Sham Sunder (Retd.), President:
1. This appeal is directed against the order dated 03.03.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only) vide which, it dismissed the complaint, filed by the complainant (now appellant).
2. The facts, in brief, are that, one Ms. Monica Dhillon r/o H.No.1123, Sector 33-C, Chandigarh, was provisionally allotted, unit No.520/SF (approx. area 1431 sq. ft.), Sector 108, Mohali Hills, SAS Nagar, Mohali, in the commercial project, under the name and style of œThe Terraces?, floated by the Opposite Party, vide allotment letter dated 13.04.2009, Annexure C-1, for a total consideration of Rs.37,89,631/-. Later on, the complainant had purchased the said unit and the Opposite Party transferred the same, in her name, vide letter dated 09.10.2009, Annexure C-2. It was stated that the complainant made various payments, towards part price of the said unit, from time to time. In all, a total sum of Rs.14,70,155/- was paid by the complainant, upto 06.04.2010. It was further stated that, as per Clause 18 of the Independent Floors Buyer`s Agreement dated 14.10.2009, time was the essence of contract. According to the complainant, as per Clause 20 of the said Agreement, the possession of unit, in question, was to be delivered, within a period of 36 months, from the date of signing the same (Agreement), but the Opposite Party failed to do so. It was further stated that when the complainant was satisfied that the Opposite Party was not in a position to handover the possession of unit, in question, within the specified period, as promised in the said Agreement, she sought refund of the entire amount, deposited by her, vide letter dated 18.08.2012, Annexure C-5. On 29.08.2012, the Opposite Party wrote to the complainant that construction of the unit would start, in the forthcoming phases, whereas, development of the project, in the other areas, was going on, and that she could choose relocation option, in its other project, namely œThe Views?, which was near completion. The complainant vide letter dated 13.09.2012 Annexure C-7, informed the Opposite Party that she was not interested in relocation, and reiterated that her entire deposited amount, be refunded, as it had not adhered to the stipulated date, for handing over the possession of unit, in question.
3. It was further stated that, under these circumstances, the Opposite Party refunded the amount deposited by the complainant, in two installments of Rs.10.00 lacs, on 17.11.2012 and Rs.4,70,155/- on 23.11.2012, as is evident from Annexure C-8. It was further stated that since the aforesaid amount was refunded by the Opposite Party, without any interest, the complainant made a representation dated 06.12.2012 to it, inter alia, seeking interest, at the market rate, on the entire deposited amount, which had been refunded to her. It was further stated that, as per Clause 19 of the Independent Floors Buyer`s Agreement dated 14.10.2009, the complainant was required to make payments, towards the said unit, as per the payment schedule attached with it (Agreement), failing which the Opposite Party was entitled to charge interest @24% p.a., compounded quarterly, at the time of every succeeding installment, from the due date thereof. It was further stated that since default had been committed by the Opposite Party, as per Clause 19 of the Agreement, the complainant was also entitled to interest, on the entire deposited amount, @24% p.a., compounded quarterly, which worked out to be Rs.9,97,068/-. It was further stated that frantic efforts were made by the complainant, by requesting the Opposite Party, to pay interest aforesaid, but to no avail. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to pay the amount of Rs.9,97,068/-, i.e. the amount of interest calculated @24% p.a., compounded quarterly; compensation, to the tune of Rs.2 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.25,000/-.
4. The Opposite Party, in its written version, admitted that one Ms. Monica Dhillon r/o H.No.1123, Sector 33-C, Chandigarh, was provisionally allotted unit No.520/SF (approx. area 1431 sq. ft.), Sector 108, Mohali Hills, SAS Nagar, Mohali, in its commercial project, in the name and style of œThe Terraces?, vide allotment letter dated 13.04.2009, Annexure C-1, for a total consideration of Rs.37,89,631/-. It was also admitted that, later on, the complainant had purchased the said unit, and the Opposite Party transferred the same, in her name, vide letter dated 09.10.2009 (Annexure C-2). It was also admitted that the Independent Floors Buyer`s Agreement dated 14.10.2009, was executed between Monica Dhillon and the Opposite Party, which was later on endorsed, in the name of the complainant, vide endorsement dated 09.10.2009. It was also admitted that possession of the unit, in question, was to be delivered within a period of 36 months, from the date of signing the Agreement aforesaid. It was stated that the complainant failed to make payment of the due installments, and, ultimately, made a request for the refund of amount, deposited by her. It was further stated that when the complainant was told by the Opposite Party, that she could choose relocation option, in its other project namely œThe Views?, which was near completion, she did not do so. It was further stated that, ultimately, without deducting anything, the deposited amount, was refunded to the complainant, by way of full and final settlement of the claim, with mutual understanding. It was further stated that, after accepting the amount of Rs.14,70,155/-, by way of full and final settlement, without raising any protest or demur, the complainant had no right, and title, in the unit, in question, and, as such, could not claim any interest thereon. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
8. We have heard the Counsel for the appellant, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant, submitted that since there was no development, at the site, and the complainant was fully satisfied that the Opposite Party would not be able to hand-over possession of the unit, in question, to her, by the stipulated date, as provided in the Agreement, she had no option, than to ask for the refund of amount, deposited by her, towards part price of the same. He further submitted that, no doubt, the entire amount deposited by the complainant, was refunded to her, on her request, by the Opposite Party, without any deduction, yet, it was liable to pay interest, thereon, as, in case of delay, in making the payment of installment(s), it (Opposite Party) was charging interest @24% p.a., compounded quarterly. He further submitted that, by not making the payment of interest and compensation, the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice. He further submitted that the District Forum was wrong, in holding to the contrary. He further submitted that the order of the District Forum, being illegal, and invalid, is liable to be set aside.
10. After giving our thoughtful consideration, to the contentions, advance by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. Undoubtedly, the commercial unit, in question, was originally allotted, in favour of Ms. Monica Dhillon, resident of House No.1123, Sector 33-C, Chandigarh. There is also, no dispute, with regard to the factum that, later on, the said unit was purchased by the complainant, from the original allottee, and, ultimately, it was transferred, in her name, by the Opposite Party, vide endorsement dated 09.10.2009. The total sale price of the said unit was Rs.37,89,631/-, but the complainant only paid a sum of Rs.14,70,155/-. The complainant, thus, defaulted, in making payment of installments, when the same fell due. In the instant case, the complainant sent a request letter dated 18.08.2012, Annexure C-5, for the refund of amount, deposited by her, on account of the reason, that she was not interested in the same (unit). She again wrote another letter dated 13.09.2012 Annexure C-7, that she was not interested in relocation, as suggested. She further made a request that her case be processed, for the refund of amount, deposited by her, in accordance with the letter dated 18.08.2012, without any further delay, and not later than three weeks. It means that the complainant voluntarily surrendered the unit, in question, as per Clause 31.3 of the Independent Floors Buyer`s Agreement dated 14.10.2009. According to this Clause, in the event of voluntary surrender of the said independent floor/unit by the allottee, the terms and conditions of cancellation, as envisaged by Clause 27.4.3, were to apply to the forfeiture or surrender of unit. According to Clause 27.4.3 of the Agreement œEvents of Defaults and Consequences?, upon cancellation of the said Agreement, the Company would be released and discharged of all liabilities and obligations, under the same (Agreement) and it (Company) would have the right to resell the independent floor(s)/unit(s) and the car parking space to any third party or deal with the same, in any other manner, as it may, in its sole discretion, deem fit. In the event of the Company electing to cancel the Agreement, it was liable to refund the amount received from the allottee, after deducting 20% of the sale price, but only after realizing such refundable amount, on further resale, to any other party. It is, thus, evident from Clause 27.4.3 of the Agreement, referred to above, that after the refund of amount, the allottee was not to be left with any right, title, interest or lien, over the said independent floor(s)/unit, and the car parking space, in any manner whatsoever. On the request of the complainant, a sum of Rs.14,70,155/-, deposited by her, in the month of November 2012, was refunded to her, vide cheque, which was encashed, by her, in the same month itself. At the time of getting the refund, in November 2012, no protest or demur was raised by the complainant, that she was also entitled to interest. The complainant did not write any letter, immediately, to the Opposite Party, that she was also entitled to interest, on the amount deposited, which had been refunded to her, but the same had not been paid to her, and she reserved her right to resort to a legal remedy, which may be available to her, for claiming the same. Once, the refund of Rs.14,70,155/-, deposited by the complainant, was made to her, on her request, and she accepted the same without any protest or demur, it could be said that the same was in full and final settlement of the claim. After accepting the refund of amount aforesaid, without any protest or demur, later on, the complainant could not claim interest.
11. It was, for the first time, that, on 21.01.2013, when the Consumer Complaint was filed by the complainant, that she claimed interest. Under these circumstances, the findings of the District Forum that the complainant was not entitled to interest, once she accepted the amount of Rs.14,70,155/-, without any protest or demur, in full and final settlement of the claim, being correct, are affirmed. In Jagjit Singh Versus HUDA and another, III (2012) CPJ 659 (NC), the National Consumer Disputes Redressal Commission, New Delhi, held that if the complainant had accepted the amount, without raising any protest or demur, he could not claim interest etc. later on. It was further held by the National Consumer Disputes Redressal Commission, New Delhi, in the aforesaid case that after the surrender of plot, and getting refund of the deposited amount, the complainant did not remain a consumer. The District Forum was, thus, right in holding that after the receipt of the refunded amount, the complainant did not remain a consumer, and was also not entitled to any interest. The District Forum was also right, in holding that the Opposite Party was neither deficient, in rendering service, nor indulged into unfair trade practice. The order of the District Forum, being legal and valid, is liable to be upheld.
12. No other point, was urged, by the Counsel for the appellant.
13. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
14. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
15. Certified copies of this order, be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion.