Judgment:V.K. Gupta, Member (Judicial):
1. This is a complainant under Section 17 of the Consumer Protection Act, 1986.2. Brief facts are that in pursuance of alluring advertisement made by the OP in The Hindustan Times on 26.2.2006, the complainant booked a flat measuring 1330 Sq.ft. comprising 3 bedrooms, drawing and dining rooms in Easterned Hights at Indirapuram, Ghaziabad at the 4th Floor, but the OP, without any reason, allotted the complainant on the 7th Floor without his consent, thereby allotting flat No.704 in Block B on 7th Floor.
The complainant has made the following payments:
| S.No. | Cheque No. | Amount |
| 1 | 790963 | 2,20,000/- |
| 2 | 386005 | 2,18,900/- |
| 3 | 373819 | 2,19,450/- |
| 4 | 320738 | 1,09,725/- |
| 5 | 112989 | 1,09,275/- |
| 6 | 015878 | 1,09,275/- |
| Total | Â | 9,86,625/- |
Â
3. In this way, an amount of Rs.9,86,625/- has been paid to the OP, to the utter surprise, on 25.3.2008, the OP has cancelled the allotment on the pretext of the non payment of the installment due and payable along with PLC charges. Cancellation has been made solely on the ground that the OPs are making allotment on the higher price to the other persons. The complainant asked the OP for the refund of Rs.9,86,625/-, but nothing has been done and lastly served a legal notice to the OP for refund of the above said amount whereupon the OPs have sent five cheques amounting to rupees 9,86,625/-, details of which are as follows:-
Â
| S.No. | Cheque No. | Date | Amount |
| 1 | 718383 | 13.10.08 | 2,00,000/- |
| 2 | 718384 | 3.11.08 | 2,00,000/- |
| 3 | 718385 | 5.12.08 | 2,00,000/- |
| 4 | 718386 | 20.11.08 | 2,00,000/- |
| 5 | 718387 | 21.12.08 | 1,86,625 |
| Â | Â | Â | 9.86,625/- |
Â
4. Cheque No. 718383 and 718384 have been credited into the account of the complainant.. Further cheque No. 718386 for Rs.2,00,000/- was presented by the complainant but the same was returned by the bank of the OP with the remarks âinsufficient funds. Further cheque No. 718385 for Rs.2,00,000/- and cheque No. 718387 for Rs.1,86,625/- were also presented to the bank of the OP, but they were also dishonoured on the ground that the funds are insufficient. Thereafter the OP sent a draft No.471187 for Rs.50,000/- and another draft bearing No.714435 for Rs.50,000/-, which were credited into the account of the complainant. In this way the OPs have not paid the amount of Rs.4,86,625/- out of the total amount of Rs.9,86,625/-. The complainant claims the refund of Rs.4,86,625/- together with interest @ 18% p.a. amounting as to Rs.5,77,226/-, damages in the sale price amounting to Rs.12,63,500/- and Rs.2 lakhs as litigation expenses.
Â
5. The OPs have filed the joint written statement denying the allegations. It is admitted that the complainant has paid the amount mentioned in para No.5 of the complaint, but the OP never received necessary documents from the complainant. It is also admitted that the OP vide letter dated 17.4.2008 has re-allotted the flat No.A-3/303 in the Eastern Hights, Indira Puram, Ghaziabad subject to payment of Rs.200/- per sq.ft. as re-allotment charges. The cancellation of the flat in question was made due to non payment of installments and other necessary payments required to be paid by the complainant. Considering the application of the complainant regarding the refund of the claim, the OP have already issued five cheques of Rs.9,86,625/- prior to legal notice of the complainant. Out of the five cheques, two cheques were cleared but three cheques were not cleared due to insufficient funds. The OP has also issued two demand drafts of Rs.50,000/- each and also ensured to clear the remaining amount shortly. As per agreement, the complainant is not entitled to claim any relief.
6. The complainant has filed the rejoinder and denied the fresh allegations made by the OP in the written statement.
7. Both the parties have filed the evidence by way of affidavit in their favour.
8. We have heard Ld. Counsel for both the parties and perused the material on record.
9. In this case, some of the facts are admitted to both the parties. It is admitted by both the parties that the complainant has paid an amount of Rs.9,86,625/- to the OP as detailed in para No.5 of the complaint. It is also admitted by both the parties that the complainant moved an application for refund of this amount which was conceded by the OPs and refunded the aforesaid amount by way of five cheques detailed below:-
| S.No. | Cheque No. | Date | Amount |
| 1 | 718383 | 13.10.08 | 2,00,000/- |
| 2 | 718384 | 3.11.08 | 2,00,000/- |
| 3 | 718385 | 5.12.08 | 2,00,000/- |
| 4 | 718386 | 20.11.08 | 2,00,000/- |
| 5 | 718387 | 21.12.08 | 1,86,625 |
| Â | Total | Â | 9.86,625/- |
Â
In para No.8 of the written statement it is admitted by the OP that two cheques of Rupees two lakh each were credited into the account of the complainant but the remaining three cheques could not be cleared by the bank of the OP on account of the insufficient funds and thereafter two bank drafts of Rupees fifty thousand each were sent to the complainant, which is also admitted. Now there remains an outstanding amount of Rs.4,85,625/-, which is to be paid by the OP to the complainant against the dishonoured cheque issued by the OP in favour of the complainant.
10. The Counsel for the OP very vehemently submitted that as per agreement alleged to have been executed between the complainant and the OPs, 25% of the amount paid by the complainant is to be deducted in case of cancellation of the flat. This argument is devoid of all force. It may be mentioned that neither the complainant nor the OPs have filed an agreement executed between the complainant and the OPs mentioning of the terms and conditions therein. Unless and until the said agreement is filed by the OPs, it cannot be said that the OP is entitled for deduction of 25% out of the amount paid by the complainant in case of cancellation. The Counsel for the OPs has placed reliance on the application form of the complainant. This application form is signed by the complainant only, it is not executed by the OPs in any manner. Obviously it is a unital agreement. This does not bear the signature of the OPs. It cannot be termed as agreement. Moreover, no mention has been made in this application form that in case of cancellation, an amount of 25% shall be deducted out of the total amount paid by the complainant. Except this, there is no other document which goes to show that the OP is entitled to deduct 25% of the amount paid by the complainant in case of the cancellation.
11. Now adverting to the amount of compensation, it may be stated that the OP have come with the clean hands and very fairly and candidly admitted in the written statement that the entire refund has been made through the cheques, but three cheques were dishonoured on account of the insufficient funds in the account of the OP. However an amount of rupees one lakh has been paid to the complainant through the Demand Draft.
12. Therefore, there is no mental agony or harassment to the complainant.
13. We hereby direct that the OP shall refund the outstanding amount of Rs.4,86,625/- to the complainant within 30 days.