mulberry villa. The grievance of the complainant was that when she received the allotment letter/agreement (Annexure -7) from the Opposite Parties, she was shocked to see that the same was contrary to the promise made in the brochure and explained by the official of the Opposite Parties. It was further stated that the said agreement did not include specifications of the proposed villa, their escalation free promise and the promised compensation @ Rs.10 pre square feet of constructed area per month, in case possession time of the villa was delayed beyond 24 months. The complainant immediately contacted Mr. Rakesh Chopra, Manager Sales and Marketing of the Opposite Parties and he assured necessary correction in the agreement within one week and asked to send objection through email. The complainant sent the Opposite Parties, numerous emails and made several calls for sending amended allotment letter. Even her husband personally visited the office of the Opposite Parties at Chandigarh but they delayed the matter by giving false assurances. It was further stated that on 23.8.2012 the complainant got email from Ms. Ritika from customer care that the change in modified allotment letter consisted of deletion of clause 28-C and Clause 28d had been renamed 28C with some modification. The complainant in reply to her email on 23.8.2012 sent email to Ms. Ritika raising her objection for not removing the discrepancies but to no effect. Thereafter the complainant also wrote to Mr. Manoj Suri representative of the Opposite Parties but he sent a minimally modified agreement vide email 24.8.212 which was still one sided and contained only minor cosmetic modifications, and did not address even a fraction of her concerns. Thereafter the complainant sent numerous emails in detail to Mr. Suri, that the only change made in the allotment letter was deletion of clause 28C, the inclusion whereof in the first place was a big mistake on the Companys part. This clause was meant for shared units whereas Mulberry villa was an independent unit, and even the compensation clause 23j which was included was practically useless as it did not show any date from which 24 months would be counted and when compensation from Omaxe will start in case of delayed handling over of possession of the Mulberrry villa to the complainant by Omaxe, but he did not respond. Ultimately on 7.9.2012 the complainant received email from Ritika making very vague promises on a word document giving of no practical significance. The complainant replied to this email, that the document does not help as she still did not receive the final draft of agreement, taking care of her objections. It was further stated that when the complainant received no response from the Opposite Parties, to his emails, she sent a notice for refund of her money with interest to Mr. Manoj Suri Manger of Regional office of Omaxe Chandigarh and copy to Mr. Rohtas Goel, Chairman Omaxe, with complete email record. But the complainant did not get refund of her money amounting Rs.37,75,673/- and alleged that the Opposite Parties were illegally using her money. Even thereafter correspondence was made between the parties but to no avail. It was further stated that the Opposite Parties are still illegally using the money of the complainant. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.
2The Opposite Parties filed reply wherein they took up a preliminary objection to the effect that during the pendency of complaint, the parties effected a compromise on 29.12.2012 and as per the said compromise Rs.37,75,673/- were duly received and encashed by the complainant, and as such, she was estopped from prosecuting the present complaint any further. The Opposite Parties admitted the factual matrix of the case. It was stated that the parties were to enter into agreement-cum-allotment letter regarding the property, in dispute, but owing to unnecessary objections, by the complainant, time and again, the agreement could not be executed till date. It was further stated that the complainant time and again asked for unwarranted changes, in the allotment letter, though, the same were resolved by the Opposite Parties, but she always had more issues to raise after the previous issues were resolved. It was denied that the allotment letter was supplied late to the complainant. It was further stated that the complainant after receiving the allotment letter tried to raise issues regarding non inclusion of certain clauses. It was further stated that in clause 23(b) of the agreement the stipulated period of 24 months for completion of the villa in question from the date of signing the agreement, was mentioned, but the complainant unnecessarily made hue and cry, that time period was not mentioned. It was further stated that the issues raised by the complainant with regard to the allotment letter were resolved and, accordingly, the allotment letter was modified as per her desire but she was never satisfied and kept on raising unnecessary issues. It was further stated that the amended agreement was sent to the complainant wherein all the concerns of the complainant were duly redressed. It was further stated that the delay in signing the agreement was due to the own act of the complainant who time and again unnecessarily raised objections with regard to the agreement in question. It was denied that the Opposite Parties did not reply to all the emails of the complainant. It was further stated that the complainant never sent all the emails mentioned in the complainant and the Opposite Parties duly replied the emails which were received by them. It was further stated that the parities arrived at a compromise, vide which the complainant was returned the entire consideration amount, and the complainant agreed to resolve all the issues regarding the property in question and waived of her right in the property in dispute and also to withdraw her complaint before the Economic Offences Wing Chandigarh. But still the complainant persisted with the present complaint and thereby caused unnecessary harassment to the Opposite Parties. All other allegations, levelled by the complainant, in the complaint, were denied. It was further stated that there was neither deficiency, in service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.
3The parties led evidence, in support of their case.
4We have heard the complainant, in person, the Counsel for the Opposite Parties, and, have perused the record, carefully.
5. The main contention of the complainant was that the allotment letter/agreement issued by the Opposite Parties, was contrary to the promise made by them in its brochure and explained by their officials. It was submitted that the said agreement did not contain specifications of the proposed villa, their escalation free promise and the promised compensation @ Rs.10 per square feet of constructed area per month, in case possession time of the villa was delayed beyond 24 months. It was further submitted that despite several emails and request for issuance of amended allotment letter the Opposite Parties did not redress her grievance. It was further submitted that, no doubt, in pursuance of the compromise arrived at between the parties, the complainant received the entire amount paid by her to the Opposite Parties, but they illegally used her hard earned money, which amounted to deficiency, in rendering service, and indulgence into unfair trade practice.
6. On the other hand, the Counsel for the Opposite Parties, submitted that once the parties arrived at a compromise, in full and final settlement, the complaint was not maintainable before this Commission, as per settled principle of law. It was further submitted that, in the compromise, which was duly signed by both the parties the complainant was returned the entire amount deposited by her and she agreed that all the issues regarding the property, in question, stood resolved, also relinquished all her rights in favour of the Opposite Parties, against the property, in question. It was further submitted that in pursuance of this compromise the complainant even withdrew her complaint filed before the Economic Offences Wing, Chandigarh, but persisted with the present complaint with ulterior motive to grab money from the Opposite Parties.
7. Admittedly, the complainant paid Rs.37,75,673/- to the Opposite Parties, towards 25% of the Basic sale price of the Mulberry Villa, in question. The grouse of the complainant, was that the Opposite Parties, issued her the allotment letter/agreement containing the terms and conditions, contrary to the one mentioned in the brochure, and promised by their officials at the time of booking the villa and despite her numerous requests, they, did not properly amend the same. Perusal of the record reveals that during the pendency of the complaint the parties mutually compromised the dispute, vide compromise deed Annexure A-1 dated 29.2.2012,. As per the compromise arrived at between the parties, the complainant was returned Rs. 37,75, 673/- deposited by her with the Opposite Parties, for the villa booked by her. This fact was fairly admitted by the complainant on 14.1.2013 that she received the said amount, but she still wanted to pursue the complaint as she was not paid the compensation on account of harassment and mental agony, interest and cost claimed by her, in the complaint. Further perusal of the compromise reveals that in clause 3 it was mutually agreed to by the parties that receipt No.709065 and 721449 vide which the complainant paid the amount, in question, towards the price of the villa, would stand cancelled and the same would not be used by the complainant, in any manner, against the property, in question. It was further agreed to between the parties in clause No.4 of the compromise, that all the issues regarding the property, in question, stood resolved mutually and amicably. As per clause 5 of the compromise the complainant relinquished all her rights in favour of the Opposite Parties, against the property, in question, from the date of compromise. It is evident from the compromise aforesaid that the same was duly signed by both the parties. Once the complainant agreed to the terms and conditions, contained in clauses 3,4 and 5 she had no local standi to agitate the matter again and could not seek relief in the present complaint. It is not out of place to mention here that the compromise was arrived at, between the parties, during the pendency of the complaint. If the complainant had grievance, against the Opposite Parties, she should not have entered into compromise with them, and rather she should have waited for the final decision of the complaint. Thus it is established that full and final settlement was mutually arrived at, between the parties, and, as such, the complainant is not entitled for any relief claimed by her in the complainant. The Apex Court in Civil Appeal No. 535 of 1994 titled as United India Insurance Vs. Ajmer Singh Cotton & General Mills with Civil Appeal No. 534 of 1994 titled as United India Insuranace Co. Ltd. Vs. M/s Asa Singh Cotton Factory and Civil Appeal No 723 of 1994 decided on 12.8.1999 while deciding the issue, in the aforesaid cases, whether the insured was estopped from making any further claim, from the insurer, after accepting the insurance amount, in full and final settlement of all the claims, by executing the discharge vouchers voluntarily, held that the mere execution of discharge vourcher would not always be conclusive and deprive the consumer from preferring claim with respect to the deficiency in service or default on the part of the insurer. However, the claim will be maintainable only if the execution of discharge vourchers were alleged and proved to have been got executed by fraud, undue influence, mis-representation or the like. If there is no such plea and the documents are executed voluntarily, the Commission would be justified in dismissing the complaint. Similar view was taken by the Honble National Commission, New Delhi in case of Shankar Woollen Pvt. Ltd. Vs. National Insuranace Co. Ltd. IV (2012) CPJ 733 (NC) In the present case, the complainant after voluntarily arriving at a compromise, with the Opposite Parties, could not agitate the same. In case she was not satisfied with the compromise, and it had been executed under coercion, undue influence, mis-representation, she could produce evidence in that regard. She did not produce any evidence to rebut the correctness of the compromise.. Hence the principle of law laid down, in the aforesaid cases decided by the Apex Court, as also by the National Commission is fully applicable to the present case. As such, the complaint is liable to be dismissed being not maintainable.
8. In view of the above, we do not find merit, in this complaint. Accordingly, the same is dismissed with no order as to costs.
9. Copies of this order be sent to the parties, free of charge.
Pronounced. Sd/-
March 7, 2013 [JUSTICE SHAM SUNDER[RETD.] PRESIDENT Sd/- [NEENA SANDHU] MEMBER mp mp Complaint NO 60 OF 2012 Present: Dr. Navdeep Walia, Complainant in person.
Sh. Munish Gupta, Advocate for the OPs.
Dated the 7th day of March, 2013.
Vide our detailed order of the even date recorded separately, this complaint has been dismissed with no order as to costs, as per directions.
(NEENA SANDHU) MEMBER (JUSTICE SHAM SUNDER(Retd.) PRESIDENT mp/-