Naresh Kumar & Anr vs Brahma City Pvt. Ltd

A. P. Sahi, President Member

Heard learned counsel for the complainants and the learned counsel for the opposite party.

This complaint has been filed praying for refund of the entire amount paid by the complainants as consideration towards the purchase of a residential plot of approximately 300 sq. yds. at project “Brahma City” Gurgaon. A sum of approximately Rs.1,25,00,000/- and odd was paid as consideration amount, the possession whereof was heavily delayed. The booking was done in the year 2012 and the builder buyer agreement was entered on 20.03.2013, with a clear stipulation that the same was to be delivered within 36 months from the date of the execution of the agreement, subject to timely payment of instalments.

The plot according to the complainants was to be delivered by 2016. In the absence of the delivery of possession, the complainants sought refund and the complainants sent mails to the opposite party. One of the mails dated 31.07.2016 is annexure C-6 to the complaint.

According to the complainants no response was shown and since the original complainant no. 1 was suffering from a certain terminal disease, he indicated in his request that it would not be possible for him to further continue with the booking as the waiting period had extended too long. It was further indicated by the complainant no. 1 that he was in need of money on account of his ailment and hence the amount may be refunded.

The complainants, who are the heirs of the original allottee  have come up with a case that on 19.12.2017, a mail was received from the opposite party, virtually compelling the complainants to surrender to the terms of the opposite party in order to receive the refund of their amount, which was the principal amount, without any further claim of any interest or any other amount, on the basis of their request for cancellation of the original allotment. Both these documents of settlement and the request for cancellation by the complainants are appended as annexure C-9.

Learned counsel for the complainants submits that immediately, thereafter, the complainants registered their protest with regard to payment of interest also on the said amount but having not received any response, the present complaint was filed seeking the relief of interest on the principal amount as also some additional compensation for harassment.

During the pendency of the complaint, the complainant no. 1 died and has been substituted by his heirs including the complainant no. 2, who is also on record.

Learned counsel submits that the complainants had been virtually coerced to sign on the document of settlement and make an offer of cancellation. They had no option but to accede to the request of the opposite party and sign on the dotted lines. Thus, this was an unfair trade practice on the part of the opposite party and hence the complainants are entitled to the interest on the amount refunded as the money stood retained and utilized by the opposite party that was paid between 2012 to 2014. The contention therefore is plainly to the effect that the compelling circumstances, which were an outcome of coercion led to an unfair settlement, denying interest to the complainants.

Learned counsel has invited the attention of the Bench to a couple of orders to indicate that the opposite party has paid interest on similar cases of refund. The first order is in RERA proceedings and the second order is of a settlement before the NCLT, Delhi.

The sum and substance of the contention is that the opposite party was under an obligation to make payment of interest as the project was not complete within time and it was on account of the delay caused by the opposite party that the complainant was compelled in the circumstances of his failing health to accept the refund. Accordingly, it is prayed that the complaint for the claim of interest as well as the compensation deserves to be allowed.

He has further indicated that the judgments cited by the learned counsel for the opposite party do not come to his aid and consequently, the opposite party has to indemnify the complainants.

Learned counsel for the opposite party urged that once the settlement foregoing all claims had been voluntarily and consciously given effect to on 20.12.2012, the same cannot be rescinded or be ignored. The submission of the learned counsel for the opposite party is that the claim had been settled with six post dated cheques starting from 20.12.2017 to 20.05.2018 and the complainants encashed all these cheques  without any demur  and after encashing the cheques, the complainants turned around and have filed the complaint demanding interest. The contention is that having voluntarily requested the cancellation, which was accepted by the opposite party, followed by the settlement and encashment of the cheques, there hardly remains anything surviving to be adjudicated upon as both the parties are bound by the same. He has cited the orders passed by this Commission in the case of “M.L. Spinners Pvt. Ltd. v. United India, 2013 SCC OnLine NCDRC 1110”,  and in the case of “Smt. Kanta Mathur Versu National Insurance Company Limited, 2014 SCC OnLine NCDRC 916”  as well as the judgment of the Apex Court in the case of “Bhagwati Prasad Pawan Kumar v. Union of India, (2006) 5 SCC 311”. Heavy reliance has been placed on paragraph 18 of the said judgment, which is extracted hereinunder:-

“18. Section 8 of the Contract Act provides for acceptance by performing conditions of a proposal. In the instant case, the Railways made an offer to the appellant laying down the condition 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 different 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.”

It is then submitted that the theory of coercion, which has been introduced afresh through this complaint in paragraph 8 thereof has been categorically denied in paragraph 8 of the written version and there is no evidence to substantiate any element of threat, coercion or undue influence or even mis representation so as to warrant any inference against the opposite party. It is urged that in the absence of any such evidence, this bald plea of coercion cannot be a ground to allow the complaint. He further submits that once a settlement has been arrived at, such cases have to be excluded, as was observed by the Apex Court in the case of “Wing Commander Arifur Rahman Khan & Ors. v. DLF Southern Homes (P) Ltd., (2020) 16 SCC 512”, in paragraph 42 which is extracted herein under:

“42. However, the cases of the eleven purchasers who entered into specific settlement deeds with the developers have to be segregated. In the case of these eleven persons, we are of the view that it would be appropriate if their cases are excluded from the purview of the present order. These eleven flat purchasers having entered into specific deeds of settlement, it would be only appropriate and proper if they are held down to the terms of the bargain. We are not inclined to accept the contention of the learned counsel of the appellants, Mr. Prashant Bhushan, that the settlement deeds were executed under coercion or undue influence since no specific material has been produced on record to demonstrate the same.”

He then submitted that coercion cannot be established by a bald allegations and he has referred to the ratio on this principle that was adopted by the Apex Court in “New India Assurance Company Ltd. Vs. Genus Power Infrastructure Limited, (2015) 2 SCC 424”, to urge that no such element is available to prima facie establish the said allegation.

Having heard learned counsel for the parties, the settlement and its signing had not been disputed, rather a plea of coercion has been set up which on the basis of the pleadings has not been substantiated even on a prima facie basis. The compulsion of the complainants to withdraw from the contract was personal to them vis-à-vis the ailment of the original complainant no. 1. The opposite party seems to have accepted the cancellation offer but there is nothing on record to indicate that the opposite party had initiated or compelled the complainants to enter into any settlement. The element of any threat, coercion or undue influence or any other extraneous factor has not been established so as to draw an inference that the settlement was a result of any coercion. This argument on the part of the complainant, therefore cannot be accepted in the background that all the cheques under the settlement were encashed by the complainants without any demur. The judgments relied on by the learned counsel for the opposite party extracted hereinabove and the ratio thereof squarely apply on the facts of the present case.

This Commission has also reflected on the aforesaid principle of law in the case of “M/s. Bimal Textiles Panipat Vs. United India Insurance Co. Ltd. & Anr., FA/77/2013, decided on 17.10.2023”. The reliefs prayed for therefore cannot be granted and the same are declined. Accordingly, the complaint stands dismissed.