National Consumer Disputes Redressal
Indu Bala Satija vs Haryana Urban Development Authority on 1 May, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1506 OF 2012 with I.As. No.1 & 2 of 2012 (From the order dated 12.1.2012 Appeal No.879/2006 of the State Commission, Haryana, Panchkula) Indu Bala Satija W/o Shri Dharamvir Satija, R/o 443, Dr. Mukherji Nagar, Near M.C.,Primary School, Delhi .. .Petitioner Versus Haryana Urban Development Authority Through its Chief Administrator, Sector-12, Faridabad Through Estate Officer, HUDA, Faridabad .Respondent BEFORE: HONBLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HONBLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Venkat Subramoniam T.R., Advocate Pronounced on : 1st May, 2013 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER By way of present revision petition, petitioner/complainant has challenged the impugned order dated 12.1.2012, passed in (First Appeal No.879 of 2006) by the State Consumer Disputes Redressal Commission, Haryana, Panchkula (for short, State Commission).
2. Petitioner filed a complaint under Section 12 of the Consumer Protection Act, 1986 (for short, Act) stating that she was allotted Plot No.2551 in Sector-65, Faridabad, vide allotment letter dated 5.11.2001 at a tentative price of Rs.4,66,250/- She deposited Rs.46,625/- alongwith the application and further deposited Rs.69,938/- within 30 days from the issue of the allotment letter. Thus, in all the petitioner deposited Rs.1,16,563/- with the respondent. Thereafter, respondent/opposite party demanded enhanced price of the plot but petitioner shown her inability to pay the enhanced price and by application dated 28.10.2002, she surrendered the plot and sought refund of the deposited amount. However, thereafter petitioner moved another application on 10.12.2002 whereby she requested the respondent for withdrawal of her earlier application dated 28.10.2002. Respondent vide memo No.8821 dated 25.3.2003 refunded a sum of Rs.33,973/- and deducted Rs.82,590/- out of the total deposit. Alleging it as deficiency in service, petitioner invoked the jurisdiction of District Consumer Disputes Redressal Forum, Faridabad (for short, District Forum ) with the prayer to allot a plot at new rates or alternatively to refund her the deducted amount of Rs.82,590/- alongwith interest@ 24% per annum from the date of deposit till actual realization.
3. Respondent contested the complaint and filed an affidavit stating that complaint under the provisions of Act is not maintainable since petitioner has surrendered the plot and she is no more owner of the plot. The amount has already been refunded to her as per respondents surrender policy. After taking refund, petitioner is no more a consumer of the respondent and the complaint is liable to be dismissed.
4. District Forum, vide order dated 20.2.2006 allowed the complaint and passed the following directions;
i) The Respondent is ordered to allot the same plot to the complainant on the similar price on which it was originally allotted and in case the same is not found vacant and un-allotted then allot some other plot to the complainant in the same sector on the similar price.
ii) It is the option of the complainant that in case she does not want some plot to be allotted to her as ordered above, then she has the alternate option to get recover the deducted amount alongwith interest @ 12% per annum payable from the date of its deduction till its realization.
iii) The Respondents are further ordered to pay Rs.50,000/- on account of mental agony and harassment and further Rs.5,000/- on account of litigation expenses.
5. Being aggrieved, respondent filed appeal before the State Commission which allowed the same, vide its impugned order and dismissed the complaint of the petitioner.
6. Hence, petitioner has filed the present revision petition. Alongwith it, petitioner has also filed an application seeking permission to raise additional grounds and produce documents.
7. We have heard the learned counsel for the petitioner and gone through the record.
8. It has been contended by learned counsel for the petitioner that State Commission wrongly observed that document dated 10.12.2012 has not been proved by the petitioner. In fact, copy of the letter has been placed on record. It is further contended as per information received under the Right to Information Act, respondent has received letter dated 10.12.2012 from the petitioner. It is also contended by the counsel that petitioner immediately on acceptance of the cheque wrote back to the respondent protesting as to how it has deducted the amount from the deposit made by her. Moreover, petitioner in her surrender letter has stated that she is ready to continue with the allotment if the enhanced amount is reduced. Respondent despite reducing the enhanced amount did not intimate the petitioner and cancelled her allotment.
9. In support, counsel for petitioner has relied upon the decision of Supreme Court in Bhagwati Prasad Pawan Kumar versus Union of India (2006) 5 Supreme Court Cases 311
10. State Commission, while accepting the appeal of the respondent in its impugned order has observed;
On behalf of the appellant-opposite party it is argued that the complainant had voluntarily surrendered the plot vide his application dated 28.10.2002 as she was not in a position to pay the enhanced price of the plot. In support of his argument learned counsel for the appellant has drawn our attention towards the application dated 28.10.20102 annexed at page 31 of the appeal the relevant part of which is reproduced as under;
TO, THE ESTATE OFFICER H.U.D.A SECTOR-12, FARIDABAD
- 121 007.
SUB:
SURRENDER OF PLOT NO.2551, SECTOR-65, FARIDABAD RESPECTED SIR, AS ALREADY INFORMED BY ME TO YOU ON 16-10-02 I AM UNABLE TO PAY THE ENHANCED PAYMENT WHICH WAS DEMANDED BY YOU @ 1421.99 PER SQ. MTR. AS PER YOUR LETTER NO.A-65/38584 DT. 4/10/02.
SIR YOU ALREADY KNOW THAT I PAID RS.46,625/- (On 29-1-01) and RS.69,938/- (On 23-11-01), WHICH CONSTITUTE 25% OF THE SAID PLOT.
PLEASE REFUND ME BY ORIGINAL MONEY I.E. RS.1,16,563/-
(Rupees One lakh sixteen thousand five hundred sixty three only) AS I HEREWITH SURRENDER THE ORIGINAL ALLOTMENT LETTER VIDE MEMO NO.3103 DT.05-11-01.
THANKING YOU, P.S. IF YOU WITHDRAW THIS ENHANCEMENT, THEN I READY TO ACCEPT YOUR OFFER.
ENCL: ORIGINAL ALLOTMENT.
YOURS FAITHFULLY, SD/-
(INDU BALA SATIJA) 443, DR. MUKHERJI NAGAR, NEAR M.C. PRIMARY SCHOOL, DELHI 110009.
Admittedly, the request of the complainant was accepted and she was refunded Rs.33,973/- vide Memo No.8821 dated 25.3.2003, after deducting 10% of the consideration amount as per HUDA policy.
Learned counsel appearing on behalf of respondent-complainant has argued that the complainant had withdrawn her earlier application vide second application dated 10.12.2002 but the request of the complainant was not considered by the opposite party.
In our view the contention raised on behalf of complainant is without legs. Complainant has failed to prove her application dated 10.12.2002 by summoning HUDA record despite the fact that the onus to prove the same was upon the complainant. The complainant has failed to establish the alleged application dated 10.12.2002 submitted by her to the opposite party, by leading any cogent and convincing evidence and for that reason the photocopy of the alleged application produced before us cannot be taken into consideration.
The other aspect of the case is that the complainant had accepted the refund of Rs.33,973/- without any protest through cheque and therefore, once the complainant had encashed the cheque, she was no more consumer of the opposite party. Firstly, the complainant ceased to be a consumer of the opposite party on the date she surrendered the plot on 28.10.2002 and thereafter when she encashed the cheque.
The other aspect of the case is that admittedly the complainant has already received the refund of Rs.33,973/- vide Memo No.8821 dated 25.3.2003 through cheque which was encashed by her without protest. It is well settled law that once the cheque already issued in favour of the complainant has been encashed, no further cause of action exists in favour of the complainant. Inference in this regard is made to case law cited as Bhagwati Prasad Pawan Kumar versus Union of India (2006-3) PLR 76 (SC), wherein it was concluded that the encashment of the cheques amounted to acceptance of the amount in full and final settlement of the claim. It was further laid down by the Hon'ble Apex Court that the protest and non-acceptance must be conveyed before the cheques were encashed and if the cheques were encashed without protest, then it must be held that the offer stood unequivocally accepted and offeree cannot be permitted to change his mind after unequivocable acceptance of the offer. The fact of the instant case are attracted to Bhagwati Prasad Pawan Kumars case (supra) because the complainant had encashed the cheque without any protest.
As a sequel to our aforesaid discussions we are of the view that the complainant is not entitled for any relief. Once the complainant has surrendered the plot and received the refund without any protest, she is no more consumer of the opposite party. District Consumer Forum has failed to appreciate the facts of the case in its true perspective. Hence, the impugned order cannot be allowed to sustain.
Accordingly, this appeal is accepted, the impugned order is set aside and the complaint is dismissed.
11. Firstly, we shall deal with the application seeking permission to raise additional documents which petitioner now wants to place on record. These additional documents now petitioner wants to place on record have been obtained under Right to Information Act, 2012, Thus, the same have been obtained after the decision of both the fora below. Under these circumstances, at this revision stage we cannot take note of such documents which were not before the fora below.
12. It is petitioners own case that she surrendered the plot in question and got the refund, as early as in the year 2003. Once petitioner surrendered the plot at her own, without there being any force, pressure or coercion, then she ceases to be a consumer. Moreover, petitioner has already taken the refund in the year 2003, now the clock cannot be reversed back by merely filing a complaint before the District Forum on the ground that the rate of the plot has been reduced. It was with open eyes that petitioner submitted the surrender letter and took the refund.
13. In Bhagwati Prasad Pawan Kumar (supra), Apex Court has laid down;
18.Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railway made an offer to the appellant laying down the conditions that if the offer was not acceptable the cheque should be returned forthwith, failing which it would be deemed that the appellant accepted the offer in full and final satisfaction of its claim. This was further clarified by providing that the retention of the cheque and/or encashment thereof will automatically amount to satisfaction in full and final settlement of the claim. Thus, if the appellant accepted the cheques and encashed them without anything more, it would amount to an acceptance of the offer made in the letters of the Railways dated 7-4-1993. The offer prescribed the mode of acceptance, and by conduct the appellant must be held to have accepted the offer and, therefore, could not make a claim later. However, if the appellant had not encashed the cheques and protested to the Railways calling upon them to pay the balance amount, and expressed its inability to accept the cheques remitted to it, the controversy would have acquired a differed complexion. In that event, in view of the express non-acceptance of the offer, the appellant could not be presumed to have accepted the offer. What, however is significant is that the protest and non-acceptance must be conveyed before the cheques are encashed. If the cheques are encashed without protest, then it must be held that the offer stood unequivocally accepted. An offeree cannot be permitted to change his mind after the unequivocal acceptance of the offer.
19. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its own facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the offeree was such as amounted to an unequivocal acceptance of the offer made. If the fact of the case disclose that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by the conduct. On the other hand, if the evidence discloses that the offeree had reservation in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act.
14. In the present case, there is nothing on record to show that petitioner was compelled by the respondent at any stage either to surrender the plot or take the refund.
15. Interestingly, petitioner having received the refund amount in the year 2003 i.e. more than 10 years ago and after enjoying that money and after surrendering the plot, now wants to have the cake and eat it too, This clearly shows malafide intention of the petitioner in filing the consumer complaint. Once, petitioner received the amount unconditionally and got the cheque encashed, under these circumstances, petitioner ceases to be a consumer as per the Act. The privity of contract or relationship of consumer and service provider between the parties, if any, comes to an end the moment petitioner accepted the refund amount and got the cheque encashed.
16. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
17. There is nothing on record to show that impugned order passed by State Commission is erroneous, or there is any illegality in the impugned order. Present petition being without any legal basis is meritless and the same is hereby dismissed with cost of Rs.10,000/- (Rupees Ten Thousand only).
18. Petitioner is directed to deposit the cost by way of demand draft in the name of Consumer Welfare Fund as per Rule 10A of the Consumer Protection Rules, 1987, within eight weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then she shall be liable to pay interest @ 9% p.a. till realization.
19. List for compliance on 5.7.2013.
..J (V.B. GUPTA) PRESIDING MEMBER ..
(REKHA GUPTA) Sg. MEMBER