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Judgment
M. Shreesha, J
Aggrieved by the Order dated 05.09.2016 in Miscellaneous Application No. 576/2016 in CC/413/2015 passed by the West Bengal State Consumer Disputes Redressal Commission, (for short "the State Commission."), the Complainants preferred this First Appeal under Section 19 of the Consumer Protection Act, 1986 (for short the "Act").
By the impugned order, the State Commission while dismissing the Complaint on the ground that the Complainants are not "Consumers" and, therefore, the Complaint is not maintainable, has observed as follows:-
"We have considered the rival contention of the parties. On a plain reading of the petition of complaint, we find that the complainants did not mention anywhere in the petition of complaint about acceptance of the amount of Rs.6,00,000/- by way of two cheques on two different dates on 09.03.2012 and 11.03.2012 respectively. The OPs/developers in their written version has categorically mentioned that those cheques were issued from the account of another company named M/s. United Construction. It is quite improbable that all on a sudden a huge amount will be credited in the account of a person without knowledge of that person and after such credit, the said person will not take any step to ascertain about it. The complainants did not return those cheques to the drawer and as such the facts and circumstances indicate that the cheques were received by him with full knowledge and encahsed it. In this regard, the decision of the National Consumer Commission reported in 2014 (3) CPR 76 (Meerut Development Authority - Vs. - Smt. Manju Gupta) is relevant where it has been held that once Respondent had claimed the refund amount, then she ceased to be a consumer. In the case before hand, it is abundantly clear that two cheques bearing cheque nos. 830769 dated 09.03.2012 and cheque no.830780 dated 11.04.2012 amounting to Rs.3,00,000/- each had been refunded by the OPs and the complainants have duly received the same. After getting refund of the said amount in the year 2012, the complainants have lodged the instant complaint on 28.10.2015 and in the petition of complaint nowhere it has been averred that the OPs/developer have refunded Rs.6,00,000/- out of Rs.9,80,000/- deposited as part consideration amount. In a decision reported in (1994)1 S.C.C. 1 (S.P. Chengalvaraya Naidu (Dead) & Ors. - Vs. - Jagannath (Dead) & Ors.) the Hon'ble Supreme Court has observed that one who does not come to Court with clean hands and withholds vital documents in order to get advantage on other side, he would be guilty of playing fraud and has no right to approach the Court. Perhaps, complainants have done so being frustrated about the institution of a suit by a person claiming to be owner of the property against the developer being T.S. no.108/2009 pending before the Ld. 5th Civil Judge (Senior Division) at Alipore.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties and relying upon the materials on record, we have no hesitation to hold that once the claimant had accepted and encashed the cheques issued on behalf of the developer, the complainants ceased to be 'consumer' within the definition of Section 2(1)(d) of the Act.
For the reasons aforesaid, the MA/576/2016 is, thus, allowed on contest. Considering the facts and circumstances, however, there will be no order as to costs.
Consequently, the consumer complaint no.CC/413/2015 is dismissed being not maintainable.
The OPs/developers are directed to make payment of balance amount of Rs.3,80,000/- to the complainants within three months from date otherwise the complainants may seek redressal of their grievances before the appropriate Court/Forum in accordance with the law and for the purpose of computation of limitation, they may take help of the observations made by the Hon'ble Supreme Court of India reported in 1995 (3) S.C.C. 583 (Laxmi Engineering Works - Vs. - P.S.G. Industrial Institute).
Learned Counsel for the Appellants has contended that the State Commission has erred in dismissing the main Complaint while dealing with the Miscellaneous Application without going into the merits of the case. Having regard to the submission of the Learned Counsel for the Appellants that out of the total consideration of Rs. 24,40,000/-, the Complainants paid an amount of Rs. 9,80,000/- on different dates by cheque and cash and the possession of the flat was agreed to be delivered on or before 01.02.2011, but the flat was not delivered till date and, therefore, a letter dated 01.04.2015 was addressed to the Developers to deliver the possession and execute the Sale Deed on receipt of the balance consideration of Rs. 14,60,000/-, but Developers replied vide letter dated 22.04.2015 expressing their inability to deliver possession on the ground that there was an injunction passed by the Learned Civil Judge (Senior Division), 5th court at Alipore; that the Appellants had denied and disputed the contents of the letter dated 24.04.2015 vide their reply letter dated 19.05.2015 and having no other alternative filed the Consumer Complaint bearing No. 413 of 2015.
The State Commission has observed that the Appellants/Complainants had come with unclean hands as they did not reveal that an amount of Rs. 6,00,000/- out of the total paid amount of Rs. 9,80,000/- was refunded to them and also that there was a Suit bearing No. T.S. 108 of 2009 pending before the Learned 5th Civil Judge (Senior Division) at Alipore and has directed the Developers to pay the balance amount of Rs. 3,80,000/-.
We find force in the contention of the Learned Counsel for the Appellants that in the Miscellaneous Application the State Commission had taken into consideration the alleged payments by M/s United Construction which was not a party to the case and that no receipt of any payment by Progressive Developers through United Construction was submitted in support of their claim and also that the State Commission has not taken into consideration, if the amounts were voluntarily accepted or not.
We are of the considered view that the State Commission without dismissing the Complainant along with the Miscellaneous Application ought to have disposed of the main Complaint on merits giving an opportunity to both the sides to adduce their evidence. As the State Commission itself had given a finding that the Developers is still to make payment of balance consideration of Rs. 3,80,000/- and there was an observation that a specific amount was still lying with the Developers, the finding of the State Commission is set aside and the matter is remanded back to the State Commission to decide the Complaint on merits after giving both the sides an opportunity to adduce their respective evidence. It is clarified that we have not expressed any view on the merits of the case. Both parties are directed to appear before the State Commission on 29.04.2019. The State Commission is directed to dispose of the matter as expeditiously as practicable but not later than six months from the date of first appearance i.e. 29.04.2019.