State Consumer Disputes Redressal Commission
Manager,M/S Omaxe Ltd. vs Sh. Ishwar Chand on 15 October, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 94 / 2011
Manager
M/s Omaxe Limited
Through Site Office Guru Angad Dev Complex
Nainital Road, Rudrapur, District Udhamsingh Nagar
......Appellant / Opposite Party
Versus
Sh. Ishwar Chand S/o Sh. Tek Chand
R/o Ganesh Automobiles, Philibhit Road, Khatima
District Udhamsingh Nagar
.......Respondent / Complainant
Sh. Deepak Ahluwalia, Learned Counsel for the Appellant
Sh. Prateek Handa, Holding Brief of Sh. Yudhvir Handa, Advocate, Learned
Counsel for Respondent
Coram: Hon'ble Mr. Justice B.S. Verma, President
Mr. Balveer Prasad, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 15/10/2018
ORDER
(Per: Mr. Balveer Prasad, Member):
The appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred against the order dated 25.04.2011 passed by the District Consumer Disputes Redressal Forum, Udhamsingh Nagar (hereinafter to be referred as 'The District Forum') in case No. 71 of 2008 styled as Ishwar Chand vs. Manager, M/s Omaxe Ltd., whereby the consumer complaint was allowed in part, directing the O.P. to pay Rs. 79,852/- with interest @ 8% per annum, alongwith damages Rs. 3,000/- and Rs. 3,000/- as litigation expenses, within one month.
2. The brief fabric of facts around which the case revolves is that the complainant booked two flats under the project 'Omaxe Rivera Pantnagar' and the complainant paid Rs. 3,99,263/- (under cheque No. 1372501) and 2 Rs. 3,99,263/- (through cheque No. 1372502), in toto Rs. 7,98,526/- on 18.08.2006. The complainant demanded refund of the entire amount through letter dated 08.03.2007 when he came to know that the booking has been floated without having any title over the land, under the project. The opposite party paid the amount without any interest, that too after deducting a sum of Rs. 79,852/-, so the case was instituted for the realisation of the said amount alongwith interest and damages, including costs.
3. The O.P. contested the case and pleaded by way of written statement that the complainant has not come with clean hands. Facts narrated by the complainant, were admitted to the extent of booking the flats under the said project and paying total money as Rs. 7,98,526/-. It was also agreed, as per application form, that 15% of the total costs of each flat shall constitute earnest money and the remaining amount shall be taken as part-payment. The complainant was provisionally allotted the flats, subject to the payment of the remaining outstanding amount, as per the payment plan opted by him. The answering O.P. was authorised to make deduction to the extent of 15%, but on the persistent requests, the deduction was made @ 10% and the complainant agreed to accept the refund after the said deduction, without any protest.
4. It was also pleaded that the SIDCUL (State Infrastructure and Industrial Development Corporation of Uttaranchal Limited) invited bids for developing the residential and housing facilities, vide advertisement dated 27.03.2006. The O.P.'s bid was accepted and letter of award was issued on 30.05.2006 and on that strength, the project was launched.
5. The District Forum, on appreciation of the material on record, allowed the consumer complaint in the terms mentioned in the order impugned. Feeling aggrieved, the appellant has come up, projecting the appeal mainly on the grounds that the order in question is not in consonance with the available record, nor the evidence was correctly 3 appreciated and as such, the Judgment passed by the District Forum is not sustainable in law.
6. Heard learned counsel for the parties in extenso. The record of the case was also perused. Learned counsel for the appellant emphasized that the conduct of the consumer is not based on bonafide - the amount was received in full satisfaction of the claim. The grounds taken in the written statement were not taken into account by the District Forum. Per contra, it was submitted on behalf of the respondent that the Omaxe Company was enriched unjustly and the consumer is entitled for the ratification of the relief granted by the District Forum.
7. We have given thoughtful consideration to the arguments advanced before us and examined the entire material on record.
8. In order to appreciate the issue involved, it is necessary to throw light on the factual matrix. The dynamics of the case relating to the cause of action is that the advertisement was published at the time, when the appellant had no locus standi to launch the project. Perusal of the affidavit furnished by the complainant reveals that the version of the complainant has been reproduced verbatim. To the contrary, Sh. Rajesh Garg, Deputy Manager stated by way of affidavit that the complainant is not entitled to get benefit of his own wrong and get a refund for the whole amount. The complainant had agreed to accept refund of his amount after deduction of 10% without any protest. The complainant had authorised Sh. Nitesh Agarwal to collect the cheque for refund, as full and final settlement on behalf of the complainant, for which a receipt had been executed by Sh. Nitesh Agarwal in full satisfaction. For realisation of the amount, Sh. Nitesh Agarwal was duly authorised by the complainant under his own signature, the proof thereof, is the document - Annexure - 1, appended to the affidavit furnished by Sh. Rajesh Garg. Annexure - 2 and 3 appended to the same affidavit make it clear that cheque Nos. 128176 and 128177 (Rs. 3,59,337/- each) were received by Sh. Nitesh Agarwal under the 4 authority letter issued by the complainant and this document also bears a declaration to the effect that 'we have no claim / right / lien and title in the above respect and have fully settled with the declaration that there remains no liability. The company is free to sell the said unit and we have no claim / right in respect thereof.' It is worth to observe that no rejoinder affidavit has been filed by the complaint in order to rebut the evidence furnished by the O.P., nor the documents appended thereto, were put for challenge. It implies consent on the part of the consumer, on the said score.
9. The letter of allotment dated 03.11.2006, addressed to the complainant is available on record, making reference to the complainant's application dated 18.08.2006 regarding the booking of flats. The complainant was requested to deposit the next installment of Rs. 5,09,558/- by 18th November, 2006. The perusal of the application form reveals that basic terms and conditions were attached herewith, specifying that the complainant agrees that the amount paid with the application and in installments, as to the case may be, to the extent of 15% of sale consideration of residential flat shall collectively constitute the earnest money. Timely payment of installments is the essence of the terms of booking. The earnest money and interest on the delayed payment...shall stand forfeited. The balance amount shall be refundable to the applicant without any interest.
10. The document issued by SIDCUL reflects that the appellant was declared as the successful bidder and the possession was given on 31.07.2006. SIDCUL's letter dated 08.06.2006 makes it clear that the date of letter of award will be treated as the date of allotment of the plots in favour of M/s Omaxe Ltd., for all purposes. Accordingly, the appellant was authorised to market the plots, after taking over the lawful possession of the premises.
511. The aforesaid picture reflects that on the request of the complainant, only 10% amount was deducted and the remaining amount was paid to the complainant. The document relating to the terms and conditions bears the signature of the complainant. There is no denial on the said point. In this way, the terms and conditions of the contract have binding effect on both parties.
12. The matter requires to be looked at, from the point of view of Section 62 of the Contract Act. That Section is in these terms:
"Section 62 - If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed."
Hence, the settlement in final and full satisfaction mounted to an 'accord and satisfaction'. In Kanta Mathur vs. N.I.C. Ltd.; ( (2015) CPJ 151 (NC), it was held that claim cannot be reopened, once full and final settlement of the claim is accepted. Law came out with all its brilliance in The Union of India vs. Kishori Lal Gupta; AIR 1959 SC 1362, wherein the Apex Court postulated:
"The contracts stand finally concluded in terms of the settlement and no party will have further or other claim against the other. The settlement operates as an accord and satisfaction and such settlement amounts to a substituted agreement, abrogating the original contract."
13. Learned counsel for the appellant placed reliance on the law laid down by Hon'ble National Consumer Disputes Redressal Commission, New Delhi in Pushpa Singhal vs. Haryana Urban Devlopment Authority & Anr.; II (2013) CPJ 166 (NC), wherein it was propounded that the refund of 10% of the tentative price of the plot was held justified, as the petitioner had surrendered the plot of her sweet will and the price thereof, was 6 accepted without any protest. This ruling is fully applicable to the present set of facts. It is also wroth to observe that the version narrated in the complaint is that the booking was floated without having title over the land under the project. The application moved by the complainant for the cancellation of booking makes a simple mention - 'seeking cancellation, prayed accordingly.' No reason has been assigned for seeking cancellation. It is worth to observe that despite the letter issued by the company, to the complainant, the next installment was not paid by the complainant. In this way the complainant committed breach of contract at his own sweet will. We have no hesitation to remark that one who comes to the court, should not only to come with clean hands, but must further come with clean mind, clean heart and clean objectives.
14. On overall analysis of the matter, we come across with the definite finding that the District Forum miserably failed to appreciate the evidence in proper perspective - Once the amount was received in full satisfaction of the claim, the principle of estoppel operates against the complainant.
15. Thus, the appeal deserves to be accepted.
16. Accordingly, the appeal is allowed. Impugned order, dated 25.04.2011 is hereby set aside and in consequence thereof, the consumer- complaint is dismissed. No order as to costs. The statutory amount, if deposited, be released in favour of the appellant.
(MRS. VEENA SHARMA) (BALVEER PRASAD) (JUSTICE B.S. VERMA)